CSL2601 EXAM PACK QUESTION PAPERS AND SOLUTIONS

CSL2601 EXAM PACK QUESTION PAPERS AND SOLUTIONS. Direct democracy means that all major political decisions are taken by the people themselves. This form of democracy may work in a different, small political community where people can get together on a regular basis (e.g. in a town hall) to discuss and decide important matters of common interest. Representative democracy, on the other hand, is characterized by the fact that the citizens of a state elect the representatives of their choice, and these representatives then express the will of the people. Representative democracy is created via a process of elections which should be held at regular intervals and reasonably frequently. Note that although direct democracy is suitable for a small community, representative democracy is suitable for a modern state which covers a wide geographic area. 2.2 A democracy is characterized by the following: • Free and regular elections G.R. Tutorials email: Tel: +39/+01 Cell: +03 • 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. 2.3 Constitutions are often classified as flexible or inflexible, supreme or not supreme, written or unwritten, and indigenous (autochthonous) or borrowed. The distinction between flexible and inflexible constitutions relates to the difficulty of amending them. Flexible constitutions require no special procedures or majorities for amendment and can be amended in the same manner as any other legislation. Inflexible constitutions require special amendment procedures (e.g. a two-week notice period) and special amendment majorities (e.g. a two-thirds majority) before they can be amended. An inflexible constitution can therefore not be amended in the same manner as ordinary legislation; this seeks to entrench the constitution as a whole, or some of its provisions, against the shifts in ordinary politics. This does not necessarily mean that an inflexible constitution is seldom amended. To amend it, however, the stipulated requirements must be met. The Constitution of the Republic of South Africa, 1996 is an example of an inflexible constitution. Its amendment requires special procedures and special majorities. Most of its provisions can be amended only by a two-thirds majority of the National Assembly. Other provisions are even more firmly entrenched. 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 per cent 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. A supreme constitution ranks above all other laws in a state. Any law that is inconsistent with it will be declared invalid (referred to as the Grundnorm, against which all other legislation is tested for validity). G.R. Tutorials email: Tel: +39/+01 Cell: +03 It is usually (but not always) inflexible. On the other hand, a constitution that is not supreme does not enjoy any special status when compared with other laws. The legislature can pass laws that are inconsistent with the constitution. The courts cannot question the legality (or validity) of such laws, provided that the required procedure has been complied with. It is usually (but not always) flexible. Is the South African Constitution of 1996 a supreme constitution? Yes. The Constitution makes it clear that it is the supreme law of the country and that the Constitutional Court (and the High Courts) has the power to declare legislation unconstitutional when the legislature acts in violation of the Bill of Rights. Section 1(c) states that the Republic is founded on the value of constitutional supremacy; section 2 states that the Constitution is the supreme law of the Republic and that laws that are inconsistent with the Constitution are invalid; section 8(1) states that the Bill of Rights binds the legislature; and section 172(1) provides that courts must declare laws that are inconsistent with the Constitution invalid. QUESTION 3 3.1 Co-operative government is the system of government that defines the framework within which the relations between the three spheres of government must be conducted. Chapter 3 of the Constitution makes provision for the regulation of guiding principles of co-operative government as entrenched in section 41(h), which requires the different spheres to cooperate with one another in mutual trust and good faith. These principles set the framework for the regulation and distribution of government power which can never be entrusted to a single body. The distribution of state authority is further divided into: national, provincial and local spheres which are distinctive, interdependent and interrelated. 3.2 Intergovernmental relations may be defined as the interaction between the various spheres of government with a view to achieving a common goal which is beneficial to the country. The development of sound intergovernmental relations and the principles of public administration are intertwined with good practices which involve the process of working in collaboration with and through one another in order to achieve government goals in a more efficient and effective manner. The actions by the Minister of Rural Development do not only amount to unsound intergovernmental relations but also an infringement of section 195 of the Constitution which entrenches this principle. 3.3 (a) The Supreme Court of Appeal (SCA) in terms of section 168 of the Constitution is allowed to hear constitutional issues, except those matters that fall within the exclusive jurisdiction of the Constitutional Court. The SCA has the same breath of constitutional jurisdiction as High Courts. Apart from that it is the final Court of appeal in non-constitutional matters. (b) The High Courts in terms of section 172 have wide constitutional powers and may decide any constitutional matter except those that fall within section 167(4) of the Constitution. High Courts also entertain matters because of the inherent or residual powers conferred on them by the virtue of section 173 of the Constitution. G.R. Tutorials email: Tel: +39/+01 Cell: +03 (c) The Magistrates’ Courts are governed by section 170 of the Constitution which provides that Parliament may enact legislation to give the Magistrates’ Court jurisdiction to hear constitutional matters. These Courts will not be allowed to enquire into the validity of any legislation or any conduct of the President. QUESTION 4 4.1(a) Executive Delegation is an express or implied legal power of one public authority to authorize another to act in its stead (on its behalf). The question is whether there are limits to Parliament’s authority to delegate its legislative powers. Can Parliament delegate its legislative authority to the executive? This question was answered in the affirmative in Executive Council of the Western Cape Legislature. Facts: This case dealt with section 16A of the Local Government Transition Act, which conferred on the president the power to amend the Act by proclamation. The president used this power to transfer certain powers from the provincial to the national government. The Western Cape Provincial Government challenged the constitutionality of section 16A of the Act and the proclamation issued in terms thereof. Legal question: The legal question was formulated as follows by Chaskalson P (at para 47): [W]hether under our Constitution, Parliament can delegate or assign its law-making powers to the executive or other functionaries, and if so, under what circumstances, or whether such powers must always be exercised by Parliament itself in accordance with the relevant provisions of the Constitution. Decision and reason for decision: It was held that Parliament could indeed delegate its legislative authority under the 1993 Constitution because there was no express constitutional prohibition to this effect. This means the following: Parliament’s power to delegate was implied in the Constitution. However, it was indicated that a distinction should be drawn between delegation of subordinate legislative powers to the executive and the assignment of plenary legislative powers. The latter would be a usurpation (taking over) of the legislative function, and would thus be contrary to the doctrine of separation of powers. What is the position under the 1996 Constitution? Why? The position is the same under the 1996 Constitution for the following reasons: G.R. Tutorials email: Tel: +39/+01 Cell: +03 • Like the interim Constitution, the 1996 Constitution is supreme and binds all organs of state, including Parliament. • Like its predecessor, the 1996 Constitution entrenches the doctrine of separation of powers. • It also spells out the procedure for the adoption of Acts of Parliament. • Finally, it does not authorize the assignment of plenary legislative powers to the executive, either expressly or by necessary implication. (b) provincial legislatures • Section 44(1)(a)(iii) provides that the National Assembly may delegate its legislative powers, except to amend the Constitution, to any legislative body in another sphere of government. • Such assignment of legislative competence proceeds by an Act of Parliament. • May not take place by proclamation 4.2 The removal of President is provided in section 89 of the Constitution by the National Assembly through a resolution adopted with a supporting vote of at least two thirds of its members on the grounds of – - a serious violation of the Constitution or the law; - a serious misconduct; or - inability to perform functions of the office. The given facts proves that President Mbeki interfered with the prosecution of his deputy which may amount to a serious violation of the Constitution or law and a serious misconduct but however since the a resolution adopted by a supporting vote of at least two thirds of the members of the National Assembly had not been obtained but only recalled by the ANC does not meet the above mentioned requirements of section 89 of the constitution. Therefore such removal is inconsistent with the Constitution and also invalid.