Constitutional Supremacy in South Africa
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Questions and Answers

What happens to members of the National Assembly who are absent for more than 15 days?

  • They are granted a leave of absence
  • They are automatically removed from the NA
  • They automatically lose their seat in the NA (correct)
  • They are given a warning

    • Who is responsible for presiding over meetings and debates in the National Assembly?

  • The Prime Minister of South Africa
  • The Deputy Speaker of the National Assembly
  • The Speaker of the National Assembly (correct)
  • The President of South Africa

    • What is the primary function of the National Assembly?

  • To represent the interests of political parties
  • To pass judgement on the conduct of the President
  • To ensure government by the people under the Constitution (correct)
  • To appoint the President of South Africa

    • What provision of the Constitution guides the election of the President?

    <p>Section 42(3) of the Constitution</p> Signup and view all the answers

    What is the National Forum?

    <p>A forum for public consideration of issues</p> Signup and view all the answers

    What is the role of the National Assembly in passing legislation?

    <p>To consider, pass, amend or reject legislation</p> Signup and view all the answers

    Who is the current Speaker of the National Assembly?

    <p>Thandi Modise</p> Signup and view all the answers

    What is the relationship between the supremacy of the Constitution and the rule of law?

    <p>The supremacy of the Constitution is linked to the rule of law</p> Signup and view all the answers

    What is the significance of the role of the President in South Africa?

    <p>The President is head of state and national executive</p> Signup and view all the answers

    What is the primary role of the courts in relation to the Bill of Rights?

    <p>To hold state conduct and law against the standards in the Bill of Rights</p> Signup and view all the answers

    What is the role of the Bill of Rights in the South African Constitution?

    <p>It is a set of standards against which state conduct and law are measured</p> Signup and view all the answers

    What is the nature of the separation of powers in the South African Constitution?

    <p>It is implicit and dynamic, with distinct chapters for legislative, executive, and judicial authority</p> Signup and view all the answers

    What is the meaning of 'substantive rule of law' in the context of the German Rechtstaat concept?

    <p>A system of accountability, responsiveness, openness, and value-based constitutionalism</p> Signup and view all the answers

    What is the significance of Section 1 and 2 of the Constitution?

    <p>They list the values that underlie constitutional supremacy</p> Signup and view all the answers

    What is the role of the courts in relation to the separation of powers?

    <p>They have the power to review and declare invalid laws that violate the Constitution</p> Signup and view all the answers

    What is the relationship between the separation of powers and the Constitution?

    <p>The Constitution vests legislative, executive, and judicial authority in distinct bodies</p> Signup and view all the answers

    What was the primary limitation of the 1910 Union Constitution?

    <p>It did not provide for substantive judicial review.</p> Signup and view all the answers

    What was the central principle of the 1950s Constitutional Crisis?

    <p>The limitation of procedural judicial review.</p> Signup and view all the answers

    What was the significance of the Harris Cases?

    <p>They challenged the procedural review of the Appellate Division.</p> Signup and view all the answers

    What was the significance of the Freedom Charter?

    <p>It was a document that embodied the social state principle.</p> Signup and view all the answers

    What was the main feature of the 1961 'Republic' Constitution?

    <p>It gave the executive increased power and limited judicial review.</p> Signup and view all the answers

    What was the significance of the 1983 Tricameral Constitution?

    <p>It was a token of inclusivity to the international community.</p> Signup and view all the answers

    What was the primary goal of the political negotiations of the early 1990s?

    <p>To reach consensus on the features of constitutionalism.</p> Signup and view all the answers

    What was the significance of the interim and final constitutions?

    <p>They demonstrated the strength of judicial review in the new conception of constitutionalism.</p> Signup and view all the answers

    What was the primary limitation of the procedural review of the Appellate Division?

    <p>It was limited to reviewing the procedural correctness of the law.</p> Signup and view all the answers

    What was the significance of the repugnancy clause?

    <p>It was a provision that ensured that the laws of the Union were supreme.</p> Signup and view all the answers

    What is the primary purpose of the NCOP in the South African parliament?

