CSL2601- FINAL EXAM QUESTIONS AND ANSWERS LATEST UPDATE 100%
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Privileges of members of parliament and how these are regulated - Constitutional
sections and case law (10)
> Privileges of members of parliament that enables them to perform their functions
without hindrance.
> Privileges are stipulated in S57 (1) of the constitution.
> S57(1) Punish persons for contempt and determine its own procedures
> S57(2) Freedom of members to say anything without fear of being held liable in court
> S57(3) Parliamentary privileges under 1996 Constitution
> Regulated by Powers and Privileges of parliament and provincial legislation act
> NA competent do determine and control its own internal arrangements, proceedings
and procedures and making rules concerning its business
> Members freedom of speech as long as they adhere to internal rules - exempt from
civil & criminal liability
> Parliament competent to summon persons to give evidence
> Parliament entitled to enforce own internal disciplinary measures
Case law for previous question - Speaker of NA v De lille
Ms de lille stated she had info on 12 members of parliament who were spies for the
apartheid government. When challenged she mentioned 8 names who were no longer
members of the NA. Asked to withdraw her remark - unparliamentary - she did. Ad hoc
committee of NA asked that she apologize and be suspended for 15 working days. The
NA adopted this recommendation. She challenged its constitutionality in HC. HC held
that under the supreme constitution parliamentary privileges were subject to judicial
review. SCA upheld HC decision because S58(2) of the constitution guarantees
freedom of speech in the NA. NA no constitutional authority to suspend her. Rules
amended now - 20 working days suspension.
Discuss with specific reference to case law, what you understand by delegation
of legislative authority and discuss whether or not parliament may delegate its
functions to the executive (10)
In Executive council of the WC v President of the Rep of SA the case involved S16 (a)
of the local government transition act which gave the president the power to amend the
act by proclamation. President used these powers to transfer certain powers from
provincial to national government. The Executive council challenged the constitutionality
of S16 (a) and the proclamation issued in terms of it.
Can parliament assign its law-making functions to the executive and if under
what circumstances?
> Legislative authority vested in parliament under S37 of interim constitution.
> Parliament cannot be expected to deal with all matters
> No provision preventing parliament from delegating subordinate regulatory authority to
other bodies and the power to do so is necessary for effective law-making
Court decided in the above mentioned case that parliament delegating the power to
amend its laws to the president - inconsistent with doctrine separation of powers and
, constitution
Not allowed under new constitutional dispensation, Parliament cannot delegate its law-
making power to executive (president)
Constitution & case law - What is counter-majoritarian?
> The relationship between supreme constitution & Courts testing powers - All law and
conduct must comply with it - if not declared invalid - S172 obliges courts to declare law
invalid. Testing powers of court reinforces supremecy of the constitution.
> the counter-majoritarian is where 11 judges have declared a law invalid, but the law
they declared invalid was a law passed by 400 parliamentarians.
De lange v Smuts NO
> Important for our understanding of the unique and special form the separation of
powers doctrine takes in SA.
> Constitution - does not prescribe a specific, fixed form of separation of powers
doctrine.
> Each case assessed on its own merits and guidelines - Ensure each of the 3
branches maintain their powers and expertise but judiciary can declare law/conduct
invalid.
Treatment campaign Case
Case concerned the provision of life saving drugs for pregnant women with HIV
preventing the transfer from mother to baby. The court would defer knowledge and
expertise of executive if executive states no money to provide drug and not enough
medical staff to administer drug and reservations about drug - not unconstitutional but if
executive has poor excuses and drug will save millions will declare it constitutional and
order the drug be administered. Although the judiciary intrudes on the executives
grounds it is necessary to be in accordance with the constitution and public interest.
With reference to Freedom of law v acting chairperson: JSC and others and
premier of the WC province v acting chairperson : JSC and others. Comment on
the rule of law and the principle of legality and rationality when considering the
role of the JSC. Provide a substantiated opinion whether you believe that the JSC
arrived at the correct decision when it declared that it had no jurisdiction to
pursue matter and insufficient evidence to warrant continuing with the inquiry
into allegations of impropriety against judge hlope?
IN fedsure it was held that the principle of legality must be complied with and the JSC is
mandated to oversee the effective functioning of the judiciary. If there is a complaint
about a judge - Taken seriously and investigate. JSC just closed case - did not even
contact judge Hlope.
Principle of rationality - Must be a logical connection with what JSC was tasked to do
and conclusion the reached. There was no rational relationship between the two as the
JSC simply disregarded the complaint and there was ample evidence.
