The 1993 Constitution established the term “organ of state” as a constitutional concept, defining it as “any statutory body or functionary.” In their interpretations of this concept, courts and academic writers relied on common law standards to ascertain its meaning. On the one hand, the commentators utilized a range of tests. The courts, on the other hand, followed what became known as the “control test.” Following that, the 1996 Constitution included a comprehensive description of ‘organ of state.’ This concept is also used in other statutes through direct reference or inclusion of the term in section 239 with minor modifications. Regrettably, the court’s narrow approach to interpreting the idea of ‘organ of state’ for the purposes of the 1993 Constitution has spilled over to the interpretation of the concept under the 1996 Constitution. The question is whether or not this is justified. The constitutional definition of ‘organ of state’ makes it apparent that other institutions and functionaries are organs of state for what they are and for the functions they perform. As a result, rigid adherence to the control test or any other criteria could unjustifiably limit the Constitution’s application.
What are South Africa’s three state organs?
That is, the state’s power is split among three distinct but interrelated components or arms, notably the executive (Cabinet), the legislature (Parliament), and the judiciary (Courts of law).
Is a school a state organ?
It is reasonable to conclude that, because the public school is a “instrument of state,” the governing body serves as its functionary in carrying out its duties under the Schools Act.
Why is school referred described as a state organ?
All public schools are also ‘organs of state,’ in the sense that they are functionaries/institutions that exercise public powers and execute public responsibilities under legislation.
Is the Constitutional Court a governmental organ?
Certain provisions of the Interim Constitution, such as Section 4(2), suggest that courts are state organs.
