CSL2601 Exam Questions PDF

lOMoARcPSD|5215371 CSL2601-exam questions Constitutional Law (University of South Africa) Scan to open on Studocu Studocu is not sponsored or endorsed by any college or university Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 1 Exam Questions - CSL 2601 (Check feedback to activities as part of this study) Study Unit 1 – 3 1 Explain what is meant by constitutional law? (3) Constitutional law is the aggregate (sum total) of binding rules relating to the distribution and exercise of state authority. The rules of constitutional law define the relationship between the organs of state inter se (between themselves), and between the organs of state and individuals 2 Distinguish between public and private law, and state why constitutional law is said to (5) be part of public law Public law is the branch of law which regulates the exercise of state authority in relationships of inequality. Private law, in contrast, governs the relationships between people who are on an equal footing. Constitutional law forms part of public law as it regulates public interest which comes into play in legal relationships of subordination, either between administrative authorities themselves or between administrative authorities and private individuals. 3 “The distinction between private and public law has become blurred in modern times”. Discuss this statement with particular reference to the reasons why this blurring has occurred. (6) The reason why the distinction between public and private law has become blurred is that the modern state has become very involved in private law relationships, such as the relationship between employee and employer. The new constitution expressly provides for relationships between private individuals in the Bill of Rights. It also authorizes parliament to enact legislation to prohibit unfair discrimination by private persons and companies. Finally traditional public functions such as public transport or telecommunications are being privatized and being run by semi-public corporations or private contractors. 4 Discuss the sources of constitutional law. (10) The five sources of constitutional law are:  The constitution, which means the entire body of rules governing the exercise of state authority in a particular state as well as the relationship between the citizens of the state and the organs of the state. May also refer to a written document which contains some or most of the constitutional rules.  Legislation or Statute. It is expressly left to legislator to add the flesh to the basic framework of the constitution.  Common law. English common law played an important role in the history of South African law and must therefore be taken into account. S39(2) of the Constitution requires that the courts develop the common law to bring it in line with the constitutional precepts. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 2  Case law(stare decisis). Past judgments are binding and Illustrates the practical application of the constitutional principles, rules and values and tells you how a particular case alters or contributes to the development of the law.  International law. Section 39(1) of the Constitution makes it compulsory for a court to consider international law in the determination of constitutional issues.  Other sources of constitutional law a. Academic writings-Courts refer to academic opinions expressed in books and articles in journals. b. policy documents - Current government policies expressed in green papers, white papers and other documents issued by the organs of state help to shape the legislative agenda; these are often translated into legal norms. c. reports by state institution supporting constitutional democracy eg. public protector, Auditor General) d. foreign Law - 39(1)(c) of the Constitution provides that the courts may consider foreign law, that is, especially case law from other. A discretionary power to consider the laws of other countries where there is insufficient guidance available from South African sources. Is a supreme constitution and an inflexible constitution the same thing? Give reasons for your answer. (5) 5 Distinguish an inflexible constitution from a flexible one and mention an example of each. (6) A flexible constitution has the same status as ordinary laws of the land and has no special procedures for amendment. An example would be the 1961 constitution of South Africa. An inflexible constitution usually enjoys a superior status to ordinary laws of the land and requires a special amendment procedure. Eg. two-thirds majority vote. An example is the 1996 constitution of South Africa. 6 Does South Africa have a flexible or inflexible constitution? Why? (3) South Africa has an inflexible constitution as it enjoys superior status to the ordinary laws of the land and its amendment provided for in s74(1) – (3) requires special procedures and special majorities. S1(c) states that one of the values South Africa is founded upon is the ‘supremacy of the constitution and the rule of law’. (a) Are the following statements true or false? Give reasons for your answer. (i) An inflexible constitution enjoys the same status as the other laws of the country and does not require any special procedures for its amendment. (5) False. 1. It enjoys a higher status than the ordinary laws of the land. 2. It requires special procedures and majorities for amendment. 3. This makes it harder for the majority to effect amendments to the Constitution for self serving purposes. 4. Example: the South African Constitution of 1996. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 3 7 Distinguish between a supreme constitution and one that is not supreme. Give an example of each. (5) A supreme constitution ranks above all other laws of the state and is usually but not always inflexible. Any law which is inconsistent with it will be declared invalid (referred to as the Grundnorm, against which all other legislation is tested for validity).An example of a supreme constitution is the 1996 constitution of South Africa. On the other hand a constitution that is not supreme does not enjoy any special status to other laws in the land and the government can declare laws which conflict with the basic principles of the constitution. An example of a constitution that is not supreme is Britain. 8 Explain why South Africa has a supreme constitution. (3) The South African constitution is supreme because S 1(c) lists the supremacy of the constitution as a founding value. Section 2 states that the constitution is the supreme law of the republic. Section 172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid in terms of its inconsistency. 9 Explain the difference between autochthonous and allochthonous constitutions. (5) Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive constitutions which aim to resolve specific issues of the past are indigenous. Eg South Africa There are also constitutions which maintain continuity with established norms and tradition which are also indigenous. Eg. Netherlands Finally there are superimposed constitutions whose contents are largely unrelated to the history of the country; this is an example of an allochthonous constitution eg Zimbabwe. It is often difficult to find an example of a constitution that fits distinctly into either category. For instance the 1996 constitution of South Africa is considered to be an indigenous constitution as it was drafted in the light of South Africa’s history, but at the same time borrowed on the experience of other countries and was influenced by international law. Distinguish between autochthonous and allochthonous constitutions. Give an example of each. (5) Autochthonous constitution Refers to indigenous or home grown constitutions. This means that the constitution is a result of context (political/economic/social/historical). An example would be the 1996 Constitution or the German Constitution. Allochthonous constitution Refers to a borrowed constitution. Has no bearing on context. Inherited from another state. An example would be Zimbabwe. (2) Discuss the 1996 Constitution in the light of the following: (a) flexibility/inflexibility (b) whether it is autochthonous or allochthonous In each case, your answer needs to include the efinition of these concepts.(10) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 4 10 Discuss the following concepts: a) state (5) b) government (5) c) sovereignty (5) a) A state is defined by the following requirements:  a specific geographically defined territory  a community of people who live in that territory  a legal order in which the community is subject  an organized system of government which is able to uphold the legal order  a measure of separate political identity b) The government is a temporary bearer of state authority, who represents the state at a particular time. Initially government did not have a political connotation and was associated with the judicial function. Gradually government became a general term covering all functions and organs of state. Today government relates primarily to the executive function with particular bearing on the formation and implementation of policy. c) A sovereign state defines a state which is autonomous and independent and therefore not subject to the authority of any other state. It was historically used to refer to the monarch of a country, however in recent times it has been associated with the sovereignty of the people to indicate that the power of government rests in the hands of the people. This gave rise to the concept that parliament is sovereign, which meant that legislative authority was vested in parliament and it could enact any law no matter how reasonable or unjust and the courts could not challenge this decision. You have been approached by Depp who tells you that he has been reading the 1996 Constitution and has come across section 33(2) which says that national legislation must be enacted to give effect to this provision. He says that he does not know what this means. Depp would like to know the effect of this provision and whether there are similar provisions in other parts of the Constitution. section 3(3) of the Constitution provides that national legislation (Parliament) must provide for the acquisition, loss and restoration of citizenship. In order to give effect to this constitutional provision, Parliament enacted the South African Citizenship Act 88 of 1995. section 184(4) of the Constitution and the Human Rights Commission Act 54 of 1994, which gives effect to this constitutional provision. {There are 10 others check} Do you think the following persons or bodies would qualify as an ``organ of state'' for the purposes of the Constitution? (1) Unisa, in