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CONST LAW 214 > UNIT 1 > Flashcards

UNIT 1 Flashcards

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1
Q

PURPOSE OF CONSTITUTION

A

-creates institutions of states
-gives these institutions power
-controls the power
-creates fundamental rights, values
-regulates how state interacts with individuals and vice versa
-they can interact vertically and horizontally

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2
Q

3 TYPES OF CONSTITUTIONAL RESTRICTIONS ON PUBLIC POWER

A
  1. Structural
  2. Substantive
  3. Procedural
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3
Q

HOW IS CONSTITUTIONAL RESTRICTIONS ACHIVED

A

-Bill of Rights
-Rule of Law

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4
Q

WHAT DOES THE SEPERATION OF POWERS DO

A

-Limits the power of individual branches of government
-Prevent power from being concentrated into one branch or office

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5
Q

SINCE THE CONSTITUTION DOES NOT EXPLICITLY MENTION THE SOP, WHY IS IT REQUIRED

A

The Constitutional Principle VI of the Interim Constitution required the final constitution to create a SOP between the 3 branches of government

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6
Q

WHAT DOES THE CASE: CHAIRPERSON OF THE CONSTITUTIONAL ASSEMBLY EX PARTE: IN RE CERTIFICATION OF THE CONSTITUTION OF THE REPUBLIC OF SA DEAL WITH

A

-separation of powers
-an objection made claiming the new text violated CH VI of the Interim Constitution that states a seperation of power between 3 branches of government is required to ensure accountability, responsiveness, and openness

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7
Q

WHAT DID THE OBJECTION IN THE CASE: CHAIPERSON OF THE CONSTITUTIONAL ASSEMBLY EX PARTE: IN RE CERTIFICATION OF THE CONST OF THE REPUBLIC OF SA NOT SUGGEST?

A

That there wasn’t sufficient separation of power between the executive and the legislature or adequate separation of functions

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8
Q

WHAT DID THE OBJECTION IN THE CASE: CHAIRPERSON OF THE CONSTITUTIONAL ASSEMBLY EX PARTE: IN RE CERTIFICATION OF THE CONST OF THE REPUBLIC OF SA, SUGGEST?

A

That members of the executive branch were part of the legislature

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9
Q

WHY IS THIS A PROBLEM

A

This opens the door for powerful influence over decisions that the legislature has to make, and is also not consistent with the SOP

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10
Q

WHAT DID THE COURT NOTE IN THE CASE: CHAIRPERSON OF THE CONSTITUTIONAL ASSEMBLY EX PARTE: IN RE CERTIFICATION OF THE CONST OF THE REPUBLIC OF SA

A

There is no universal model of the SOP
There will always be restraints from one branch of government to another, nothing absolute

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11
Q

WHAT IS THE SOP PRINCIPLE?

A

It recognises functional independence of the different branches

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12
Q

WHAT IS THE CHECKS AND BALANCES PRINCIPLE?

A

Ensures the Constitutional order prevents one branch of government from usurping power from another branch of government

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13
Q

WHAT WAS THE OUTCOME OF THE CASE: CHAIRPERSON OF THE CONSTITUTIONAL ASSEMBLY EX PARTE: IN RE CERTIFICATION OF THE CONST OF THE REPUBLIC OF SA

A

The objection was denied

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14
Q

4 PRINCIPLES OF THE SOP

A
  1. Trias Politica: (divides power among branches)
  2. Separation of functions: gives responsibilities to each branch
  3. Separation of personnel: people are exclusively assigned to execute functions of that branch
  4. Checks/balances: Each branch is held accountable by other branches
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15
Q

HOW DID THE MODERN PRINCIPLE OF THE SOP EMERGE

A

From John Locke’s model that stated absolute monarchial power shouldn’t be overthrowed by absolute parliamentary power

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16
Q

WHAT DID THE SOP HISTORICALLY OOK LIKE

A

All power was centralised and vested in a single monarch

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17
Q

WHAT DID THE CENTRALISATION OF POWER IN A MONARCH MAKE EVIDENT

A

It made it evident that this overconcentration of power needed to be distributed

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18
Q

WHAT EXPRESSES THAT A SOP IS NEEDED AND WHY

A
  1. Constitutional principle VI
  2. To ensure accountability, openness and responsiveness
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19
Q

IS SA’S SOP MODEL MEASURED AGAINST OTHER COUNTRIES

A

CC is reluctant to measure our model against other countries as it should be interpreted within our own historical context

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20
Q

WHAT WAS STATED IN DE LANGE V SMUTS NO WITH REGARD TO SOP IN SA

A

It was stated that in time our courts will develop our own distinct model of SOP which doesn’t diffuse power so much

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21
Q

WHAT WAS STATED IN THE CASE: SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS V HEATH, REGARDING IMPLICIT AND EXPLICIT PRINCIPLES IN THE SA CONSTITUTION

A

That implicit principles in the Constitution have the same force as the explicit principles

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22
Q

HOW DOES THE SA CONSTITUTION IMPLY THE SOP?

A
  1. Establishes structures of governance and distributes power
  2. It has provisions regulating the distribution of functions
  3. Has provisions identifying the correct personnel to perform functions
  4. Has a framework to control the branches of government
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23
Q

WHAT DOES CHAPTER 4 OF THE CONSTITUTION CREATE REGARDING SOP

A

It creates a less strict form of SOP between LEGSILATURE and OTHER BRANCHES

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24
Q

REGARDING CHAPTER 4 OF THE CONSTITUTION IN WHOM DOES THE CONSTITUTION VEST THE NATIONAL LEGISLATIVE AUTHORITY

A

In the Parliament (NA, NCOP)

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25
Q

WHAT AUTHORITY DOES IS VESTED IN PARLIAMENT (NA, NCOP)

A

The Constitution vests the national legislative authority therein

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26
Q

CHAPTER 4 DICTATES THAT THIS LEGISLATIVE AUTHORITY IN PARLIAMENT BROADLY ENTAILS THE POWER TO MAKE LAWS, WHICH INCLUDES WHAT?

A
  1. Amending Constitution
  2. Passing ordinary laws
  3. Delegating its function
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27
Q

CHAPTER 4 SPECIFIES TO WHOM THESE POWERS VEST?

