QUESTIONS AND ANSWERS; LCP4801 LATEST 2024 EXAMS
GRADED A+
It was accepted by the court in S v Banda 1989 4 SA 519 (Bop) that
recognition by
other states is necessary before an entity may become a state.
False - In this case the court preferred the declaratory theory - ie only
the four objective
requirements in the Montevideo Convention must be met for an entity
to be considered a
state
Section 231(4) of Con
Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing provision
of an agreement that
has been approved by Parliament is law in the Republic unless it is
inconsistent
with the Constitution or an Act of Parliament. Tells us when a treaty
that is binding on South Africa internationally becomes law in South
Africa. The process necessary to transpose a treaty from the
international plane to the national plane.
,Section 231(1)
The negotiating and signing of all international agreements is the
responsibility
of the national executive.
Section 231(2)
An international agreement binds the Republic only after it has been
approved by
resolution in both the National Assembly and the National Council of
Provinces,
unless it is an agreement referred to in subsection (3).
Section 231(3)
An international agreement of a technical, administrative or executive
nature,
or an agreement which does not require either ratifi cation or
accession, entered
into by the national executive, binds the Republic without approval by
the
,National Assembly and the National Council of Provinces, but must be
tabled
in the Assembly and the Council within a reasonable time.
Section 231(5)
The Republic is bound by international agreements which were binding
on the
Republic when the Constitution took eff ect.
self-executing treaty
[A treaty] which does not in the view of the American courts expressly
or by its nature require legislation to make it operative within the
municipal field, and that is to be determined by regard to the intention
of the signatory parties and to the surrounding circumstances.
If a party therefore claims that a treaty is self-executing, the judicial
officer will have to determine
(1) Whether the treaty has been concluded and binds SA through
parliamentary approval.
, (2) Whether the treaty falls within one of the four exceptions in section
231(3) in which case it binds without parliamentary approval.
(3) If it falls within one of these exceptions, then it cannot (presumably
from the wording) be self-executing.
(4) If it doesn't fall within one of the exceptions, he will then have to:
(a) determine the intention of the signatories
(b) examine the surrounding circumstances
(5) From this he will have to examine whether the treaty contains any
provision which requires legislation to make it operative municipally.
(6) He will also have to examine the nature of the treaty to see whether
treaties of that kind require legislation to make them operative
municipally
(7) As if this were not enough, he then has to determine whether the
treaty conflicts with the Constitution
(8) He also has to examine whether it conflicts with an Act of
parliament - and in this regard he will have also to consider section 233
Section 231(5)
This is a typical succession provision which you will find in most
constitutions. It is important to note that the legal entity bound by the
treaty is the state, and not the government (which is likely to change
from time to time).
GRADED A+
It was accepted by the court in S v Banda 1989 4 SA 519 (Bop) that
recognition by
other states is necessary before an entity may become a state.
False - In this case the court preferred the declaratory theory - ie only
the four objective
requirements in the Montevideo Convention must be met for an entity
to be considered a
state
Section 231(4) of Con
Any international agreement becomes law in the Republic when it is
enacted into law by national legislation; but a self-executing provision
of an agreement that
has been approved by Parliament is law in the Republic unless it is
inconsistent
with the Constitution or an Act of Parliament. Tells us when a treaty
that is binding on South Africa internationally becomes law in South
Africa. The process necessary to transpose a treaty from the
international plane to the national plane.
,Section 231(1)
The negotiating and signing of all international agreements is the
responsibility
of the national executive.
Section 231(2)
An international agreement binds the Republic only after it has been
approved by
resolution in both the National Assembly and the National Council of
Provinces,
unless it is an agreement referred to in subsection (3).
Section 231(3)
An international agreement of a technical, administrative or executive
nature,
or an agreement which does not require either ratifi cation or
accession, entered
into by the national executive, binds the Republic without approval by
the
,National Assembly and the National Council of Provinces, but must be
tabled
in the Assembly and the Council within a reasonable time.
Section 231(5)
The Republic is bound by international agreements which were binding
on the
Republic when the Constitution took eff ect.
self-executing treaty
[A treaty] which does not in the view of the American courts expressly
or by its nature require legislation to make it operative within the
municipal field, and that is to be determined by regard to the intention
of the signatory parties and to the surrounding circumstances.
If a party therefore claims that a treaty is self-executing, the judicial
officer will have to determine
(1) Whether the treaty has been concluded and binds SA through
parliamentary approval.
, (2) Whether the treaty falls within one of the four exceptions in section
231(3) in which case it binds without parliamentary approval.
(3) If it falls within one of these exceptions, then it cannot (presumably
from the wording) be self-executing.
(4) If it doesn't fall within one of the exceptions, he will then have to:
(a) determine the intention of the signatories
(b) examine the surrounding circumstances
(5) From this he will have to examine whether the treaty contains any
provision which requires legislation to make it operative municipally.
(6) He will also have to examine the nature of the treaty to see whether
treaties of that kind require legislation to make them operative
municipally
(7) As if this were not enough, he then has to determine whether the
treaty conflicts with the Constitution
(8) He also has to examine whether it conflicts with an Act of
parliament - and in this regard he will have also to consider section 233
Section 231(5)
This is a typical succession provision which you will find in most
constitutions. It is important to note that the legal entity bound by the
treaty is the state, and not the government (which is likely to change
from time to time).
