MODULE CODE: CSL2601

STUDENT NAME: SIPHENATHI JUDA

STUDENT NUMBER: 69457271

ASSESSMENT: CSL2601 FINAL EXAM 2024

QUESTION 1

1.1 There is truth to the statement. In South Africa, the President and Cabinet are
required to step down following a loss in an election for the dominant party. On the
other hand, those in public administration and service do not always quit. Rather,
even with a change in government, they maintain stability and continuity. It’s
important to note that while the public service is unaffected by election results, the
executive authority is. In doing so, it guarantees the continuous performance of
essential government functions.
1.2 The statement is false.
The rule of law, as an enshrined value in the South African Constitution, does not
mean that all legislation must be obeyed without challenge. Instead, it ensures that
laws are made in accordance with constitutional procedures, applied equally to all,
and subject to judicial review.
The Constitution allows courts to review and strike down legislation that conflicts
with its provisions (Section 2). This means that even if Parliament follows procedural
requirements, legislation can still be challenged and declared unconstitutional. In
essence, the rule of law promotes accountability, checks and balances, and
protection of individual rights. It does not imply absolute obedience to legislation
without the possibility of judicial scrutiny.
1.3 True. Chapter 3 of the South African Constitution promotes cooperative governance
among national, provincial, and local spheres. Sections 40 and 41 emphasize
mutual support, cooperation, and unity to achieve the Constitution’s objectives.
1.4 The incorrect function is: “appointing commissions of inquiry.”
According to the South African Constitution, the President has the power to appoint
commissions of inquiry (Section 84(2)(f)).
1.5
(a) Valid. The Supreme Court of Appeal’s decision to declare the Fees on Higher
Education Act invalid is justified. The Constitution requires public participation in the
legislative process (Section 59(a) and 72(1)(a)). The legislature’s failure to publish
the Bill for public comment, citing urgency, does not exempt it from this requirement.
The Constitutional Court has consistently emphasized the importance of public
participation in law-making.

Key principles:

1. Legislative processes must allow meaningful public participation.

2. Urgency does not justify bypassing constitutional requirements.

3. Courts have the power to review and strike down legislation that fails to comply with
constitutional procedures.

(b) Invalid. The President's request infringes on judicial independence and

separation of powers (Sections 165(2) and 174(1)). Judges already provide judgment
reasons (Section 165(3)). Demanding reports and threatening dismissal:

1. Undermines judicial autonomy

2. Compromises separation of powers

3. Violates judges' security of tenure (Section 174(1))

( c) Valid. The legislature's request is a legitimate exercise of its oversight powers

(Section 55(2) and 92(3) of the Constitution). The National Assembly may:

1. Summon Ministers to answer questions.

2. Conduct inquiries into government affairs.

3. Hold executive accountable for performance.

This action aligns with checks and balances principles, ensuring executive
accountability and transparency.

Key principles:
1. Legislative oversight

2. Executive accountability
3. Transparency

(d) Invalid. The Constitutional Amendment Bill 26's passage requires:

1. Two-thirds majority in the National Assembly (Section 74(1)):

2. Support of at least six provinces in the National Council of Provinces (Section 74(2)).

Since the bill lacks support from at least six provinces, it fails to meet the constitutional
requirements for amendment.
QUESTION 2

To create a law on artificial intelligence at UNISA Student Parliament, several steps

must be followed. First, research and consultation with experts are conducted to inform
the law. Then, policymakers define the law’s objectives and principles. Instructions are
given to the drafter, outlining the law’s scope.

The legislative phase begins with drafting the initial law. This draft is introduced to the
parliament (First Reading), followed by debate and discussion. The law is then sent to a
committee for review. After the committee reports back, parliament votes on the law’s
general principles (Second Reading). Next, the law is reviewed clause by clause, and
finally, a third reading and final vote take place.

Once passed, the law is signed and certified by the relevant authorities. It is then
published and a commencement date is set, specifying when the law takes effect.

After enactment, implementation begins. Authorities monitor and evaluate the law’s
effectiveness and identify areas for improvement. Periodic reviews enable amendments
to ensure the law remains effective.

Throughout this process, constitutional compliance is crucial. Stakeholder engagement,

involving students, staff, and experts, is vital. Finally, a legal review ensures the law’s
validity.

QUESTION 3

The separation of powers principle is a cornerstone of South Africa’s constitutional

democracy, ensuring that no single branch of government has unchecked authority (De
Vos et al., 2021, p. 215). This principle divides state power among three branches: the
legislative (Parliament), executive (Cabinet), and judicial (Courts). The Constitutional
Court has consistently emphasized the importance of separation of powers in
maintaining democratic governance.