A

The NA and delegates to the NCOP

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28
Q

TRUE/FALSE: THE CONSTITUTION ALLOWS THE NA AND THE NCOP TO REGULATE THEIR OWN PROCESSES

A

True

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29
Q

WHAT TYPE OF SEPERATION EXISTS BETWEEN THE EXECUTIVE AND LEGISLATURE?

A

No strict separation between the 2. Executive is allowed to be involved in legislative functions

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30
Q

WHAT MAY THE EXECUTIVE MEMBERS DO IN TERMS OF LEGISLATION

A
  1. Initiate legislation.
  2. Introduce bills in the NA
  3. Make subordinate legislation
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30
Q

MAY THERE BE OVERLAPPING OF PERSONNEL

A

Yes, all cabinet ministers must serve as NA members

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31
Q

WHAT WAS STATED IN FIRST CERTIFICATION JUDGEMENT ABOUT CABINET MINISTERS SERVING AS NA MEMBERS

A

This is not breaching the SOP
This seeks to promote efficiency and accountability

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32
Q

MEMBERS OF PARLIAMENT DO NOT ALWAYS HAVE SPECIALISED EXPERTISE ON TOPICS

A

Ministers are required to prepare and draft legislation for them to scrutinize

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33
Q

IN THE CASE: EXECUTIVE COUNCIL OF THE WESTERN CAPE LEGISLATURE V PRESIDENT OF RSA, EXPLAIN WHAT THEIR VIEW WAS ON DELEGATION

A

-Modern states require detailed provisions
-Parliament cannot deal with such matters itself
-Nothing prevents parliament from delegating subordinate regulatory authority to other bodies
-Nothing prevents them from doing so because this is necessary for effective law making
-Because delegation is being allowed SOP statutes states that there must be limits to the nature and extent
-What was then eventually determined was that parliament could not delegate powers to make or amend statutes to the executive

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34
Q

IN WHOM DOES CHAPTER 5 OF THE CONSTITUTION VEST AUTHORITY

A

It vests executive authority in the president who is head of the executive and head of state

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35
Q

IN TERMS OF THE CONSTITUTION, WHAT IS THE EXECUTIVE RESPONSIBLE FOR

A

-Developing, preparing, implementing national legislation
-Administration
-Executing and implementation of law, policy and administration

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36
Q

WHAT DOES S83(b) OF THE CONSTITUTION STATE

A

It’s the president’s duty to uphold and defend the Constitution

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37
Q

WHAT DOES S91 OF THE CONSTITUTION STATE

A

The president exercises executive authority along with the cabinet and ministers

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38
Q

WHAT POWER DOES S91 OF THE CONSTITUTION GIVE THE PRESIDENT

A

Power to appoint and dismiss ministers at his pleasure

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39
Q

HOW IS THE PRESIDENT CONSTRAINED IN APPOINTING MINISTERS

A

All 2 of the ministers must come from the NA

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40
Q

WHAT DOES S92 OF THE CONSTITUTION STATE

A

Cabinet is accountable individually and collectively to parliament
S55(2) confirms that this primarily means accountable to the NA

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41
Q

WHAT DOES S92(3)(b) OF THE CONSTITUTION STATE

A

Cabinet members must regularly report on matters under their control to the Parliament

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42
Q

WHICH 2 SECTIONS IN THE CONSTITUTION ALLOW FOR THE NA TO RECALL THE CABINET, OR ONLY THE DEPUTY PRESIDENT AND MINISTERS

A

S89
S102

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43
Q

WHAT DOES S89 AND S102 ALLOW THE NA TO DO

A

It allows the NA to recall the Cabinet or only the deputy president and ministers

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44
Q

BETWEEN WHAT BRANCHES OF GOVERNMENT IS THERE AN ABSOLUTE SEPERATION

A

Judiciary and other branches

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45
Q

WHAT TYPE OOF RESPONSIBILITY DOES CHAPTER 8 VEST, AND IN WHOM

A

Vests judicial responsibility in the courts
Creates a hierarchy of courts within the CC

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46
Q

WHAT IS THE COURTS PRIMARY FUNCTION

A

Adjudicate legal disputes includingg thos einvolving the constitution

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47
Q

WHAT DOES S172 OF THE CONSTITUTION STATE

A

It allows courts to declare any legislation inconsistent with the constitution invalid
-This legislation or conduct will then have no legal froce which allows courts to place a huge check on other branches

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48
Q

WHO APPOINTS JUDGES, AND ACCORDING TO WHAT SECTION

A

The president, according to S174 (which is the executive)

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49
Q

WHY ARE ALL 3 BRANCHES INVOLVED IN THE APPOINTMENT OF JUDGES

A

To ensure the independance of the judiciary

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50
Q

HOW DOES THE CONSTITUTION DEMAND COURTS APPLY THE LAW

A

Impartially , without fear, favour, or prejudice

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51
Q

WHAT DOES S165 OF THE CONSTITUTION STATE

A

The court is independant and bound only to the constitution

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52
Q

WHAT DOES EFF 1, JAFTHAS MINORITY JUDGEMENT STATE

A

No matter how outrageous the breach of the
constitution, a court may not perform powers entrusted to other arms of state.

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53
Q

WHAT SECTION BROHIBITS OTHER BRANCHES OF STATE FROM INTERFERING WITH THE FUNCTIONING OF THE COURTS

A

S165

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54
Q

WHAT DOES THE HEATH CASE STATE WITH REGARDS TO THE INDEPENDANCE OF THE COURTS

A

Courts have a duty to ensure that the limits to the execution of public power is not overstepped
Being independent and being seen as independent is crucial for this function

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55
Q

AN IMPORTANT ASPECT OF JUDICIAL INDEPENDANCE AS IN S176 STATES WHAT

A

Ensures personal independence of judges states their salary may not be reduced

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56
Q

S 177 EINTAILS THE REMOVAL OF JUDGES BEFORE THE END OF THEIR TERM FOR?