deciding to expel a student Unisa qualifies as an organ of state as it performs a public function ie providing education to the public and this is exercised in terms of legislation ie. The Unisa Act Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 5 (2) A private school, in deciding not to accept certain learners on the ground that they do not profess a particular religious belief What majorities are required to amend different provisions of the Constitution? (4) In this regard, section 74 of the Constitution provides specifically that: (1) Section 1 and this subsection may be amended by a bill passed by : (a) the National Assembly, with a supporting vote of at least 75 percent of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces. (2) Chapter 2 may be amended by a bill passed by : (a) the National Assembly, with a supporting vote of at least two-thirds of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces. (3) Any other provision of the Constitution may be amended by a bill passed : (a) by the National Assembly, with a supporting vote of at least two-thirds of its members; and (b) also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment (i) relates to a matter that affects the Council; (ii) alters provincial boundaries, powers, functions or institutions; or (iii) amends a provision that deals specifically with a provincial matter. {answer to long, check} (3) Why is a greater majority required to amend certain provisions of the Constitution (such as s 1)? (2) S1 forms part of the founding provisions of the constitution and is therefore among the most important. For this reason it needs to be protected against overhasty or politically expedient amendment. (4) What special procedures are in place to prevent Parliament from amending the Constitution without giving the matter due consideration? (5) (how to word this Q for only 5 marks) In terms of s74(4)-(8): (4)A Bill amending the Constitution may not include provisions other than constitutional amendments and matters connected with the amendments. (5) At least 30 days before a Bill amending the Constitution is introduced must (a)publish in the national Government Gazette (b) submit those particulars to the provincial legislatures for their views; and (c) submit, those particulars to the Council for a public debate, if the proposed amendment is not an amendment that is required to be passed by the Council. (6) must submit any written comments received from the public and the provincial legislatures- (a) to the Speaker for tabling in the National Assembly; and. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 6 (b) in respect of amendments referred to in subsection (1), (2) or (3) (b), to the Chairperson of the National Council of Provinces for tabling in the Council. (7) A Bill amending the Constitution may not be put to the vote in the National Assembly within 30 days of- (a) its introduction, if the Assembly is sitting when the Bill is introduced; or (b) its tabling in the Assembly, if the Assembly is in recess when the Bill is introduced. (8) If a Bill referred to in subsection (3) (b), or any part of the Bill, concerns only a specific province or provinces, the National Council of Provinces may not pass the Bill or the relevant part unless it has been approved by the legislature or legislatures of the province or provinces concerned.{Answer too long} (2) Explain the relationship between constitutional supremacy and the courts' power to test the constitutionality of legislation. (2) One of the founding values of SA is the Supremacy of the constitution and the rule of law s1(c). Law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.s1 (2) The courts must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency.172 (1) (a) (3) Explain the relationship between constitutional supremacy and an inflexible constitution. (3) A supreme constitution that is flexible: (1) Enjoys the same status as the other laws of the country. (2) Requires no special procedure for amendment. And it is the highest law of the land. An Inflexible constitution that is not supreme (1) Enjoys superior status to the ordinary laws of the land. (2) Requires a special amendment procedure eg, a two thirds majority vote. Which ultimately goes against its non-supremacy. {Check answer} Look at the cartoon on pg 17 SG. (1) Do you think that the particular state, to which this cartoon refers, is governed by a supreme constitution? Explain your answer in detail. A supreme constitution: (1) Ranks above all other laws in a state. (2) Any law which is inconsistent with it will be declared invalid. (3) Is usually (but not always!) inflexible. In the cartoon president Mugabe is giving his personal guarantee for a free and fair election. If the constitution was supreme it will be the highest law that has to be obeyed, the president does not have to guarantee freedom and fairness because he is not the highest law, the constitution is, if it is supreme. The president ordering more restrictions on media and opposition parties is indicative of his personal power and that the constitution is not supreme. ( Answer needs to be checked) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 7 (2) Suppose this state is governed by a supreme constitution, which contains a bill of rights that guarantees free and fair elections and freedom of speech. Will the President of this state be entitled to ignore the provisions of the constitution and pass an Act that provides for the abolition of freedom of speech and free and fair elections? Discuss in detail. The president is not entitled to ignore the provisions of the constitution in a state where the constitution is supreme because any law which is inconsistent with it will be declared invalid. Passing the Act in question will be inconsistent with a supreme constitution that provides for freedom of speech and free and fair elections and can be declared invalid. (3)Who (the state or government) concludes a treaty or interstate agreement with another state for instance, to share the airspace of that particular state? It is the government that represents the state at a particular time. A state is a permanent legal entity consisting of a territory, community, legal order, organised government and a measure of political identity. This implies that government can change whilst the state will remain. Therefore subsequent governments of the particular states are bound by the terms of the treaty. Study Unit 4 – Concepts of constitutional Law QUESTION 1 The state of Abysmal has been in existence for more than 20 years. It is governed by a dictator referred to as ‘the Butcher’ because of the reign of terror that he imposes on his people. Curfews are imposed. People cannot engage in free speech. The ‘Butcher’s’ special army roams the country plundering and committing the most heinous of crimes. No elections are held and the people live in constant fear and uncertainty. A secret organisation called ‘the Liberators’ is established to rid Abysmal from the grips of ‘the Butcher’. The Liberators do not know how to go about changing their political situation and approach you (political advisor) for advice on a plan of action. Briefly discuss the five most important constitutional concepts which you believe would have to be adopted for the State of Abysmal to become a democracy. Possible answer: The state of Abysmal will have to adopt the following constitutional concepts in order to become a democratic state: 1. Constitutionalism (including the rule of law and Rechtsstaat) 2. Representative democracy 3. Constitutional democracy 4. Separation of powers 5. Cooperative government Constitutionalism means government in accordance with the constitution. This means government derives its powers from, and is bound by the constitution. Government powers are therefore limited by the constitution. In order to prevent one government official or institution to have unlimited powers, the state of Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 8 Abysmal would have to put in place several mechanisms such as the protection of fundamental rights, an independent judiciary, separation of powers between the legislature, the executive and the judiciary, and certain democratic principles such as universal adult suffrage and regular, free and fair elections. Constitutionalism is also associated with concept of the rule of law which briefly means government in accordance with the law, and the German concept of Rechtsstaat which refers to government by law and not by force. According to Dicey, the rule of law rests on three premise, namely the absence of arbitrary power meaning that no person is above the law, and no person is punishable except for a distinct breach of the law established in the ordinary manner before the ordinary courts; equality before the law which means that every individual is subject to the ordinary law and the jurisdiction of the ordinary courts; a judge made constitution which refers to the fact that the general principles of British constitutional law are the result of judicial decisions confirming the common law. Davis points out that the equation of common law with the general law of the land prevented the development of adequate principles of constitutional and administrative law that could hold the state accountable to the people. The Rechtsstaat principle is a German concept referring to the principles of government by law, and not by force. There is a distinction between a formal and a material Rechtsstaat. The formal Rechtsstaat requires compliance with formal criteria, such a due process, the separation of powers and legal certainty. According to the material Rechtsstaat, the state authority is bound to higher legal values, which are embodied in the Constitution, and the exercise of state authority must result in a materially just legal condition. For the state of Abysmal to be a formal and material Rechtsstaat, it will have to adopt a number of formal requirements for the validity of government action and a constitution which expresses values to which the community has committed itself, e.g. human dignity, equality, freedom, and universal adult suffrage. Representative democracy means that the citizens of a state elect representative of their choice, and these representatives express the will of the people. This means that the citizens of the state have a say in the way in which the state is governed and this is achieved through election of representatives who are regularly elected to express the will of the people in a legislative body such as Parliament. The following features are widely regarded as indispensable to democratic government: free and regular elections, a multi-party system, universal adult