CSL2601 Exam Memos(EXAM PACK CSL 2601)

EXAM PACK CSL 2601 T EXCLUSIVE TUTORIALS CONTENTS PAGE MAY/JUNE 2019 PAGE 3 OCT/NOV 2018 PAGE 7 OCT/NOV 2018 PAGE 12. MAY/JUNE 2018 PAGE 13. NOVEMBER 2017 PAGE 24. MAY –JUNE 2017 PAGE 43 MAY –JUNE 2016 PAGE 49. NOVEMBER 2016 PAGE 60 EXCLUSIVE TUTORIALS QUESTION 1 1. True. 2. False. 3. False. 4. False. 5. True. 6. True. 7. True. 8. True. 9. True. 10.True. 11.False. 12.True. 13.False. 14.False. 15.False. 16.True. 17.False. 18.False. 19.False. EXCLUSIVE TUTORIALS 20.True. QUESTION 2 Read the following set of facts carefully then answer the questions that follow. Miss Mogidi, the National Director of Public Prosecutions (NDPP), took the decision to charge and summon the Minister of Environmental Affairs, Mr Skhosana, to appear before court on charges of fraud, corruption and money laundering. These charges relate to the failure by the Minister to exercise his power properly. It is alleged that the Minister had received a huge sum of money as a kickback for tenders which were awarded to Mrs Kleinsmith. The NDPP’s decision to charge the Minister of Environmental Affairs had upset the Minister of Justice and Correctional Services, who felt that Miss Mogidi should not have charged the Minister without consulting him, because as the National Director of Public Prosecutions, Miss Mogidi reported to him. Accordingly, the Minister of Justice and Correctional Services instructed Miss Mogidi to withdraw the charges against the Minister of Environmental Affairs. However, Miss Mogidi insisted that although she reported to the Minister, she was independent to exercise her power without interference from him. In reaction to Miss Mogidi’s refusal to withdraw the charges, the President of the Republic requested Miss Mogidi to accept the amount of R15 million as a settlement and vacate her position as the NDPP. Miss Mogidi accepted the offer and thereafter she left for London in the United Kingdom for a six months’ holiday. As general elections for the national and provincial governments were approaching, she registered to vote for the upcoming elections before she left for London. However, members of the opposition party in Parliament were not satisfied with the removal of Miss Mogidi from her position and the government funds that were paid to her as settlement for vacating her position. Subsequently, they approached the Northern Gauteng High Court for an order declaring unlawful and setting aside the removal of Ms Mogidi from her position. In his response in court, the President argued that the court did not have the authority to set aside a decision taken by him as he was a democratically elected representative of the people and he had taken that decision in the best interests of the people. Meanwhile, when Ms Mogidi tried to vote in London for the national elections that were taking place in South Africa, she was not allowed to vote because the Independent Electoral Commission of South Africa (IEC) had not made preparations for South African who were in London to vote while abroad at the time. 2.1 With reference to cases, discuss the duty of the National Assembly to oversee the executive and assess whether the National Assembly has succeeded in fulfilling its obligations. (9) EXCLUSIVE TUTORIALS The Constitution states in section 92(2) that members of Cabinet are accountable to Parliament and must report to Parliament regularly. Accountability conveys that members of the executive must explain and justify their actions to Parliament and its committees so that Parliament can play a role in checking the exercise of power by members of the executive.  Holding the executive accountable has two parts to it: (1) Parliament may call members of the executive and the public administration to account for their activities. This is designed to enhance the integrity of public governance and prevent corruption, nepotism, abuse of power and other forms of inappropriate behaviour. It should also improve the performance of the Cabinet and public administration. This is consistent with the Constitution’s emphasis on transparency, responsiveness and answerability.  It is also designed to give the public confidence in government; to bridge the gap between the governed and the government. It is section 56 and 69, respectively, that empower the NA and NCOP to summon any person to appear before it to give evidence on oath or affirmation, or to produce documents’ and require ‘any person or institution to report to it’. No one so summonsed may refuse to appear. There are regular question-and-answer sessions in Parliament where MPs may pose probing questions to the President, Deputy President and the Cabinet Ministers. These questions must be responded to by way of statistics, details of the expenditure on various items and to defend the policies they have adopted. (2) Parliament has the power to take remedial action and even dismiss members of the executive who fail to account properly for their actions. This means institutional arrangements must exist to ensure democratic control over the executive as they have not been directly elected by the people.  