A

-Incapacity
-Gross incompetence, gross misconduct,

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57
Q

DESCRIBE HOW THE PROCESS WORKS FOR THE REMOVAL OF A JUDGE

A
  1. Judicial Service Commission must conduct an investigation
  2. They must make a finding on one of the previously listed grounds (incapacity/gross incompetence/gross misconduct)
  3. Must then refer this finding to the NA
  4. The NA must pass the resolution with a 2/3 majority
  5. Then president obliged to dismiss the judge
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58
Q

HOW DOES THE EXECUTIVE CHECK THE LEGISLATURE IN TERMS OF CHECKS AND BALANCES

A

-implementing policy
-preparing legislation
-subordinate elegislation
-preparing bills

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59
Q

HOW DOES THE JUDICIARY CHECK THE LEGISLATURE IN TERMS OF CHECKS AND BALANCES

A

-judicial review
-ensuring legislature complies with constitutions procedural requirements

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60
Q

HOW DOES THE LEGISLATURE CHECK THE EXECUTIVE IN TERMS OF CHECKS AND BALANCES

A

-regular reports
-appoints the president
-approving state of emergency

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61
Q

HOW DOES THE JUDICIARY CHECK THE EXECUTIVE IN TERMS OF CHECKS AND BALANCES

A

-invalidating conduct
-ensuring executive fulfils constitutional mandate without delay

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62
Q

HOW DOES THE LEGISLATURE CHECK THE JUDICIARY IN TERMS OF CHECKS AND BALANCES

A

-indirectly taking part in judges appointment
-passing legislation to respond to judicial decisions
-removing judges

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63
Q

HOW DOES THE EXECUTIVE CHECK THE JUDICIARY IN TERMS OF CHECKS AND BALANCES

A

-by taking part in judges appointment
-formulation legislation to respond to judicial decisions

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64
Q

BRIEFLY EXPLAIN THE COUNTER MAJORITARIAN DILEMMA

A

Members of the judiciary are not democratically ellected but yield enormous power through judicial review because the constitution and not parliament is supreme.

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65
Q

WHICH ISSUES DOES THE MAJORITARIAN DILEMMA RAISE

A

-How do we account for the invalidation of laws if it is supported by the majority
-How can the judiciary substitute its decision in place of the executive’s, even when the executive is consulted widely

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66
Q

WHAT IS THE ISSUE WITH JUDICIA REVIEW

A

It is the nature and power given to unelected judges to
-make decisions with overly political consequences
-move into the territory of other branches

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67
Q

WHAT ARE THE 3 TYPES OF RESPONSES TO ACCOUNT FOR COUNTER MAJORITARIANISM

A
  1. Some see it as being irreconcilable with the ideals of a majoritarian democracy
  2. Some see the encroachment as being part of the democratic process
  3. Some try to establish a workable interpretive theory where judicial review can be justified
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68
Q

WHAT GIVES JUDICIAL REVIEW SOME DEMOCRATIC LEGITIMACY

A

The Constitutional Assembly freely adopted the concept of judicial review

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69
Q

IN LIGHT OF THE MAKWANYANE CASE, IS PUBLIC ACCEPTANCE OF A COURTS DECISION ENOUGH TO SATISFY THE COUNTER-MAJORITARIAN DILEMMA AND WHY

A

No,
1. Public acceptance doesn’t mean judges acted in a way that promotes democracy
2. What the public is willing to accept in that point in time doesn’t reflect what’s acceptable in a democratic state
3. Pubic acceptance doesn’t bring us closer as to why judges should use judicial review

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70
Q

DUE TO THE NATURE OF REVIEW, CAN IT BE CONCEDED THAT IT CAN BE RECONCILED COMPLETELY WITH A MAJORITARIAN DEMOCRACY?

A

NO, the nature of the judicial function doesn’t lend itself to being exercised by the plurality of the population

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71
Q

3 ARGUMENTS IN FAVOR OF JUDICIAL REVIEW

A
  1. Democracy is never a simply majority rule, simply being majority doesn’t give one free reign to govern, judicial review is a mechanism used to control the exercise of power
  2. Judiciary ideally decides on disputes because of the specialised nature of judges and the judiciary’s independence
  3. The courts enhance democracy and citizens may challenge their elected representatives
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72
Q

EXPLAIN THE BRIDGE METAPHOR WITH REGARDS TO THE CONSTITUTION

A

Constitution is seen as a bridge from a past characterised by oppression, to a future of dignity, equality and protection of human rights

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73
Q

WHAT HAPPENED WHEN THE SA SYSTEM SHIFTED FROM PARLIAMENTARY SUPREMACY TO DEMOCRATIC SUPREMACY

A

-Organs of state divided into 3 branches
-Divided into 3 spheres: national, provincial, local

74
Q

DOCTORS FOR LIFE INTERNATIONAL V SPEAKER OF THE NATIONAL ASSEMBLY CONCLUSION

A

-The structures for the provisions for the separation of powers between branches reflects the SOP
-They developed a test for when the intervention of the court in the legislative process is legit: The applicant must show that there would be no remedy available once the legislative process was complete and the harm would be irreversible and material

75
Q

BRIEFLY EXPLAIN THE FACTS OF THE CASE: SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS V HEATH

A

-Under the Special Investigating Units and Tribunals Act the president established a special investigating unit: the second respondent
-The head of the special investigating unit is the first respondent and is also a High Court Judge
-The Special Investigating Unit has extensive investigating powers and powers to start proceedings to recover losses as a result of corruption
-The Special Investigation Unit received complaints that attorneys didn’t pay clients their full amount claimed
-The appellants which were an association of attorneys dealing with personal injury litigation contended that the powers of the Special Investigating Unit were intrusive and negatively affected their reputation
The Appellant (association of attorneys) sought an order from the High Court that the act be declared unconstitutional , as well as setting aside the: proclamation declaring the first respondent, and the proclamation referring the association too the second respondent

76
Q

WHAT WAS THE OUTCOMES OF THE CASE SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS V HEATH

A

-The application was dismissed with leave to appeal.
-The appellant took it directly to the Constitutional Court
-3 separate issues were raised by the appellant in the appeal to the CC:
1. Appointment of the first respondent as head of the SIU undermines the independence of the judiciary and SOP
2. The proclamation referring to the SIU to investigate the association was beyond the scope of the act, so invalid
3. The power of search is against the Constitutions S14 right to privacy

77
Q

WHAT ARE TACIT TERMS

A

Parties intended but failed to express what is implied

78
Q

WHAT ARE IMPLIED TERMS

A

Terms implied by law

79
Q

WHAT WAS HELD BY THE COURT IN TERMS OF EXPRESSED AND CONSTITUTIONAL PRINCIPLES IN THE CASE SOUTH AFRICAN ASSOCIATION OF INJURY LAWYERS V HEATH

A

-Implied constitutional principles had no less effect that express ones
-Such as in Fedsure where court held that action in contrast with implied principle was invalid

80
Q

WHAT ARE THE SIMILARITIES AND DIFFERENCES IN HOW THE LEGISLATURE, EXECUTIVE AND JUDICIARY ARE SEPERATED IN THE USA, AUSTRALIA AND SA

A

-Differ in how executive and legislature are separated
-All of them have a strict separation in the judiciary and the 2 other branches

81
Q

What was the primary contention of the South African Association of Personal Injury Lawyers in the case of South African Association of Personal Injury Lawyers v Heath?

