PAST PAPER AND TUTS CON LAW 214

Question 1

What is the effect of constitutional supremacy

Answer 1

Notions of justice, equality and freedom are binding on the judiciary under constitutional supremacy

Question 2

Why did SA adopt a separation of powers doctrine

Answer 2

The apartheid system did not adequately separate power, personnel and roles. There were no checks and balances which led to the invasion of fundamental rights.

Question 3

Explain with reference to the Constitution, 1996, how the seats in the national assembly were allocated following the national elections in 2019.

Answer 3

Proportional representation ito S46(1)(d): the number of votes received nationally translates into the number of seats in the NA (eg. 50% of the national votes received translates to 50% of seats in the NA)

Question 4

How will the allocation of seats in the NA change after the elections in 2024 taking into account the changes brought by the Electoral Amendment Act of 2023?

Answer 4

 200 seats of NA will be contested by political parties (so the vote for political parties will only translate into a proportion of the 200 seats)
 remaining 200 seats can be contested by political parties and independent candidates in regions (basically provinces)

Question 5

Based on the composition of the NA in the picture, explain whether the ANC, on its own, has sufficient seats in the NA to amend S25 of Con to provide for the expropriation of land in the public interest without compensation.

Answer 5

 To amend S25 (prop rights) the process in S74(2) must be followed:
(2/3 or 66% of NA has to agree to the amendment)
 ANC currently hold 230 seats (58%), so will not be able to amend on their own.

Question 6

Ramaphosa has been elected as Pres. Explain whether DA, with assistance of the EFF, IFP, and VF+, would be successful in forcing the resignation of the president through a motion of no confidence.

Answer 6

Motion of no confidence ito S102: for MoNC to pass, 50% of NA must support it
ANC holds more than 50% of seats, so even if all other political parties vote in favour of motion, they will not succeed.

Question 7

Various parties represented in the NA only hold 1 or 2 seats. Would these parties be represented in the various committees of the NA? Why/why not?

Answer 7

ito S57(2)(b): Yes, they will have to be part of the various committees, even commitees of minority parties

Question 8

Given the changes to the electoral system as a result of the Electoral Amendment Act of 2023, will an independent candidate elected to the NA also be represented in the various committees of the NA? Why/why not?

Answer 8

S57(2)(b) of Con only refers to “minority parties” being represented in committees
 Purpose of provision: to give voice to the people who voted the political parties in the committee structures, ie. representative democracy
 Although the Con does not stipulate that indep candidates will have a seat on the committees of the NA, the spirit of the Con and our understanding of democracy may require that indep candidates should be represented in the committees, and it would be for the NA to decide (ito S57(1)) how to regulate this.

Question 9

Explain the dissolution of the national assembly before the expiry of its 5 year term

Answer 9

S50 of the Constitution states the dissolution of the NA before the expiry of its term

Question 10

T/F In the First Certification Judgment, the Court held that the text of the Final Con cannot be certified as it did not provide for absolute separation between the executive authority and the legislative authority.

Answer 10

FALSE
- held: no absolute version of the SOP
- purpose of SOP: accountability and responsiveness
- in this regard, also found that overlap by executive & judiciary potentially increases accountability bc makes executive directly answerable to the legislature.

Question 11

T/F Once elected, the president is no longer a member of the National Assembly.

Answer 11

TRUE
Section 87 Assumption of office by President

Question 12

T/F When the President dies or resigns and the deputy president cannot take over as acting president due to severe illness, the NA disbands automatically, and a general national election must be held as soon as possible.

Answer 12

FALSE- S50: Only when NA fails to appoint President in 30 days after vacancy, will NA be disbanded.
When President dies/resigns, the acting Pres acts as Pres (or anyone in the order prescribed by S90); but this is acting position and vacancy must be filled within 30 days
If fails to do so in 30 days, only then will NA disband.

Question 13

T/F . In UDM v Speaker NA 2017, Court held that Con and Rules of NA require motions of no confidence to take place via secret ballot, but that Speaker has power to rule otherwise by taking various factors into account.

Answer 13

FALSE
Held: Con & Rules permit vote by secret ballot, and up to Speaker to decide whether open or closed ballot.

Question 14

T/F In Mazibuko v Sisulu, the CC instructed NA to amend Rules to prevent blocking of a vote of no confidence from being put to the NA.

Answer 14

FALSE
- Court merely held that no rule may block the tabling of a motion of no confidence given the importance thereof for purposes of “democratic hygiene”

Question 15

T/F The Speaker presides over the election of the president and can decide whether voting takes place via secret or open ballot.

Answer 15

FALSE
- S86: Chief Justice presides over election
Process governed by Part A of Schedule 3
(If only one candidate is nominated, that person is appointed. If more than one candidate, then must be by secret ballot)

Question 16

T/F The NA must maintain oversight over Eskom.

Answer 16

TRUE
S55(2)(b)(ii): “NA must provide mechanisms to maintain oversight of any organ of state.”
Eskom is an organ of state ito. S239

Question 17

In EFF 2, Mogoeng CJ criticized the maj judgment (Jaftha J) of judicial overreach, thereby violating the SOP doctrine.
Explain the function of SOP doctrine, its underlying principles, and the basis upon which Mogoeng CJ accused the maj of violating the doctrine.

Answer 17

SOP is adopted in most liberal democracies to prevent abuse of powers.
It ensures public power is dispersed amongst branches so as to avoid concentration of power in one institution
(originally conceptualised as response to monarch who had divine right to make laws, execute & enforce)
Originally only split legislative & executive power, and later separate judiciary w/ extensive powers incorporated.
SOP has four underlying principles:
1. Trias politica (division of governmental power)
2. Separation of functions (distinct areas of responsibility & auth on each of three branches)
3. Separation of personnel (each branch must have specific persons assigned)
4. Checks & balances (allowing branches to check each other)
Mogoeng’s criticism relates to Maj prescribing that the NA must have a particular mechanism in place to hold Pres accountable ito S89(1).
S89(1)  requires serious misconduct, serious violation Con, etc
(Maj held that need particular mechanism to determine if those factors present before can vote)
NA’s function to hold Pres accountable. To do so, NA given ability to determine and arrange their own internal procedures (S57).
NA has mechanisms in place for impeachment motion; there was evid that Pres did commit serious violation of Con & law (eg. EFF1)
Mogoeng held: Maj prescribing how NA must do their job
 interfering w/ another branch’s functions unjustifiably
 therefore, violating SOP doctrine