RULE OF LAW - If law states specific thing must be complied with. No one is above the
CORRECT A+ GRADED. Buy Quality Materials!
Privileges of members of parliament and how these are regulated - Constitutional
sections and case law (10)
> Privileges of members of parliament that enables them to perform their functions
without hindrance.
> Privileges are stipulated in S57 (1) of the constitution.
> S57(1) Punish persons for contempt and determine its own procedures
> S57(2) Freedom of members to say anything without fear of being held liable in court
> S57(3) Parliamentary privileges under 1996 Constitution
> Regulated by Powers and Privileges of parliament and provincial legislation act
> NA competent do determine and control its own internal arrangements, proceedings
and procedures and making rules concerning its business
> Members freedom of speech as long as they adhere to internal rules - exempt from
civil & criminal liability
> Parliament competent to summon persons to give evidence
> Parliament entitled to enforce own internal disciplinary measures
Case law for previous question - Speaker of NA v De lille
Ms de lille stated she had info on 12 members of parliament who were spies for the
apartheid government. When challenged she mentioned 8 names who were no longer
members of the NA. Asked to withdraw her remark - unparliamentary - she did. Ad hoc
committee of NA asked that she apologize and be suspended for 15 working days. The
NA adopted this recommendation. She challenged its constitutionality in HC. HC held
that under the supreme constitution parliamentary privileges were subject to judicial
review. SCA upheld HC decision because S58(2) of the constitution guarantees
freedom of speech in the NA. NA no constitutional authority to suspend her. Rules
amended now - 20 working days suspension.
Discuss with specific reference to case law, what you understand by delegation
of legislative authority and discuss whether or not parliament may delegate its
functions to the executive (10)
In Executive council of the WC v President of the Rep of SA the case involved S16 (a)
of the local government transition act which gave the president the power to amend the
act by proclamation. President used these powers to transfer certain powers from
provincial to national government. The Executive council challenged the constitutionality
of S16 (a) and the proclamation issued in terms of it.
Can parliament assign its law-making functions to the executive and if under
what circumstances?
> Legislative authority vested in parliament under S37 of interim constitution.
> Parliament cannot be expected to deal with all matters
> No provision preventing parliament from delegating subordinate regulatory authority to
other bodies and the power to do so is necessary for effective law-making
Court decided in the above mentioned case that parliament delegating the power to
amend its laws to the president - inconsistent with doctrine separation of powers and
, constitution
Not allowed under new constitutional dispensation, Parliament cannot delegate its law-
making power to executive (president)
Constitution & case law - What is counter-majoritarian?
> The relationship between supreme constitution & Courts testing powers - All law and
conduct must comply with it - if not declared invalid - S172 obliges courts to declare law
invalid. Testing powers of court reinforces supremecy of the constitution.
> the counter-majoritarian is where 11 judges have declared a law invalid, but the law
they declared invalid was a law passed by 400 parliamentarians.
De lange v Smuts NO
> Important for our understanding of the unique and special form the separation of
powers doctrine takes in SA.
> Constitution - does not prescribe a specific, fixed form of separation of powers
doctrine.
> Each case assessed on its own merits and guidelines - Ensure each of the 3
branches maintain their powers and expertise but judiciary can declare law/conduct
invalid.
Treatment campaign Case
Case concerned the provision of life saving drugs for pregnant women with HIV
preventing the transfer from mother to baby. The court would defer knowledge and
expertise of executive if executive states no money to provide drug and not enough
medical staff to administer drug and reservations about drug - not unconstitutional but if
executive has poor excuses and drug will save millions will declare it constitutional and
order the drug be administered. Although the judiciary intrudes on the executives
grounds it is necessary to be in accordance with the constitution and public interest.
With reference to Freedom of law v acting chairperson: JSC and others and
premier of the WC province v acting chairperson : JSC and others. Comment on
the rule of law and the principle of legality and rationality when considering the
role of the JSC. Provide a substantiated opinion whether you believe that the JSC
arrived at the correct decision when it declared that it had no jurisdiction to
pursue matter and insufficient evidence to warrant continuing with the inquiry
into allegations of impropriety against judge hlope?
IN fedsure it was held that the principle of legality must be complied with and the JSC is
mandated to oversee the effective functioning of the judiciary. If there is a complaint
about a judge - Taken seriously and investigate. JSC just closed case - did not even
contact judge Hlope.
Principle of rationality - Must be a logical connection with what JSC was tasked to do
and conclusion the reached. There was no rational relationship between the two as the
JSC simply disregarded the complaint and there was ample evidence.
RULE OF LAW - If law states specific thing must be complied with. No one is above the
