CSL exam paper Oct 2020 - exam PDF

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1 UNIVERSITY EXAMINATIONS

October/November 2020

CSL2601 Constitutional Law 100 marks 4 Hours

This paper consists of 9 pages.

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE EXAMINATION QUESTIONS. 1.

The examination question paper counts 100 marks.

2.

Section A consists of 25 true or false questions. Section B consists of two questions: one out of 40 marks and the other out of 35 marks each. You must answer all questions from Sections A and B .

3.

The duration of the examination is 4 hours. Your portfolio must be submitted via myUnisa on 22/10/2020 on or before 16h30.

4.

While the examination is in progress, you are not allowed to consult another person or any source in order to assist you to answer any of the questions contained in this question paper. While the examination is in progress, you may not assist another student in answering any of the questions contained in this question paper.

5.

Your answer to this portfolio examination must be submitted online on myUnisa.

5.1

Access myUnisa at https://my.unisa.ac.za/portal.

5.2

Where do I download the examination question paper? On the landing page for myUnisa (https://my.unisa.ac.za/portal), before login, find the link to Login and download my Exam Question Paper for Oct/Nov 2020. Click on this link to open the tool. Login with your student number and myUnisa password. Find your module code on the next page and download your examination paper.

5.3

How do I upload my answer file?

5.3.1

On the landing page for myUnisa, before login, go back to the link where you downloaded your examination paper: Login and download my Exam Question Paper for Oct/Nov 2020.

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5.3.2

Login using your student number and myUnisa password

5.3.3

On the next screen, find the module code for which you want to submit an answer file. Click on the link to “submit answer file”. This link will only display if the examination session is still open for file submissions.

5.3.4

A new screen will open that will guide you through the steps to upload your answer file.

Step 1: Load answer file from your PC to myUnisa and complete the Honesty Declaration • Click on the Browse button next to File Name • In the Choose File dialog box, select the file you want to upload, and then click OK. Be careful. Select the correct document. • Select the correct programme format from the File Format drop-down list. Most modules only allow PDF formatted files to be uploaded. • Read the Honesty Declaration statement. • If you agree with the Honesty Declaration statement, type I AGREE in the text box. You cannot continue with the upload process if you do not complete the requirements of the declaration. • Click on the Continue button. Step 2: Verify the file details for final submission of your answer file Use this step to verify that you are uploading the correct answer file to the correct course and assessment number. • Click on the Continue button to submit your answer file. If you do not click Continue, no submission action will take place. • Large files will take longer to upload than smaller files. Please be patient after you’ve clicked Continue. • If the wrong details, e.g. file name, appear on the screen, click Back to restart the file upload process. Step 3: Assessment submission report This is your proof that your answer file was submitted. It is advisable to print this page or make a screen capture for record purposes. A copy of this page will also be emailed to your myLife email account. 5.4

Preparing your answer file

5.4.1

Your answer file must contain ALL the pages you want to submit. Do not submit your scanned pages one-by-one. Each time you upload a file it REPLACES the previous submission. Only the last file received by Unisa will be marked.

5.4.2

Do not password-protect your file. A 0 mark will be assigned.

5.4.3

The first page should clearly state your name, student number and the module code. Some modules provide a custom title page. See the examination question paper for details.

5.5

Number all the pages in your answer file.

5.6

Write with a black pen, not a pencil, if hand-writing the submission.

5.7

Use proper PDF conversion software to create the final file for upload. Free PDF conversion software is available on the Internet.

5.8

Add your student number and the module code in the file name. That will assist you to select the correct document to upload during submission.

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6.

The cover page to your portfolio must include your name, student number and the module code.

7.

It is preferred that your portfolio is typed, however, handwritten submissions will also be accepted. If the portfolio is typed, the maximum length is 12 pages (which includes the cover page and the bibliography). If the portfolio is handwritten, the maximum length is 15 pages (which includes the cover page and the bibliography).

8.

Whether your answers are typed or handwritten, your submission on myUnisa must be made in the form of one PDF document.

9.

If your answers are typed, ensure that the following requirements are adhered to. Items 9.3-9.6 applies to written assignments as well.

9.1

The text must be typed in Arial font, size 12 with single line spacing within the paragraph, and double line spacing after the paragraph.

9.2

The text must be justified.

9.3

All of the pages must be numbered in the bottom right hand corner of the page.

9.4 9.5

All margins must be 2.5cm. South African English and not American English should be used. For example, the correct spelling is “Labour” and not “Labor”.