A

The association contended that the powers vested in the Special Investigating Unit (SIU) under the Special Investigating Units and Tribunals Act were intrusive, invaded privacy, and damaged their professional reputation.

82
Q

Who established the Special Investigating Unit (SIU) and who heads it? (South African Association of Personal Injury Lawyers v Heath)

A

The President established the SIU in 1997, and a High Court judge serves as its head.

83
Q

What powers does the SIU possess according to the Act?(South African Association of Personal Injury Lawyers v Heath)

A

The SIU has extensive investigative power
the ability to institute proceedings for the recovery of losses due to corruption
can request information
summon individuals
question under oath
conduct searches with reasonable force

84
Q

What were the three separate issues raised by the appellant in the appeal to the Constitutional Court?(South African Association of Personal Injury Lawyers v Heath)

A

A) The appointment of the head of the SIU undermines the independence of the judiciary and SOP.
B) The proclamation referring the SIU to investigate the association being beyond the scope of the Act.
C) The power of search being inconsistent with the right to privacy under the Constitution S14.

85
Q

How did the Court approach the issue of separation of powers in this case?

A

-The Court emphasized the importance of ensuring limits on the exercise of public power and safeguarding the independence of the judiciary.
-It held that the functions of the head of the SIU were incompatible with judicial office and declared s3(1) of the Act invalid.

86
Q

What was the stance of the court a quo regarding the separation of powers?(South African Association of Personal Injury Lawyers v Heath)

A

-The court a quo held that while there are no express provisions on SOP in the Constitution
-Implied constitutional principles have equal effect. It also emphasized the importance of maintaining the independence of the judiciary.

87
Q

According to the Oliver Schreiner Memorial Lecture, what are the prime values of South Africa’s democracy as prescribed by the Constitution?

A

Dignity, equality, and freedom are prescribed as the prime values of South Africa’s democracy.

88
Q

How does the lecture propose the development of a distinctly South African model of the separation of powers doctrine?

A

The lecture suggests that South Africa must ensure effective executive government to address the needs of the marginalized while ensuring that all public power remains subject to the Constitution. This requires the Courts to be independent and to intervene when necessary.

89
Q

What is the significance of the pre-1994 system regarding the separation of powers?

A

The pre-1994 system in South Africa was not founded on the doctrine of separation of powers, and there were inadequate separation of power, personnel, and roles, leading to the infringement of fundamental rights.

90
Q

What role do the Courts play in the South African system of governance according to the Oliver Schreiner Memorial Lecture?

A

-Courts are the ultimate guardians of the Constitution, must ensure all branches of government operate within its bounds.
-They must be independent, impartial, and willing to intervene when necessary to uphold the Constitution.

91
Q

According to the Oliver Schreiner Memorial Lecture, what is emphasized as the duty regarding the independence of the judiciary, particularly during challenging circumstances?

A

The duty to safeguard the independence of the judiciary should persist despite severe circumstances, ensuring that the judiciary remains free from interference.

92
Q

What does the Constitution of South Africa recognize about the relationship between law and morality, according to the Oliver Schreiner lecture?

A

The Constitution recognizes that law is intertwined with morality, emphasizing the prime values of democracy as dignity, equality, and freedom, reflecting the values cherished by the people.

93
Q

How does the Oliver Schreiner lecture contrast the common law’s treatment of freedom and equality with their treatment under Constitutional supremacy?

A

While the common law of old acknowledged notions of freedom and equality, it was not binding on the judiciary as it is under Constitutional supremacy, where these values are enshrined in the Constitution.

94
Q

What is the primary function of the South African Parliament?

A

To serve as the voice of all South Africans, articulating their needs, aspirations, and desires, including those of the weakest and poorest members of society.

95
Q

What is the Parliament’s role in overseeing the Executive?

A

-Parliament serves as the watchdog of State resources
-Ensures that all Executive organs in the national sphere are accountable to it.
-Monitors the use of State resources and the spending of public money by the Executive.

96
Q

Parliament is responsible for (name 4)?

A

-Articulating the needs, aspirations, and desires of all South Africans.
-Holding all Executive organs in the national sphere accountable.
-Overseeing the use of State resources and public spending by the Executive.
-Considering, passing, amending, or rejecting legislation.

97
Q

Can the location of Parliament’s sittings be changed, and under what circumstances?

A

-Yes, the location of Parliament’s sittings can be changed if it is in the public interest, for security or convenience reasons, if its in the rules of the NA.
-Act of Parliament can change the seat of Parliament.

98
Q

Executive seat?

A

Tshwane

99
Q

What is the structure of Parliament in South Africa?

A

Parliament is a bicameral legislature with two houses: the National Council of Provinces (NCOP) and the National Assembly (NA).

100
Q

How does the National Assembly (NA) differ from the National Council of Provinces (NCOP) in terms of political dominance?

A

The NA is more politically dominant because:
-it elects and dismisses the President
-selects all members of the Executive (except for two)
-holds executive State organs in the national sphere accountable
-plays a decisive role in the appointment of other key positions such as those in Chapter 9 institutions.

101
Q

What role do political parties play in the composition and governance of Parliament according to the Constitution?

A

The Constitution establishes a party government system, where the majority party in the NA forms the government. Political parties have decisive influence over the composition of the government and policy decisions.

102
Q

What principle underlies the electoral system in South Africa, as established by the First Certification Judgment?

