CSL2601 EXAM PACK
2025
QUESTIONS AND
ANSWERS
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
1. With ref to the relevant provisions of the Constitution and case law, explain the duty
imposed on Parliament to facilitate public participation in the legislative process. (10)
An important feature of South Africa’s democracy is that it is a
o Constitutional democracy
o Representative democracy, and
o Participatory democracy – all at the same time.
With regards to the Participatory element, this means that Parliament cannot pass
legislation or engage in any other NB processes without considering the need to
facilitate public participation.
Section 59(1) and 72(1) of the Constitution require the National Assembly and
National Council of Provinces to facilitate public involvement in the legislative and
other processes of Parliament.
Doctors for Life case :
o Dealt with the enactment by Parliament of 4 health statutes, amongst
others one relating to the choice on termination of pregnancies.
o The CC affirmed the principle that, in certain circumstances, where the
Parliament failed to take reasonable steps in facilitating public participation
in the law-making process, it would have failed to comply with section 59(1)
and section 72(1).
o This is based on the fact that our democratic government is one which is –
Accountable,
Responsive,
Transparent, and
One which makes provision for public participation in the law-
making process.
o The court held in this case that any law enacted in a procedurally flawed
way (due to a failure to facilitate public participation) would be null and void
and of no effect, since this constitutes a violation of the rule of law.
In a democracy, everyone’s opinion counts and must be considered.
o This is the epitome of a multi-party democracy, which SA has.
Everyone’s place in society and right to be heard must be respected.
Parliament is the representation of democracy in action, because it is as a direct
consequence of elections that the members of Parliament are elected by us to
represent our needs in the forum where the laws and important decisions regarding
our lives are made.
Merafong Demarcation Forum and Others v President of the Republic of South
Africa and Others :
o Court held that genuine public participation should occur.
Some strategies that facilitate this process:
o Lobbying – organised groups present well-reasoned arguments and/or
written representations outlining their view.
o Members of public can raise issues at the constituency offices of their
elected representatives who then raise issues in legislature on their behalf.
o Petitions allow individuals/groups to raise issues in a formal way without
having to go through a particular member of the legislature.
o Public hearings afford the public the opportunity to make written/oral
submissions on any matter for which a public hearing has been convened.
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
2. Explain the principle of separation of powers. With ref to case law also explain whether
this doctrine forms part of the SAfrican constitutional democracy. (10)
SAfrica is a constitutional democracy that encompasses the principle of separation
of powers – based on the trias politica principle – which refers to the division of
governmental power into 3 branches, namely –
o The legislature,
o The executive, and
o The judiciary.
By virtue of section 2 as read with section 172 of the Constitution, the Constitution is
the supreme law of the land and all law and conduct inconsistent with it is invalid.
Thus the Constitution is an enforceable and binding document that keeps these
branches is check.
In the case of In re Certification of the Constitution of the Republic of South Africa –
o The CC established that the separation of powers was firmly established in
the SAfrican Constitution.
In the case of De Lange v Smuts NO –
o Court revealed that SA has a unique, special and evolving form of the
separation of powers doctrine.
In summary, the separation of powers doctrine can mean any of all of the following:
o The formal division of state authority among the legislature, executive and
judiciary.
o The separation of personnel so that one person should not perform
functions within more than one branch of government at the same time.
o The separation of functions so that one branch of government cannot usurp
the functions and powers of another.
o Checks and balances (each branch of government is given powers to restrain
the other branches and thus achieve the desired balance among the three
components of government authority).
3. The independence of the judiciary is partly reinforced by security of tenure. With ref to
case law, discuss the security of tenure afforded to incl conditions for the removal of
SAfrican judges. (10)
The institution established to uphold the independence of the judiciary is known as
the Judicial Service Commission (JSC) and is created ito section 178 of the
Constitution.
It is comprised of 23 members who are drawn from –
o The judiciary,
o Attorneys and advocates,
o Two houses of the national legislature,
o Executive,
o Civil society and
o Academia
This composition is NB to ensure that the JSC itself is not dominated by politicians
who would want to further their political party’s political agenda.
The JSC is chaired by the Chief Justice, to ensure a further measure of integrity and
independence of the judiciary.
A measure to ensure judges remain independent is that they should not be afraid
that they will be dismissed simply because of the decision they have made if it is
against the government or what is perceived to be the interests of society.