In the case of Democratic Alliance v Minister of International Relations and Cooperation

& Others (2017), the Constitutional Court highlighted the tension between the national
executive and parliament. According to De Vos (2021), the Court reaffirmed that the
executive cannot unilaterally make decisions that infringe on parliamentary authority,
underscoring the need for clear boundaries between the two branches

The principle of trias politica underpins the separation of powers, preventing abuse and
protecting individual rights (De Vos et al., 2021, p. 215). Checks and balances are also
crucial, ensuring that each branch has specific roles and responsibilities. For instance,
Parliament holds the executive accountable through oversight mechanisms, while the
judiciary reviews executive and legislative actions for constitutionality (De Vos: 2021,
218)

Effective separation of powers requires constitutional adherence and institutional

independence. The Constitutional Court plays a vital role in maintaining this balance,
ensuring that each branch acts within its constitutional authority (De Vos et al., 2021, p.
225). By upholding this principle, the Court safeguards South Africa’s democratic
system.
In conclusion, the separation of powers principle is essential for preventing
authoritarianism and promoting democratic governance in South Africa.

QUESTION 4

The United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21
case was a landmark decision that clarified the Speaker of the National Assembly’s
power to prescribe a secret ballot in a parliamentary motion of no confidence in the
President of South Africa. This case is closely related to others that dealt with the same
facts, particularly those involving President Jacob Zuma’s administration and allegations
of state capture.

Another related case is Economic Freedom Fighters v Speaker of the National

Assembly and Others (2017). In this case, the Economic Freedom Fighters sought an
order compelling the Speaker to hold a secret ballot vote of no confidence in President
Zuma (Economic Freedom Fighters v Speaker of the National Assembly and Others
2017). The Democratic Alliance also approached the court, seeking a declaration that
the Speaker had the power to prescribe a secret ballot in a motion of no confidence
(Democratic Alliance v Speaker of the National Assembly and Others 2017).

The cases relied heavily on sections 55, 57, and 102 of the South African Constitution
(South Africa 1996). Section 55 emphasizes the importance of representative and
participatory democracy, while section 57 grants the National Assembly the power to
determine its internal arrangements and rules. Section 102 outlines the procedure for a
motion of no confidence in the President.
The Public Protector’s report, “State of Capture,” played a significant role in these cases
(Public Protector 2016). The report alleged widespread corruption and state capture
during President Zuma’s administration, which led to the motions of no confidence.

In conclusion, the United Democratic Movement case reinforced the principles of

accountability, transparency, and participatory democracy in South Africa’s constitutional
framework. It demonstrated the Constitutional Court’s commitment to ensuring that
public power is exercised in the interests of the people.

QUESTION 5

South Africa's system of multi-sphere governance deviates from the traditional quasi-
federal definition due to its unique constitutional framework. The City of Tshwane
Metropolitan Municipality v Afriforum & Another (2016) case highlights the complexities
of South Africa's system.

The Constitution establishes a system of cooperative governance, emphasizing

interdependence and shared responsibilities among national, provincial, and local
spheres (Section 41). This cooperative approach distinguishes South Africa from
traditional quasi-federal systems.

Key differences:

1. Cooperative governance: South Africa's system emphasizes collaboration and

interdependence, whereas quasi-federal systems focus on power distribution.

2. Three spheres of government: National, provincial, and local governments have

distinct roles and responsibilities (Sections 40-41).
3. Constitutional supremacy: The Constitution binds all spheres, ensuring accountability
and checks on power.

4. Subsidiarity principle: Decisions are made at the most local level possible, promoting
participatory democracy.

5. Intergovernmental relations: Mechanisms for cooperation and dispute resolution are

established.

Relevant case law:

- City of Tshwane Metropolitan Municipality v Afriforum & Another (2016): Clarified local
government's role in promoting democracy.

- Ex parte Chairperson of the Constitutional Assembly: In re Certification of the

Constitution of the Republic of South Africa (1996): Emphasized cooperative
governance.

Fundamental principles and doctrines not explicitly included in the quasi-federal

definition:
1. Principle of subsidiarity
2. Cooperative governance

3. Intergovernmental relations

4. Constitutional supremacy

5. Participatory democracy

In conclusion, South Africa's multi-sphere governance system uniquely combines

elements of federalism, decentralization, and cooperative governance.
References:

Tutorial letter 102

City of Tshwane Metropolitan Municipality v Afriforum & Another (2016) (6) SA 279 (CC)

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the

Constitution of the Republic of South Africa (1996) ZACC 26

De Vos et al. (2021) South African Constitutional Law in Context (2nd ed.). Oxford
University Press
Democratic Alliance v Speaker of the National Assembly and Others (2017) ZACC 22.

Economic Freedom Fighters v Speaker of the National Assembly and Others (2017)
ZACC 20.

Public Protector (2016) State of Capture. Report No. 42 of 2016/17.

South Africa (1996) Constitution of the Republic of South Africa, 1996.

United Democratic Movement v Speaker of the National Assembly [2017] ZACC 21.