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What are the mandates of the Office of the Public Protector and the National Director of Public Prosecutions?
The Public Protector investigates conduct in state affairs and public administration for improprieties and corruption, while the National Director of Public Prosecutions has the power to institute criminal proceedings on behalf of the state.
The Office of the Public Protector and the National Director of Public Prosecutions fall within the legislative branch of the state.
False
What is the status of the recommendations made by the Public Protector?
The recommendations made by the Public Protector are binding and enforceable unless they are reviewed in a court of law.
What is the status of decisions made by the National Prosecuting Authority?
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Which court case involved the distinction between the Office of the Public Protector and the National Director of Public Prosecutions?
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What are the elements of the rule of law?
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How was the rule of law violated in the case of Southern Africa Litigation Centre v Minister of Justice and Constitutional Development?
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What was the decision of the national executive regarding the Rome Statute?
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When did South Africa sign the Rome Statute?
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What was the name of the legislation promulgated in South Africa regarding the Rome Statute?
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The Court found the government’s withdrawal from the Rome Statute unconstitutional.
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What does the separation of powers doctrine involve?
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In which case was the concept of judicial overreach highlighted?
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What is the primary role of the legislature in the separation of powers?
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What are the main components of the South African government structure?
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What constitutes a co-operative or multi-level government in South Africa?
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Courts in South Africa have unlimited power to intervene in legislative matters.
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What happens when there is a conflict between Schedule 4 and Schedule 5 in South Africa?
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A concept of great significance in the field of law is the concept 'fit and proper'.
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The Judicial Service Commission (JSC) is responsible for judicial authority in South Africa.
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South Africa has a constituency-based electoral system.
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The President of the Republic of South Africa can be removed by a ruling political party.
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Judicial independence allows judges to be influenced by outside political pressure.
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A privilege of Members of Parliament is that they can speak without fear of judicial review.
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Magistrates’ courts have the power to declare the conduct of the President unconstitutional.
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The rule of law invites uncertainty and unpredictability.
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Constitutional recognition of customary law means it enjoys equal recognition as a source of law.
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Judicial overreach refers to the separation of powers doctrine being violated.
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What is the role of the Public Protector in South Africa?
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Explain the concept of parliamentary privilege.
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What power does the President of South Africa have regarding cabinet appointments?
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What is the significance of the term 'counter-majoritarian dilemma'?
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The two branches of government primarily involved in law-making are the legislative and the ______.
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Which of the following statements about the President's powers is true?
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Which of the following is NOT a factor that contributed to the emergence of the Union of South Africa in 1910?
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The Glen Grey Act of 1894 is significant because it:
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Which of the following best describes the nature of pre-colonial governance structures in South Africa?
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The British government had no role in the formation of the Union of South Africa.
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The South African Constitution of 1996 fully abolished all forms of traditional governance structures.
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The Union Constitution granted voting rights to all men in South Africa.
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The Orange Free State Constitution of 1854 included a justiciable Bill of Rights.
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The 'peaceful annexation' of land by the colonial powers was a justifiable and accurate historical account.
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The historical context of South Africa has no bearing on the interpretation of the Constitution.
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The South African Constitution is a living document that is subject to interpretation and reinterpretation.
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What was the significance of the Anglo-Boer War in the development of South Africa's constitutional history?
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Explain the concept of a 'bifurcated state' as it applied to South Africa during the pre-apartheid period.
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What were the key features of the governance structures of the Zulu Kingdom under King Shaka?
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Describe the role of the 'Governor-General' in the colonial governance structures of the Cape and Natal colonies.
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Why is it important to consider the social, economic, and political realities of South Africa when interpreting the Constitution?
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What is the 'transformative nature' of the South African Constitution?
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Explain the concept of 'legal pluralism' in the context of South Africa's legal and social history.
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What is the significance of the Constitutional Court's decision in S v Zuma and Others (1995)?
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The __________, a system of racial segregation and discrimination, was a consequence of the __________ created during the pre-Union period.
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The __________, adopted by the British colonies in South Africa, gave the __________ significant power over legislation.
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Study Notes
True/False Questions
- Fit and Proper: The concept of 'fit and proper' is crucial in Constitutional Law. Attorneys, advocates, and judges must meet this requirement.
- Judicial Removal: The President can't remove a judge directly. The Judicial Service Commission (JSC) must find the judge guilty of misconduct before the President can act.
- South African Constitutionalism: South African Constitutionalism is more than descriptive and normative. It is also procedural, substantive, and transformative.
- Judicial Authority: In South Africa, judicial authority is vested in the courts, not the Judicial Service Commission.
- Electoral System: South Africa has a mixed electoral system, not just constituency-based.
- Public Protector Mandate: The Public Protector can't investigate the constitutionality of court decisions or amend Constitutional provisions; this is outside their mandate.
- International Law in South Africa: International law is a persuasive source of constitutional law in South Africa, though it isn't a "self-evident" center.
- Section 75/76 Bill Designation: The "substantial measure" test (not "pith and substance") decides whether a Bill is section 75 (not affecting provinces) or 76 (affecting provinces).
