May-June 2022 Constitutional Law Past Paper PDF

Stuvia.com - The study-notes marketplace UNIVERSITY EXAMINATIONS May-June 2022 CSL2601 Constitutional Law 100 Marks...

Stuvia.com - The study-notes marketplace UNIVERSITY EXAMINATIONS May-June 2022 CSL2601 Constitutional Law 100 Marks 5 Hours First Examiner: Mr Paul Mudau Second Examiner: Mr Gaopalelwe Mathiba This paper consists of five (5) pages. PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. YOUR EXAM QR CODE & EXAM ACCESS CODE QR Access Code: f2bdeac9 NB! Please submit your answers on myExams first and then submit on the invigilator app. 1. The examination question paper counts 100 marks. 2. It consists of three questions. Answer ALL the questions. 3. The duration of the examination is Five (5) Hours. Your answers must be submitted via myUnisa on 17 June 2022 on or before 18:00 PM (South African Standard Time). Please note that you have the additional grace period to upload, thus 19:00 PM is the absolute latest that you can submit. 4. This a Take Home Examination. While the examination is in progress, you are not allowed to consult another person in order to assist you to answer any of the questions 1 Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace Learn more on how to sell. Scan the QR-code and learn how you ca.n turn your study notes and other study resources into real cash today! Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace contained in this question paper. While the examination is in progress, you may not assist another student in answering any questions in this question paper. 5. Your answer to this portfolio or take-home examination must be submitted online on the myExams platform. 5.1 Access myExams at https://myexams.ac.za/portal and login using your student number and myUnisa password. 5.2 Go to your specific examination site through the site tabs on the horizontal navigation bar. Also check your Sites link in the top right-hand corner if you do not find the site on the horizontal navigation bar. 5.3 Once the site has loaded, select the eAssessment tool from the left-navigation menu 5.4 The list of all available assessments in the site will be displayed. 5.5 Select the assessment for which you want to upload the examination answer file by clicking on the title of the assessment in the list. A new page will open. 5.6 Submit your examination answer file. Submission Attachments No attachments yel Select a file from computer I Choose FBe f No me chosen j or select fdes fr'om workspace or site I D Honor- Pledge. I have neither given nor received aid on this assignmenL (You must respond to submit your ass,gnment) I Submit JI Preview 11 Save Oran 11Cancel ) Don't forget to save or submID Depending on the assessment criteria, you may be allowed to attach a file or multiple files. Under Attachments, click the Choose File button to browse for a file on your device. Submission This assignment allows submissions by attaching documents only. Attachments Ex.aminatJon 1 Responses.docx r 1:.! KB: 11-Feb-2016 13:00) Remove Select more files from computer Choose File INo file chosen or select more files from workspace or site Honor Pledge: I have neither given nor received aid on this assignment., (You must respond to submit your assignment) Submit Preview Save Draft Cancel Don't forget to save or submit Once you have attached your answer file, the name of the file, as well as the file size and upload time stamp will be displayed under Attachments. Tip: You may click Remove to remove the attachment if you selected the wrong file. Tip: Select the honour pledge. Students MUST check the honour pledge before submission if it appears on the screen. A student will not be able to submit the assessment if he/she did not check the honour pledge. When you are ready and satisfied that you have correct answer file, click the Submit 2 Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace Learn more on how to sell. Scan the QR-code and learn how you can turn your study notes and other study resources into real cash today! Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace button to complete your assessment submission. Tip: If you are not yet ready to submit, you may click Preview to preview the submission, or Save Draft to save your submission and submit it later. Click Cancel to exit the assessment without saving or submitting. 5.7 Submission confirmation Submission Confirmation 0 You have successfully submitted your work.. You will recei e an ema11 confirmation contaming ttus mfonnation. User: Class site: ABT1511-15-S1 Assignment trtle: Examination 1 Submission ID: Submitted on: 11-Feb-2016 13:38 History Your submission included the following: Submitted Attachments ExammatJon 1 Responses.docx < 1:? KB. 11--F o-20,e 13 og) Back to list Once you have submitted your assessment, you will receive a confirmation message on the screen. Make a screen copy for your records. In addition, if you have opted to receive email notifications, you will also receive an email confirmation of your submission. 6. It is preferred that your take-home exam is typed, however, handwritten submissions will also be accepted. If the take-home exam is typed, the maximum length is 10 pages (which includes the cover page and the bibliography). If the exam is handwritten, the maximum length is 15 pages (including the cover page and the bibliography). 7. Whether your answers are typed or handwritten, your submission on myUnisa must be made in the form of one PDF document. 