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
o Eg legalising same-sex marriages, decriminalising marijuana use
The Constitution seeks to safeguard the independence of the judiciary in the
following ways:
o The JSC plays an NB role in the appointment of judges.
The involvement of the JSC makes it more difficult for the executive
to merely appoint its own loyal supporters.
o The judicial oath of office.
Before a South African judge takes office, he/she swears/affirms to
“be faithful to the Republic of South Africa, uphold and protect the
Constitution and the human rights entrenched in it, and administer
justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law.”
o Security of tenure.
Section 176 of the Constitution provides that judges of the CC are
appointed for a non-renewable term of 12 years.
Other judges may hold office until the age of 75, or until they are
discharged from active service in terms of an Act of Parliament.
o Section 176(3) of the Constitution provides that the salaries, allowances and
other benefits of judicial officers may not be reduced.
o The Constitution makes it difficult for the executive to dismiss judges.
S 177 clearly stipulates circumstances in which a judicial officer may
be compelled to vacate his/her position before the termination of
his/her term/office.
The President may remove a judge only if the JSC finds that
he/she suffers from an incapacity, is grossly negligent or is
guilty of gross misconduct, and if the NA has called for
his/her removal by a resolution adopted with the support of
at least 2/3 of its members.
4. Discuss circumstances and consequences of removing the President from office. (8)
The President is not immune from being removed from office if the circumstances
necessitate that he be removed.
Impeachment of the President :
o 89 of the Constitution makes provision for the removal of the President by
the NA by way of a resolution adopted with a supporting vote of at least 2/3
(66,6%) of its members.
o Circumstances under which this may occur – when the President is:
Alleged to have committed a serious violation of the Constitution or
the law.
Alleged to have perpetrated serious misconduct.
Unable to perform the functions of office.
o Used specifically to safeguard the nation against abuse of power by the
President.
o Difficult to effect the removal in this way because it will not be easy to
obtain the required 66,6% supporting vote and prove one of the grounds.
o EFF v Speaker of the National Assembly 2 :
The NA is obliged to establish a committee to determine whether
the factual situation warrants the removal of the President from
office.
2025
QUESTIONS AND
ANSWERS
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
1. With ref to the relevant provisions of the Constitution and case law, explain the duty
imposed on Parliament to facilitate public participation in the legislative process. (10)
An important feature of South Africa’s democracy is that it is a
o Constitutional democracy
o Representative democracy, and
o Participatory democracy – all at the same time.
With regards to the Participatory element, this means that Parliament cannot pass
legislation or engage in any other NB processes without considering the need to
facilitate public participation.
Section 59(1) and 72(1) of the Constitution require the National Assembly and
National Council of Provinces to facilitate public involvement in the legislative and
other processes of Parliament.
Doctors for Life case :
o Dealt with the enactment by Parliament of 4 health statutes, amongst
others one relating to the choice on termination of pregnancies.
o The CC affirmed the principle that, in certain circumstances, where the
Parliament failed to take reasonable steps in facilitating public participation
in the law-making process, it would have failed to comply with section 59(1)
and section 72(1).
o This is based on the fact that our democratic government is one which is –
Accountable,
Responsive,
Transparent, and
One which makes provision for public participation in the law-
making process.
o The court held in this case that any law enacted in a procedurally flawed
way (due to a failure to facilitate public participation) would be null and void
and of no effect, since this constitutes a violation of the rule of law.
In a democracy, everyone’s opinion counts and must be considered.
o This is the epitome of a multi-party democracy, which SA has.
Everyone’s place in society and right to be heard must be respected.
Parliament is the representation of democracy in action, because it is as a direct
consequence of elections that the members of Parliament are elected by us to
represent our needs in the forum where the laws and important decisions regarding
our lives are made.
Merafong Demarcation Forum and Others v President of the Republic of South
Africa and Others :
o Court held that genuine public participation should occur.
Some strategies that facilitate this process:
o Lobbying – organised groups present well-reasoned arguments and/or
written representations outlining their view.
o Members of public can raise issues at the constituency offices of their
elected representatives who then raise issues in legislature on their behalf.
o Petitions allow individuals/groups to raise issues in a formal way without
having to go through a particular member of the legislature.
o Public hearings afford the public the opportunity to make written/oral
submissions on any matter for which a public hearing has been convened.
