May/June 2020 CSL2601 Constitutional Law Past Paper PDF

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Stuvia.com - The study-notes marketplace UNIVERSITY EXAMINATIONS UNlSA May/June 2020 CSL2601 Constitutional Law 100 Marks 2:45 Hours [2-hour examination + 15 minutes to download the examination question paper + 30 minutes to upload responses] This paper consists of 6 pages. Instructions: 1. Answer all questions. 2. Question 1 is composed of 25 True or False questions that must be answered on myunisa. Log in to myunisa and click on the link with unique number 475669. 3. Questions 2 to 5 are longer problem-type and essay questions. These answers must be typed and uploaded on to myunisa the same way that Assignment 2 was answered and submitted. 4. Refer to binding and precedent-setting case law and/or other legal authorities in order to support your answers. 5. Take note of the marks allocated to each question and make sure that your answer is reconciled with this mark allocation. In other words, do not write a comprehensive answer if the question only counts for a few marks; and the opposite also applies. Section A: True or False Answer the following 25 questions on myUnisa. Log in to myUnisa and click on the link with unique number 475669. You then insert the number of questions to be answered. Type in 25. When the page opens, each question must be answered by clicking on the radio button next to option 1 or option 2 only. Choose 1 if the answer is True or 2 if the answer is False. Ignore options 3, 4, and 5. Question Answer Click on the radio button which represents the answer 1.. 12..] r 1 (i 2 r 3 r 4 r 5 r Ignore question Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace 1. A concept of great significance in the field of law – Constitutional Law in particular – is the concept ‘fit and proper’. Attorneys, advocates and judges must all satisfy the requirement that they are ‘fit and proper’. It is therefore essential that a student studying law ensures that they exhibit the relevant integrity, honesty and respect for the law so that they can prove that they are ‘fit and proper’ when applying to be admitted as an attorney or advocate. (1) 2. A judicial tribunal probing the conduct of a now retired judge found that his conduct and remarks at the scene of a motor vehicle accident in 2007 were racist. The tribunal’s recommendation to the Judicial Service Commission (JSC) is that the judge be removed from office. Assume that the JSC consequently finds the judge guilty of gross misconduct and the President writes a letter directly after the events to the judge to inform him that he is removed from office. The President’s conduct is valid because he appointed the judge, so he is responsible for removing the judge from office. (1) 3. The form of constitutionalism applied in South Africa is only descriptive and normative in nature. (1) 4. Judicial authority in South Africa is vested in the Judicial Service Commission. (1) 5. South Africa has a constituency-based electoral system. (1) 6. After an investigation into state capture, the Public Protector’s Report “The President’s Friends” proposes to take appropriate remedial action by amongst others, investigating the constitutionality of the Constitutional Court’s decision in Economic Freedom Fighters v Speaker of the National Assembly (2016) and amendments to various provisions of the Constitution of the Republic of South Africa, 1996. This falls squarely within the Public Protector’s constitutional mandate, competence and power. (1) 7. “Self-evident” is how the Constitutional Court, per Mogoeng CJ, describes the central role that international law has assumed in the establishment of South Africa’s democracy. The Court declared that international law enjoys “well-deserved prominence in the architecture of our constitutional order”, imploring the application Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace of international law in “the development and enrichment of our constitutional jurisprudence and by extension the unarticulated pursuit of good governance”. Accordingly, international law is a persuasive source of constitutional law. (1) 8. Another name for the “substantial measure” test used to determine how and when a Bill should be tagged and passed as either a section 75 Bill not affecting provinces, or a section 76 Bill affecting provinces, is the “pith and substance” test. (1) 9. The Constitution of the Republic of South Africa, 1996 permits a ruling political party to remove or “recall” the President of the Republic of South Africa. (1) 10. It is a privilege of Members of Parliament to say anything in Parliament without fear of being held liable in a court of law, and it serves to protect Parliament from outside interference. This means that parliamentary privileges are not subject to judicial review under the new constitutional dispensation. (1) 11. Although Constitutional Law is technical and complex, there are certain concepts that we use every day, such as ubuntu, lekgotla and indaba, that have a close relationship with how we understand fundamental principles of Constitutional Law and which can help us to decolonise and Africanise