Exam (elaborations) Constitutional law (CSL 2601)

Name: Phumelele N Xaba
Student number :60628928
Module: CSL 2601 May/June exam semester 1


Question 1
1.1) Devolution of Power
Devolution of power refers to the formal and usually permanent transfer of
authority from a central government to subordinate regional or local
governments, such as provinces or municipalities. When power is devolved, the
lower level of government exercises authority in its own right, not merely as an
agent of the central government1. This type of arrangement is often entrenched in
the Constitution or in legislation, and the devolved powers cannot easily be
withdrawn by the central authority. For example, in South Africa, the Constitution
provides for the devolution of certain powers to provincial and local governments,
which then have their own legislative and executive authority 2 (see Chapter 6 and
Chapter 7 of the Constitution of the Republic of South Africa, 1996).


Delegation of Power
Delegation of power, on the other hand, occurs when a higher authority (such as the
national government or a minister) temporarily authorizes another body or official to
exercise certain powers or perform certain functions on its behalf. 3 In this case, the
delegated body acts as an agent of the delegating authority, and the original authority
retains the right to withdraw or override the delegation at any time. Delegation does not
create independent power for the recipient; rather, it is a practical mechanism for
carrying out administrative or executive functions. 4


Key Differences
Permanence: Devolution is generally permanent and constitutionally entrenched, while
delegation is temporary and revocable.




1
UNISA: Tutorial letter 301 CSL2601/2023(UNISA 2023) p 18.
2
Constitution of the Republic of South Africa, 1996, ch 6 and ch 7.
3
UNISA: Tutorial letter 301 CSL2601/2023(UNISA 2023) p 18.
4
UNISA: Tutorial letter 301 CSL2601/2023(UNISA 2023) p 18.

, Source of Authority: Devolved powers are exercised independently by the lower level
of government, while delegated powers are exercised on behalf of the delegating
authority.


Legal Relationship: Devolution creates autonomous spheres of government;
delegation creates a principal-agent relationship.


Conclusion
Therefore, Dubious Dubula’s statement is false. Devolution and delegation of power are
fundamentally different concepts in constitutional law and should not be confused with
one another. Devolution establishes independent authority at a lower level of
government, while delegation is a temporary transfer of authority that remains under the
control of the higher authority.5


1.2) False, the High Court does not have the constitutional jurisdiction to decide on
the constitutionality of amendments to the Constitution, such as a Bill amending
the Constitution to introduce an Anti-Corruption Commission. This power is
reserved exclusively for the Constitutional Court.6
Constitutional Provision
Section 167(4)(d) of the Constitution of the Republic of South Africa, 1996, specifically
provides:
“Only the Constitutional Court may—
(d) decide on the constitutionality of any amendment to the Constitution.”
This means that if there is a challenge to the validity or constitutionality of a
constitutional amendment, only the Constitutional Court has the authority to make a final
and binding decision on that matter. The High Court, while it has broad jurisdiction over
constitutional matters in general, is expressly excluded from making determinations
regarding the validity of constitutional amendments (Constitution of the Republic of
South Africa, 1996, s. 167(4)(d)).7
Practical Implications


5
UNISA: Tutorial letter 301 CSL2601/2023(UNISA 2023) p 18.
6
UNISA: Tutorial letter 301 CSL2601/2023(UNISA 2023) p 19.
7
The Constitution of the Republic of South Africa, 1996, s 167(4)(d).