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
2. Explain the principle of separation of powers. With ref to case law also explain whether
this doctrine forms part of the SAfrican constitutional democracy. (10)
SAfrica is a constitutional democracy that encompasses the principle of separation
of powers – based on the trias politica principle – which refers to the division of
governmental power into 3 branches, namely –
o The legislature,
o The executive, and
o The judiciary.
By virtue of section 2 as read with section 172 of the Constitution, the Constitution is
the supreme law of the land and all law and conduct inconsistent with it is invalid.
Thus the Constitution is an enforceable and binding document that keeps these
branches is check.
In the case of In re Certification of the Constitution of the Republic of South Africa –
o The CC established that the separation of powers was firmly established in
the SAfrican Constitution.
In the case of De Lange v Smuts NO –
o Court revealed that SA has a unique, special and evolving form of the
separation of powers doctrine.
In summary, the separation of powers doctrine can mean any of all of the following:
o The formal division of state authority among the legislature, executive and
judiciary.
o The separation of personnel so that one person should not perform
functions within more than one branch of government at the same time.
o The separation of functions so that one branch of government cannot usurp
the functions and powers of another.
o Checks and balances (each branch of government is given powers to restrain
the other branches and thus achieve the desired balance among the three
components of government authority).
3. The independence of the judiciary is partly reinforced by security of tenure. With ref to
case law, discuss the security of tenure afforded to incl conditions for the removal of
SAfrican judges. (10)
The institution established to uphold the independence of the judiciary is known as
the Judicial Service Commission (JSC) and is created ito section 178 of the
Constitution.
It is comprised of 23 members who are drawn from –
o The judiciary,
o Attorneys and advocates,
o Two houses of the national legislature,
o Executive,
o Civil society and
o Academia
This composition is NB to ensure that the JSC itself is not dominated by politicians
who would want to further their political party’s political agenda.
The JSC is chaired by the Chief Justice, to ensure a further measure of integrity and
independence of the judiciary.
A measure to ensure judges remain independent is that they should not be afraid
that they will be dismissed simply because of the decision they have made if it is
against the government or what is perceived to be the interests of society.
, lOMoARcPSD|31863004
CONSTITUTIONAL LAW EXAM PREP
CSL2601
o Eg legalising same-sex marriages, decriminalising marijuana use
The Constitution seeks to safeguard the independence of the judiciary in the
following ways:
o The JSC plays an NB role in the appointment of judges.
The involvement of the JSC makes it more difficult for the executive
to merely appoint its own loyal supporters.
o The judicial oath of office.
Before a South African judge takes office, he/she swears/affirms to
“be faithful to the Republic of South Africa, uphold and protect the
Constitution and the human rights entrenched in it, and administer
justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law.”
o Security of tenure.
Section 176 of the Constitution provides that judges of the CC are
appointed for a non-renewable term of 12 years.
Other judges may hold office until the age of 75, or until they are
discharged from active service in terms of an Act of Parliament.
o Section 176(3) of the Constitution provides that the salaries, allowances and
other benefits of judicial officers may not be reduced.
o The Constitution makes it difficult for the executive to dismiss judges.
S 177 clearly stipulates circumstances in which a judicial officer may
be compelled to vacate his/her position before the termination of
his/her term/office.
The President may remove a judge only if the JSC finds that
he/she suffers from an incapacity, is grossly negligent or is
guilty of gross misconduct, and if the NA has called for
his/her removal by a resolution adopted with the support of
at least 2/3 of its members.
4. Discuss circumstances and consequences of removing the President from office. (8)
The President is not immune from being removed from office if the circumstances
necessitate that he be removed.
Impeachment of the President :
o 89 of the Constitution makes provision for the removal of the President by
the NA by way of a resolution adopted with a supporting vote of at least 2/3
(66,6%) of its members.
o Circumstances under which this may occur – when the President is:
Alleged to have committed a serious violation of the Constitution or
the law.
Alleged to have perpetrated serious misconduct.
Unable to perform the functions of office.
o Used specifically to safeguard the nation against abuse of power by the
President.
o Difficult to effect the removal in this way because it will not be easy to
obtain the required 66,6% supporting vote and prove one of the grounds.
o EFF v Speaker of the National Assembly 2 :
The NA is obliged to establish a committee to determine whether
the factual situation warrants the removal of the President from
office.