- President Recall: The Constitution does not allow a ruling party to recall the President.
- Parliamentary Privileges: Parliamentary privileges are subject to judicial review under the Constitution, meaning courts can scrutinize them.
- Decolonisation and Africanisation: Concepts like Ubuntu, lekgotla, and indaba can assist in decolonising and Africanising Constitutional Law.
- Dominant Party & Independent Institutions: Dominant party democracies can have the issue of political parties influencing independent institutions, however, the Independent Electoral Commission in South Africa strives for independence.
- Counter-Majoritarian Dilemma: The dilemma arises not from opposition parties opposing the majority, but rather from the tension between the majority's will and the protection of individual rights by the courts.
- Chief Justice Appointment: The President must consult the Judicial Service Commission (JSC) and the leaders of political parties in the National Assembly for the appointment of the Chief Justice.
- Spheres vs. Levels of Government: Spheres (national, provincial, and local) and Levels (executive, legislative, and judicial) of government are distinct concepts.
- President's Evidence in Court: The President can be called to provide evidence in court if it's relevant.
- Constitutional Citation: According to the Citation of Constitutional Laws Act 5 of 2005, the Constitution should be cited as "Constitution of the Republic of South Africa, 1996".
- Interference in Judicial Independence: A judge attempting to influence another judge by arguing that finding a politician guilty would harm democracy is an intrusion on judicial independence.
- Presidential Veto Power: The President can't veto legislation merely because they oppose it, they can only do so when the legislation violates the Constitution.
- Doctors for Life Case: The court ruled that it could intervene in the legislative process to enforce public involvement and prevent harm before it's complete.
- **Magistrates’ Courts: ** Magistrates’ courts do not have the power to declare the President’s conduct unconstitutional.
Section B
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Public Protector vs. National Director of Public Prosecutions
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Mandates:
- Public Protector investigates improper state conduct.
- National Director of Public Prosecutions (NDPP) prosecutes crimes on behalf of the state.
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Branches of Government:
- The Public Protector is part of the executive branch.
- The NDPP is also part of the executive branch.
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Recommendations:
- Public Protector's recommendations are not binding.
- NDPP’s recommendations are also non-binding.
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Mandates:
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Constitutional Court Cases
- Similarities: The cases all involve Parliament's duty to facilitate public participation in lawmaking.
- Differences:
- Mazibuko v Sisulu: The court held that Parliament could not unreasonably delay a vote on the President's address to the nation.
- Economic Freedom Fighters v Speaker: The court held that Parliament's failure to process a motion of no confidence in the President constituted a breach of its constitutional duties.
- United Democratic Movement v Speaker: The court ruled that Parliament's inaction on a motion for the removal of the President violated its constitutional obligations.
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Presidential Cabinet Reshuffle Power
- President can reshuffle cabinet based on Section 91 of the Constitution.
- Limits to the President's Power are not explicitly stated in the Constitution.
- The President must consider the implications of reshuffling the Cabinet when making decisions, according to the case law.
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Rule of Law
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Elements of the Rule of Law:
- Supremacy of the Constitution.
- Equality before the law.
- Accountability, including transparency and responsiveness.
- Violation of the Rule of Law in Southern Africa Litigation Centre v Minister of Justice: The court found that the Minister's failure to act on a court order was a violation of the rule of law.
- Violation of the Rule of Law in Democratic Alliance v Minister of International Relations: The court concluded that the Minister’s decision to withdraw from the International Criminal Court was inconsistent with South Africa’s constitutional commitments.
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Elements of the Rule of Law:
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Separation of Powers vs. Cooperative Government
- Separation of Powers: Divides government power among the executive, legislature, and judiciary to ensure checks and balances.
- Co-operative Government: Promotes co-operation and coordination between different spheres of government, ensuring all spheres are accountable to each other.
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City of Tshwane Case: The court's decision in this case is viewed by some as an example of “judicial overreach”. The court set aside municipal regulations and ordered the municipality to provide free basic water and sanitation services.
- This ruling is seen by some as an example of judicial overreach because some believe it is a clear example of the courts stepping into the executive branch.
- Critics argue that the judiciary infringed on the executive's legislative authority.
- This highlights the ongoing tension between separation of powers and co-operative government in South Africa.
Branches of Government in South Africa
- National Prosecuting Authority and Public Protector are independent institutions.
- The National Prosecuting Authority's decisions are final and binding unless representations are made.
- Public Protector's recommendations are binding and enforceable unless reviewed in a court of law.
Cases and the Separation of Powers
- The Constitutional Court has considered the role of the National Assembly in holding the executive accountable in cases such as:
- Mazibuko v Sisulu
- Economic Freedom Fighters v Speaker of the National Assembly
- United Democratic Movement v Speaker of the National Assembly
- These cases highlight the importance of the separation of powers doctrine.
- The cases also demonstrate the National Assembly's autonomy to determine its own internal arrangements and procedures.
Presidential Power and the Cabinet
- The President has the exclusive right to appoint and dismiss members of the Cabinet.