    <p>To represent provincial and local interests at a national level</p> Signup and view all the answers

    How do provincial delegations cast their votes in the NCOP?

    <p>By the head of the delegation, under the instruction of the provincial legislature</p> Signup and view all the answers

    What is the minimum number of votes required for a decision to be agreed upon in the NCOP?

    <p>5 votes</p> Signup and view all the answers

    What is the main challenge faced by NCOP delegations in practice?

    <p>Poor communication, little interest, and insufficient knowledge</p> Signup and view all the answers

    How is local government represented in the NCOP?

    <p>Through the SA Local Government Association (SALGA)</p> Signup and view all the answers

    What is the role of the Chairperson and Deputy Chairpersons in the NCOP?

    <p>To facilitate the proceedings and ensure the smooth functioning of the NCOP</p> Signup and view all the answers

    What is the purpose of parliamentary committees in the South African parliament?

    <p>To allow for more thorough debate and scrutiny of issues</p> Signup and view all the answers

    How do cabinet members and deputy ministers participate in the NCOP?

    <p>They may attend and speak in the NCOP, but may not vote</p> Signup and view all the answers

    What is the significance of the Manda琀椀ng Procedures Act 52 of 2008?

    <p>It provides a uniform procedure for provincial legislatures to give their delegations the authority to pass votes on their behalf</p> Signup and view all the answers

    What is the general perception of the NCOP compared to the NA?

    <p>It is seen as less powerful and less influential</p> Signup and view all the answers

    What is the significance of having a minority party take the chair in committees?

    <p>To make the committees more aggressive and forceful in holding the executive accountable</p> Signup and view all the answers

    What is the role of Parliament in a given situation?

    <p>To hold the executive accountable and oversee its actions</p> Signup and view all the answers

    What was the outcome of the Mazibuko v Sisulu case?

    <p>The rules of the NA were declared invalid</p> Signup and view all the answers

    What is the power of Parliament according to the Constitution?

    <p>To make its own rules and orders</p> Signup and view all the answers

    What is the purpose of the rules and orders of Parliament?

    <p>To ensure representative and participatory democracy, accountability, transparency, and public involvement</p> Signup and view all the answers

    What was the issue in the Mazibuko v Sisulu case?

    <p>The programme committee did not reach a consensus on the motion of no confidence</p> Signup and view all the answers

    What is the role of the courts in relation to Parliament?

    <p>To interpret the Constitution and ensure that Parliament's actions are in line with it</p> Signup and view all the answers

    What is the significance of section 57 and 70 of the Constitution?

    <p>They provide for the internal arrangements and proceedings of Parliament</p> Signup and view all the answers

    What is the purpose of the joint rules of Parliament?

    <p>To provide for the joint business of both houses</p> Signup and view all the answers

    What is the result of rules or orders that clash with the Constitution?

    <p>They are invalid and cannot be enforced</p> Signup and view all the answers

    Study Notes

    Constitutional Supremacy

    • Section 1 and 2 of the Constitution
      • Section 1 lists values that underlie constitutional supremacy, founded on the supremacy of the Constitution and the rule of law
      • Section 2 reiterates that the Constitution is the supreme law of South Africa

    Substantive Rule of Law (Rechtstaat)

    • Rule of law is a founding value of South Africa
    • Linked with the values listed in Section 1 of the Constitution
    • Accountability, responsiveness, openness, and value-based constitutionalism are central to the German Rechtstaat concept

    Bill of Rights and Substantive Judicial Review

    • Sections 6 and 7 of the Bill of Rights are the first sections in the Bill of Rights
    • Courts are responsible for holding state conduct and law against the standards in the Bill of Rights
    • All organs of state are bound by the Bill of Rights
    • The Bill of Rights is capable of being adjudicated - courts determine whether challenged laws/conduct live up to the standards of the Bill of Rights

