CSL2601 EXAM PACK.

2013 - TUTORIAL LETTER 201 1.1 As Germany has a comparative foreign law, South African courts are obliged to consider German law as a primary source of South African law when interpreting any legislation. This statement is FALSE (2). Foreign law is not a primary source of South African law but is a secondary source with persuasive value. In fact, section 39 provides that courts may (and not must) consider foreign law 1.2 Read the following scenario and indicate whether the statement that follows is true or false: In 2011 the South African Police Services entered into a lease agreement with a certain Mr Robert Shabane in respect of a certain building in the city centre of Pretoria to accommodate its staff. The relationship that flows from the lease agreement between the South African Police and Mr Shabane is regulated by public law because the state is involved in the relationship. This statement is FALSE (2). Although the state is involved in this relationship, it is not exercising state authority. 1.3 A supreme constitution and an inflexible constitution are one and the same thing. This statement is FALSE (2). Although the supremacy or otherwise of the constitution deals with the status of a particular constitution when compared to ordinary laws and whether ordinary laws can be tested against that constitution, the inflexibility or otherwise of a constitution deals with the difficulty or ease with which a particular constitution can be amended. 1.4 In South Africa, the Westminster system of parliamentary sovereignty was already replaced with constitutional supremacy as early as 1983. This statement is FALSE (2). This was only done with the introduction of a supreme constitution firstly in 1993, and later in 1996. 1.5 In a constitutional law relationship, the state is always involved and it always exercises state authority. This statement is TRUE (1). 1.6 Intergovernmental relations play an invaluable role in representing local government interests in the national and provincial spheres. This statement is TRUE (1). 1.7 The exclusive legislative authority of provinces means that only the National Assembly has the power to make laws in relation to certain matters and that the national legislature generally does not have any authority in relation to these matters. This statement is FALSE (2). Exclusive legislative authority of provinces means that only provincial legislatures (not the National Assembly) has the sole power to make laws in relation to certain matters listed in Schedule 5 of the Constitution but in certain circumstances the national legislative authority might intervene. 1.8 A provincial legislature may pass a constitution for the provinces or, where applicable, amend its constitution if at least two-thirds of its members vote in favour of the Bill. This statement is FALSE (2). Although a provincial legislature may indeed pass a constitution for the province concerned, it does not require a two thirds majority of its members to do so. 1.9 South Africa is a democratic state and this means that people’s representatives in Parliament, provincial legislatures and municipal councils are free to make whatever laws they wish and are not bound to observe the norms and values embodied in the Constitution. This statement is FALSE (2). In South Africa, in addition to representative democracy, constitutional supremacy reigns. This effectively means that elected representatives are not free to pass whatever laws they wish but must adhere to the norms and values embodied in the supreme Constitution. 1.10 In a parliamentary system of government such as the South African one, the president is elected by voters and he or she must resign if voters adopt a motion of no confidence in him or her. This statement is FALSE (2). This is actually the case in a presidential rather than a parliamentary system. 1.11 The doctrine of separation of powers entails the division of state authority between the national, provincial and local spheres of government. This statement is FALSE (2). Separation of powers is a term of art meaning only the division of state authority between the legislature, the executive, and the judiciary. 1.12 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. This statement is TRUE (1). 1.13 The independence of the judiciary entails the functional and personal independence of the judges. This statement is TRUE (1). 1.14 The Constitutional Court in Merafong Demarcation Forum v President of South Africa 2008 (10) BCLR 968 (CC) affirmed the rationality test in the exercise of public power. This statement is FALSE (2). It confirmed the reasonableness test and not the rationality test. 1.15 The president, as the head of the national executive, also serves as the chairperson of the Judicial Services Commission. This statement is FALSE (2). The Chief Justice, rather than the President who is the head of government, is the head of the judiciary who heads the JSC. 1.16 To enable members of Parliament to perform their functions without hindrance, parliamentary privileges enjoy immunity from judicial review. This statement is FALSE (2). It was held in the De Lille case that like any other government organ or government conduct, both parliament and parliamentary privileges are indeed subject to judicial review due to the supremacy of the Constitution. 1.17 According to the Constitution of 1996, the President can refer a Bill back to the National Assembly for reconsideration only if a procedural defect has occurred in the legislative process. This statement is FALSE (2). This was the situation under the interim Constitution. However, in terms of section 79 of the 1996 Constitution the President must refer a Bill back to the National Assembly if he has reservations about the Bill’s constitutionality either on procedural or substantive grounds. 1.18 In South Africa, as soon as a person is elected state president, he or she ceases to be a member of the National Assembly. This statement is TRUE (1). See section 87 of the Constitution.