CSL2601 EXAMQUESTIONSANDANSWERS

CSL2601 EXAMQUESTIONSANDANSWERS. (b) On what grounds can the President be removed from office? (3) - ANSWER-1) serious violation of the Constitution or law; 2) serious misconduct; 3) inability to perform functions of office. .Answering a question on the JSC in a nutshell - ANSWER-1. S174(1) 2. S174(2) 3. Transformative state 4. S178 5. 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 9.JSC 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 .Can an ordinary individual member of the NA, not a cabinet member introduce a Bill in the NA. Refer to case law (4) - ANSWER-In the case of Oriani-Ambrosini MP v Sisulu, MP speaker of the NA: -CC declared invalid rules of the NA which required a member of the NA to obtain permission from the NA to initiate and introduce Bills. .Case law and recent controversies regarding the appointment of judges by the JSC - This can go with slide 22 - 25 - ANSWER--Mention S174 (1) and 174 (2) of the Cons - Helen Suzman Foundation v JSC and Others (aka Gauntlett case) - Evidence suggests that the appointees do not necessarily fulfil the criteria according to the Cons - Candidates who should have rightly been appointed are not appointed. -According to the foundation: there is a growing perception that talented candidates for judicial appointment and advancement are being overlooked for reasons that are not clear or explicit. The notion of fit and proper and relationship to characteristics and attributes expected of members of the judiciary, the case of Menzi Simelane (former National Director of Public Prosecutions) is relevant, by analogy; - A fit and proper person were described as someone who is a conscientious person of integrity and honesty. .Co-operative gvt in Cons Sense (5) - ANSWER-1.Definition: Refers to system of gvt that indicates the framework within which the relations between the 3 spheres of gvt must be conducted. 2. S44(1)(h) Cons- 3 spheres of gvt must cooperate with one one another in mutual trust and good faith. 3.S40 Cons- state authority divided into national, provincial and local sphere which are distinct, independent and interrelated. 4. Certification case: - CC emphasised that the Cons. system chosen by Cons assembly is 1 of co-operative government in which the power of a number of functional areas are allocated concurrently to the national and provincial level of government. 5. S41 of Cons. set out the principle of co-operative and intergovernmental relations. .Compare the term sphere with the term level of government and explain the implications of each concept for the institutional status of local government Slide 1: Discussion of the term level - ANSWER-The term level: 1. the term level of gvt was used during the apartheid area and is obsolete. 2. the term level means that there was a hierarchy according to which 3 spheres was arranged 3. national sphere always prevailed over the prov sphere 4. provincial sphere prevailed over the local sphere, in respect of any conflict between laws either made by provincial or local spheres in relation to the national sphere laws. .Compare the term sphere with the term level of government and explain the implications of each concept for the institutional status of local government Slide 2: Discussion of the term sphere - ANSWER-The term sphere: 1. used in CSL it refers to either the national, provincial or local sphere of gvt es that each of these spheres are autonomous, self-contained and independent as they have originally constitutionally-conferred 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 duties of local gvt 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 level of government and explain the implications of each concept for the institutional status of local government Slide 3: Implication of these concepts on institutional status of the local government - ANSWER-1. local gvt no longer at the mercy of national or prov gvt for any of its powers 2. local gvt is now interdependent, inviolable, and possess the constitutional latitude within which to define and express its unique character subject to constraints permissible under our Cons (City of Cape Town and others v Roberston and Another) .Discuss importance of tagging a Bill in the correct manner (4) - ANSWER-1. S75 and S76 deals with adoption of ordinary bills. 2. Ordinary Bills definition: Bills that do not amend the Cons. 3.S75- deals with ordinary bills not affecting provinces. 3.S76 - deals with ordinary bills affecting provinces. 4. Importance of Bill tagging: failure to do so may result in the Bill not becoming a law. .Discuss majorities and special procedures required to amend different parts and provisions of the Cons (4) - ANSWER-1. S74 Cons- governs bills amending the Cons. 2. S74(1) states: - a bill passed at-least by 75% of the members of the NA and 6 provinces from National Council of Provinces is required only when amending S1 and S74(1) of Cons. S74(2) states: -Chapter 2 of Cons amended by 2/3 of majority of NA and atleast 6 provinces on the National Council of Provinces S74 (3) states: -Any other provision in Cons amended by a Bill passed by the NA with supporting vote of at lesst 2/3 of members of NA and the National Council of provinces with supporting vote of at least 6 provinces. and if the amendment: 1. relates to a matter that affects the Council 2. alters provincial boundaries, powers, functions or institutions or 3. amends a provision taht deals specifically with a provincial matter .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 1: S174 (1) and S174(2) of Cons - ANSWER-S174(1) Cons- 1. appropriately qualified man or woman fit+proper person appointed as a judicial officer. 2. person appointed to the CC must be a SA citizen S174(2) Cons- -appointment of a diverse judiciary -constitutionally 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. Moreover: - 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 - ANSWER--institution established to uphold the integrity and ensure the transformation of the judiciary is the Judicial Service Commission and is created by S178 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; - when appointing the CJ and deputy CJ of the CC the President as head of executive play a major role and appoints the person of his choice after consulting JSC and the leaders of the parties represented in the NA - the President must also consult the JSC before appointing the President and Deputy President of the CC .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 3: Judicial Service Commission - ANSWER-- JSC does not play decisive role as the Presidents appoints judges of the CC after consulting the CJ and the representatives of parties in the NA. -Plays a central role in the sense that it has to prepare a list of nominees with three names more than the number of appointment to be made and submit the list to the President. -JSC plays a more decisive role in the appointment of all other judges to the SCA; HC and other specialised courts. Here the JSC select candidates to fill such vacancies and the President does not have a discretion but is required to appoint candidates selected by the JSC. .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 4: Judicial Service Commission - ANSWER--Requirement set out in S174(2) that there is a need for the judiciary to reflect broadly the racial and gender composition of SA is important and has been a concern in the appointment of judges by the JSC. -most of the judiciary is white and male due to appartheid and there is a need to 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 to 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 .Explain the circumstances in which the President is allowed to refer a Bill to the CC, and scope of the court’s power to consider the constitutionality of a Bill Has to do with the Liquor Bill case Slide 1 - ANSWER-S79(1) Cons- if president has reservations about the constitutionality of a Bill, he may refer it back to the National Assembly for reconsideration. -reservations can be procedural substantive defects including the constituionality thereof. 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. S79(4)(a) - if revised Bill fully accommodates the Presidents observations the he must assent to it and sign it .Explain the circumstances in which the President is allowed to refer a Bill to the CC, and scope of the court’s power to consider the constitutionality of a Bill Has to do with the Liquor Bill case Slide 2 - ANSWER--if it does not address all the president’s reservations he must refer it to CC for decision on its constitutionality ito S79(4)(b) In Ex Parte The President of the Republic of South Africa: In re Constitutionality of the Liquor Bill: 1. President referred Bill to CC for decision on it’s constitutionality .2 President referred it back to the NA because he had reservations about its constitutionality 3. NA resolved without any amendments CC held: a) circumstances in which President is allowed to refer a Bill to the CC b? Scope of the court’s power to consider the Constitutionality of the Bill .list the characteristics of a state (5) - ANSWER-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; 5) a certain measure, at least of separate political identity, if not sovereign political status. Also remember to apply facts of the scenario to the characteristics of state .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 indicate which law prevail in each specific circumstance. (7)