A

The electoral system is based on proportional democracy, where the electorate votes for political parties

103
Q

What was the ruling in the case of UDM v Speaker of the National Assembly regarding the duty of Members of Parliament

A

MPs have an duty to serve the people and uphold Constitutional values, even if in conflict with party loyalty. However, political parties can discipline, suspend, or expel noncompliant members.

104
Q

Despite the ruling in UDM v Speaker of the National Assembly, why do members of political parties still hold significant power over elected members of the legislature?

A

Members of political parties hold significant power due to:
1. The need for majority support in the NA to maintain government stability.
2. Strict party discipline, which limits MPs from voting against party lines.
3. Internal party discipline culture that rewards loyalty to party leadership.
4. The electoral system, which binds MPs to their political parties to retain their positions.

105
Q

What is the composition of the National Assembly in South Africa?

A

-between 350 and 400 members elected through common voters’ roll
-exact size is fixed at 400 members by Schedule 3 of the Electoral Act.

106
Q

Describe the electoral system used for the National Assembly prior to the New Nation Movement judgment

A

-MPs elected through a Party Proportional Representation Electoral System
-parties submitted lists of candidates to the Electoral Commission
-voters voted for a party rather than specific members
-allocation of seats in Parliament was proportional to the percentage of votes they got

107
Q

What are the advantages of the Party Proportional Representation Electoral System?

A
  1. Reflects wishes of the electorate, the percentage of seats allocated corresponds to percentage of total votes they got, reducing wasted votes.
  2. Prevents gerrymandering by avoiding the drawing of artificial constituency boundaries to dilute political support.
  3. Creates more inclusive legislatures by providing representation for previously marginalized groups.
  4. Eliminates “pork-barrel politics” by discouraging MPs from pressuring the legislature to spend public money in their constituencies for political gain.
  5. Easy and simple to administer compared to other electoral systems.
108
Q

What was the percentage of women in Parliament following the 2019 election, and how does this relate to the advantages of the electoral system?

A

Women were 45% of Parliament following the 2019 election, demonstrating the system’s success in promoting inclusivity and representation from previously marginalized groups.

109
Q

How does the Party Proportional Representation Electoral System prevent the wasting of votes?

A

By ensuring the percentage of seats allocated to each party corresponds to the percentage of total votes it received

110
Q

What are the disadvantages associated with the Party Proportional Representation Electoral System?

A
  1. It doesn’t create a strong link between voters and representatives, potentially leading to a lack of responsiveness by MPs to the concerns of voters. Individual MPs do not risk losing their seats due to voter dissatisfaction but rather due to losing support within their political party.
  2. The system grants significant power to political party leaders, who ultimately determine the list of MP candidates, potentially limiting the influence of individual voters.
  3. It may result in less effective or stable government.
111
Q

What was the outcome of the case New Nation Movement v President of the RSA?

A

The Court invalidated section 57A of Schedule 1 of the Electoral Act because it infringed section 19 of the Constitution, which prohibits the restriction of the right to make political choices to party membership.
The Court also ruled that section 18, freedom of association, protects the right not to associate, and forcing individuals to join a party to exercise political rights violates this freedom.

112
Q

How did the Court justify the invalidation of section 57A of the Electoral Act?

A

The Court found that limiting the right to contest elections only to members of political parties violated both
-section 19 (the right to make political choices)
-section 18 (freedom of association)

113
Q

What eligibility criteria are outlined in section 47 of the Constitution for membership in the National Assembly?

A

According to section 47, a person capable of voting for the National Assembly is capable of being a member, with exceptions including:
1. Employees of the State receiving remuneration
2. Permanent delegates to the National Council of Provinces, members of provincial legislatures, or municipal council members.
3. Unrehabilitated insolvents.
4. individuals declared unsound of mind by a Court of the Republic.
5. Persons convicted of a crime exceeding 12 months without the option of a fine.
6. Individuals absent from the National Assembly without permission, in violation of rules.
7. Members who cease to be part of their political party.

114
Q

How does section 18 of the Constitution relate to the right to contest elections?

A

Section 18 protects freedom of association, including the right not to associate. Forcing individuals to join a political party in order to contest elections would violate this freedom.

115
Q

Why did the Court invalidate section 57A of the Electoral Act only prospectively?

A

because it could not provide reasons why the limitation on political rights in section 19(3)(b) was justified

116
Q

What are the two instances where the National Assembly (NA) may not serve a full 5-year term?

A

If 3 years have passed and the NA decides with a simple majority vote to end its term, the President must dissolve the Assembly and call for new elections within 90 days.
If there’s no new President elected within 30 days of a vacancy in the Presidency, the Acting President must dissolve the NA and call for new elections within 90 days.

117
Q

What happens at the first sitting of the National Assembly?

A

a) The President is chosen (section 86).
b) The NA selects the Speaker and Deputy Speaker (section 52).

118
Q

Who decides when the first sitting of the National Assembly happens, and when should it occur?

A

The Chief Justice picks the date, and it should happen within 14 days after election results are known.

119
Q

What power does the President have over the sittings of the National Assembly?

A

The NA can decide when it meets, but the President can call for special meetings if needed.

120
Q

How does the New Nation Movement v President of the RSA case relate to the Electoral Act?

A

The case canceled part of the Electoral Act because it went against section 19 of the Constitution, which says people shouldn’t be forced to join a party to vote. The Court said this rule wasn’t fair and needed to be changed, but it left it to Parliament to fix.

121
Q

What are the powers and functions of the National Assembly (NA) according to section 43(2)?

A

-Choosing the President.
-Providing a platform for discussing important national issues.
-Reviewing and approving laws, along with the National Council of Provinces (NCOP).
-Making sure the Executive Branch is answerable for its actions.

122
Q

How does section 59 of the Constitution regulate quorums and decisions in the National Assembly?

A

-At least 201 members must be present to vote on a Bill, or a third of MPs (134 MPs) must be present for other matters. -Most decisions need a majority of present members, but big decisions like changing the Constitution or removing the —-
-President need majorities of all NA members. The Speaker doesn’t vote but can break a tie. The President and Cabinet members can’t vote but can speak and attend sessions following NA rules.

123
Q

What authority does the NA have regarding its own rules and functioning?

A

-The NA sets its own rules, laid out in section 57 of the Constitution.
-The Speaker leads NA sessions and should remain neutral. -They also help manage Parliament, alongside the President of the National Council of Provinces (NCOP).