Constitutional Law. (1) 12. Sujit Choudhry states that “[o]ne of the pathologies of a dominant party democracy is the colonisation of independent institutions meant to check the exercise of political power by the dominant party, enmeshing them in webs of patronage.” This statement is applicable to the way in which the Independent Electoral Commission functions in South Africa. (1) 13. The following is an accurate description of the counter-majoritarian dilemma: Parliament is composed of a maximum of 400 members who have been duly elected by the people to represent the people concerning the passing of legislation and holding the executive accountable. The dilemma arises when members of opposition parties do not support the wishes of the majority party in Parliament. The opposition parties could be seen to be counter-revolutionary in their opposition to the majority and this violates the principle of democracy. (1) Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace 14. On the issue of appointing the Chief Justice of South Africa, or even renewing the tenure of the incumbent Chief Justice, the President has the sole and unfettered prerogative to make this decision, thus the President is not obliged to consult either the Judicial Service Commission or the leaders of political parties in the National Assembly in making this decision. (1) 15. There is no difference between the concepts “spheres of government” and “levels of government”. (1) 16. In President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (10) BCLR 1059 (CC), the Court held that the President may be called upon to give evidence in a court of law if his evidence is able to assist the court to reach its decision. (1) 17. The Citation of Constitutional Laws Act 5 of 2005 stipulates that the Constitution of South Africa must be referenced as Constitution of the Republic of South Africa Act 108 of 1996. (1) 18. Judicial independence means that judges must be able to revise their opinions as the evidence requires. This means that if one judge tries to convince another judge about the best outcome of a case by urging that judge to find in favour of a prominent politician because democracy would be imperilled if the politician is found guilty, the judge that is trying to convince the other judge is not intruding on the independence of the judiciary. (1) 19. Like the President of the United States of America, the President of South Africa has the power to veto legislation merely because he or she opposes the legislation. (1) 20. In Doctors for Life International v Speaker of the National Assembly 2006 (12) BCLR 1399 (CC), the court determined that the stage of law-making when it can intervene to enforce Parliament’s obligation to facilitate public involvement and to prevent irreversible and material harm, is before the legislative process is complete. (1) 21. Magistrates’ courts have the power to declare the conduct of the President unconstitutional. (1) Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace 22. A member of the National Assembly is only allowed to introduce a Bill in the National Assembly if the majority of members in the National Assembly have given the member permission to initiate such legislation. (1) 23. Constitutional recognition of customary law as a legitimate system of law alongside other legal systems in South Africa means that customary law enjoys equal recognition as a source of law. (1) 24. It would be accurate to state that a country is democratic if elections are held every five years, even if only one political party is allowed to stand in the election. (1) 25. Of the five (5) forms of democracy that exist in the world, South Africa only uses three (3) forms, namely: direct; representative; and participatory democracy. (1) Section B Answer the following five (5) questions in as much detail as possible and by relying on appropriate authority to substantiate and justify your answers. 1. With reference to relevant case law, including the case of Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC 2018 (10) BCLR 1179 (CC), distinguish between the Office of the Public Protector and the National Director of Public Prosecutions. Your answer must: a. Fully explain the mandates of these two institutions; (4) b. Identify whether they fall within either the legislative, executive or judicial branches of the state; and (4) c. Describe the status of the recommendations that each make. (7) 2. Critically discuss the similarities and then the differences between the Constitutional Court’s decisions in the cases of: Mazibuko Leader of the Opposition in the National Assembly v Sisulu Speaker of the National Assembly and Another 2013 (6) SA 249 (CC) (27 August 2013); Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 2016 (3) SA 580 (CC) (31 March 2016); and United Democratic Movement v Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace Speaker of the National Assembly & Others (CCT89/17) ZACC 21 (22 June 2017). Your answer must refer to the specific provisions of the Constitution that are relevant and how these differ from each other in the cases under discussion. (15) 3. “The President is a constitutional