Partial preview of the text
Download CSL2601 Exam Questions & Answers 2025-2026 and more Exams Law in PDF only on Docsity!
CSL2601 Exam Questions & Answers 2025 - 2026
list the characteristics of a state (5) - ANS-WW Characteristics of a state are: 1) a specific, geographically defined territory: 2) a community of people who live within that territory; 3) a legal order to which the community is subject, 4) An organised system of government which is able to uphold the legal order; 2) a certain measure, at least of separate political identity, if not sovercign political status. Also remember to apply facts of the scenario to the characteristics of state When docs the president exercise executive authority? (6) Slide 1 — ANS5S-WW Section 84 and 85 o The president's powers includes performing any executive function provided for in the Constitution or in national legislation, —When the president is exercising a political discretion on behalf of the government, — when he appoints the Deputy President, Cabinet Ministers and Deputy Ministers. —Has authority to appoint the leader of government business in the National Assembly from among the members of the National Assembly (the Speaker of Parliament). When docs the president exercise executive authority? (6) Slide 2 — ANS-Wwv~ implementing national legislation except where the Constitution or an Act of Parliament provides otherwise ~ developing and implementing national policy ~ co-ordinating the functions of state departments and administrations ~ preparing and initiating legislation ~ appointing the: . judges te . National Director of Public Prosecutions 3.Military Command of the National Defence Force 4, National Commissioner of the South African Police Service head of the National Intelligence Agency 6.inspector monitoring the intelligence service 7members of the ltinancial and Fiscal Commission What docs it mean to act "together with the other members of the Cabinet"? (4) — ANS-Wv * The decisions on the powers and functions of the president as head of the nalional execulive are cabinel meetings. * Degree of consent needed from other members of the cabinet depends on the decision—making procedures follawed in the cabinet. = "consultation" is required, allhough president is not bound by any recommendations made. + Sometimes the president may only make exccutive decisions “on the recommendations or advice" of cabinct. «Examples include a declaration of a state of national defence, which must be approved by parliament. —local sphere has independence to regulate awn affairs —ospecially with regards to $152(1) Cons— ta ensure provision of services to communitics in a sustainable manner, 2. Vodsure—case: — whatever decision the municipality takes it must act in good faith in accordance with principle of legality. —constrained to what is permitted in Part B of schedule 4 and 3. If Municipality failed to act: —not acted rationally and in good faith ito principle of legality/ —Cons obliges municipality to be proactive in ensuring the best interest of community When members of the public challenge the constitutionality of an act— on which basis can a challenge be brought. (RATES and TAX scenario) When answering the Q: —Is parliament sovercign under the new dispensation? —If it is not sovercign— determine status of local sphere of gvt? —Determine mechanisms in place to assist local gyt to achieve full potential —Refer to Roberston case Slide 2 - ANS-WW Apply facts of scenario: — Daniela and Pumi (the public) can claim law is uncons, —National Sphere usurped local sphere's area of functional competence, —local sphere responsible far public works only in respect of the needs of municipalities in discharge of their response to administrative functions especially assigned to them under Part B af Schedule 4 of the Const. —Their claim that parliament is no longer supreme, but the Cons is and all spheres of gvl are equal and have original Cons powers lo regulate their alfairs and must co— operate with each other When members of the public challenge the constitutionality of an act— on which basis can a challenge be brought. (RATES and TAX scenario) When answering the Q: —Is parliament sovercign under the new dispensation? —If it is not sovercign— determine status of local sphere of gvt? —Determine mechanisms in place to assist local gvt Lo achieve [ull potential —Refer ta Roberston case Slide 3 - ANS-WW Case on Rates and Taxes: Liquor Bill case and City of Jnb Metropolitian Municipality v Gauteng Development Tribunal: — National gvt was within their right to enact this new law because gv. has legislative authority to see "effective performance by municipalities of their function" —budgetary aspects not usually open to public discussion —law is Constitutional and Danic] and Pumi's claim has no merit and no prospects of sucess, 1. relates to a matter that affects the Council 2, alters provincial boundarics, powers, functions or institutions or 3. amends a provision taht deals specifically with a provincial matter Discuss importance of tagging a Bill in the correct manner (4) — ANS-WW 1. S75 and $76 deals with adaption of ardinary bills. 