124
Q

What role do members of the NA play in public meetings, and how are legislative processes typically carried out?

A

-ask questions in public meetings
-vote on laws
-Portfolio Committees supervise each Minister’s work and deal with laws
-Members join committees based on their party’s size, with the majority party usually choosing the committee leaders

125
Q

What makes up the National Council of Provinces (NCOP) and why is it important?

A

The NCOP is Parliament’s second chamber and represents the interests of provinces. It has 90 members, with each province sending 10 members.

126
Q

What does Parliament do regarding public discussion and holding the Executive accountable?

A

Parliament provides a platform for public debate and transparency, letting people and groups share their views. It also makes sure Cabinet members regularly report to Parliament. Parliament’s duty to oversee the Executive and hold them accountable is confirmed by legal cases like UDM v Speaker.

127
Q

How does Parliament hold the Executive accountable, and what happens if they fail?

A

Parliament makes the Executive explain their actions and can remove them through impeachment (section 89) or a no-confidence vote (section 102). A no-confidence vote needs a simple majority in the NA, leading to resignation. Impeachment needs a 2/3 majority and could mean losing benefits and future office.

128
Q

Section 89 allows the NA to impeach the President with 2/3 majority what grounds?

A

-Serious violation of Constitution/Law.
-Serious misconduct.
-Inability to perform functions of office.

129
Q

What was the premise of the Economic Freedom Fighters v Speaker, National Assembly and Others (EFF 1) case?

A

The premise of EFF 1 was that former President Jacob Zuma benefited unduly from non-security upgrades at his private Nkandla residence, breaching constitutional mandates. The Public Protector instituted remedial action, instructing Zuma to repay the funds, reprimand his Ministers, and report to the National Assembly (NA) for accountability.

130
Q

What were the key findings of the Constitutional Court in EFF 1 Economic Freedom Fighters v Speaker, National Assembly and Others?

A

The Constitutional Court found that President Zuma breached his constitutional duties by disregarding the Public Protector’s remedial action. Additionally, it determined that the NA failed to hold the President accountable, violating its constitutional mandate.

131
Q

What instructions did the Constitutional Court issue in EFF 1 Economic Freedom Fighters v Speaker, National Assembly and Others?

A

The Court instructed President Zuma to comply with the Public Protector’s report, reprimand the involved Ministers, and directed the National Treasury to determine a portion of the repayment. It emphasized the importance of upholding the Constitution and accountability.

132
Q

What was the premise of Economic Freedom Fighters v Speaker of the National Assembly and Others (EFF 2)?

A

EFF 2 addressed allegations that the NA lacked mechanisms to hold the President accountable under section 89 (impeachment). It questioned whether the NA failed to scrutinize the President’s constitutional violations highlighted in EFF 1.

133
Q

What were the main issues addressed by the majority opinion in EFF 2 Economic Freedom Fighters v Speaker of the National Assembly and Others?

A

The majority opinion focused on whether the NA established effective mechanisms for holding the President accountable under section 89 and whether it adequately addressed the President’s breach of the Constitution highlighted in EFF 1.

134
Q

What was Chief Justice Mogoeng Mogoeng’s dissenting opinion in EFF 2 Economic Freedom Fighters v Speaker of the National Assembly and Others?

A

Chief Justice Mogoeng disagreed with the majority, arguing against judicial overreach. He believed the NA already had flexible mechanisms to hold the President accountable and criticized the majority’s prescription of specific procedural requirements for impeachment.

135
Q

How does oversight differ from accountability in Parliament’s functions?

A

Oversight involves monitoring the implementation of laws, budget allocation, and adherence to statutes and the Constitution by the Executive, ensuring transparency and efficiency. Accountability, on the other hand, involves holding the Executive responsible for its actions and decisions, ensuring they align with constitutional principles.

136
Q

How does Chief Justice Mogoeng Mogoeng characterize the majority judgment in EFF 2 Economic Freedom Fighters v Speaker of the National Assembly and Others?

A

Mogoeng Mogoeng describes the majority judgment as a textbook case of judicial overreach, arguing that it constitutes an impermissible intrusion of the Judiciary into Parliament’s domain.

137
Q

According to Mogoeng Mogoeng, why is it unnecessary for the Judiciary to always mandate an inquiry before impeachment proceedings?

A

Mogoeng Mogoeng contends that an inquiry is unnecessary if impeachment grounds are already established, as it would be a waste of resources. He argues that courts don’t require inquiries when trial or motion proceedings suffice, and similarly, the NA should have the discretion to determine impeachment grounds based on available evidence.

138
Q

What does Mogoeng Mogoeng propose as a permissible mechanism for holding the President accountable under section 89?

A

Mogoeng Mogoeng suggests that the NA should have the discretion to establish grounds for impeachment either through an inquiry or by relying on an abundance of evidence. He argues that assuming rationality among NA members, they wouldn’t vote for impeachment without sufficient grounds.

139
Q

What are the key elements of the mechanism proposed by the majority for holding the President accountable under section 89?

A

According to Mogoeng Mogoeng, the proposed mechanism should ensure that debate and vote precede any inquiry, be conducted by a structured committee with specified size and party representation, have rules preventing manipulation by the majority party, and always aim to establish the existence of grounds for impeachment.

140
Q

What is the role of the National Council of Provinces (NCOP) in oversight?

A

The NCOP oversees the national executive’s intervention in provinces and the provincial executive’s intervention in municipalities. It ensures that the actions of these executive bodies align with constitutional principles and the interests of the provinces.

141
Q

What is the significance of cooperative governance in the passing of legislation?

A

Cooperative governance is essential in the passing of legislation as it involves institutional cooperation between national and provincial legislatures, as well as between the executive and Parliament. The National Council of Provinces (NCOP) represents provincial interests in the national law-making process, ensuring that legislation reflects the needs and concerns of all provinces.

142
Q

How is the passing of legislation facilitated in Parliament?

A

Legislation is introduced through draft Bills, which are usually prepared by the Executive and then tabled and passed by Parliament. Members of the National Assembly (NA) can also introduce Private Member’s Bills, and committees of the NA can introduce Bills. The process involves readings, committee review, debates, and voting in both the NA and the NCOP.

143
Q

What are the different types of Bills in Parliament and how are they processed?