- Presidential conduct is reviewable for constitutionality.
- The principle of legality requires rationality in decision-making.
- The President must exercise some functions, such as Cabinet reshuffles, "together with the other members of the Cabinet".
The Rule of Law
- The rule of law principles include:
- Government acting in terms of pre-announced rules.
- Independent and impartial institutions enforcing the law.
- No arbitrary deprivation of rights.
- Everyone is subject to the law.
- State actions must be lawful.
- The rule of law was violated in the cases of:
- Southern Africa Litigation Centre v Minister of Justice and Constitutional Development.
- Democratic Alliance v Minister of International Relations and Cooperation.
Separation of Powers vs. Co-operative Government
- The separation of powers doctrine refers to the distinct roles of different branches of government, such as the legislature, executive, and judiciary, to ensure checks and balances.
- Co-operative government refers to the multi-level system where national, provincial, and local governments share power and collaborate.
- The Afriforum v Tshwane Municipality case illustrates the relationship between these concepts. The case involved the Tshwane Municipality (local sphere of government) changing street names and the name of Pretoria.
Judicial Review
- Any party can seek judicial review of executive and legislative decisions, even if it involves a provincial or local sphere.
- The Court recognized that judicial review falls under the Municipality's competence.
Separation of Powers
- The separation of powers doctrine divides state authority between the legislative, executive, and judicial branches.
- Each branch has defined roles that should not be usurped by another.
- The legislature makes, amends, and repeals legislation.
- The executive implements legislation.
- The judiciary adjudicates disputes regarding legislation implementation and resolves constitutional validity questions.
- South Africa has a "unique and evolving" separation of powers model according to the case of de Lange v Smuts.
- Courts have a "testing power" to ensure all laws and conduct comply with the Constitution.
- If laws or conduct violate the Constitution, the court must declare them invalid.
- This power stems from Section 172 of the Constitution and the people's choice to grant this power to the courts.
- Despite the flexible conception of this doctrine, courts recognize their limits and avoid encroaching on legislative or executive domains.
- Courts can declare laws or conduct invalid even if it leads to the counter-majoritarian dilemma.
Judicial Overreach
- The case of Economic Freedom Fighters v Speaker of the National Assembly (2017) used the term "textbook case of judicial overreach" when the court intervened in Parliament's exclusive domain.
Co-operative Governance
- South Africa is a quasi-federal state with devolution of power, meaning each sphere (national, provincial, local) has a legislature, executive, and judiciary.
- This system is known as co-operative or multi-level government.
- The Constitution requires cooperation between spheres.
- If a local sphere cannot perform a function, the provincial or national sphere can intervene due to their supervisory role.
- Procedures exist within the Constitution for inter-sphere cooperation.
- Schedule 4 conflicts are addressed through Section 146 of the Constitution.
- Schedule 5 conflicts are addressed through Section 147 and Section 44(2) of the Constitution.
Union of South Africa (1910)
- The Union of South Africa was formed after the defeat of the Boer Republics in the Anglo-Boer War.
- British policy granting self-rule to white colonists played a role.
- The desire to manage diamond and gold mines was a significant factor.
- Black South Africans were excluded from the negotiation process.
Glen Grey Act (1894)
- Marked a significant step towards apartheid policies.
- Introduced the concept of "native reserves" and territorial segregation.
Pre-Colonial Governance Structures
- Diverse and decentralized, often centered around the concept of chiefdoms.
Anglo-Boer War
- The war brought the Boer Republics under British control.
- Set the stage for the formation of the Union of South Africa.
Bifurcated State
- Separate legal and political systems were created for white settlers and black Africans in South Africa during the pre-apartheid period.
Zulu Kingdom under King Shaka
- King Shaka centralized power, weakening traditional kinship ties and strengthening his military authority.
Governor-General in Colonial Governance
- Represented the British Crown.
- Had the power to approve or veto legislation passed by the colonial legislatures.
South African Constitution (1996)
- Acknowledges traditional leaders but subjects their powers to its provisions.
- Considered a living document that is subject to interpretation and reinterpretation.
- Aims to dismantle the legacy of apartheid and establish a more just and equitable society.
Transformative Nature of the Constitution
- It seeks to dismantle the legacy of apartheid and establish a more just and equitable society.
Legal Pluralism
- Refers to the coexistence of different legal systems within a single society.
- Customary law and common law coexist in South Africa.
S v Zuma and Others (1995)
- Constitutional Court decision demonstrated its commitment to interpreting the Constitution in a way that addressed the legacy of apartheid.
Apartheid
- A system of racial segregation and discrimination.
- A consequence of the bifurcated state.
Westminster System
- Adopted by the British colonies in South Africa.
- Gave the Governor-General significant power over legislation.
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Description
Test your knowledge on South African Constitutional Law with this True/False quiz. Evaluate your understanding of key concepts such as the 'fit and proper' requirement, judicial authority, and the Public Protector's mandate. Challenge yourself to differentiate between fact and misconception in the realm of constitutionalism.