    Separation of Powers

    • Not explicitly stated in the South African Constitution, but rather structured to embody a separation of powers
    • Implicit and dynamic, with chapters for legislative, executive, and judicial authority
    • Constitution vests legislative, executive, and judicial authority in distinct bodies (Nationally: Parliament, the President, and the Courts)

    1950s Constitutional Crisis

    • Under the Union Constitution and stratification of racial citizenship rights
    • The crisis illustrates the limits of a parliamentary sovereign system subject only to procedural judicial review
    • Substantive judicial review is needed to ensure just and fair laws

    Procedural vs Substantive Judicial Review

    • Procedural review only checks if the correct process was followed, whereas substantive review checks the fairness and justice of the law
    • South Africa adopted procedural review only, paving the way for apartheid legislation

    Freedom Charter (1952)

    • Principles of constitutionalism organized around the momentum of the liberation struggle
    • Adopted in 1953, it was ahead of its time and embodied the social state principle
    • Represented a rights-based approach, including socio-economic rights

    1961 "Republic" Constitution

    • Not influenced by the Freedom Charter
    • SA became a republic under the National Party in 1961
    • The new Constitution adopted to rid SA of colonial UK power
    • The Constitution has all the harsh aspects of the 1910 Constitution
    • Hard separation of powers, with absolute parliamentary sovereignty

    1983 Tricameral Constitution

    • Main political intent to give the executive leadership more power (apartheid)
    • It collapsed the distinction between the symbolic head of state and the head of the executive
    • Strict separation of powers, with the executive becoming a much more powerful branch
    • Stricter stratification of citizenship, with Africans completely sidelined from the constitutional system

    Political Negotiations of the Early 1990s

    • Reaching consensus on the features of constitutionalism forming part of the interim and final Constitutions
    • The negotiations process and drafting illustrate the strength of judicial review in the new conception of constitutionalism### Parliament's Role in Oversight and Accountability
    • In South Africa, chairs of committees are appointed by a majority, but it is argued that a minority party should take the chair to make committees more aggressive and forceful in holding the executive accountable.
    • Parliament's role in a given situation should be evaluated, considering whether it should do more or less in terms of oversight and accountability.

    The Operation of Parliament

    • Parliament has the power to make its own rules and orders, and direct its own internal proceedings.
    • Case laws such as Mazibuko v Sisulu and United Democratic Movement v Speaker of the National Assembly are relevant.

    General Rules of Parliament's Operation

    • Under the Constitution, the National Assembly (NA) and National Council of Provinces (NCOP) have the power to:
      • Determine and control their internal arrangements, proceedings, and procedures.
      • Make rules and orders concerning their business, with due regard to representative and participatory democracy, accountability, transparency, and public involvement.
    • These powers are provided for in sections 57 and 70 of the Constitution.
    • The rules and orders must provide for the establishment, composition, powers, functions, procedures, and duration of committees.
    • The rules also ensure the participation of minority parties in the proceedings of the House and committees.

    Rules of Parliament

    • Extensive rules have been prepared, including:
      • Joint rules of parliament for the joint business of both houses.
      • Separate rules for each house's own functions (Rules of the NA and rules of the NCOP).
    • All rules and orders must comply with and give effect to the Constitution.
    • Rules and orders that clash with the Constitution can be declared invalid.

    Mazibuko v Sisulu Case

    • The case highlights the power of parliament to manage its internal arrangements and proceedings, but notes that the rules do not cater for certain situations and are inconsistent with the Constitution.
    • In 2012, Ms. Mazibuko gave notice of a motion of no confidence in the President in terms of section 102(2) of the Constitution.
    • The speaker referred the notice to the chief's forum and the programme committee to determine whether and when the motion would be debated and voted on.
    • However, the committees failed to reach a consensus, and the motion was not tabled before the NA.
    • The applicant argued that the rules of the NA were inconsistent with the Constitution, as they did not recognize and vindicate the right of a member to have a motion of no confidence debated and voted on as a matter of urgency.

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    Description

    This quiz covers the principles of constitutional supremacy in South Africa, including the values that underlie it and its status as the supreme law of the land. It also touches on the related concept of the rule of law.

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