2, Ordinary Bills definition: Bills that do not amend the Cons, 35 a- deals wilh ordinary bills not alfecting provinces. 3.876 — deals with ordinary bills affecting provinces. 4, Importance of Bill tagging: failure lo do so may result in the Bill not becoming a law, Can an ordinary individual member of the NA, nol a cabinet member introduce a Bill in the NA. Refer ta case law (4) - ANS-WW In the case of Oriani-Ambrosini MP v Sisulu, MP speaker of the NA: —CC declared inyalid rules of the NA which required a member of the NA to obtain permission from the NA to initiate and introduce Bills. Principle of separation of powers— refer to relevant case law and whether there is explicil reference or mention of separation of powers in the Cons (8) Slide 1— Definition — ANS-WVwv Definition of sep of powers: 1. Distribution of political authority that provides a system of checks and balances. im . ensures that no single branch becomes too powerful 3. or infringes the rights of citizens 4, Doctrine ensures [reedom of cilizens of a state in making sure there is no concentration af power leading to abuse by a division of gvt authority by dividing it into legislative, executive and judicial authority and are exercised by different gvt bodies, a. Not expressly mentioned in the cons, but has been specifically referred to in the Certification case, De Lange vy Smuts NO Case and Glenister case. Principle of separation of powers— refer to relevant case law and whether there is explicit reference ar mention of separation of powers in the Cans (8) Slide 2- Smuls v De Lange NO -— ANS-WW 1. In case a! De Lange v Smuls NO court held: —over time courts will develop a distinct SA model of scparation of powers, one fitting the system of gyt reflected in our Cons. 2. balancing the needs of controlling gvt by separating powers and enforcing balances and checks that will; d.avoid diffusing powers that government is not able to take timely measures in public inter Principle of separation of powers— refer to relevant case law and whether there is explicit reference ar mention of separation of powers in the Cans (8) Slide 3- Glenister case — ANS-WWGlenister case the court held: 1. sep of powers is axiomatic in our Cons. 2. courts haye a Constitutional obligation to ensure exercise of power by other branches of gvt occurs within Constitutional bounds. 3. cannot assume that Parliament will not correct potentially uncons provisions. Principle of separation of powers— refer to relevant case law and whether there is explicit reference ar mention of separation of powers in the Cans (8) 3. court found the CL section 301) of the Marriage Act was inconsistent with S9(1) +9(3) (equality) and 10 (dignity) of Cons because the CI. definition of the marriage did not allow same-sex couples to enjoy the same status, entitlements and responsibilities they gaye heterosexual couples. 4, Court sensitive lo separation of pawers doctrine instead of imposing ilself writing law to govern marriages, they gaye parliament 1 year to cure defect by drafting the Civil Unions ACt. Principle of separation of powers— refer to relevant case law and whether there is explicil reference or mention of separation of powers in the Cons (8) Slide 6: IN a nutshell what to discuss when they ask a question on separation of powers — ANS-W¥W 1. Discuss the definition for 3 marks 2Z,mention that doctrine is net specifically mentioned in the cons bul is specifically referred to in the Certfication judgement, De Lange v Smuts NO Case and the Glenister case 3. Discuss the De ange vy Smuts case 4. Discuss the Glenister a. Discuss Treatment Action Campaign case }. Discuss the Fouric v Minister of Home Affairs case 7. Discuss the Lesbian and Gay quality Project Case Discuss the Const provision on the APPOINTMENT OF JUDICIAL OFTICERS and provide an opinion on whether the institution established to uphald the integrily and independence and ensure the transformation of the judiciary has succeeded in its lask. Refer ta recent controversies and case law. (10) Slide 1:$174 (1) and $174(2) of Cons — ANS-~WWS174(1) Cons— 