2021 Exam - Constitutional Law CSL2601

SECTION A (JUSTIFY/EXPLAIN WHY EACH STATEMENT IS TRUE OR FALSE) 1. A judge can be sued for damages for an incorrect judgment he delivers. (3) 2. An amendment of section 1 of the Constitution in South Africa requires a supporting vote of at least five provinces. (3) 3. The doctrine of separation of powers entails the division of state authority among the spheres of government. (3) 4. The Public Protector is empowered to investigate any conduct of the judiciary that is alleged to be improper. (3) 5. South Africa has discretion to develop its own doctrine of separation of powers. (3) 6. In a unitary system of government, state authority is centralised in one sphere. (3) 7. It is a privilege of members of parliament to say anything in parliament without fear of being held liable in a court of law. It serves to protect parliament from outside interference. Thus, parliamentary privileges are not subject to judicial review under the new constitutional dispensation. (3) 8. In Ex parte President of the RSA: In re Constitutionality of the Liquor Bill it was stated that: “any Bill whose provisions in substantial measures fall within a functional area listed in Schedule 4 of the Constitution, must be dealt with under section 76 of the Constitution”. (3) 9. As a member of parliament, the president of the Republic of South Africa is required to present a State of the Nation address in parliament annually. (3) 10. The Constitutional Court in Doctors for Life International v Speaker of the National Assembly held that public involvement is one of the essential features of participatory democracy in the law-making process, which had long been established under the system of customary law through imbizos, or lekgotlas. (3) 11. The local sphere of government exercises delegated authority from both the provincial and national spheres of government. (3) 12. It is never appropriate for the judiciary to declare that a member of the executive branch of the state has acted unconstitutionally. (3) 13. An electoral system is one of many mechanisms to promote democracy. (3) 14. There are no restrictions on eligibility for appointment of judges to the Constitutional Court. (3) 4 15. Parliament in the national sphere can delegate its function to enact a specific Act of Parliament to any provincial legislature, or municipal council in South Africa. (3) 16. The purpose of section 155(3)(b) of the Constitution is to regulate the creation of new municipalities, which was the issue in the case of Matatiele Municipality & Others v President of the Republic of South Africa & Others 2006 (5) SA 47 (CC). In this case the Court held that the Local Government: Municipal Structures Act 117 of 1998 distinguishes between four different categories of municipalities, being category A (cosmopolitan), B (regional), C (prefecture) and D (village) municipalities. (3) 17. There is not a clear distinction between an inflexible constitution and a supreme constitution because they are always one and the same. (3) 18. Cooperative government refers to a system of government in terms of which the legislative, executive and judicial branches of government are separated. (3) 19. In South Africa, one function of the National Assembly is election of the President. (3) 20. Parliamentary privileges refer to common law discretionary powers that the monarch exercised by virtue of its status as supreme head of government. (3) 21. Parliament has exclusive competence to amend the Constitution. (3) 22. If an ordinary Bill affecting a province is passed in accordance with a procedure laid down for the adoption of Bills not affecting the province, or vice versa, the adopted Bill is not properly enacted and does not become law. (3) 23. In President of RSA v South African Rugby Football Union 1999 (2) BCLR 175 (CC), the Constitutional Court found that the President had abdicated his responsibility to appoint a Commission of Inquiry in terms of section 84(2)(f) of the Constitution. (3) 24. In Fedsure v Greater Johannesburg Metropolitan Council 1999 (1) SA 374 (CC), the Constitutional Court held that local government was no longer a public body exercising delegated powers, but a deliberative legislative assembly with legislative and executive powers recognised by the Constitution itself. (3) 25. In South Africa judicial authority vests in the Judicial Service Commission. (3) [75] SECTION B (WELL-SUBSTANTIATED AND COMPELLING ESSAY) Critically discuss the features regarded as indispensable to a democratic government. [25]