8. If your answers are typed, ensure that the following requirements are adhered to. Items 8.3-8.4 applies to written assignments as well. 8.1 The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double line spacing after the paragraph. 8.2 The text must be justified. All margins must be 2.5cm, but the left margin must be 3cm. 8.3 All of the pages must be numbered in the bottom right hand corner of the page. 8.4 South African English and not American English should be used. For example, the correct spelling is “Labour” and not “Labor”. Do not use abbreviations or SMS language. 8.5 All quotes that are two lines long (or less), must form part of the main text, be written in italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a separate paragraph in italics in size 11 font and must be indented by 1cm. No quotation marks are required when the quotations stand alone. Use quotations very sparingly. In this take-home exam, a maximum of 5% of the text may be quoted. 9. The arguments that you make must be logical, well-structured and substantiated by all the relevant legal principles. You are given 5 hours to complete the take-home exam. Use the time given wisely. 9.1 Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your footnotes. 3 Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace 9.2 You are required to have read and summarised the prescribed cases yourself. The summaries in the Study Guide are not sufficient for this exam. When using case law to support your answer, please include complete references to the relevant cases in your footnotes. This means that you must not only include the name of the case but also the exact page and section and/or paragraph where the information can be found. The same applies to articles and books used. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER SOURCE). 9.3 A number of students lose marks because they do not approach problem-type questions correctly. When answering such questions, it is important to first clarify for yourself the area of work where the answer must be sought. Once you have done this, set out the relevant legal principles. Deal only with those principles that relate to the given facts. Next, apply these principles to the facts. This is where most of the students lose marks – they set out the law in some detail, but then do not illustrate how it applies to the factual situation they have been asked to solve. Finally, state your conclusion. 4 Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace QUESTION 1 1.1 By way of examples and reference to the appropriate authority, briefly explain the doctrine of separation of powers in South Africa. (16) 1.2 Succinctly explain, with reference to the relevant Constitutional Law authorities, the principle of constitutional supremacy from a South African perspective. (18) 1.3 Critically discuss the role of the Public Protector in supporting and strengthening constitutional democracy in South Africa. (16) QUESTION 2 2.1 Provide the three different types of municipalities and the three ‘executive systems’ of municipal governance. (12) 2.2 Name the four different categories of the supervisory powers the Constitution confers on the national and provincial spheres of government in their supervision of local government. (8) 2.3 Critically discuss the significance of having the principles of co-operative governance and inter-governmental relations as enshrined in the Constitution. (10) QUESTION 3 3.1 Discuss the difference, if any, between the President as the Head of State and as the Head of Government. (10) 3.2 With reference to the relevant Constitutional Law authorities, differentiate between the processes of (1) removing the President through impeachment and (2) the motion of no confidence. (10) Total: {100} © UNISA 2022 5 Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace QUESTION 1 (1.1) The doctrine of separation of powers separates state authority into legislative, executive and judicial authority. The reason for this is there can be no political freedom if one person or body makes the laws, implements them and acts as arbitrator when the are contravened, therefore preventing an abuse of power in one organ. Legislative authority is the power to create, amend and repeal laws. Executive authority is the power to execute and enforce legal rules. Judicial authority is the power to interpret legal rules and apply them to concrete situations. The doctrine of separation of powers may imply: a formal division of state authority into legislative, executive and judicial a separation of personal so that one person may not be involved in more than one branch a separation of function so that one branch of government may not usurp the powers of another checks and balances with each branch given special powers to restrain the others Separation of powers is seen to be the most significant constitutional device for the limiting of state power. As originally conceived, it reflects a distrust of government power and a desire to maximize individual freedom and as such, its purpose is to prevent excessive concentration of power in a single person or body. In the First Certification case, the Constitutional Court held that the doctrine of separation of powers is not ‘a fixed or rigid constitutional doctrine’ and that ‘it is given expression in many different forms and made subject to checks and balances of many kinds’. 