1. appropriately qualified man or woman fitt+proper person appointed as a judicial officer, 2, person appointed to the CC must be a SA citizen $174 (2) Cons— appointment of a diverse judiciary —conslilulionally imperative — need for the judiciary to reflect broadly the racial and gender composition of SA which must be considered on the appointment of judicial officers. Morcaver: — as a transformative state is is essential for the judiciary to mirror society. —concerning that few black women are on the bench Discuss the Const provision on the APPOINTMENT OF JUDICIAL OFFICERS and provide an opinion on whether the institution established to uphold the integrity and independence and ensure the transformation of the judiciary has succeeded in its task. Refer to recent controversies and case law. (10) Slide 2: Judicial Service Commission — ANS-Wwv-institution cstablished to uphold the integrily and ensure the transformation of the judiciary is the Judicial Service Commission and is created by $178 of the Cons, —JSC comprises of: 23 members who are drawn from the judiciary; attorneys and advocates; two houses of the national legislature; executive; civil society and academia —JSC chaired by the Chief Justice of the CC 3. The role of the appointment of the JSC in the appointment of judges differs and depends on the nature of the appointment to be made; —most of the judiciary is white and male due to apparthcid and there is a need ta increase diversity of bench through special measures. — should also address the historical discrimination of race and gender prevalent in SA pre 1994 — diversity in the bench is needed lo improve the quality of justice by SA courts. —recent statistics JSC doing relatively well in ensuring a non-racial judiciary but are still struggling to improve gender representation. —question and debate has always been whether racial and gender representation should trump other consideration for the appointment to the bench, —lack fo women appointees has been a source of debate in legal fraternity Answering a question on the JSC in a nutshell - ANS-WW1. $1741) im .S$174(2) Transformative state 4.817 9. JSC consist of 6. JSC chaired by 7. JSCs role in the appointment of judges 8. Appointment of the Chief Justice and deputy Chief Justice JISC not play decisive role 10, JSC plays central role 11. Plays more decisive role 12, S174 (2) —most white male ~historical discrimination —diversity —lack of women appointees — recent statistics Special procedures required Preventing Parliament from amending the Constitution (s74 (4) —(8)) of the Constitution This question goes hand in hand with $74(1)—(3) Discussed above in slide 17 — ANS-WvS74(4)—(8) states: 1. that a Bill amending the cons should not include ather provisions but must solely provide for provisions amending the Cons 2, arequirement that 30 days before the Bill amending the Cons is introduced in parliament, it must be published in the Gayernment Gazctte for public comment, 3. to the provincial legislature for their views 4, and the NCOP for a public debate a. Bill should not be put to a vote in the NA within 30 days of its introduction or tabling. Provide a substantiated opinion on the status of the Public Protector and cvaluate the extent to which there is compliance with the findings of the Public Protector (7) Slide 1 — ANS-WW5181 Cons— guarantees the independence of the PP together with State institutions supporting Constitutional Democracy — Institutions are independent and subject only to the Canstitution and case law $182- confers powers on the PP to investigate any conduct in state affairs, or in the public administration in any sphere of government that is alleged or suspected to be improper or prejudice, —The PP would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly —there is anced for the PP ta be independent, impartial and dignified. —In certain cas es both the executive and Parliament were reluctant to comply with the findings of the PP, Apparent from the judgments of DA v SABC and EFT v Speaker of the Parliament. Mention how the problem of canflicling laws between national and provincial laws is resolved, Answer must specifically relate to Schedule 4 and 5 of the Cons and must indicate which law prevail in cach specific circumstance. (7) Slide 1- Schedule 4 and $146 (2) of Cons - ANS-WW—Cons provides for mechanisms for the resolution of conflict between national and provincial legislation falling within a functional area of concurrent national and provincial legislative competence (Schedule 4 matters) —ITO $146 (2) national Icgislation that applics uniformly with regard