suffrage, protection of minorities, and mechanisms to ensure government accountability to the electorate. Constitutional democracy means that the people’s representatives in Parliament, provincial legislatures and in municipal councils are not free to make whatever laws they wish, but are bound to observe the norms and values embodied in the Constitution. Laws that are inconsistent with the Constitution will be declared invalid by a court of law. The state of Abysmal will therefore have to adopt a supreme constitution which will keep tabs on the exercise of government action Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 9 and prevent the concentration of power in the hands of one person or institution , provide for regular, free and fair election and universal adult suffrage; include a Bill of Rights and provide for the independence of the judiciary. A separation of powers between the legislature, the executive and the judiciary will also be important. Separation of powers is the division the state authority between the legislative, executive and judicial functions and the performance of these functions by the separate branches of government. Legislative authority is the power to create, amend and repeal legal rules; executive authority is the power to execute and enforce legal rules; and judicial authority is the power to interpret legal rules and to apply such rules to concrete situations. Separation of powers is important in a state to prevent the concentration of powers in the hands one person or body and thus prevent abuse of state authority. Secondly it serves to protect the freedom of the citizens in a state. According to Carpenter, separation of powers can mean any or all of the following: formal division of state authority between the legislative, executive and the judiciary; separation of personnel to ensure that one person or organ cannot simultaneously perform in more than one branch of government; separation of functions so that one branch of government cannot usurp the functions and powers of another; and finally checks and balances to ensure that each branch of government has specific powers to restrain the other branches and thus achieve the desired equilibrium among the three components of state authority. It is important to note that separation of powers is not absolute and that the concept of checks and balances ensures that each branch of government is subject to some influence and control by the others (De Lange v Smuts No. 1998 (3) SA 785 (CC)). The concept of cooperative government refers to a form of government wherein the executive and legislative authority of the state is shared between the national, provincial and local spheres of government and these spheres must coordinate and synthesis their activities, powers and functions and cooperate or work together for the common good of the nation as a whole. This system emphasises political flexibility, negotiation, compromise and less reliance on the rigid distribution of powers between the three spheres of government. It also ensures that government is brought much closer to the people in the form of local government and thus enhances democracy in the form of a more participatory form in the sense that people at grass root levels becomes involved in governance. The State of Abysmal would therefore have to hold elections in which the citizens would elect representatives of their choice to express their wishes in Parliament, Provincial Legislatures and Municipal Councils. These elections could be held at both national, provincial and local spheres of government in accordance with the system of cooperative governance; and the legislatures of all spheres would derive their mandate from the electorate and, would in accordance with the concept of separation of powers, enacts laws to which all organs of state would Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 10 be subject in accordance with the doctrine of constitutionalism. The State would also have to adopt a supreme constitution to which all laws and conduct must conform so that neither the legislature nor the executive could act arbitrarily or enact whatever laws they wish. Laws enacted by the legislatures in both spheres of government should conform to the norms and values embodied in the supreme constitution. Laws inconsistent with the constitution would be declared unconstitutional by the judiciary. (25 marks) 1 Discuss the following constitutional principals: a) constitutionalism (5) Constitutionalism refers to government in accordance with the constitution. Government derives it powers from, is bound by and is limited by the constitution. Constitutionalism is normally associated with a supreme constitution. It also describes a state in which law reigns supreme. b) the rule of law (5) The doctrine of the rule of law was developed in England in 1885 by Dicey, according to Dicey the law rests on the following three premises:  The absence of arbitrary power. No person is above the law and no person is punished except for a distinct breach of the law.  Equality before the law. Every individual is subject to ordinary law and the jurisdiction of the ordinary courts.  A judge-made constitution. The rules of British law were the result of judicial decisions confirming the common law. In this doctrine the government is bound by common law. This requirement is not workable from a South African perspective as the South African common law does not provide the individual with adequate protection from human rights violations or have mechanisms to hold the state accountable. c) the rechtstaat principal (5) The German Rechtstaat principal refers to the concept of government by law and not by force. The rechtstaat can be split into a formal and material rechtstaat. A formal rechtstaat requires compliance with formal criteria, such as due process and separation of powers. The material rechtstaat requires that state authority is bound to higher legal principals and the exercise of state authority must result in a materially just legal condition. Democracy Includes notions such as constitutionalism and the judicial review of legislation, without necessarily implying that a country which does not have these features is undemocratic. Democracy is a word derived from two ancient Greek words: “demos”, which means the people and “kratos”, which means strength. Democracy therefore refers to government according to the will of the people. In a democracy the right to govern does not vest in a single person or class of persons but in the people as a whole. Democracy presupposes free political discourse, the toleration of differences between people, and the right of all citizens to participate in political decision making. Federalism Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 11 In international context a federation is a single legal entity or sovereign state, with its constituent parts, that enjoys a defined measure of autonomy. In the domestic sense a federal system of government is a constitutional arrangement that allows for territorial diversity in the organised structure of the state. Thus there are two legal orders: a national government and a regional territorial/ provincial government ruling over the same territory. 2 Explain whether South Africa is a constitutional state or a rechtstaat. (10) In a constitutional state government derives its powers from, is bound by and is limited by the constitution. There are mechanisms in place to prevent the concentration of power in a single body. Constitutionalism also includes features such as protection of fundamental rights, separation of powers and an independent judiciary. The German Rechtstaat refers to government by law and not by force. The formal rechtstaat outlines the requirement for separation of powers and legal certainty. The material rechtstaat expands on the formal by requiring state authority to aspire to higher legal values such as the implementation of human rights. In terms of the following two definitions a constitutional state and a rechtstaat are essentially the same things. South Africa has a constitution that includes a bill of rights, implements the separation of powers doctrine and strives for an independent judiciary. Therefore it can be said that South Africa is both a constitutional state and a formal and material rechtstaat. 3 Explain what is meant by the term democracy. (5) Democracy refers to government by the people. The word democracy derives from the Greek words Demos meaning the people and Kratos meaning power. Democracy comes in two forms direct democracy and representative democracy. Direct democracy means that all decisions are made by the people themselves. Representative democracy is when citizens of the state elect representatives who express the will of the people. A democracy is characterized by the following features which are widely regarded as indispensable to democratic government:  Free and regular elections  A multiparty system  Universal suffrage (i.e. all citizens above a certain age have the right to vote)  The protection of minorities  Mechanisms to ensure accountability to government to the electorate. (5) Briefly discuss the difference between direct and representative democracy. (4) Direct democracy means that all major political decisions are taken by the people themselves. This form of democracy may work in a very small political community, where people can get together on a regular basis (e.g. in the town hall) to discuss and decide matters of common interest. Representative democracy is characterised by the fact that the citizens of a state elect the representatives of their choice, and these representatives express the will of the people. Or, simply stated, representative democracy demands that all the inhabitants of the state (ie all those above a certain age, for example 18 years, and who are not disqualified for another reason) should, via direct representation, have a say in the way in which the state Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 12 is governed, usually by being represented in the legislature. Note that a representative democracy is created via the process of elections. These elections should be held at regular intervals, and reasonably frequently. 4 Explain whether South Africa is a democracy. The 1993 constitution established a fully representative democracy for the first time in South Africa and the 1996 constitution continues in this tradition. Free elections are held every four years. A multiparty system has been implemented. The constitution guarantees the right of every person older than the age of 18 to vote. Minorities are constitutionally protected through the bill of rights. South Africa is also considered a constitutional democracy as peoples representatives are bound to observe the norms and values of the constitution. 