The manifestation of the legislature holding the executive accountable is when the legislature seeks to impeach the President or institute a motion of no confidence in him. Relevant case law is EFF & Others v Speaker of the National Assembly (2017)  – a follow-up to the 2016 EFF v Speaker of the National Assembly decision.  The UDM case is also important because it was held in this case that it is the Speaker’s duty to decide whether or not the vote should be by way of secret ballot. The conclusion reached in EFF 2 (the 2017 case) is that the NA did not succeed  in fulfilling its obligations because it had not put in place appropriate mechanisms for a committee to first determine whether the President had objectively committed a serious violation of the law or the Constitution. 2.2 With reference to case law, advise the opposition parties whether they can successfully challenge the lawfulness of the settlement agreement between the President and Miss Mogidi in terms of which she vacated her position as the NDPP, and if so, on what basis. (9) EXCLUSIVE TUTORIALS To uphold the rule of law – one of the most important founding values of the Constitution – what the South African state must guarantee is a prosecuting authority that is not “malleable, corrupt or dysfunctional”. More specifically, the prosecuting authority must exercise its powers independently. That is, without any fear, favour or prejudice (as per section 179(4) of the Constitution) and subject only to the Constitution and the law (in terms of section 32(1)(a) of the National Prosecuting Authority Act). In order for these objectives to be achieved, the minimum requirement of a National Director of Public Prosecutions is that they must be “fit and proper”. What this means is that the person must exhibit conscientiousness and integrity. If this is the case, the NPA’s independence will then be secured. As the Constitutional Court has previously stated at para 146 of the Certification judgment: “[t]here is ... a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts”. Recently, Yacoob ADCJ declared in the 2012 DA v President of the Republic of South Africa case that the office of the NDPP “is located at the core of delivering criminal justice”, meaning that a well-functioning criminal justice system is central to any functioning constitutional democracy. As such, if you subvert the criminal justice system, you subvert the rule of law and constitutional democracy itself.  Unsurprisingly, the NPA Act proscribes improper interference with the performance of prosecutorial duties. Section 32(1)(b) of the NPA Act provides: “Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”  A prosecuting authority that is corrupt, malleable and dysfunctional would be susceptible to political interference and nefarious political agendas, with criminals (especially those holding positions of influence) never answering for their criminal deeds. Such a situation is contemptuous of the rule of law, but it characterises the South African prosecuting authority for the last decade at least. Moreover, this dysfunction has rendered the National Prosecuting Authority paralysed by instability. In relatively quick succession, National Directors of Public Prosecutions have been appointed. None of them completed the stipulated 10-year tenure. Vusi Pikoli was succeeded by Menzi Simelane, who was succeeded by Mxolisi Nxasana, who was replaced by Shaun Abrahams. The matter of Justice Alliance v President of the Republic of South Africa (2011) established that security of tenure is an integral part of ensuring independence. Although that matter concerned the independence of the judiciary, the principle is analogous to the prosecuting authority. The Corruption Watch/Nxasana matter relates to former President Jacob Zuma’s removal of Mr Nxasana from office. In para 25 of the judgment, Madlanga states it thus: “Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot”. Mr Nxasana was offered a settlement amount from public coffers. Over time that amount increased progressively. An earlier offer EXCLUSIVE TUTORIALS contained in a draft settlement agreement was R10 million. Mr Nxasana did not accept it. Thereafter, Mr Nxasana received another draft settlement agreement with the amount left blank for Mr Nxasana to fill it in himself. Mr Nxasana signed the settlement agreement on 9 May 2015. In terms of the agreement Mr Nxasana would relinquish his position as NDPP and receive a sum of R17.3 million as a settlement payment. As Madlanga eloquently states at para 28, “The inference is inescapable that [Zuma] was effectively buying Mr Nxasana out of office. … conduct of that nature compromises the independence of the office of NDPP.” Mr Nxasana was paid an amount of R10 240 767.47. The rest was retained by the state for income tax. Evident from this scenario is that Nxasana did not vacate office voluntarily (as regulated by section 12(8) of the NPA Act).  