Module 5

Question 1

What was the constitutional assembly?

Answer 1

The constitutional assembly was responsible for the drafting of the final constitution, after feedback was gathered by the public. The constitution 1996 constitution was implemented as law on 4 February 1997. The constitution of 1996 is the country’s first democratic constitution.

Question 2

What is parliament sovereignty?

Answer 2

Before the 1996 constitution, South Africa was governed by parliamentary sovereignty. This meant parliament was supreme and could make and pass any legislation it wanted to as long as the right parliamentary procedure was followed. Even if the laws were a violation to human rights, the court could declare it invalid. The lawmaking was guided by the interest of those in parliament not the constitution, in this way the government could use the courts as an instrument to enforce its specific political ideology.

Question 3

What is the constitution as a living document?

Answer 3

The constitution is a living document and amendments are possible. There have been amendments that were due to technical changes and others due to new developments in the country.

Question 4

How do you amend the constitution?

Answer 4

To amend the constitution you require a 2 ⁄ 3 majority vote in the national assembly. This makes it difficult to amend the constitution, to ensure it is not changed in the interest of the governing body.

Question 5

What did the UN propose to advance human rights

Answer 5

One of the recognitions of human rights started with the founding of the UN. In 1948 the UN general assembly adopted the universal declaration of human rights. This document was written by an international committee chaired by Elenore Rosenveld.

Question 6

What is contained in the universal declaration of human rights?

Answer 6

The premise of the document is that all human beings are born free and equal in dignity and rights. It refers to negative freedoms such as freedom from slavery and positive freedoms such as freedom of movement. It encompasses basic civil and socioeconomic rights. The declaration insists on universality, indivisibility and interdependence.

Question 7

What are the 3 core principles of human rights?

Answer 7

• Inalienability- our rights will always apply to us because we are human an these rights wont change
• Interdependence- the human rights support and strength each other
• Equality and non-discrimination- everyone has the right to equal opportunity

Question 7

Where does legislation gets its power from?

Answer 7

Legislation gets its power from the Constitution which is the supreme legislation and makes the rules more clear. It is written as the Constitution of the Republic of South Africa, Act 108 1996.

Question 8

What is the supremacy of the constitution?

Answer 8

The Constitution is the sovereign law of the Republic according to section 2 that states the Constitution is supreme law of the Republic, law or conduct inconsistent with it is invalid and the obligations imposed by it must be fulfilled. Every organ of state, institution, arms of government get their power from the constitution

Question 9

What is legislation as an organ of state?

Answer 9

Legislation is law laid down by an organ of the stare. These laws are embodied in writing and are known as statutes or Acts. Parliament is the highest organ that can pass legislation on the national level.

Question 10

What is parliament made up of?

Answer 10

The Constitution now provides for a fully democratic Parliament where the whole of society can participate in the legislative process. Parliament consists of two houses; the National Assembly and the National Council of Provinces. The purpose of the National Council of Provinces is to give the provinces a say in national legislation that affects them.

Question 11

What is legislation as a source of law?

Answer 11

Legislation is a primary source and is binding source authority. It binds the whole society and the quickest and most effective way to amend old laws and create new ones. A new statue can change the existing law, whether it is other statutes, a court decision, a rule of common law, a custom or the opinions of modern authors.

Question 12

When does parliament pass legislation?

Answer 12

• There are gaps in the law
• The law no longer corresponds due to globalisation and public law and changing society
• There are defects or unconstitutional provisions in existing legislation

Question 13

What is the geography of creating of national legislation?

Answer 13

• National legislation, affects the entire republic done by the national assembly
• Provisional legislation, affects certain provinces and done by the national council of provinces
• Municipal law, these aren’t usually legislation but are policies.

Question 14

How is national legislation is created?

Answer 14

1. Green paper is tabled before the committee- they put forward various policy options on the particular topic
2. White paper drafted for specific policies
3. Bill drafted by experts in law- this recommendations are looked at and published in the Gazette
4. First reading of the bill at National Assembly and a debate- this meeting is published, edits are done by the portfolio committees
5. Redraft of report- Committee recommendations are contained
6. Sent to NCOP- this is if it affects a provisional function, amendments might be made
7. Presidents Assent

Question 15

What is the portfolio committee?