5 Discuss the question whether judicial review is undemocratic. (5) It terms of the 1996 constitution, laws that are inconsistent with the constitution can be declared invalid by the judiciary. It may seem undemocratic that judges who have not been elected by the electorate can declare the laws of the people chosen representatives invalid. The following points explain why even though the constitution allows for judicial review, it can still be considered democratic.  The South African constitution was compiled by the people’s representatives. There had to be a 2/3 majority of the constitutional assembly. This was a product of lengthy negotiations and democratic deliberation.  Democracy allows citizens to state their views and challenge widely accepted beliefs without fear of reprisal. Judicial review contributes to this by protecting people’s political rights and freedom of expression.  When judges declare a law invalid they are not able to put their own view in its place. The invalidated law is returned to the legislature who has the discretionary power to amend the law provided it does not conflict with the constitution. 8 Distinguish between parliamentary and presidential systems of government. (6) The relationship between the executive and the legislative bodies determines if a country has a parliamentary or presidential system. Presidential System Parliamentary System The head of government is also the head of The head of state and the head of government state. are two different people. The head of government is not a member of The head of government and his cabinet the legislature and is not responsible for it. members are the members of the legislature. The head of government is often elected The leader of government is the leader of the directly by the people. party with a clear majority. Unit 5 – Separation of Powers and Checks and Balances Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 13 6 Discuss the doctrine of “separation of powers” and “check and balances” (10) Separation of powers or “trias politica” 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. The doctrine of checks and balances gives each branch of government special powers to restrain the other branches and maintain the desired equilibrium among the three components of governments. The doctrine of checks and balances is firmly entrenched in the constitution of South Africa, the most important of these checks and balances is 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. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 14 7 Discuss whether South Africa has adopted the separation of powers under its new (5) dispensation. Separation of powers or “trias politica” separates state authority into legislative, executive and judicial authority. 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. 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 (i.e. the usurpation of the parliament’s legislative authority by the executive). 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. The principles of cooperative government and the trias politica doctrine are one and the same thing. (5) False 1. The trias politica doctrine deals with the division of state power between the three branches of government, that is, the legislature, executive and the judiciary. The legislature makes, amends and repeals laws. The executive implements and enforces the law. The judiciary interprets and applies the law to concrete situations. 2. This doctrine is important because it prevents a concentration of power in one body; the principles of cooperative government are embodied in sections 40 and 41 of the Constitution. 3. According to this principle, the three spheres of government, that is, the national provincial and local spheres of government, must assist and respect each other. 4. Section 40 provides that the three spheres of government are interdependent, interrelated and distinctive and section 41 sets out the guidelines in terms of which these spheres must interact with each other. 5. Cooperation between the three spheres of government is important in order to develop the capacity and infrastructure of the weaker provinces and municipalities. Sipho (a third-year law student who has studied Constitutional Law) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 15 is having dinner with his friends. During the course of the conversation his friend Adrian makes the statement that he does not think that judges should be allowed to set aside Acts of Parliament, since Parliament consists of elected representatives and judges are appointed. Sipho disagrees with Adrian and says that judicial review is not undemocratic. What arguments could Sipho use to substantiate his claim? (5) Remember to explain what you understand by the term judicial review and then say whether it is undemocratic or not. Part of your answer should include a brief discussion of whether judicial review is important or not, and what the benefits of judicial review are, given that our judges are not directly elected by their representatives. (ii) The 1996 Constitution provides that Parliament may pass an Act which is designed to test the validity of a judgment of the Constitutional Court. (5) False Ð Section 1 of the Constitution confirms that the Constitution is the supreme law of the land. Ð The separation of powers doctrine is also firmly embedded within the 1996 Constitution. Ð In terms of this doctrine the three branches of government must function independently of each other. Ð Furthermore, section 165 provides that judicial authority is vested in the courts and that the other branches of government should seek to promote the independence of the courts, instead of usurping their powers. Ð By passing this Act, Parliament would, in fact, be in violation of its constitutional obligation to preserve the independence of the courts and the trias politica doctrine. Ð Even under the system of parliamentary sovereignty, Parliament was not allowed to usurp the powers of the judiciary (Second Harris case). Study Unit 6 – Cooperative government This study deals with the relationship between the different spheres of government. 1 List the three spheres of government that make up the Republic of South Africa. (3) National, Provincial and Local. 2 List the three branches of government in the national sphere. (3) Legislative (Parliament), Executive (President & Cabinet) and Judicial (Courts) 3 Is there a difference between the three spheres and three levels of government? Discuss. (6) Yes, the three spheres of government consist of the national, provincial and local spheres, whereas the three levels of government are the legislative, executive and judicial bodies. The three spheres of government each contain their own versions of the three levels. The three spheres aim to split the government into manageable geographical regions, while the three levels aim to control the relationship between the various functions of government and ensuring that the authority of government is not in the hands of one organ. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 16 4 Draw a schematic representation of the legislative authority in the three spheres. (10) NATIONAL PROVINCIAL LOCAL PARLIAMENT PROVINCIAL LEGISLATURE MUNICIPAL COUNCILS NATIONAL ASSEMBLY (elected by pr) (elected by pr) (elected by pr) NATIONAL COUNCIL OF PROVINCES (premier, 3 special delegates, 6 permanent Delegates) 5 Draw a schematic representation of executive authority in the three spheres. (10) NATIONAL PROVINCIAL LOCAL PRESIDENT PREMIER MUNICIPALITIES CABINET EXECUTIVE COUNCIL STATE DEPTS VARIOUS DEPTS 9 Explain what you understand by the term “federalism”. (5) A federation splits government into two or more legal orders (e.g. National/Provincial/Local), neither of which is subject to the other. In a federation legislative and executive power and sources of income are split between the various levels of government; however some issues such as defense, taxation and international trade are managed by national government. The powers of a federation may be divided in the following ways:  The powers of the national government are defined in the constitution and everything not defined is in the hands of the provinces, such as the US constitution.  The powers of the provinces are defined in the constitution and the remainder is vested in national government, such as in Canada.  All levels of government are defined in the constitution and a provision is required to determine the highest authority for matters not identified, such as in Switzerland. Most federal constitutions provide for concurrent powers. 10 Explain whether South Africa is a federal state. (5) A federation splits government into two or more legal orders (e.g. National/Provincial/Local), neither of which is subject to the other. In a federation legislative and executive power and sources of income are split between the various levels of government. Most federal constitutions provide for concurrent powers. The 1996 constitution contains a number of important federal features, such as:  Section 40(1) states that the government in constituted at national, provincial and local levels which are distinctive, interdependent and interrelated.  Chapter 6 sets out executive and legislative authority and determines under what circumstances an Act of Parliament will have authority over the provincial legislature.  The constitutional court acts as an arbitrator in cases of conflict. 6 What are the primary differences between a divided and integrated model of federalism? (6) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 17 A divided model of federalism occurs when the national and provincial government’s responsibilities are clearly divided. The provinces are given independent taxing powers. There are no formal mechanisms for cooperation between the national and provincial levels of government. Provincial interests are not directly represented in national government. An example of this would be the Canada. By contrast an integrated model of federalism is designed to integrate and coordinate national and provincial levels of government. There are few areas in which national government has exclusive power and many powers are shared between national and provincial levels. Revenue and taxing powers are shared. A number of intergovernmental constitutions are responsible for promoting cooperation between the national and provincial governments. An example of this would be Germany. 