being. In the Constitution the President exists, moves and has his being”. In the light of these compelling words, explain the power (and the limits on that power) conferred on the President to shuffle his cabinet in terms of section 91 of the Constitution. It is imperative that you rely on relevant case law to substantiate your answer. (8) 4. Failure to comply with the rule of law invites a vortex of uncertainty and unpredictability. It is obviously detrimental to the effective functioning of the state if public officials can simply disobey or seek to change the law when the law (rules) become inconvenient. a. Illustrate your understanding of the rule of law by explaining the elements of which the rule of law is composed; (5) b. Discuss how the rule of law was violated in the case of Southern Africa Litigation Centre v Minister of Justice and Constitutional Development & others 2015 (2) SA 1 (GP); (6) c. Discuss how the rule of law was violated in the case of Democratic Alliance v Minister of International Relations and Cooperation & Others ZAGPPHC (22 February 2017). (6) 5. Relying on the case of City of Tshwane Metropolitan Municipality v Afriforum & Another 2016 (6) SA 279 (CC) as the main (but not only) example, as well as the phrase “a textbook case of judicial overreach”, clearly explain the difference between the separation of powers doctrine and co-operative/multi-level government. You are required to indicate in precise detail how each of these concepts are understood and how they function/operate in South Africa. (20) TOTAL: {100} © UNISA 2020 Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace May/June 2020 CSL2601 MARKING MEMORANDUM Section A: True or False – each question is out of 1 1. True / 1 2. False / 2 3. False / 2 4. False / 2 5. False / 2 6. False / 2 7. False / 2 8. False / 2 9. True / 1 10. False / 2 11. True / 1 12. False / 2 13. False / 2 14. False / 2 15. False / 2 16. True / 1 17. False / 2 18. False / 2 19. False / 2 20. True / 1 21. False / 2 22. False / 2 23. True / 1 24. False / 2 25. False / 2 Section B Answer the following five (5) questions in as much detail as possible and by relying on appropriate authority to substantiate and justify your answers. 1. With reference to relevant case law, including the case of Corruption Watch NPC & Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC 2018 (10) BCLR 1179 (CC), distinguish between the Office of the Public Protector and the National Director of Public Prosecutions. Your answer must: a. Fully explain the mandates of these two institutions; (4) Section 182 of the Constitution states that the Public Protector ‘has the power to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice’. This mandate includes investigating corruption. 🗸🗸 Section 179(2) of the Constitution states that the NPA ‘has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings’. 🗸🗸 This study source was downloaded by 100000799301222 from CourseHero.com on 09-03-2021 09:56:36 GMT -05:00 https://www.coursehero.com/file/94254254/4-5803104912636119163-Copypdf/ Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace b. Identify whether they fall within either the legislative, executive or judicial branches of the state; and (4) Neither fall within either the legislative, executive or judicial branches of the state. They are both independent. 🗸🗸 This is confirmed in the case of Corruption Watch v President of South Africa and Nxasana in the case of the National Prosecuting Authority 🗸 and confirmed in the case of ABSA v Public Protector (2018) and Economic Freedom Fighters v Speaker of the National Assembly 2016 in the case of the Public Protector. 🗸 c. Describe the status of the recommendations that each make. (7) The decision to prosecute in the case of the National Prosecuting Authority is a final and binding decisions UNLESS representations have been received from the accused person; the complainant; or any other person whom the National Director of Public Prosecutions deems relevant, in which case, the decision may be reviewed by the Director of Public Prosecutions. 🗸🗸 The recent application by former President Zuma to have the decision to prosecute him withdrawn is an example of this. 🗸 In respect of the Public Protector, it was held in the case of Economic Freedom Fighters v Speaker of the National Assembly (2016) 🗸 that the recommendations made by the Public Protector are binding and enforceable 🗸🗸 unless they are reviewed in a court of law. 🗸 2. Critically discuss the similarities and differences between the Constitutional Court’s decisions in the cases of: Mazibuko Leader of the Opposition in the National Assembly v Sisulu Speaker of the National Assembly and Another 2013 (6) SA 249 (CC) (27 August 2013); Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly 2016 (3) SA 580 (CC) (31 March 2016); and United Democratic Movement v Speaker of the National Assembly & Others (CCT89/17) ZACC 21 (22 June 2017). Your answer must refer to the specific provisions of the Constitution that are relevant and how these differ from each other in the cases discussed. (15) Similarities Differences All 3 cases dealt with the fundamental role of The main difference between these cases is the National Assembly to hold the executive that in Mazibuko, the issue was that despite accountable in terms of section 55 of the section 102(2) providing for a motion of no Constitution 🗸🗸 confidence to be brought against the President, Chapter 12 of the Rules of the National Assembly had contained a provision that required permission to be granted by the majority political party in Parliament prior to such motion being tabled. These Rules were declared invalid. 