A

Bills in Parliament are categorized into Section 74, Section 75, Section 76, and Section 77 Bills, depending on their impact on provinces and their subject matter.

144
Q

What role does tagging play in the legislative process?

A

Tagging determines the procedure for processing a Bill in Parliament based on its subject matter and impact on provinces. The Joint Tagging Committee (JTM) assigns tags to Bills, which determines the majority required for passage and the level of influence the NCOP has. Tagging ensures that Bills are processed appropriately and in accordance with constitutional principles.

145
Q

What is the role of the Speaker of the National Assembly in the legislative process?

A

The Speaker of the National Assembly presides over parliamentary proceedings, maintains order during debates, and ensures that parliamentary rules and procedures are followed. They also play a crucial role in determining which Bills are considered for debate, allocating speaking time to Members of Parliament, and representing the institution of Parliament both domestically and internationally.

146
Q

How does the tagging of Bills affect the legislative process?

A

Tagging categorizes Bills based on their subject matter and impact on provincial interests, determining the legislative process they undergo in Parliament. This classification influences the level of scrutiny, the majority required for passage, and the role of the National Council of Provinces (NCOP) in the process.

147
Q

What role does the Mediation Committee play in the legislative process?

A

The Mediation Committee resolves differences between the National Assembly and the National Council of Provinces on Bills that have been passed by both Houses. Comprising members from both Houses, the committee aims to reconcile conflicting provisions, reach consensus, and finalize the text of the Bill. Its decisions are crucial for ensuring the smooth passage of legislation and upholding principles of cooperative governance.

148
Q

What does Section 44 of the Constitution allow Parliament to do regarding the delegation of its functions?

A

Parliament can assign certain legislative responsibilities to other bodies if it deems them better suited to address specific issues.

149
Q

What are the limitations on Parliament’s delegation of powers, according to Executive Council, Western Cape Legislature v President of the RSA?

A

In Executive Council, Western Cape Legislature v President of the RSA, the court ruled that while Parliament can delegate the making of subordinate regulatory authority to other bodies, Parliament cannot transfer its fundamental legislative functions to other entities.

150
Q

What is the distinction between original legislation and subordinate legislation?

A

-Original legislation: Laws made directly by Parliament using its full legal authority under the Constitution.
-Subordinate legislation: Rules and regulations created by other bodies authorized by Parliament to do so.

151
Q

What was the conclusion of the case Justice Alliance of South Africa and others v President of the RSA regarding Parliament’s delegation of powers?

A

In the case Justice Alliance of South Africa and others v President of the RSA, the court affirmed that Parliament may only delegate the authority to make subordinate legislation, such as proclamations or regulations, but it cannot delegate its primary legislative function of passing original legislation.

152
Q

Doctors for Life International v Speaker of the National Assembly
Can the Court grant a declaratory order concerning Parliamentary proceedings, specifically regarding the failure to facilitate public involvement as per section 72 of the Constitution?

A

No, the Court’s intervention in Parliamentary proceedings, particularly regarding public involvement, requires careful consideration due to its potential interference with the autonomy of the Legislature.

153
Q

Doctors for Life International v Speaker of the National Assembly
What jurisdictional issues arise concerning the Court’s consideration of challenges to Parliamentary proceedings, especially when a bill has not yet received presidential assent?

A

The Court must determine whether it has jurisdiction to consider challenges to Parliamentary proceedings, particularly when a bill is pending presidential assent. This issue involves balancing the Court’s role in ensuring Constitutional obligations with Parliament’s autonomy in internal arrangements.

154
Q

Doctors for Life International v Speaker of the National Assembly
According to section 57 of the Constitution, what authority does Parliament have in determining its internal arrangements?

A

: Parliament holds the authority to determine its internal arrangements, as stated in section 57 of the Constitution. However, this autonomy must be balanced with the Court’s responsibility to ensure Parliament fulfills its Constitutional obligations.

155
Q

Doctors for Life International v Speaker of the National Assembly
What responsibility does section 167(4)(e) of the Constitution entrust to the Courts regarding Parliamentary proceedings?

A

Section 167(4)(e) entrusts the Courts with the responsibility of ensuring that Parliament fulfills its Constitutional obligations, including the facilitation of public participation in the legislative process.

156
Q

Doctors for Life International v Speaker of the National Assembly
During which stages of the law-making process did the Court determine that judicial intervention is permissible regarding public participation?

A

The Court held that judicial intervention is permissible during the third stage of the law-making process, after a bill has been signed by the President but before it comes into force. However, intervention during the deliberative and presidential stages was not considered by the Court.

157
Q

Doctors for Life International v Speaker of the National Assembly
What was the main point of contention regarding public participation between the provincial legislatures, the National Council of Provinces (NCOP), and the National Assembly (NA)?

A

The main point of contention was the nature and scope of public participation required by section 72 of the Constitution. While both parties agreed on the necessity of public participation, they disagreed on its specific requirements and implementation.

158
Q

How does the National Council of Provinces (NCOP) reflect the fundamental premise of co-operative governance in South Africa’s government structure?

A

The NCOP represents the provincial interests on a national stage, embodying the concept of “spheres within a single whole.” Co-operative governance among the three spheres of government is essential to maintaining a cohesive national legislative program.

159
Q

What role do non-voting representatives designated to participate in the NCOP play in representing local government?

A

Non-voting representatives indirectly involve local government in the NCOP’s proceedings, ensuring that local interests are considered at the national level.

160
Q

How does the NCOP ensure provincial voices are heard in national legislation?

A

The NCOP delegates vote according to mandates from their provincial legislatures, providing direct representation of provincial interests in the national legislative process.

161
Q

What powers does the NCOP hold regarding national legislation, particularly in relation to section 76 of the Constitution?

A

While the NCOP cannot veto legislation, it can significantly influence the legislative process by delaying the passage of bills and requiring a two-thirds majority in the National Assembly (NA) for certain matters outlined in section 76.

162
Q

How do provincial legislatures become involved in the national legislative process?

A

Provincial legislatures deliberate on national bills and decide how to vote on them, reflecting the close relationship between the NCOP and provincial legislatures in representing provincial interests.

163
Q

What is the significance of public participation in the legislative process according to South Africa’s Constitution?