7 “Simeon says South Africa follows a more integrated form of federalism than a divided one”. Briefly discuss the differences between these two models and list the reasons Simeon gives for his view. (15) A divided model of federalism occurs when the national and provincial government’s responsibilities are clearly divided. The provinces are given independent taxing powers. There are no formal mechanisms for cooperation between the national and provincial levels of government. Provincial interests are not directly represented in national government. An example of this would be the Canada. By contrast an integrated model of federalism is designed to integrate and coordinate national and provincial levels of government. There are few areas in which national government has exclusive power and many powers are shared between national and provincial levels. Revenue and taxing powers are shared. A number of intergovernmental constitutions are responsible for promoting cooperation between the national and provincial governments. An example of this would be Germany. The reasons for Simeon’s statement are the following:  Chapter 3 of the constitution is entitled cooperative government. Section 40 states that government in constituted of national, provincial and local spheres which are distinct, interdependent and interrelated. Section 41 lists principals which government must observe in order to secure good government.  The fact that the constitution refers to spheres, rather than levels of government gives the impression it aims to move away from the traditional hierarchical structure and promote the national, provincial and local spheres as more or less equal partners.  Schedule 4 contains a list of powers that are shared between national and provincial government.  Provinces have limited taxing powers and cannot impose income tax, sales tax or VAT.  Section 41(2) requires an act of parliament to create mechanisms to settle intergovernmental disputes.  Section 41(3) requires an organ of state to make every effort to settle a dispute using all available mechanisms before approaching the courts.  Provincial interests are represented in parliament through the national council of provinces.92(2) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 18 According to Simeon, the 1996 Constitution embraces an integrated form of federalism. Briefly list five features from the 1996 Constitution which supports the above statement. (5) Simeon's five characteristics which give credence to the statement: Chapter 3 of the Constitution firmly entrenches the notion of co-operative government within South Africa. Under section 40(1) of the Constitution, reference is made to the three spheres instead of the three levels of government which has the effect of discarding the traditional hierarchical structure and places all three spheres on an equal footing. Schedule 4 sets out concurrent powers. Provinces have limited power to raise revenue. Section 41(2) provides that Parliament has the power to facilitate the process of co-operation by setting up the necessary infrastructure and by exhausting internal remedies before approaching court if intergovernmental disputes arise. Provincial interests are represented in the NCOP. You are the research assistant to one of the Appeal Court judges. A case has come before the Supreme Court of Appeal which deals with the issue of whether the national government can design mechanisms in order to promote intergovernmental relations. The judge requests that you prepare a paper on the general principles (as contained in the Constitution) pertaining to this issue. Set out the content of this paper. (10) Do not just state that the three spheres of government are interrelated, interdependent and distinctive without giving us an idea of what these three concepts mean. Illustrate that you understand the three spheres of government by giving an example of how the three spheres interact with each other. Bear in mind the following questions when you formulate your answer: Ð What do you understand by the concept of cooperative government? Ð Which sections of the 1996 Constitution deal with this aspect? Ð What do these sections say? Ð Give examples. Ð Conclusion. 8 Discuss the principals of cooperative government as set out in chapter three of the 1996 constitution? (10) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 19 Section 40(1) states that government is composed of national, provincial and local spheres which are distinctive, interdependent and interrelated. This statement implies that the national, provincial and local spheres all have their own identity and each have specific legislative and executive responsibilities assigned by the constitution. This can be seen in the national legislature where parliament is made up of the National Assembly and the National council of provinces. Section 41(1) sets out a list of principals which all spheres of government must conform to in order to promote good government. The emphasis on this section is on respect for other spheres and promoting the spirit of cooperation between the various spheres. Section 41(2) requires an act of parliament to create mechanisms to promote and facilitate intergovernmental relations and help settle intergovernmental disputes. Section 41(3) requires an organ of state to make every effort to resolve an intergovernmental dispute using all available mechanisms and only to approach the courts when they have exhausted all other options. Section 41(4) gives the courts permission to hand the matter back to the organ if the requirements of 41(3) have not been met. 9 Given the current disparities between the various provinces, do you think that the notion of cooperative government is compatible with the autonomy of provinces? (6) The model of cooperative government implemented by the constitution is often seen as a hindrance to provincial autonomy. On one hand it can be argued that too much power is concentrated in national governments, which leaves provincial legislation very little power to adopt their own legislation. However on the other hand it can be argued that a strong national government can help the provinces manage their own affairs. The 93 constitution moved from the original 4 provinces to 9 provinces. This resulted in a merger of various provincial administration and administrations of homelands and as a result the many of the provinces have lost their political identity. They also lack the administrative capacity to fulfill their functions. Therefore the identity of the provinces can only be developed within a framework of intergovernmental cooperation. The autonomy of provinces although not complete is defendable in the light of schedule 4 and 5 of the constitution. Schedule 5 lists the legislative powers that are under the control of provincial government and schedule 4 lists the powers where the national and provincial governments share legislative powers. However the national government still ultimately has the power to override the provincial legislature in most respects. 10 Discuss the issue of cooperative government in the light of the Premier of the Western Cape v the President of the Republic of South Africa? (10) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 20 Section 40 states that the republic is made up of three spheres the national, provincial and local which are distinctive, interdependent and interrelated. Section 41 lists a number of guidelines to promote cooperation between the various spheres of government. The issue of cooperative government came under the spotlight in the case of Premier of the Western Cape v the President of the Republic of South Africa. In this case parliament had passed an amendment to the Public Service Act which gave the national and provincial heads of departments the same broad functions and responsibilities. The province of the western cape challenged the constitutionality of this amendment on the basis that it violated section 41(1)(g) in three important respects, namely:  It assigned functions to the provincial director general and heads of departments in an unacceptable manner;  It restricted the premiers executive power to establish or abolish departments of government; and  It gave the minister the ability to transfer certain powers from the province to the national level. The issue facing the court was whether the new scheme encroached upon the geographical, functional and institutional integrity of the provincial sphere of government. The court concluded that the new scheme did not violate section 41(1) (g), as:  Section 41(2) allows parliament to enact laws to facilitate the process of cooperative government. The creation of the post of director general was consistent with this section and did not usurp the power of the premier.  The new scheme did not restrict the power of the premier to establish or abolish departments. The scheme only required the premier to confirm the constitutionality of his decision with the president.  The Western Cape province was consulted throughout the whole process.  The new scheme did not in any way limit the powers and functions of the premier.  The new scheme was not enacted in a manner inconsistent with the constitution. 11 Mention 4 examples of institutions designed to facilitate cooperative government. (4)  Intergovernmental Forum which discusses policy at a provincial level  Technical Intergovernmental Committee which assists the IGF  MINMECS established to facilitate harmonization, consultation and joint action in a number of functional areas.  Budget Council, setup by the Intergovernmental Fiscal relations act to promote cooperation between the spheres in terms of fiscal, budgetary and financial matters. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 21 Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 22 Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 23 Study Unit 7 – Legislative authority (National sphere) This study deals with the source of parliaments powers, the bearers of this authority, how members hold office, the different forms of representation and the one SA opted for. 1 Define legislative authority and state to whom it is vested in the national and provincial spheres of government. (4) Legislative authority is the power to enact, amend or repeal rules of law. In the national sphere it is vested in parliament, which consists of the National Assembly and the National Council of Provinces. In the provincial sphere it is vested in provincial legislature. 2 Parliament consists of two houses. What are they? Discuss the motivation behind this dual structure. (8) Parliament consists of the National Assembly and the National Council of Provinces. The National Assembly is the national component of parliament, whereas the National Council of Provinces is the provincial contingent and aims to ensure the interests of the provinces are taken into account at a national level. The reason for a dual structure is:  It aims to protect the interests of the provinces.  