1 In South Africa, Ministers, as members of the Assembly, can be called on to explain and account for the way in which legislation is executed and other executive functions performed. In the De Lange v Smuts case, the Constitutional Court recognised 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, 1 Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC). Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace 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 measures in the public interest”.2 The South African constitution embraces the separation of powers by expressly defining the roles of the legislative, executive and judicial authority. In Executive Council of the Western Cape v President of the republic of South Africa 1995, the constitutional court invalidated a provision in an Act of Parliament which authorized the president to amend or repeal provisions of certain parliamentary legislation (the usurpation of the parliament’s legislative authority by the executive).3 The constitution implements the doctrine of checks and balances most importantly through judicial review, which allows legislative or administrative action to be challenged in a court of law. The judiciary acts as a watchdog over the legislative and executive bodies and must ensure government acts in compliance with the procedural and substantive requirements of the constitution. (1.2) Constitutional supremacy means that the rules of the Constitution are binding on all branches of the state and have priority over any other rules made by the legislature, the government or the courts. In the circumstances, any law or conduct that does not comply with the Constitution – procedurally or substantively – will not have the force of law. This notion of a supreme constitution is an important one on which South Africa‘s democratic constitutional dispensation is based. The Constitution in its founding provisions expresses supremacy first as a foundational value, and second, declares the supremacy of the Constitution as a binding and enforceable rule in no uncertain terms. Section 1(c) of the Constitution provides that the Republic of South Africa is one sovereign, democratic state founded on the following values, hence supremacy of the Constitution and the rule of law.4 Section 2 of the Constitution provides that this Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.5 The decision by the drafters to make the Constitution supreme has 2 De Lange v Smuts NO and Others 1998 (3) SA 785. 3 Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC). 4 Constitution of Republic of South Africa 108 of 1996. 5 Section 2 of the Constitution. Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace had far-reaching implications for how the current democratic state operates, how the various structures and institutions relate to one another and how governmental power is exercised. The meaning of constitutional supremacy has already been dealt with above and that understanding applies with equal force to South Africa. What is, however, of interest to us here (and this is a question that is peculiar to the South African Constitution) is whether there is a difference between constitutional supremacy as a value captured by section 1 of the Constitution and the declaration of constitutional supremacy as a binding and enforceable rule set out in section 2. Notionally, we would assume that there should be some difference or significance to the drafters having included the idea of constitutional supremacy in two different provisions with two differing connotations in the Founding Chapter of the Constitution. However, judging from the case law, it appears that the courts have made nothing of the difference between the two concepts. In fact, we find that there are few references in the case law to these provisions, save for passing, unsubstantiated references to the fact that the Constitution is supreme.69 With respect to the declaration of supremacy in section 2, a possible reason put forward for the lack of judicial consideration of it is due to the clarity of the rule it states‘. In other words, there is little room for alternative interpretations of the provision. This position finds support in the General Provisions Chapter 71 of the Constitution in which section 237 demands that all constitutional obligations must be performed diligently and without delay‘. While little seems to turn on whether constitutional supremacy is appealed to as a value or a binding and enforceable rule, constitutional supremacy is certainly a defining feature of South African constitutionalism as it renders the entire Constitution justiciable. Any law or conduct can thus potentially be tested against the provisions of the Constitution and must be declared invalid if it fails to comply with these provisions. Given the justiciability of the Constitution, an important incidence of constitutional supremacy is therefore the institutionalisation of judicial review which enjoins the courts to declare any law or conduct inconsistent with the Constitution invalid. This power vested in the judiciary is an important one that secures the rights of all rights-holders Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace under the Constitution as well as securing the Constitution itself against violation as no authority or law is higher than the Constitution. (1.3) The Public protector has the power to investigate any conduct of the government or administration that is alleged or suspected to be improper or to result in any impropriety or prejudice. It also has the power to report on that conduct and to take appropriate remedial action. The office of the public Protector is a chapter 9 institution set up by the constitution to promote justice; it is Independent and does not form part of the executive, legislature or judiciary. The remedial actions are binding as was in the Economic Freedom Fighters v Speaker of the National Assembly; the Democratic Alliance v Speaker of the National Assembly the court found that the remedial actions provided for the Public protector are indeed binding. In terms of section 182(1), the Public Protector has the mandate of investigating “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”. 