🗸🗸 All 3 cases were concerned with the Similarly, the issue in the UDM case is that Presidency of former President Jacob Zuma although the Constitution is silent, in section and the fact that the Speaker of the National 89 and 102 as to whether the vote should be Assembly was conceivably “captured” in that conducted by secret ballot, the Speaker of the he (Sisulu) and she (Mbete) were reluctant to National Assembly was not willing to make direct the National Assembly to deliberate on that decision (seemingly because it could a vote of no confidence (section 102(2)) or have resulted in the motion succeeding). 🗸 impeachment (section 89) of the President 🗸🗸 In all 3 cases, the Court affirmed the important The essential difference between the cases is This study role of the separation of powers doctrine and that the EFF case highlighted that it is not only indicated its reluctance to interfere in the the National Assembly that is to hold the source was downloaded by 100000799301222 from CourseHero.com on 09-0 3-2021 09:56:36 GMT -05:00 power of the National Assembly to determine executive accountable, but the Public https://www.coursehero.com/file/94254254/4-5803104912636119163-Copypdf/ Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace its own internal arrangements, proceedings Protector has been specifically established to and procedures, and to make rules and orders investigate any apparent malfeasance, concerning its business as stipulated in corruption, or abuse of power perpetrated by section 57 of the Constitution 🗸🗸 the executive branch of the state and that when the Public Protector submits this report to the National Assembly, it is incumbent on the National Assembly to thoroughly consider the report and act on the recommendations🗸🗸 All 3 cases were brought by political parties In terms of the particular provisions of the represented in the National Assembly, which Constitution, the EFF case dealt with section illustrates that we have a proportional 89 of the Constitution whereas the Mazibuko representation electoral system and a multi- and UDM cases concerned section 102 of the party democracy as per section 1 of the Constitution 🗸🗸 Constitution 🗸🗸 3. “The President is a constitutional being. In the Constitution the President exists, moves and has his being”. In the light of these compelling words, explain the power (and the limits on that power) conferred on the President to shuffle his cabinet in terms of section 91 of the Constitution. It is imperative that you rely on relevant case law to substantiate your answer. (8) Even though the Constitution grants the exclusive right to the President to appoint and dismiss members of his Cabinet in a reshuffle, the rule of law dictates that even the President must comply with the Constitution and that the government and all those in power must have authority provided by law for everything they do. 🗸 Since South Africa’s rule of law is to be understood in its broadest sense, it means that procedurally, the President may not do whatever he wants, but must at all times ensure that he remains “accountable, responsive and open” (as per s 1(d) of the Constitution). 🗸 The case of Certification of the Constitution of the Republic of South Africa at para 116 is authority for the view that the President’s conduct is reviewable if it in any way constitutes a violation of the Constitutional provisions. Thus, although Cabinet members are political appointees who know that they can be hired and fired at the will of the President (see the case of Masethla v President of the Republic of South Africa at para 228), inherent in the rule of law is the principle of legality. 🗸 The essence of the principle of legality is rationality. Therefore, in the case of Democratic Alliance v President of the Republic of South Africa, it was held that there must be a rational connection between the decision made by the President and the information relied upon which prompted the President to make that decision (see para 19 of the case). 🗸 In other words, the decision must not be arbitrary. Given that the President allegedly relied on an Intelligence Report (para 35 of the case), which has never been proven to contain reliable information, to reshuffle his Cabinet, it is not appropriate for the President to have made such a far-reaching decision because it is not a rational decision. 🗸 As stated on page 199 of the textbook, “the exercise of powers by members of the Cabinet [including the President] are clearly constrained by the principle of legality and, as is implicit in the Constitution, the Cabinet members must act in good faith and must not misconstrue their powers”. The President arguably misconstrued his powers when he removed the Minister and Deputy Minister of Finance based on the Intelligence Report. 