It reduces parliament’s workload.  It promotes more thought and consideration in parliament as normally issues are discussed by both houses. 3 Briefly lists the functions of the following: a) National Assembly (5) b) National Council of Provinces (5) Section 42(3) and 44(1)(a) sets out the functions of the National Assembly.  Representation of the electorate. They represent the people in decision making at a national level.  The election of the president.  Public consideration of issues. This is done through a forum for public debate.  Passing legislation. Their most important function is to debate, amend and approve bills.  Scrutinizing and overseeing executive action.  Can amend the constitution.  Can pass legislation on any matter included in schedule 4 and prohibited from passing legislation on any matter in schedule 5  Assign any legislative power, except changing the constitution to a legislative body in another sphere of government. Section 42(4) and 44(1)(b) sets out the functions of the National Council of Provinces.  Represents the interests of the provinces in the national sphere.  Participation in the national legislative process.  Public consideration of issues affecting the provinces.  They can participate in amending the constitution in accordance with section 74.  They can pass bills concerning any matter in section 4 in accordance with section 76.  To consider any other legislation passed by the National assembly in terms of section 75. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 24 4 Explain the circumstances under which adult citizens may be deprived of their right to vote. Refer to case law in your answer. (10) The right to vote is a fundamental right built into the bill of rights, which is contained in chapter 2 of the constitution. Universal suffrage is a fundamental component of democracy. This issue was scrutinized in the August and another v Electoral Commission and another case. The case concerned the voting rights of prisoners in the 99 election. Even though Prisoners can vote, the electoral commission argued that it did not have sufficient budget to support the logistics required to hold elections at all of the prisons across the country and that this would set a president which would allow other groups such as overseas citizens and people in remote areas to also argue for special treatment. The interim constitution did not disqualify prisoners from voting. The 93 Electoral Act disqualified prisoners guilty of serious offences such as murder, robbery or rape. The 96 constitution like the interim constitution does not disqualify prisoners from voting, and any such restriction would have to be justified using section 36, the limitation clause. The 98 Electoral Act did not limit the rights of any prisoners to vote. The 98 Electoral Act made provision for special voters, but no provision was made for prisoners in the list of applicable parties. Council for the applicants argued that as there was no limitation in the constitution regarding the rights of prisoners to vote, the Electoral Commission had a responsibility to set up voter’s polls at prisons across the country. The courts found in favor of the prisoners and instructed the Electoral Commission to arrange for polling stations at the prisons. Their reasons for this decision were the following:  The 96 constitution did not limit the rights of prisoners to vote in any way.  The court was in no position to limit the rights of the prisoners right to vote under section 36 as this had not been raised as an issue.  The prisoners were already in an environment which would make the process of voting easier. The prisoners were being counted every day and the work required to set up a voting poll at each prison was seen as minimal.  The Electoral Commissions reason for existence was to set up the logistics to make voting accessible to all citizens in the country and that included prisoners. Even though the Electoral commissions concern that other parties would come forward and this decision would set a precedent for them, was overruled as the court determined that as none of these parties had come forward it could not take them into account. Therefore the court could not deny claims put forward by asserted people on the off chance that other claims might be submitted.  There were a number of prisoners who had not yet been convicted of a crime, but would not be able to vote as they were incarcerated awaiting trial. In the case of the New National Party of South Africa v Government of the RSA, the court had to decide on whether the requirement that bar coded ID books were required before citizens could vote was constitutional. The court decided that the requirement did not infringe peoples right to vote and those who really wished to register would have been able to do so. 5 a) Distinguish between territorial and proportional representation. (5) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 25 Territorial representation is characterized by the Westminster system of government and means that a person is elected by persons in a particular geographical area, called a constituency, to represent them in parliament. The winner of the election is the first person past the post. In proportional representation all parties participating in the election gets allocated seats based on the number of votes received. 5 b) List the advantages and disadvantages of each electoral system. (12) The advantages of territorial/regional representation are:  It is simple.  It is conducive to a strong government.  It results in a closer bond between the representative and the voter, as voter can complain directly to their representative if they are not satisfied with governments performance. The disadvantages of territorial/regional representation are:  It incorrectly reflects the relative strength of the parties.  It favors stronger parties to the detriment of weaker parties.  The way in which constituencies are defined can result in one party having a majority in government without having received a majority of the votes. The advantages of proportional representation are:  It produces a fair reflection of voter opinion.  It eliminates the problem of unbalanced delineation of electoral districts.  All votes carry the same weight.  It accommodates a wider representation of parties.  Minorities can form coalitions against larger parties and avoid dominance by a major party. The disadvantages of proportional representation are:  It may lead to weak unstable government, because it may be impossible for any party to maintain a clear majority in parliament.  There is no connection between the voter and the representative.  It is often complicated and difficult to understand.  It often fails to produce a clear workable majority.  There are no by-elections when a seat in parliament is vacated and this does not represent changes in political trends. 5 c) Which system has South Africa adopted? Explain. (3) South Africa has adopted the system of proportional representation. The 1993 constitution implemented the list system of proportional representation, which required voters to vote for a single party. The 1996 constitution leaves it to an act of parliament to determine the electoral system of the country, but that system must be a proportional system. 6 What do you understand by the free mandate and imperative mandate theory of representation? (4) Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 26 The free mandate theory does not bind a member of parliament to the mandate given to him by the electorate, but must act according to his conscience and in the best interests of the country. He does not have a legal duty to resign. The imperative mandate theory binds a representative to the mandate given to him by the electorate. If the candidate experiences problems with his party he must resign and vacate his seat in parliament. If the member switches allegiance to another party he must also vacates his seat. 7 Which theory of representation has SA opted to follow? Explain. (5) The 1993 constitution as well as the transitional period of the 1996 constitution implemented the imperative mandate theory. The 1996 constitution allowed an Act of Parliament to abolish the imperative mandate theory. A number of acts were passed in this respect and a case United Democratic Movement v Republic of South Africa contested these acts. The court invalidated these acts unconstitutional as they had not been passed within a reasonable time. Since then parliament has passed two additional acts concerning floor crossing. In terms of these acts:  Members were given 15 days after the act was amended to cross without loosing their seats in parliament.  The amendment allows for a 15 day period in September of the 2 nd and 4th year after a general election to cross without loosing their seats.  Parties in parliament are entitled to merge or separate during these periods.  Permission to “cross the floor” is only required if more than 10% of a party decides to break away. Are the following statements true or false? Give reasons for your answer. (iii) In De Lille v The Speaker of the National Assembly, the Cape High Court held that the exercise of parliamentary privileges would at all times be subject to judicial review irrespective of whether it was exercised in a proper manner or not. (5) False. 1. Parliamentary privileges are designed to give members of Parliament a degree of independence, in the sense that members are protected against outside interference. 2. In SA, this power is regulated by statute which provides that Parliament enjoys the privilege of regulating its own internal proceedings and members are free to say whatever they wish without fear of civil or criminal action being instituted against them. 3. In the said case, which dealt with the suspension of Ms De Lille, the court rejected the argument that Parliament was entitled to suspend Ms De Lille for contempt because this power fell within the ambit of section 57(1)(a). 4. The court emphasised that Parliament is under an obligation to exercise this privilege with due regard to representative and participatory democracy created under our new dispensation. 5. It further highlighted that minority parties must be allowed representation in a manner that was consistent with the promotion of democracy, which the suspension did not purport to do. 6. The suspension had the effect of penalising the party to which the member belonged as well as the voters who had voted for that party. 