A

Public participation is a fundamental aspect of South Africa’s constitutional democracy, ensuring that citizens have a voice in the law-making process and contributing to the legitimacy of legislation.

164
Q

What does it mean for Parliament to facilitate public participation according to South Africa’s Constitution?

A

Facilitating public participation entails taking steps to make it easier for the public to participate in decision-making processes, ensuring that citizens have meaningful opportunities to engage with legislative matters.

165
Q

How does the Constitution define the duty of Parliament to facilitate public participation?

A

Sections 59, 72, and 118 of the Constitution impose a special obligation on Parliament to facilitate public participation, presupposing that Parliament will create measures to achieve this goal.

166
Q

What factors affect the reasonableness of public participation measures according to South African law?

A

The reasonableness of public participation measures is determined by factors such as the importance of the legislation’s impact, time constraints, expenses, and Parliament’s own determination of what constitutes reasonable public participation.

167
Q

How does Parliament ensure meaningful opportunities for public participation?

A

Parliament must provide notice and information about proposed legislation, as well as opportunities for public input through mechanisms such as road shows, workshops, and public education initiatives.

168
Q

What is the significance of public access to Parliament in facilitating public participation?

A

Public access to Parliament allows citizens to stay informed about legislative proceedings and engage with the law-making process, contributing to a more participatory democracy.

169
Q

What was the issue at hand in Mazibuko v Sisulu regarding a motion of no confidence?

A

The issue revolved around whether the Speaker of the National Assembly had the power to schedule a motion of no confidence in the absence of consensus from the Programme Committee.

170
Q

Mazibuko v Sisulu
What was the contention regarding the Speaker’s residual power to schedule a motion of no confidence?

A

It was contended that the Speaker, in the absence of consensus from the Programme Committee, had the residual power to schedule the motion, but this contention was dismissed by the Court.

171
Q

Mazibuko v Sisulu
Is a motion of no confidence inherently urgent according to the arguments presented in the case?

A

While the Applicant argued that a motion of no confidence should always take precedence and be treated as urgent, the Court held that it must be scheduled, debated, and voted on within a reasonable time frame determined by the Assembly’s program.

172
Q

Mazibuko v Sisulu
What was the Court’s ruling regarding the Speaker’s discretion to order a secret ballot for a motion of no confidence?

A

The Court ruled that the Speaker has the discretion to determine whether a secret ballot should be used for a motion of no confidence, emphasizing the importance of allowing Members to vote according to their conscience.

173
Q

What were the main issues raised in Land Access Movement of SA v Chairperson of the NCOP?

A

The case dealt with the failure to facilitate public participation in the legislative process regarding land restitution, particularly concerning the reopening of the window for land claims.

174
Q

How did the Court assess Parliament’s fulfillment of its obligations regarding public participation in the case?

A

While the National Assembly was found to have satisfactorily fulfilled its public participation obligations, the National Council of Provinces (NCOP) failed to provide sufficient time and opportunity for public engagement, especially regarding the reopening of land claims.

175
Q

What factors did the Court consider in evaluating the reasonableness of public participation measures?

A

The Court considered factors such as the nature of the legislation, time constraints, and Parliament’s determination of what constitutes reasonable public participation, emphasizing the need for a case-specific assessment.

176
Q

T/F
The separation of powers doctrine is a tacit principle which can be used to attack a legislative scheme or provisionn in court

A

TRUE

177
Q

T/F
Oliver Shreiner was once the chansellor of the University of Witwatersrand and the chief justice of SA

A

FALSE

178
Q

Can members of NCop and NA table a bill

A

yes, anyone in the NCoP and NA can table a bill according to S73(4)

179
Q

Who cannot submit abill and why

A

The director general, aren’t part of NCop and NA

180
Q

What does S76(2) regulates what process

A

The process to give authority to go to the NCoP and NA

181
Q

If each delegation gets one vote…

A

There is a max of 9 voters for the NCoP

182
Q

After the recent debacle concerning the MEC for Education’s power to interfere with the pregnancy policy of public schools, Angie Motshekga, the Minister of Basic Education, instructs the Department of Basic Education to compile the Schools Act Amendment Bill 2023 in order to address this issue. On 4 April 2023 the Director General of the Department tables the Amendment Bill in the National Council of Provinces (“NCOP”). The NCoP invites the public to comment on the bill via written submissions. It also conducts extensive public hearings in all major towns and cities in all the provinces for a period of 6 weeks. After considering the inputs received, and making slight changes based on the inputs, the Bill is passed by the NCOP with a majority vote of 60 of the 79 members present on the day.
The NCOP then refers the Bill to the National Assembly (“NA”). As the NCoP conducted extensive public participation processes, the NA decides not to conduct public participation arguing that it would be wasteful expenditure. Regardless, the NA effects certain changes to the Bill and passes it with a majority vote of 190 of the 195 members present on the day. The NA refers the Bill to the president who discusses it with his Cabinet. The president is satisfied with the Bill and therefore instructs the Minister of Basic Education to sign it into law.
However, Equal Education, a democratic movement concerned with the quality of education in South African schools, is concerned that the 2023 Act will not address the problems. Advise Equal Education regarding the constitutionality of the 2023 Amendment Act. In your advice to Equal Education, you must address all defects in the legislative process.

A

Defects of the process:
S73(4): Anyone that is a member of the NCoP and the NA can table a bill.
The director general cannot submit the bill as they aren’t a member of the NCoP or the NA S76 (2) regulates the process to give authority to go to the NCoP then further to the NA.
Schedule 4 matter attecting provinces.
S65 regulates voting in the NCoP.
If each delegation gets 1 vote, then there is a max of 9 votes for the NCoP Thus, the voting process was incorrect and problematic as members just voted.
Na decides not to conduct public participation: problematic.
Authority: Doctors for life case: money and time does not justify the exclusion of public participation. (NB 3 factors)
Voting of the NA: $53(1)(a) half of the members of the NA must be present before the vote was taken.
195 members were present this is 201 should have been present.
Thus, an irregularity
If it was the NCoP who introduced the bill, then it must be sent back to the NCoP if the NA makes amendments.
President must sign it into law not the minister
S84(2): presidents’ power: responsible for assenting to and signing for bills
No provision that allows for other people to sign and assent that power.

CONST LAW 214 (2 decks)

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