9.6

Do not use abbreviations or SMS language.

9.7

All quotes that are two lines long (or less), must form part of the main text, be written in italics, and be bracketed by quotation marks. Where a quotation is longer than two lines, it must be typed in a separate paragraph in italics in size 11 font and must be indented by 1 cm. No quotation marks are required when the quotations stand alone. Use quotations very sparingly. In this portfolio, a maximum of 5% of the text may be quoted.

10.

When answering the portfolio questions, remember that an open-book exam is a test at a higher level than the usual type of exam, where memory is tested as much as insight. In an open-book exam, you need not memorise any information. You are expected to prove that you can use information, rather than merely repeat it. In brief, what is being tested is factual knowledge, understanding and the correct application thereof, not memory skills. For this reason, you do not earn marks by merely detailing a list of all the information that you think might be relevant to a particular question. This gives no indication that you know what statutory or other provisions are applicable in a specific context. You are expected to identify precisely what information applies, and then explain why you think so. Also, because you have the guide available when answering questions, we do not give marks for direct quotations from the guide. You are therefore assessed on your level of understanding of the legal principles by looking at how well you applied the principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER SOURCE) AS YOU WILL BE SEVERELY PUNISHED, AND MAY EVEN BE AWARDED A MARK OF 0.

11.

The arguments that you make must be logical, well-structured and substantiated by all of the relevant legal principles. You are given four hours to complete the portfolio. Use the time given wisely.

4 11.1

Ensure that you give reasons for each answer. Substantiate your answers by referring to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court cases in the text or in your footnotes.

11.2

You are required to have read and summarised the prescribed cases yourself. The summaries in the Study Guide are not sufficient for this exam. When using case law to support your answer, please include complete references to the relevant cases in your footnotes. This means that you must not only include the name of the case but also the exact page and section and/or paragraph where the information can be found. The same applies to articles and books used.

11.3

A number of students lose marks because they do not approach problem-type questions correctly. When answering such questions, it is important to first clarify for yourself the area of work where the answer must be sought. Once you have done this, set out the relevant legal principles. Deal only with those principles that relate to the given facts. Next, apply these principles to the facts. This is where most of the students lose marks - they set out the law in some detail, but then do not illustrate how it applies to the factual situation they have been asked to solve. Finally, state your conclusion.

PLEASE NOTE: If you experience technical problems, of any kind, on the day of the examination and your examination answers are not submitted by the cut-off time, you will be marked as absent. You have to apply online to be deferred to the next exam opportunity. No other type of submission of your examination answers will be accepted.

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SECTION A: TRUE OR FALSE Starting on a new page, you must answer each of the following questions by writing True or False for your response to each of the 25 statements below. 1.

Traditional courts are not recognised under the Constitution of the Republic of South Africa, 1996, because they are still regulated by egregious apartheid law – the Black Administration Act 38 of 1927.

(1)

2.

The Constitution of South Africa of 1996 is a flexible constitution.

(1)

3.

Democracy is the central pillar around which the South African state is arranged, thus making South Africa a constitutional democracy.

4.

Judicial authority in South Africa is vested in the president who appoints judges of the Constitutional Court.

5.

(1)

(1)

Under no circumstances can the president of the Republic of South Africa dissolve the National Assembly, because the president himself is elected by the National Assembly.

6.

The president is obligated to appoint ministers only from members of the National Assembly.

7.

(1)

(1)

The Supreme Court of Appeal may decide disputes between organs of state in the national or provincial spheres concerning the functional status of any of those organs of state.

8.

A decision of the Judicial Service Commission about the appointment or nonappointment of judges is not reviewable by a court of law.

9.

(1)

(1)

Given the potential overlap of power between the national, provincial and local spheres of government, the Constitution establishes principles of co-operative government to regulate such overlap.

10.

(1)

In Premier: Limpopo Province v Speaker of Limpopo Provincial Legislature 2011 (11) BCLR 1181(CC), it was held that, unlike Parliament, which has plenary legislative powers, the legislative powers of provinces are clearly defined.

(1)

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11.

The Public Protector’s remedial action might at times have a binding effect. Thus, compliance with the remedial action of the Public Protector is optional.(1)

12.

In Economic Freedom Fighters and Others v Speaker of the National Assembly and Others 2018 (2) SA 571 (CC), it was held that since the National Assembly plays no role in the appointment of members of the Cabinet, it does not have the power to remove members of the Cabinet from office.

13.

(1)

The executive power conferred upon the president to appoint and dismiss ministers is wide-ranging, but at the very least the exercise of the power must meet the test of rationality.