to the country as a whole will prevail over other provincial legislation if any of the following are present: . nal leg deals with a matler that cannot be regulated effectively by prov leg. N . nal leg provides uniformity lo a matter thal requires uniformity across the nation. es . nal leg is necessary for — the maintenance of national security —maintenance of economic unity —protection of common market in respect of mobility of goods services —capital and labour —promotion of cqual oppartunitics or cqual access to gyt services protection of the environment Mention how the problem of conflicting laws between national and provincial laws is resolved, Answer must specifically relate to Schedule 4 and 5 of the Cons and must circumstance, (7) indicate which law prevail in each specilic Slide 2 $146(3) and $147 and Schedule 5 — ANS-WWS146(3) —Nat leg will also prevail if il is aimed at preventing unreasonable action by a province that is prejudicial to the economic, health or sccurity of another proyinee or country as a whole or impedes the implementation of economic policy $147- regulates conflict falling within the functional arcas of exclusive provincial legislalive competence (Schedule 5) —In lerms of this provision nal leg prevails aver proy leg if il is necessary Lo: —maintain national security —maintain economic security — maintain essential national standards establish minimum standards required for rendering of services —prevent unreasonable action laken by a pravince which is prejudicial to the interests of another provinee or to the country as a whole Case law and recent controversies regarding the appointment of judges by the JSC — This can go with slide 22 — 25 — ANS-WW¥—Mention $174 (1) and 174 (2) of the Cons —great importance that the integrity of the courts must be unquestionable Compare the term sphere with the term leyel of government and explain the implications of cach concept for the institutional status of local government Slide 1: Discussion of the term level — ANS-WW The term level: 1. the term level of gyt was used during the apartheid area and is obsolete. 2, the term leye] means that there was a hierarchy according to which 3 spheres was arranged 3. national sphere always prevailed over the pray sphere 4. provincial sphere prevailed over the local sphere, in respect af any canflict belween laws cither made by provincial or local spheres in relation to the national sphere laws. Compare the term sphere with the term leyel of government and explain the implications of cach cancept for the institutional status of local government Slide 2: Discussion of the term sphere — ANS-WWThe term sphere: 1. used in CSI il refers to either the national, provincial or local sphere of gvt 2.implics that cach of these spheres are autonomous, self-contained and independent as they have originally constitutionally—conlerred and entrenched powers which enable them to regulate their own affairs and provide basic services and execute the functions allocated to them. 3. the powers, functions, rights and dutics of local gyt are only qualified, limited or constrained by the law in accordance with constitutional provisions regulating municipal powers and fucntions. Compare the term sphere with the term leyel of government and explain the implications of cach cancept for the institutional status of local government Slide 3: Implication of these concepts on institutional status of the local government — ANS-W v1, local gyt no longer at the mercy of national or prov gyt for any of its powers 2. local gvl is now interdependent, inviolable, and possess the constitutional latitude within which to define and express its unique character subjcct to constraints permissible under our Cons (City of Cape Tawn and others y Roberstan and Another) Explain the circumstances in which the President is allowed to refer a Bill to the CC, and scope of the court's power Lo consider the constitutionalily of a Bill [as lo da with the Liquor Bill case Slide 1 - ANS-WWS79(1) Cons— if president has reservations about the canslitutionalily of a Bill, he may refer it back to the National Assembly for reconsideration, —reseryations can be procedural substantive defects including the constituionality thercof, Rule 203 (2) Joint Rules of Parliament— when president refers a Bill back to NA they can only confine themselves to the president's objections and not the bill in its entirety If Bill affects provinces, NCOP must participate in reconsideration of relevant Bill, $79 (4) (a) — if revised Bill fully accommodates the Presidents abservations the he must assent to it and sign it 