🗸 Importantly, the President is obliged to exercise some of his functions “together with the other members of the Cabinet” in terms of section 85(2) of the Constitution, especially since he should be sensitive to the general public who voted for the political party that won the elections and who voted him into power. There does not appear to have been any constructive discussion with the members of Cabinet concerning the Cabinet reshuffle. Instead, the President seemingly made a unilateral decision and was publicly criticised for it by some members of Cabinet. 🗸 For these reasons, the President was ordered to produce the record and the reasons upon which were relied in shuffling cabinet so that a decision can be made as to the constitutionality of the President’s conduct. 🗸 This study source was downloaded by 100000799301222 from CourseHero.com on 09-03-2021 09:56:36 GMT -05:00 https://www.coursehero.com/file/94254254/4-5803104912636119163-Copypdf/ Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace 4. Failure to comply with the rule of law invites a vortex of uncertainty and unpredictability. It is detrimental to the effective functioning of the state if public officials can simply disobey or seek to change the law when the law (rules) become inconvenient. a. Illustrate your understanding of the rule of law by explaining the elements of which the rule of law is composed; (5) The rule of law is premised on the following principles/elements: the government/state must act in terms of pre-announced/clear and general rules 🗸 rules that are created, must be enforced, and disputes pertaining to such rules, are then adjudicated by independent/impartial institutions (ie: courts) 🗸 no rights of people may be deprived/limited via arbitrary discretionary powers of the state 🗸 no one is above the law: all persons/institutions including the state must act in terms of powers granted by law and comply with law 🗸 the state/others must act lawfully i.e. must comply with the law and law must comply with the legality requirement. 🗸 b. Discuss how the rule of law was violated in the case of Southern Africa Litigation Centre v Minister of Justice and Constitutional Development 2015 (2) SA 1 (GP). (6) The rule of law was found to have been violated because the government’s conduct was in breach of section 1 of the Constitution 🗸 and was unlawful 🗸 in that the government had not arrested Omar al- Bashir as soon as he arrived in South Africa in July 2015. Thus, the Court made an order to compel the government to cause President al-Bashir to be arrested and surrendered to the ICC. 🗸 Despite South Africa having ratified the Rome Statute of the International Criminal Court 🗸 and adopting domestic implementing legislation, 🗸 the government relied on a disingenuous argument that President al-Bashir enjoyed immunity in terms of international customary law. To be sure, the domestic legislation compels South Africa to arrest persons who may enjoy diplomatic immunity under customary international law but who are wanted by the International Criminal Court for genocide, crimes against humanity and war crimes and to surrender such persons to the International Criminal Court. South Africa has to do so, even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries. 🗸 c. Discuss how the rule of law was violated in Democratic Alliance v Minister of International Relations and Cooperation ZAGPPHC (22 February 2017). (6) On 19 October 2016, the national executive took a decision to withdraw from the Rome Statute.🗸 On the same date, South Africa deposited a notice of withdrawal from the Rome Statute with the Secretary-General of the United Nations. This is notwithstanding the fact that South Africa had signed the Rome Statute on 17 July 1998 and ratified it on 27 September 2000.🗸 Shortly thereafter, in July 2002, national legislation, appropriately named the ‘Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002’, (Implementation Act), was promulgated, eradicating any ambiguity about South Africa’s intention to comply with the Rome Statute (and therefore, the rule of law and the principle of legality). 🗸 What was clear is that the government were seeking to change the rules of the game when they became inconvenient. In finding the government’s conduct to indeed be invalid and unconstitutional, the Court held that procedurally, the decision by the national executive to deliver the notice of withdrawal of South Africa from the Rome Statute of the ICC without prior parliamentary approval is unconstitutional and invalid. 🗸 The decision is also unconstitutional since it was not preceded by the repeal of the Implementation Act. 🗸 Accordingly, the message being conveyed here is that the government should be held to account (both internationally and domestically) if there is incongruence between the international and domestic commitments that have been voluntarily entered into by way of ratification and implementation of treaties, specifically if it is conduct of a recalcitrant government seemingly giving preference to political considerations over adherence to the rule of law. 