7. In conclusion the court reiterated that if the privilege is exercised in the correct manner then there would be no reason for judicial intervention. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 27 8. It is only when the privilege is exercised in an improper manner and where Parliament has acted mala fide or capriciously and in defiance of the constitutional rights of its members that the courts will intervene. 8 Explain what parliamentary privileges are and whether their exercise is subject to judicial review. Refer to case law in your answer. (15) Parliamentary privileges developed in Britain to protect parliament from interference by the monarch and still exists today to protect parliament from outside interference. Examples of these privileges are the right to pardon offenders or to conclude treaties. The privileges of South Africa parliament are regulated by the Powers and Privileges Act and some also enjoy constitutional status. Section 57(1) recognizes the authority of the National Assembly to determine and control its own arrangements, proceedings and procedures and to make rules and orders concerning its own business. Section 58(1) guarantees freedom of speech in the assembly and its committees and exempts members and cabinet ministers from civil and criminal prosecution for anything they have said or produced before the assembly or its committees. The question of whether parliamentary privileges are subject to judicial review was scrutinized in the De Lille v Speaker of the National Assembly 1998. De Lille was suspended for 15 days from the National Assembly after having made allegations that certain ANC members had been spies for the apartheid government. Judge Hlope concluded the case by stating that parliamentary privileges, which is clearly a constitutional power and is not limited from judicial review. 9 Discuss the role of parliamentary committees. (5) Parliamentary committees have been created due to the size of parliament and the complexity of the matters before it. It is unrealistic to expect parliament to attend to all matters before it and these committees are tasked to fulfill certain functions. A parliamentary committee consists of a smaller group of members of parliament who are chosen to perform a specific task. The committee system also aims to promote the transparency of government and allow public input in the law making process. Both houses of parliament have their own committees and some committees act jointly across both houses. A standing committee exists for the full term of parliament, where ad hoc committee is created to fulfill a specific task after which it is disbanded. Examples of some committees are: Portfolio committees in the NA, Select committees in the NCOP and the mediation committee. In an attempt to step up the fight against poverty, Parliament adopted a new Bill to create a Social Justice and Reconciliation Commission (SJRC). The task of the Commission is to investigate and monitor compliance with structural interdicts issued by Courts in cases of successful socio-economic rights litigation. The Commission is to be chaired by a judge of the Supreme Court. When the Bill was sent to the President for his assent, he declined to grant it. Instead, he referred the Bill back to Parliament for reconsideration in terms of section 79 of the Constitution. The President noted that the Bill violates the separation of powers doctrine as set out by the Constitutional Court in its TAC and Heath judgments, because (i) it enables Courts to exercise supervision over the economic policy choices of the executive; and (ii) it allows a judicial officer to serve as Head of a Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 28 Commission of inquiry. During further debate in Parliament, open disagreement was expressed with the views of the President. The Bill was accordingly readopted without any amendment. The President now seeks your legal counsel on the matter.(8) (a) May the president veto the bill by refusing to sign it? If not, indicate in detail how the president should deal with the matter if he or she has reservations about the constitutionality of a bill. Compare the position of the president of South Africa with that of the president of the USA. (8) The issue of the president’s assent to bills is dealt with in section 79 of the Constitution. In terms of section 79(1) of the Constitution, the president may refer a bill back to the National Assembly for reconsideration if he or she has reservations about the constitutionality of the bill. This power is wider than the one given to the president under the interim Constitution. Under the interim Constitution, the president could refer a bill back to Parliament only if a procedural defect had occurred in the legislative process. Under the 1996 Constitution, on the other hand, the president can also refer a bill back to the National Assembly if he or she believes that it does not meet the substantive requirements of the Constitution (e.g. if it infringes the Bill of Rights). The issue of the referral of bills to the Constitutional Court for a decision on the bill’s constitutionality came in the spotlight in 1999. In Ex parte the President of the Republic of South Africa: In re: Constitutionality of the Liquor Bill 2000 (1) BCLR 1 (CC) the facts were as follows: Parliament had passed the Liquor Bill, but it did not receive the assent of the president. The president referred the bill to the Constitutional Court for a decision on its constitutionality. This was indeed the first time that provisions of the 1996 Constitution allowing for such a referral were invoked, and the court therefore had to consider what the procedure entails, as well as the questions raised concerning the Bill’s constitutionality. Three related questions required clarification in the light of the president’s invocation of this procedure, namely: (a) Is the court required to consider only the reservations expressed by the president, or may, and should, it direct its attention more widely? (b) Should the court in determining the bill’s “constitutionality” examine its every provision so as to certify conclusively that it accords with the Constitution in every part? (c) Does the court’s finding regarding the bill’s constitutionality or otherwise preclude or restrict later constitutional adjudication regarding its provisions once enacted? The court referred to section 79(5), which requires a decision as to whether “the Bill is constitutional”. The court further referred to section 167(4)(b), in terms of which only the Constitutional Court may decide on the constitutionality of any parliamentary bill, but may do so only in the circumstances anticipated in section 79. The court therefore relied on section 79, which clearly envisages that the president’s “reservations” must be specified when referring a bill back to Parliament. At paragraph 12, the court held as follows: Section 79(3)(a) requires that the National Council of Provinces participate in the reconsideration of the Bill if the President’s reservations are of a specific kind – namely if they relate to “a procedural matter that involves the Council”, while section 79(4) requires the President to assent to and sign the Bill if after reconsideration it “ fully accommodates” his reservations. It is moreover clear that the President is empowered to refer a matter to this court in terms of section 79 only if his reservations concerning the constitutionality of the Bill are not fully accommodated by Parliament. Both provisions entail that the President must itemise his reservations in relation to a Bill. The court then concluded that since the president Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 29 can refer the Bill to the Constitutional Court only when having reservations about its constitutionality, the court can also consider the constitutionality of the Bill only in relation to the president’s reservations. The court therefore considers only the president’s reservations. The answer to the second question posed above was “no”. The court’s function is not to determine, once and for all, whether a bill accords in its entirety with the Constitution. Regarding the third question posed above, the court held that even if it does not decide that the bill is constitutional, supervening constitutional challenges after it has been enacted are not excluded, save to the extent that the court in deciding the questions that the president placed before it in the section-79 proceedings has already determined them. It is clear from section 79 and the Liquor Bill, therefore that in South Africa the president cannot veto the bill by refusing to sign it. However, the position in the USA is different. The US Constitution gives the president the power to veto legislation adopted by Parliament (or “Congress”, as it is known in the USA). Unlike the president of the USA, his South African counterpart does not have the power to refuse to sign a bill. He or she has the power only to refer it back to the National Assembly if he or she has reservations about its constitutionality. If the reconsidered bill fully accommodates the president’s reservations, he or she must sign it. If not, the president must either assent to and sign the bill, or refer it to the Constitutional Court for a decision on its constitutionality. If the Constitutional Court decides that the bill is constitutional, the president must assent to, and sign, it (s 79(5)). (b) Is the bill indeed unconstitutional, as claimed by the president? Refer in detail to the provisions of the Constitution and to the judgments of the Constitutional Court on which the president relies. (12) You must be able to give a definition of separation of powers and apply it within the context of the scenario given, and in the light of the decisions of the Constitutional Court in TAC and Heath. Separation of powers can be defined as the division of state authority into legislative, executive and judicial functions and the performance of these functions by separate branches of government. Legislative authority is the power to create, amend and repeal legal rules. Executive authority is the power to execute and enforce legal rules. Judicial authority is the power to interpret legal rules, and to apply such rules to concrete situations. You should also briefly discuss the origin and rationale of the doctrine of separation of powers. The importance of checks and balances cannot be overemphasised. The president’s arguments as presented in the scenario should be highlighted before they are evaluated against the TAC and Heath judgments. The Constitutional Court in the Minister of Health and Others v TAC and Others 2002 (5) SA 721 (CC) stated that although there are no clear lines