6 The case of Hlaudi Motsoeneng, the former CEO of the South African Broadcasting Corporation (SABC), highlights the confusion that has surrounded the status of the findings of the Public Protector. Initially, in Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551, Schippers J in the Western Cape High Court held that: The fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.7 The subsequent litigation in the Supreme Court of Appeal, on the other hand, lends support to the fact that the Public Protector’s findings are, indeed, binding. In South African Broadcasting Corporation Limited and Others v Democratic Alliance and Others ZASCA 156, the Supreme Court of Appeal held that: The Public Protector cannot realis the constitutional purpose of her office if other organs of state 6 Section 182(1) of the Constitution. 7 Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551. Downloaded by: seangdel | [email protected] Want to earn Distribution of this document is illegal R13,625 per year?  Stuvia.com - The study-notes marketplace may second-guess her finding and ignore her recommendations. 8 Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of section 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy for State misconduct, which includes the power to determine the remedy and direct its implementation. In the recent Constitutional Court judgment of Economic Freedom Fighters v Speaker of the National Assembly; the Democratic Alliance v Speaker of the National Assembly ZACC 11 (31 March 2016), the Court affirmed that findings of the Public Protector were binding. Members of the public, including MPs, had lodged complaints with the Public Protector, Thuli Madonsela, concerning aspects of the security upgrades that had been carried out at President Zuma’s Nkandla private residence. The Public Protector investigated the matter and concluded that several improvements were non-security features and that any installation that has nothing to do with the President’s security amounts to undue benefit or unlawful enrichment to him and his family. In this regard, the Public Protector said the President had acted in breach of his constitutional obligations in terms of the Constitution. The Public Protector took remedial action by requiring the President to pay a reasonable percentage of the cost of the non-security measures. The Public Protector submitted her report to the President and the National Assembly. The National Assembly set up an ad hoc committee to examine the Public Protector’s report and nominated the Minister of Police to do a further investigation based on the findings of the Public Protector. Parliament considered the reports of the ad hoc committee and the Minister of Police, which exonerated the President, and subsequently resolved to absolve the President from all liability. Consequently, the President did not comply with the remedial action taken by the Public Protector. Dissatisfied with the decision of the National Assembly, the EFF, joined by the DA, requested an order affirming the legally binding effect of the Public Protector’s remedial action, directing the President to comply with the Public Protector’s remedial 8 South African Broadcasting Corporation Limited and Others v Democratic Alliance and Others ZASCA 156. 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 action and declaring that both the President and the National Assembly acted in breach of their constitutional obligations. The Court found that, in disregarding the remedial action taken by the Public Protector against him, the President had failed to uphold and to defend the Constitution as the supreme law of the land. The Court moreover found that the conduct of the National Assembly of passing a resolution purportedly nullifying the findings and remedial action taken by the Public Protector and replacing them with their own findings offended the rule of law and was another way of taking the law into their own hands. This case cleared any uncertainty about the legal status of the findings of the Public Protector. The person against whom the findings are made cannot ignore such findings since they are binding. QUESTION 2 (2.1) Section 155, distinguishes between three different categories of municipalities, namely category A municipalities, category B municipalities and category C municipalities: Category A - referred to as a metropolitan municipality south Africa has 8 (has exclusive municipal executive and legislative authority in its area) metropolitan municipalities are big cities, for example Johannesburg, Cape Town Durban, Tshwane (Pretoria Metropolitan councils may decentralise powers and functions. Category B - referred to as a local municipality (municipal executive and legislative authority in its area with a category C municipality) local municipalities which are towns and their surrounding rural areas, that is consists of villages and towns and there are 226 local municipalities, for example Gravelotte, Namakgale, Lulekani and Phalaborwa. Category C - referred to as a district municipality (has municipal executive and legislative authority in an area which includes more than one municipality) coordinate a number of local municipalities in a region, that is a municipality which executes some of the functions of local government for a district. 