CSL2601 Exam 2021 September/October PDF

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MODULE CODE: ENGMathebula Shongile Pretty 9/6/CONSTITUTIONAL LA (CSL2601)STUDENT NO: 65299914SECTION A True because Section 41(3) requires an organ of state to make every effort to settle a dispute using all available mechanisms before approaching the courts and that Section 41(2) requires an act of...

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CONSTITUT IONAL LLA A (CS L2601) CONSTITUTIONAL (CSL2601)

STUDENT NO: 65299914

Mathebula Sh Shongile ongile Pretty 9/6/2021

SECTION A

1. True because Section 41(3) requires an organ of state to make every effort to settle a dispute using all available mechanisms before approaching the courts and that Section 41(2) requires an act of parliament to create mechanisms to settle intergovernmental disputes. 2. True because President Thabo Mbeki was “recalled” from the Presidency of the country by the newly elected ANC leadership in 2008 after he lost the ANC leadership election to Jacob Zuma, when President Mbeki was recalled, he resigned even though the former president Jacob Zuma refused to resign, a motion of no confidence for the 15 February 2018 was announced forcing President Zuma to announce his resignation with Immediate effect on 14 February 2018. 3. False because section 146 deals with a matter that, to be dealt with requires uniformity across the nation, and the provincial legislation, provides that uniformity by establishing norms and standards, frameworks or provincial policies 4. False, parliament sovereignty used to apply in 1993 before democracy, now that South Africa is a Republic, the focus is on the participatory democracy and the idea that the public has a right and duty to participate in public affairs, including discussions about the passing of legislation and the formulation of government policies. 5. True because according to Bray E ‘The constitutional concept of cooperative government and its application in education’ (2002) Journal for Contemporary Roman-Dutch Law, in the concurrent functional area of education. “Rules exist in the Constitution for how the spheres should co-operate with each other. To resolve conflicts: in the case of a Schedule 4 conflict, section 146 of the Constitution is invoked; in the case of a Schedule 5 conflict, section 147 is invoked, which refers to section 44(2)”

6. False because the Constitution explains that the President must appoint someone as the National Director of Public Prosecutions and that person must be fit and proper if not, they will have to be removed from the office1.

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Corruption Watch/Nxasana case

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7. True, because the concept of transformative constitutionalism supports the notion of the Constitution of Republic of South Africa 1996 as a transformative document, in terms of which the lives of everyday citizens are sought to be improved through the creation of suitable create living conditions for ‘everyone’ residing within South Africa. 8. 9. True. 10. False, because section 84 (2) states the powers and functions of the president which are different from those that are in section 85 (1)(2) when the president is acting as the executive authority of the public. 11. True, because the government is a temporary bearer of state authority, who represents the state at a particular time. Initially government did not have a political connotation and was associated with the judicial function. Gradually government became a general term covering all functions and organs of state. 12. True, because section 85 (1) clearly states that the executive authority of the Republic is vested in the President then section 85 (2) the President exercises the executive authority, together with the other members of the Cabinet, by section 85 (2) (a) “implementing national legislation except where the Constitution or an Act of Parliament provides otherwise”

13. False, because EFF v Speaker of the National Assembly 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC), focuses on the failure by the National Assembly to make rules regulating the removal of a President in terms of section 89(1) of the Constitution constitutes a violation of this section and is invalid. The National Assembly should have complied with section 237 of the Constitution and make rules referred to in paragraph 2 without delay. 14. True, in reference to section 165. (1) The judicial authority of the Republic is lies in the courts. (2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice 15. True, because majoritarian dilemma is a concept that can be applied in any question/issue relating to the separation of powers and to the accountability of the executive and the legislature.

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16. True, because there shall be a separation of powers between the legislature, the executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness and that principle of separation of powers, on the one hand, recognises the functional independence of branches of government. 17. True, because legislation is written law enacted by an elected body authorized to do so by the Constitution or other legislation written laws are mostly recognised compared to unwritten ones. 18. False, because South Africa’s unique form of separation of powers 7 by giving a nuanced meaning to public participation which advanced the decolonization of constitutional law. 19. False, because South Africa is a democratic country which allows public participation in policy making, the participation provides people whose lives will be affected by the proposed policies with the opportunity to express their views and to attempt to influence public officials about the desirability of the proposed policies 20. 21. True, because equality is one of the focus areas informing the work of the South African Human Rights Commission in discharging its mandate to promote, protect, and monitor the realisation of human rights in South Africa. 22. False, both State and Government can be changed 23. True because rules exist in the Constitution for how the spheres should cooperate with each other. 24. True, because only the constitutional court may: decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; decide on the constitutionality of any parliamentary or provincial bill; decide on the constitutionality of any amendment to the constitution 25. True. Recommendations by their very nature are not binding at all. in Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551, Schippers J in the Western Cape High Court Held:

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The fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject. (para 59)….

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SECTION B...