separating the role of the legislature, the executive and the courts from one another, there are certain matters that are pre-eminently within the domain of one or other of the arms of government, and not the others. All arms of government should be sensitive to, and respect, this separation. This does not mean, however, that courts cannot, or should not, make orders that have an impact on policy. South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) BCLR 77 (CC) was about judges presiding over a special investigating unit (SIU), and the sanctioning of search warrants. The Constitutional Court held that appointing a judge as head of the SIU must be Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 30 declared invalid. According to the court the position of the judge in this unit is incompatible with his judicial office and contrary to the separation of powers required by our Constitution. The court held the following: [T]here can be no doubt that our Constitution provides for such separation, and that the laws inconsistent with what the Constitution requires in that regard, are invalid. The separation required by the Constitution between the legislature and executive on the one hand, and the courts on the other, must be upheld otherwise the role of the courts as an independent arbiter of issues involving the division of powers between the various spheres of government, and the legality of legislative and executive action measured against the Bill of Rights, and other provisions of the Constitution will be undermined. The following was taken into consideration in its decision: Under our Constitution, the judiciary has a sensitive and crucial role to play in controlling the exercise of power and upholding the Bill of Rights. It is important that the judiciary be independent and that it be perceived to be independent. One of the purposes of the Act (Special Investigating Units and Special Tribunals Act 74 of 1996) is to provide special measures for the recovery of money lost by the state, and in the case of the head of the SIU, therefore, litigation on behalf of the state is an essential part of the job. These are functions central to the mission of the legislature and must be performed by members of this branch of government. The intrusive nature of the investigations that are carried out by the SIU are not “appropriate to the central mission of the judiciary”. Such functions should be carried out by the commissioner of police. These are functions central to the mission of the executive and must be performed by members of this branch of government. Even though the judge (i.e. the judiciary) did not intrude into the affairs of the executive at his own instance, the legislature made provision for his appointment in the Act, and the legislation is inconsistent with the separation of powers required by the Constitution. The Constitution provides that the courts are independent and subject only to it and the law, which they must apply without fear, favour or prejudice. You could also refer to other cases dealing with separation of powers such as SARFU, Western Cape, De Lange and Pharmaceuticals. You then had to apply the law to the facts and give your own opinion in this regard. Study Unit 8 – Legislative authority (National sphere) This study unit deals with the process before legislation is adopted. It defines the majorities that are required for amendment of the various parts of the constitution and the concept of delegation of authority by parliament. 1 a) Discuss the process of adoption for bills amending the constitution. (10) The constitution splits the creation of bill amending the constitution into three sections.  A bill amending section 1 of the constitution requires a ¾ majority in parliament and a supporting vote of at least 6 of the provinces in the NCOP.  A bill amending any section in Chapter 2, the bill of rights, requires a 2/3 majority and a supporting vote of at least 6 of the provinces in the NCOP.  A bill amending any other section of the constitution requires a 2/3 majority in the National Assembly and if the section relates to a matter which affects the provinces, requires a supporting vote of at least 6 provinces in the NCOP. A bill amending the constitution should not make any provisions except those constitutional provisions specific to the amendment. At least 30 days before the bill is amended it must be published in the government gazette, submit it to the NCOP for review. When the bill is Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 31 introduced written concerns or objects from the public must be submitted to the NA and NCOP. A bill may not be put to assembly within 30 days of its introduction or the NA is in recess when the bill is introduced. Finally the bill must be passed to the president for assent. 1 b) Discuss the process of adoption for ordinary bills affecting the provinces. (10) When a bill is passed by the national assembly on a schedule 4 matter, the bill must be passed to the National Council of Provinces. The NCOP must then pass the bill, reject the bill or send an amended bill back to the NA. If the NCOP pass the bill it must be sent to the president for assent. If the council amends the bill it must be sent back to the NA, if the NA pass the amended bill it must be sent to the president for assent. If the NCOP rejects the bill or the NA rejects the amended bill, it must be sent to the mediation committee. The mediation committee then has three options. They can accept the NA bill, they can accept the NCOP bill or they can create an amended bill. If the decision is not made within 30 days it will lapse. If the NA bill is accepted it will be sent back to the NCOP who can either accept or reject the bill. If the bill is accepted it must be sent to the president for assent. If the bill is rejected it will lapse. If the NCOP bill is accepted it will be sent to the NA who can either accept or reject the bill. If the bill is accepted it must be sent to the president for assent. If the bill is rejected it will lapse. If an amended bill is passed by the mediation committee, it must be submitted to both the NA and NCOP. If the bill is accepted it must be sent to the president for assent. If the bill is rejected it will lapse. If the bill lapses it can later be passed by the NA with a 2/3 majority. 1 c) Discuss the process of adoption for ordinary bills not affecting the provinces. (5) When the National Assembly passes a bill in which is not covered by section 74 or 76, the bill must be passed to the National Council of Provinces. The NCOP can pass the bill which must then be passed to the president for assent. If the NCOP decide to amend or reject the bill, it must then be sent back to the NA who can take these considerations into account and from this decide on whether to reject the bill, pass the bill with the NCOP amendments or ignore the suggestions of the NCOP and pass the bill anyway. 2 What are the main differences between 1b and c above? (4) Section 76 requires the involvement of a mediation committee to resolve differences, whereas 75 does not require this body. In section 76 if the bill lapses, the NA can reintroduce and pass the bill with a 2/3 majority. Section 76 gives more power to the NCOP, whereas 75 gives all the power to the NA. In terms of section 75 the members of the NCOP each have one vote and the question is decided on a majority of votes whereas section 76 requires a majority vote of at least 5 of the provinces. 3 Briefly explain when the president may send a bill back to the National Assembly. Downloaded by Sean De Lange ([email protected]) lOMoARcPSD|5215371 32 Furnish us with the exact provision of the constitution dealing with this aspect of law. (3) In terms of section 79(1) the president may refer a bill back to the National Assembly if he has any issues regarding the constitutionality of the bill. This could be due to a procedural issue or a substantive issue. 4 Briefly explain when the president may pass a bill back to the Constitutional Court for a decision on its constitutionality. Refer to the Liquor Bill case for your answer. (15) In terms of section 79(1) the president can refer a bill back to the National Assembly if he has reservations about its constitutionality. The NA must then address these issues and resubmit the bill back to the president with an amended bill or the original bill. According to section 79(4) if the president still has reservations about the constitutionality of the bill he can refer the bill to constitutional court to decide on the reservations he submitted when passing the bill back to the NA in terms of 79(1). The ability for the president to refer a bill to the constitutional court was scrutinized in the Ex parte President of RSA: Re the constitutionality of the Liquor Bill. In this case the constitutional court defined the circumstances in which the president could refer a bill to the constitutional court to determine its constitutionality. The Liquor bill passed through the steps outlined in section 76(1). When the bill reached the president he sent it back to the NA with a list of reservations. The NA considered the president reservations and submitted the bill back to the president with no amendments. In doing so he provoked his powers in terms of section 84(2)(c). The court had to decide on the circumstances in which the president could submit a bill to the constitutional court to decide on its constitutionality and whether the court could only decide on the presidents reservations or determine the constitutionality of the bill as a whole. The court listed three methods that the president can follow to submit a bill to the constitutional court:  A challenge by a party to a bill constitutionality to a competent court.  An application by at least 1/3 of the members of the NA to declare all or part of an act constitutional.  The third is a referral by the president before a bill becomes a statute. The court considered three questions in terms of section 79, namely:  Is the court required to consider only the presidents reservations or should it direct its attention more widely? o In this case the court decided that only the president’s reservations could be included in determining the bills validity.  Should the court consider every aspect of the bill to determine its constitutionality? o The answer to this was no, as per the first point.  Does the finding prohibit further constitutional challenges to the bill? o If the court decides on a bills constitutionality it sets a pecident which is binding and other courts must take this decision into account when deciding on challenges against the statute. 5 Di

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