44 district municipalities, for example Cape Wine lands.9 9 Section 155. 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 Executive systems-as per Municipal Structures Act, 3 executive systems (the collective executive system, the mayoral executive system and the plenary executive system: The collective executive system - Under a collective executive system the mayor plays more of a ceremonial role, with the real executive power residing in the collective executive committee. That executive committee is elected by the full council and is a multi-party committee broadly reflecting party interests within the council. The mayoral executive system - means a system which allows for the exercise of executive authority through an executive mayor in whom the executive leadership of the Municipality is vested and who is assisted by a mayoral committee. Plenary executive system - executive authority is exercised by the municipal council itself. In this system, the leadership of the municipality is vested in the municipal council. (2.2) Although the Constitution confers legislative and executive powers on local government, it also recognizes that local government is the weakest of the three spheres of government and often lacks the capacity to exercise these powers. The Constitution, therefore, also provides that the manner in which local government exercises its legislative and executive powers must be supervised by the national and provincial spheres of governments.10 These supervisory powers may be divided into four different categories:. The power to monitor local government. The power to support local government. The power to regulate local government. The power to intervene in local government. (2.3) The principle of co-operative government plays an important role in regulating the overlap of power between the various spheres of government. Given the overlap between the legislative and executive authority of the national, provincial and local spheres of government, the Constitution makes provision for a system of 10 Constitutution. 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 intergovernmental co-ordination to manage any potential conflict between the various spheres exercising concurrent competences. This forms the heart of the system of cooperative government. The most important rules governing this system are set out in Chapter 3 of the Constitution. Chapter 3 of the Constitution entrenches the notion of cooperative government which recognizes the distinctiveness, interdependence and interrelatedness of the national, provincial and local spheres of government.11 All spheres of government – national, provincial and local – are required to observe and adhere to the principles of co- operative government set out in Chapter 3 of the Constitution. Particularly important in this context are the principles set out in section 41. This section provides, inter alia, that all spheres of government and all organs of state within each sphere„ must: the other spheres power or function except those conferred on them in terms of the Constitution exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere - operate with each other in mutual trust and good faith. To avoid conflicts between the national, provincial and local spheres of government, especially in so far as their concurrent powers are concerned, the Constitution establishes or provides for the establishment of co-ordinating bodies. Some of these bodies are responsible for co-ordinating the legislative activities of the three spheres of government and others for co-ordinating the executive activities of government QUESTION 3 (3.1) As Head of State, the President exercises his or her authority alone and usually need not consult the other members of the Cabinet. If the President is not required to exercise a political discretion on behalf of the government, he or she is acting as the Head of State. As Head of State, the President represents all of the people, and not only the government formed by the majority party. In this capacity, he cannot ‘abdicate’ the exercise of such a power by: 11 Chapter 3 of the Constitution. 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. Unlawfully delegating that power conferred on him or her as Head of State. Acting ‘under dictation’ by merely following the instructions of another without applying his or her mind to the matter at hand.. ‘Passing the buck’ by referring the decision to somebody else. Section 84(2) of the Constitution lists the Head of State powers the President performs.12 These are original constitutional powers and have a generally narrow scope (because they are closely related to policy; not the implementation of legislation):. assents to and signs Bills. refers a Bill back to the NA for reconsideration of the Bill’s constitutionality. refers a Bill to the Constitutional Court for a decision on the Bill’s constitutionality. summons the NA, the NCOP or Parliament to an extraordinary sitting to conduct special business. makes any appointments that the Constitution or legislation requires him to make as Head of State. appoints commissions of enquiry Despite