September/October/November 2021
CSL2601
Constitutional Law
Section A
1. The Constitution of the Republic of South Africa, 1996 compels natural persons
to make every reasonable effort to use appropriate mechanisms and procedures
to resolve their intergovernmental disputes and to exhaust all other remedies
before they turn to the court to resolve the dispute.
False, organs of state involved in intergovernmental disputes are specified in chapter
3 of the Constitution and are compelled to make use of relevant processes and only
once these have been exhausted should the organs of state approach the courts.1
2. The 'recall' of the President by the governing party is unconstitutional.
True, an example of this is the “recall” of President Thabo Mbeki, who was “recalled”
by the National Executive Council (NEC). Although, legally the NEC is required to rely
on the Constitution and Thabo Mbeki was not bound by any legal duty to resign, there
are also party regulations that members must act in accordance with. It thus could be
said that the recall is unconstitutional as the National Assembly could either have a
vote of no confidence of by two-thirds majority make a vote for the impeachment of
the executive. However, if Thabo Mbeki had not resigned after the “recall” by the NEC,
he could have faced a disciplinary or a vote of no confidence. The lack of detailed
regulations provided for in the Constitution regarding this relationship between the
leading party and elected officials has been described as a shortfall.2
3. Section 146 of the Constitution of the Republic of South Africa, 1996 stipulates
that national legislation on a concurrent functional area that applies uniformly to
1
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).
2
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014). 306
1
, the country as a whole, prevails over conflicting provincial legislation if the
national legislation is necessary for the maintenance of national security and
democratic unity; the protection of the environment and the common market in
respect of the mobility of goods, services, capital and labour; the promotion of
economic activities across provincial boundaries; and equal opportunity or equal
access to government services.
True. in the event that national and provincial laws are in conflict with one another, the
national law is superseding of the provincial law.3
4. The Constitution of the Republic of South Africa, 1996 makes provision for
parliamentary sovereignty.
False, it is well known that parliamentary sovereignty and racist cultures perpetuated
and aided the Apartheid government in its effort to economically and socially supress
people of colour in South Africa before the interim and final Constitutions came into
play. In South Africa, it is the constitution which has sovereignty and all laws must be
in alignment with the Constitution of the Republic of South Africa, 1996.4
5. In the concurrent functional area of education national government is obliged to
assist provincial government and under certain narrowly defined circumstances,
national government may intervene in provincial government affairs.
True, education (excluding tertiary education) is provided for in schedule 4 of the
Constitution, these areas are regarded as being dealt with provincially and if any
provincial legislation is in conflict with national legislation, the national legislation will
prevail. However, if the province is unable to meet the obligations provided for in the
Constitution, the national government may intervene as seen in Centre for Child Law
3
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).463.
4
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).55.
2
CSL2601
Constitutional Law
Section A
1. The Constitution of the Republic of South Africa, 1996 compels natural persons
to make every reasonable effort to use appropriate mechanisms and procedures
to resolve their intergovernmental disputes and to exhaust all other remedies
before they turn to the court to resolve the dispute.
False, organs of state involved in intergovernmental disputes are specified in chapter
3 of the Constitution and are compelled to make use of relevant processes and only
once these have been exhausted should the organs of state approach the courts.1
2. The 'recall' of the President by the governing party is unconstitutional.
True, an example of this is the “recall” of President Thabo Mbeki, who was “recalled”
by the National Executive Council (NEC). Although, legally the NEC is required to rely
on the Constitution and Thabo Mbeki was not bound by any legal duty to resign, there
are also party regulations that members must act in accordance with. It thus could be
said that the recall is unconstitutional as the National Assembly could either have a
vote of no confidence of by two-thirds majority make a vote for the impeachment of
the executive. However, if Thabo Mbeki had not resigned after the “recall” by the NEC,
he could have faced a disciplinary or a vote of no confidence. The lack of detailed
regulations provided for in the Constitution regarding this relationship between the
leading party and elected officials has been described as a shortfall.2
3. Section 146 of the Constitution of the Republic of South Africa, 1996 stipulates
that national legislation on a concurrent functional area that applies uniformly to
1
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).
2
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014). 306
1
, the country as a whole, prevails over conflicting provincial legislation if the
national legislation is necessary for the maintenance of national security and
democratic unity; the protection of the environment and the common market in
respect of the mobility of goods, services, capital and labour; the promotion of
economic activities across provincial boundaries; and equal opportunity or equal
access to government services.
True. in the event that national and provincial laws are in conflict with one another, the
national law is superseding of the provincial law.3
4. The Constitution of the Republic of South Africa, 1996 makes provision for
parliamentary sovereignty.
False, it is well known that parliamentary sovereignty and racist cultures perpetuated
and aided the Apartheid government in its effort to economically and socially supress
people of colour in South Africa before the interim and final Constitutions came into
play. In South Africa, it is the constitution which has sovereignty and all laws must be
in alignment with the Constitution of the Republic of South Africa, 1996.4
5. In the concurrent functional area of education national government is obliged to
assist provincial government and under certain narrowly defined circumstances,
national government may intervene in provincial government affairs.
True, education (excluding tertiary education) is provided for in schedule 4 of the
Constitution, these areas are regarded as being dealt with provincially and if any
provincial legislation is in conflict with national legislation, the national legislation will
prevail. However, if the province is unable to meet the obligations provided for in the
Constitution, the national government may intervene as seen in Centre for Child Law
3
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).463.
4
Pierre De Vos and Warren Freedman, South African Constitutional Law In Context (Oxford University Press
Southern Africa (Pty) Ltd 2014).55.
2