The majority of the Court concluded that the settlement agreement; Nxasana’s vacation of office and the payment of R17.3 million were all constitutionally invalid and violated the required independence of the office of the NDPP. Consequently, Abrahams’s appointment was also constitutionally invalid. Nxasana’s removal was invalid for the fact that in terms of section 12(6)(b) of the NPA Act, it is Parliament (as part of its role of ensuring accountability on the part of the executive and representing the people) that must resolve to remove an NDPP. 2.3 Discuss fully the chances of success of the President’s argument that the court does not have the authority to review and set aside the decisions of the democratically elected representative of the people. Give reasons for your answer and explain whether this debate about the court ’s power to review decisions of democratically elected representatives of the people is relevant in South Africa. (10) The President’s chances of success are slim to none. On the basis of the number of votes received per political party, representatives of those political parties are then elevated to the National Assembly in proportion to the votes received. Based on the number of votes each party obtains, they will have representatives of the people in Parliament. This process is entirely democratic. Even more so, once the 400 people assume their positions as Members of Parliament, another election takes place within Parliament itself. Therefore, our representatives, speaking on our behalf, vote for the President. As soon as the President is elected, he is no longer a member of Parliament (the legislature), but immediately assumes his position as Head of the Executive. As the person elected to the position in accordance with the wishes of the people, the President then has the right to appoint the Deputy President and the members of his Cabinet (Ministers responsible for various government departments). For the most part, the legislature is then democratically empowered by us to pass, amend and repeal laws. Likewise, the executive officials all have the powers vested in them in terms of the Constitution to ensure the implementation of those laws (thus epitomizing the separation of powers doctrine). If, however, there is any allegation that a law is unconstitutional or that executive conduct is invalid, the third branch of the state – the judiciary – is tasked with determining whether or not the law or conduct is unconstitutional. EXCLUSIVE TUTORIALS It is here that the counter majoritarian dilemma arises. Whereas the entire process of constituting the legislature and appointing members of the executive is seen as an extension of the democratic process, the appointment of members of the judiciary is seen as markedly undemocratic because judges are appointed by the President after the President receives recommendations from the Judicial Service Commission. When a matter concerning the constitutionality of legislation or conduct is initiated, it almost always (unless it is especially urgent) starts in the High Court. In most cases heard in the High Court, a single judge decides the case (see for example, the decision by Judge Bashir Vally in the Gauteng North High Court relating to the President’s midnight cabinet reshuffle of March 2017). This is often criticized as being highly undemocratic because it conveys the impression that the power of one single judge who we may not know, may not like and may not approve of, far exceeds the power of all 400 Members of Parliament who voted for the President and therefore also exceeds the power of about 20 million South Africans who indirectly voted for the ANC of which the President is the leader. This is why it is called the counter majoritarian dilemma. Even when a case is decided by the Constitutional Court, there are only 11 judges deciding the case. Indeed, the reason why it is not a dilemma is because we the people (the majority) empowered the drafters of the Constitution to include section 172, section 1, section 2, etc. into the Constitution to enable the judiciary to declare the law or conduct invalid and unconstitutional so that they can ensure that the Constitution is actually upheld and enforced.  When the courts adjudicate matters their principal task is to ensure adherence to the rule of law, which is founded on the following principles:  the government/state must act in terms of pre-announced/clear and general rules  rules that are created, must