14.

Parliament may assign its legislative authority, including the power to amend the Constitution to a provincial legislature.

15.

(1)

(1)

The right to vote in terms of section 19(2) of the Constitution is unqualified; therefore, South Africans living abroad have the right to vote if they are registered.

16.

(1)

The National Council of Provinces (NCOP) oversees the national executive by reviewing intervention of the national executive in a province.

(1)

17.

The provincial legislature cannot recall a permanent delegate to the NCOP. (1)

18.

The Independent Electoral Commission is not required to observe and adhere to the principles of co-operative government in terms of section 41(2) of the Constitution.

19.

Under the post-1994 constitutional dispensation, municipalities enjoy original powers that are sourced directly from the Constitution.

20.

(1)

(1)

The Constitution of the Republic of South Africa, 1996 establishes a form of parliamentary government which requires members of the Cabinet to account and report to Parliament regularly.

21.

(1)

The majority party in the National Assembly is allowed to use its majority and block the tabling, discussion and voting on a vote of no confidence to the president.

(1)

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22.

A Bill is usually introduced by a Cabinet Minister in the National Assembly, but a member of the National Assembly is also entitled to initiate and introduce a Bill in the National Assembly.

23.

(1)

The provision of the National Prosecuting Act stating that the Minister of Justice must exercise final responsibility over the National Prosecuting Authority enables the Minister to instruct the National Prosecuting Authority to prosecute or decline to prosecute or to terminate a pending prosecution.

24.

(1)

The role of the Judicial Service Commission (JSC) in the appointment of judges differs depending on the nature of the appointment to be made. Thus, the president appoints the Chief Justice on the recommendations of the JSC.

25.

(1)

When the decision of the executive is challenged on the grounds of rationality, courts may interfere with the means selected by the executive if there are more appropriate means that could have been selected by the executive.

(1) [25]

8

SECTION B Answer the following two (2) questions in as much detail as possible and by relying on appropriate authority to substantiate your answers. Question 1

Read the set of facts below and then answer the questions that follow. Substantiate your answers with references to relevant provisions of the South African Constitution or other legislation and case law. On 23 March 2020, the President of the Republic of South Africa, acting in terms of the regulations issued in accordance with section 27(2) of the Disaster Management Act of 2002 to curb the rapid spread of the Coronavirus in the country, announced a nationwide lockdown. As the number of confirmed cases in South Africa increased and more than 90 0000 (ninety thousand) people across the world had died from this disease, the announcement was a decisive measure to save the lives of hundreds of thousands of South Africans. Under the lockdown, the selling of liquor and tobacco was banned, and individuals were not allowed to leave their homes except under strictly controlled circumstances, which include the seeking of medical care, buying food or the collection of social grants. While welcoming the president’s efforts to eradicate the virus, some members of the community felt that they were not consulted and allowed to participate in the adoption of the regulations, which interfere with their basic rights and are overly punitive. They questioned how the sale of liquor during controlled and limited hours, and buying packs of cigarettes while grocery shopping, would sabotage efforts to flatten the spread of Coronavirus. Angered by the total ban on the sale of liquor, the Gauteng Liquor Forum (GLF) sent the president a letter demanding that the regulations banning the sale of alcohol be amended. The GLF threatened that, if the ban on the sale of alcohol was not lifted, they would, first, approach a court on an urgent basis for appropriate relief and, secondly, request members of Parliament to remove the president from office.

9

The threats by the GLF to challenge the decision of the president in court angered a section of the community, who took to the streets to protest and question the authority of the court, an unelected institution, to review the decision of the president, who is democratically elected by the people of the country. With reference to the above set of facts, answer the following questions: 1.1 What are the questions referred to that are raised regarding the authority of the unelected members of the court to review the decision of the president, who is democratically elected by the people? Discuss the nature of this debate and explain whether such debate is relevant in South Africa.

(15)

1.2 With reference to case law discuss the duty imposed by the Constitution on Parliament to involve the public in its legislative process.

(15)

1.3 Fully discuss the circumstances under which the National Assembly may remove the president from office.

(10) [40]

Question 2 2.1

Explain the four (4) main principles that make up the modern conceptualisation of separation of powers.

(10)

2.2

Briefly explain the two (2) ideals of judicial independence.

(15)

2.3

Discuss the role of the president in appointing judges to the Constitutional Court. In your answer, you must also explain the procedure for the appointment of these judges.

(10) [35] TOTAL:{100}

© UNISA 2020

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