Answer 15

The portfolio committees have a wide range of powers and are members investigating the details of the Bill, they study the public commentary and recommend changes and make new proposals.

Question 16

What are the exceptions to the legislation creation process?

Answer 16

• Some bills can be introduced in the NCOP first- they affect only a specific province, and to make amendments to government property
• Municipal councils also have separate power to create by-law- this affect certain local areas
• Bills amending the Constitution are only introduced at NA

Question 17

What the different bills of legislation?

Answer 17

• Ordinary bills that don’t affect the provinces are highlighted in section 75 of the Constitution. This is passed through a majority vote
• Ordinary bills that affect the provinces and so will go through the NCOP as highlighted in section 76 of the Constitution. This means 5 provinces must vote to send it to parliament.
• Money bills can only be introduced usually by the minister of finance in the national assembly according section 77. Parliament can amend money bills
• Bills amending the Constitution can only be done when there is two thirds of the national assembly and the support of 6 national council of provinces as seen in section 74 of the Constitution

Question 18

How can legislation be tested?

Answer 18

Legislation can be interpreted by testing each state against the Constitution bill of rights, this is according to section 172 of the constitution. Section 172 states that only high courts or higher may declare an Act of parliaments unconstitutional. If any court declares an Act unconstitutional the Constitutional Court will have to declare it unconstitutional.

Question 19

When does legislation come into effect?

Answer 19

Legislation only comes into force on the date of its publication in the government gazette but the Act itself may stipulate that it will come into force only at a later date.

Question 20

How was legislation enacted before 1944?

Answer 20

Until 1944 South Africa only had two official languages (Afrikaans and English). Acts were published in both languages and the President alternated between singing texts in each language. If there was a conflict between the two versions, the language of the text signed by the President prevailed.

Question 21

How is legislation signed in by he president after 1994?

Answer 21

Since 1944 South Africa has had 11 official languages. Acts are now in usually English and the President signs only the English version.

Question 22

What are the three main ways in which the force of legislation might come to an end?

Answer 22

• Repeal- Parliament may decide to bring in a piece of legislation to an end. It will pass a new statute that either expressly or implicitly repeals an old law.
• Judicial review (testing rights of the court)- the final Constitution endows the courts with a testing right. The constitution elevates itself and the Bill of Rights in particular, to a general standard (norm) against which all legislation can be tested or measured. Embodied in section 2, the supreme law clause.
• Sunset clause- when legislation states that a provision that terminates portions of the law after a specific date, unless further laws are made to extend it. This make the legislation conditional to the date

Question 23

How can legislation repeal happen?

Answer 23

• Parliament can pass new legislation that is in absolute conflict with an older piece of legislation. Courts will then aim to reconcile two pieces of legislation that appears in conflict but if it is irreconcilable then the newer Act will repeal the other.
• Smaller parts of legislation can be changed without completely undoing the legislation’s legal effect.

Question 24

What is an amendment to legislation?

Answer 24

Changing legislation through a parliamentary process is known as an amendment When a legislation is amended, this will be due to recent developments in law or due to unconstitutionality

Question 25

Where is an amendment on legislation found?

Answer 25

The legislation amendments are found on the front page it uses the year of amendment or as it is but adds (as amended).

Question 26

How is legislation written?

Answer 26

Legislation includes a short title of the Statue, the number of the Act and the year.

Question 27

What is the portfolio community responsible for?

Answer 27

. The parliamentary portfolio committee made up of ministers and members of
parliament are responsible for the first and second scrutiny of a Bill in the legislative process.
- In the first scrutiny of the Bill, the Bill is sent to the portfolio
committee dealing with the issue the Bill is regulating. The portfolio committee scrutinises the details of the Bill, ensuring it complies with constitutional values and considering public commentary from the green and white paper stages. If necessary, the portfolio committee can submit a report of suggested
changes or a new proposal to the Bill to the National Assembly.
- The second scrutiny by the portfolio committee is to consider any amendments made to
the Bill by the National Assembly with the details scrutinised once more before
the Bill is sent back to parliament so that they can vote on the Bill.