CSL 2601_ EXAM PACK 2021.

CSL 2601_ EXAM PACK. CSL2601 - Constitutional Law. The rule of law means that if the law states a specific thing, then it must be complied with. The rule of law also means that no one is above the law. According to Dicey, the rule of law comprises three main principles: Firstly, the law is supreme; public power can only be exercised in terms of authority conferred by law. Secondly, the law must be applied equally to all persons, irrespective of their status. Thirdly, courts are responsible for enforcing the law in the manner that protects the basic rights of all. However, the framers of the Constitution of the Republic of South Africa, 1996, had in mind a much broader concept of the rule of law than Dicey’s restrictive understanding of the term “rule of law”. The doctrine of the rule of law is incorporated in section 1 of the Constitution. Further, the fact that the Constitution is supreme and contains the Bill of Rights entails that the reference to the rule of law should be understood in the broadest sense, that is, as a system of government in which the law reigns supreme. Therefore, in the South African context, the rule of law means that government must have authority provided by a law for everything it does, regardless of the procedural or substantive qualities of that law. The courts have invoked the rule of law as a mechanism primed to limit, to regulate and to give more precise meaning to how government power is exercised. Thus, the rule of law has emerged as a powerful practical principle that can be invoked before our courts to ensure that the exercise of state power conforms to basic minimum criteria. In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 (12) BCLR 1458 (para 56), Fedsure Life challenged the Johannesburg local government’s power to levy substantially higher property rates. The Court held that the local government was permitted only to exercise powers that it had had lawfully conferred on it. Moreover, the Court held that it was central to the conception of our constitutional order that the legislature and the executive are constrained by the doctrine of the rule of law and that they may not exercise any powers or perform any functions that go beyond the powers or functions conferred upon them by law. EXCLUSIVE TUTORIALS The doctrine of the rule of law was further applied in the Constitutional Court judgment of Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 (2) SA 674 (para 98). This case arose from conduct of the President, who had mistakenly brought into force legislation that required the prior or simultaneous promulgation of regulations and schedules so that it could be implemented properly. The Court found that the President’s decision to bring the Act into operation in such circumstances was objectively irrational in that the Constitution requires that public power vested in the executive be exercised in an objectively rational manner. Accordingly, South African courts have invoked the rule of law in ensuring that the executive exercises its powers within the ambit of the law. 3.2. Presidential system •• The head of government is also the head of state. This is, for instance, the case in the USA. •• The head of government is not a member of the legislature and is not responsible to it. For instance, the American President is not a member of Congress, and neither are the members of his or her Cabinet. •• The head of government (president) is often elected directly by the people. In the USA, for instance, the President is popularly elected and his or her election is independent of the election of the legislature. 3.3. The principle of co-operative government plays an important role in regulating the overlap of power between the various spheres of government. Given the overlap between the legislative and executive authority of the national, provincial and local spheres of government, the Constitution makes provision for a system of intergovernmental co-ordination to manage any potential conflict between the various spheres exercising concurrent competences. This forms the heart of the system of cooperative government. The most important rules governing this system are set out in Chapter 3 of the Constitution. Chapter 3 of the Constitution entrenches the notion of cooperative government which recognises the distinctiveness, interdependence and interrelatedness of the national, provincial and local spheres of government. All spheres of government – national, provincial and local – are required to observe and adhere to the principles of co-operative government set out in Chapter 3 of the Constitution. Particularly important in this context are the principles set out in section 41. This section provides, inter alia, that ‗[a]ll spheres of government and all organs of state within each sphere‘ must:  • respect the constitutional status, institutions, powers and functions of government in the other spheres  • not assume any power or function except those conferred on them in terms of the Constitution • exercise their powers and perform their functions in a manner that does not encroach on the geographical, functional or institutional integrity of government in another sphere  • co-operate with each other in mutual trust and good faith. To avoid conflicts between the national, provincial and local spheres of government, especially in so far as their concurrent powers are concerned, the Constitution EXCLUSIVE TUTORIALS establishes or provides for the establishment of co-ordinating bodies. Some of these bodies are responsible for co-ordinating the legislative activities of the three spheres of government and others for co-ordinating the executive activities of government. 