CSL EXAM PACK.

1 Feedback on Assignment 01 Indicate whether the statements are TRUE or FALSE by indicating 1 for TRUE or 2 for FALSE: 1. In March 2011, the Constitutional Court ruled that the Hawks (the corruption-fighting unit of the South African Police Service) lacked sufficient operational and structural independence to enable them to properly combat corruption. The Court therefore declared that the laws which disbanded the Scorpions and created the Hawks in their place (the National Prosecuting Authority Amendment Act and the South African Police Service Amendment Act) were unconstitutional. In order to rectify the unconstitutionality, the Court drafted a new law, called the Eradication of Corrupt Activities Act 24 of 2013. (1) False. In terms of the separation of powers doctrine, the judiciary is not permitted to intrude into the proper domain of the legislature and write laws on its behalf. Therefore, the judiciary referred the matter back to the legislature with the instruction to ensure that the new law that is drafted guarantees the operational and structural independence of the Hawks. 2. Smallfontein is a town in the Gauteng province. It is run by a council which is elected on an annual basis, has its own flag and currency. The community is also in the process of applying to have Smallfontein declared an independent legal entity within the City of Tshwane. In constitutional law terms, Smallfontein is a state. (1) False. Smallfontein cannot yet be classified as a state. The characteristics of a state are: 1) a specific, geographically defined territory 2) a community of people who live within that territory 3) a legal order to which the community is subject 4) an organised system of government which is able to uphold the legal order 5) a certain measure, at least of separate political identity, if not sovereign political status. From the facts we are able to determine that despite the fact that the first four requirements are met, Smallfontein is still in the process of applying for independent legalstatus, thus it does not yet have a separate political identity. Since not all of the requirements have been met, it is not a state. 3. The rule that Parliament may delegate powers to other branches of state is determined by the “nature and extent of the delegation” and serves to ensure that the legislature is not overwhelmed by the need to determine minor regulatory details. However, it is imperative that a distinction be drawn between delegation to make subordinate legislation within the framework of an empowering statute and “assigning plenary 3 legislative powers to another body”. What this entails is that Parliament may not delegate its “essential legislative functions” to the executive, although it is free to delegate power to make regulations which are aimed at implementing legislation. (1) True. The core duty of drafting original legislation is the exclusive responsibility of the legislature in terms of the separation of powers doctrine. The legislation passed by Parliament isoften only in “skeleton” form (like the Constitution itself, which does not elaborate on how its provisions are to be interpreted, but merely states that law). Invariably, in order for the legislation to “come alive” and be able to be implemented, regulations are required because these give substance (“meat”) to the law. These regulations that accompany the law are drafted by the executive, since the executive is responsible for implementing the law and it knows best how the law should be implemented because it is in possession of the relevant detail concerning the amount of money and personnel or other resources available in order to implement the law. Thus, the legislature does delegate the power to make regulations to the executive and this is consistent with the unique form of separation of powers that South Africa subscribes to. 4. In Executive Council of Western Cape Legislature v President of the Republic 1995 (4) SA 877 (CC), it was held that Parliament can delegate its power to make, amend and repeal Acts of Parliament because it is universally accepted in modern societies that Parliament cannot attend to every single task that it is enjoined to perform. (1) False. In terms of the separation of powers doctrine, it is the legislature’s duty to make, amend and repeal Acts of Parliament, as provided for in section 44 of the Constitution. It would be an invalid and unconstitutional delegation of power for the legislature to delegate this power to one of the other branches of the state. The only exception to this rule, however, which still renders the question false because the delegation is not a specific delegation, but one which is specifiedin the Constitution, is that the national legislature is permitted to delegate the making of a law to a provincial legislature if the matter concerns that province. This is not an unlawful delegation, because the provincial legislature also has law-making powers. 5. Cooperative government refers to division of legislative and executive authority between three spheres of state: national, prov