🗸 This study source was downloaded by 100000799301222 from CourseHero.com on 09-03-2021 09:56:36 GMT -05:00 Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace https://www.coursehero.com/file/94254254/4-5803104912636119163-Copypdf/ Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace 5. Relying on the case of City of Tshwane Metropolitan Municipality v Afriforum 2016 (6) SA 279 (CC) as the main (but not only) example, as well as the phrase “a textbook case of judicial overreach”, clearly explain the difference between the separation of powers doctrine and co-operative/multi-level government. You are required to indicate in precise detail how each of these concepts are understood and how they function/operate in South Africa. (20) The case of Afriforum v Tshwane Municipality is an excellent example to illustrate the functioning of the separation of powers as well as co-operative government. In this case, the issue in question was the power of the Tshwane Municipality (local sphere of government) to change apartheid-era street names and the name of Pretoria itself. 🗸 At the same time, any party is permitted to seek judicial review of executive and legislative decisions, even if it involves a legislative or executive decision within the provincial or local sphere.🗸 The Court recognised that this is a competence that falls squarely within the remit of the Municipality. 🗸 As far as the separation of powers is concerned, the separation of powers relates to the division of state authority between the legislative, executive and judicial branches of the state. 🗸 Each have clearly defined roles which should not be usurped by one of the other branches. 🗸 In this regard, it is the exclusive role of the legislature to make, amend and repeal legislation; it is the exclusive role of the executive to implement that legislation; and it is the exclusive role of the judiciary to adjudicate any disputes regarding the implementation of the legislation or resolve any questions pertaining to the constitutional validity of the legislation. 🗸 However, South Africa has a “unique and evolving” form of separation of powers according to the case of de Lange v Smuts. 🗸 In this case, the Court held that: over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa’s history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and, on the other, to avoid diffusing power so completely that the government is unable to take timely measure in the public interest. 🗸 What this means is that Courts have a “testing power” which obliges the court to ensure that all law and all conduct must comply with the Constitution.🗸 In the event that the law or conduct does not comply with the Constitution, the court must declare it invalid. 🗸 This is stipulated in section 172 of the Constitution and arises from the fact that we, the people, chose to give our courts this testing power when our representatives drafted the Constitution. However, notwithstanding this “fluid” conception of the separation of powers doctrine in South Africa, the courts are acutely aware of the limits of their powers and have repeatedly declared that they will not encroach into the domains of either the legislature or executive. Indeed, the courts are permitted to declare law or conduct invalid even if it appears to amount to what is known as the counter-majoritarian dilemma. 🗸 In the case of Economic Freedom Fighters v Speaker of the National Assembly (2017) 🗸 Chief Justice Mogoeng Mogoeng and Justice Jafta used the expression “a textbook case of judicial overreach” to exclaim that the court had engaged in a constitutionally impermissible intrusion into the exclusive domain of Parliament. 🗸 South Africa is an integrated quasi-federal state, which means that there is a system of devolution of power which means that within the national sphere, there is a legislature; an executive and the judiciary. These principal organs also exist in the provincial and the local spheres. This is what is known as co-operative or multi-level government. 🗸 According to section 40 and 41 of the Constitution, 🗸 it is necessary for the spheres to co-operate with each other and if it is found that the local sphere is unable to perform one of its functions, then the provincial and/or national sphere can intervene because they play a supervisory role. 🗸 Therefore, rules exist in the Constitution for how the spheres should co-operate with each other. To resolve conflicts the following essential rules apply: in the case of a Schedule 4 conflict, section 146 of the Constitution is invoked; 🗸 in the case of a Schedule 5 conflict, section 147 is invoked, which further refers to section 44(2). 🗸 This study source was downloaded by 100000799301222 from CourseHero.com on 09-03-2021 09:56:36 GMT -05:00 Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?  Stuvia.com - The study-notes marketplace https://www.coursehero.com/file/94254254/4-5803104912636119163-Copypdf/ Downloaded by: StudyAssistant036 Downloaded by: seangdel || [email protected] [email protected] Want to earn Distribution of this document is illegal R1,135 R13,625per permonth? year?