3.4. There is also the possibility that there may be a conflict between the exercise of legislative powers by the provincial and the national legislature. Where the competences are concurrent (as per Schedule 4 of the Constitution), the provincial legislature will prevail unless one or more requirements of section 146 of the Constitution are met, in which case the national legislation will prevail. In certain cases (as per s 146(2) and 146(3)), the provincial legislation in question will be suspended until the conflict has been resolved. Where the provincial legislature has exclusive competence (as per Schedule 5 of the Constitution), the national legislature may only intervene in cases set out in section 44(2) of the Constitution, and may then only resolve the matter concerned as set out in section 147(2) of the Constitution. In deciding whether legislation may be enacted by the national or provincial legislature, the Constitutional Court has ruled that the main substance and character of the legislation will determine the field of competence. The Constitutional Court has further held that substance and character are determined by considering two important factors: firstly, that the substance of the law depends on the true purpose, effect and essence of what the law is about, and, secondly, that neither the provincial nor national legislative competencies are watertight, and therefore the substance of the legislation must be determined. EXCLUSIVE TUTORIALS CSL2601 MAY/JUNE 2018 QUESTION 1 1.1. False 1.2. False 1.3. False 1.4. False 1.5. True 1.6. False 1.7. True 1.8. False 1.9. False 1.10. False 1.11. True 1.12. True 1.13. True 1.14. False 1.15. False 1.16. True 1.17. False 1.18. False 1.19. True 1.20. False EXCLUSIVE TUTORIALS QUESTION 2 2.1 (a). Our law does not prohibit the appointment of judges, serving or retired, from presiding over commissions of inquiry. Section 84(2) (f) of the Constitution simply confers the president the power to appoint a commission of inquiry. The provision does not specify or prescribe who is eligible for appointment as a member of a commission of inquiry. Similarly, the Commissions Act 8 of 1947 (the Act) does not deal with this aspect. The Act merely empowers the president to make proclamations and/or regulations regarding the appointment of a commission of inquiry. It follows therefore, that the president is at liberty to appoint any competent candidate to serve as a member of a commission of inquiry. It has become a common practice to appoint retired judges, senior counsel or serving judges to preside over commissions of inquiry. The appointment of judges as members of a commission of inquiry were found to be constitutionally permissible in the case of South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC). In the Heath case, at Para 34, the CC pointed out that ‘[i]n appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution.’ The court, however, was careful to point out that ‘[i]t is undesirable … to lay down rigid tests for determining whether or not the performance of a particular function by a judge is or is not incompatible with the judicial office. The appointment of serving judges to preside over commissions of inquiry in South Africa (SA) is not unprecedented. In the Commission on the Ellis Park Disaster, the Hefer Commission, the Khampepe Commission and the Seriti Commission, serving judges were appointed. However, the appropriateness of the practice has received minimal attention. The appropriateness of the practice was, however, called into question in the case of City of Cape Town v Premier, Western Cape, and Others 2008 (6) SA 345 (C), at para 167, where a serving judge was embroiled in a dispute between political opponents. The fact that it is lawful to appoint serving judges to preside over commissions of inquiry does not necessarily mean the practice is at all appropriate or desirable. This is indeed EXCLUSIVE TUTORIALS implied in the CC’s observations in the Heath case where it pointed out that in ‘appropriate circumstances judicial officers can no doubt preside over commissions of inquiry.’ The statement implies that there may be certain circumstances where it would be inappropriate to appoint a serving judge to preside over a commission of inquiry. Indeed, commissions of inquiry are sometimes mandated to investigate socially and politically controversial issues of national interest. The public does not always welcome their findings. In some cases, their findings are challenged in the courts. Their findings may also form the basis of a civil or criminal action. The terms of reference of a commission of inquiry may require the commission to investigate broad, complex and politically sensitive issues, which require much time and undivided attention of the commissioners. There are several reasons that militate against appointing sitting judges to preside over commissions of inquiry. When a sitting judge is appointed to preside over a commission of inquiry, the appointee does not necessarily cease to be a judicial officer. Instead, the appointed judge continues to carry out normal duties as a member of the court unless given special leave. The judge will therefore have to perform both normal duties as a judicial officer and as a member of the commission. It can hardly be gainsaid that such a situation would affect the judge’s normal duties as a judicial officer. n the Heath case, at paras 29-30, the CC observed that the fact that the work that a judge is required to perform ‘will occupy the judge to such an extent that he or she is no longer able to perform his or her normal judicial functions’ weighs against appointment to another post. Commissions of inquiry usually take longer to complete their mandate. Therefore, if a judge is granted special leave to serve as a member of a commission, the demands of the judicial office may be neglected. In Heath, at para 45, the CC found that the ‘indefinite nature of the appointment … preclude[d] the head of the unit from performing his judicial functions.’ More so, at para 43, it pointed out that ‘[w]hilst the length of the appointment is not necessarily decisive in the determination of the question whether the functions a judge is expected to perform are incompatible with the judicial office, it is … a relevant factor.’ Participation of a judge in commission of inquiry that is likely to take long may, therefore, ‘impair his/her ability to carry out judicial functions’ (City of Cape Town at para 182). All this led the Commission to recommend that ‘no sitting judge should be appointed to head or participate in a public inquiry unless the Chief Justice has first satisfied himself that the nature of the intended public inquiry has no political implications.’ The recommendations were based on the following reasons: EXCLUSIVE TUTO