CSL2601 EXAM QUESTIONS WITH NEW UPDATE
ANSWERS
/. Privileges of members of parliament and how these are regulated - Constitutional
sections and case law (10) - Answer-> 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 - Answer-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) - Answer-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? - Answer-> 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? - Answer-> 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 - Answer-> 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 - Answer-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? -
Answer-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
ANSWERS
/. Privileges of members of parliament and how these are regulated - Constitutional
sections and case law (10) - Answer-> 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 - Answer-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) - Answer-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? - Answer-> 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? - Answer-> 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 - Answer-> 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 - Answer-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? -
Answer-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