being Head of State, who is expressly prohibited from “abdicating” his responsibility or “passing the buck”, in President of the Republic of South Africa v Public Protector, the High Court held that the Public Protector’s remedial powers include the authority, not only to instruct the President to perform his or her obligations as the Head of State (appoint a commission of inquiry into state capture), but also to determine the manner in which the President should do so in those cases in which he or she suffers from a conflict of interest (to appoint a judge selected by the Chief Justice as the head of the commission).However, The SARFU judgment illustrates that although the Constitution places limits on the exercise of the Head of State powers, these limits do not go as far as requiring the President always to consult those affected by a decision 12 Section 84(2) of the Constitution. 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 when he or she exercises this power or to adhere to the other requirements for just administrative action. The President as head of the executive - If the President is required to exercise a political discretion on behalf of the government, the President is acting as the head of the national executive. The President ‘bears ultimate responsibility’ for ensuring that the national government complies with the law and the other Cabinet members bear the responsibility for operations in their departments. Section 85(1) of the Constitution states that the executive authority of the Republic is vested in the President while section 85(2) confirms that the President exercises the executive authority together with (in consultation with) the other members of the Cabinet. The President has the sole authority to appoint the Deputy President, Cabinet Ministers and Deputy Ministers and also has the power to dismiss the Deputy President, Cabinet Ministers and Deputy Ministers. The President also has the sole authority to appoint the leader of government business in the NA from among the members of the NA The President exercises executive authority, in terms of which the decision must be in writing (and countersigned by the relevant Cabinet member if the decision concerns another Cabinet member) by:. implementing national legislation except where the Constitution or an Act of Parliament provides otherwise. developing and implementing national policy. co-ordinating the functions of state departments and administrations. Preparing and initiating legislation. performing any other executive function provided for in the Constitution or in national legislation, which includes the appointment of the National Director of Public Prosecutions, the Military Command of the National Defence Force, the National Commissioner of the Police Service, the heads of the intelligence services, and the members of boards of state owned entities (SOEs), such as the SABC. 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 (3.2) Section 89 makes provision for the removal of the President by the National Assembly by way of a resolution adopted with a supporting vote of at least two-thirds (66,6% or 267 out of 400 members) of its members on the following grounds:. a serious violation of the Constitution or the law. serious misconduct. inability to perform the functions of office.13 This is known as the impeachment of the President. However, it is difficult to effect the removal of the President in this way, because it will not be easy to obtain the required 66, 6% supporting vote and prove one of the grounds (unless there is a court order declaring that a serious violation of the Constitution or of the law has taken place or serious misconduct has been proven to have occurred). On 5 April 2016, consequent upon the Constitutional Court’s decision concerning the Public Protector’s report on non-security upgrades to Nkandla, the Democratic Alliance introduced a motion to impeach President Jacob Zuma. The outcome of the vote was that 143 members of Parliament voted for the President to be removed, and 233 members voted against the President being removed. Section 102(2) also makes provision for the National Assembly to remove the President from office by passing a motion of no confidence in the President. All that is required to remove the President in this manner is a simple majority (51% or 201 out of 400 members) of the members of the National Assembly voting in favour of removal. 14 This will only be possible where the President has lost the support of his party (which is very unlikely in South Africa). This was what was attempted by the Democratic Alliance (DA) in the case of Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC).15 13 Section 89 of the Constitution. 14 Section 102(2) of the Constitution. 15 Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC). 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 BIBLIOGRAPHY Textbook. Only study for CSL2601. Case laws. De Lange v Smuts NO and Others 1998 (3) SA 785.. Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551.. Executive Council, Western Cape Legislature, and Others v President of the Republic of South Africa and Others 1995 (4) SA 877 (CC).. Mazibuko v Sisulu and Another 2013 (6) SA 249 (CC).. South African Broadcasting Corporation Limited and Others v Democratic Alliance and Others ZASCA 156. Legislations. Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC).. Constitution of Republic of South Africa 108 of 1996. 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?