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Contents MAY/ JUNE SOLUTIONS Question Question Question Question OCTOBER/ NOVEMBER SOLUTIONS Question Question Question MAY/ JUNE SOLUTIONS Question Question OCTOBER/ NOVEMBER SOLUTIONS Question Question MAY/ JUNE SOLUTIONS Question Question OCTOBER/ NOVEMBER SOLUTIONS Question1 Question Question MA...

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Contents MAY/ JUNE 2019 ................................................................................................................................. 2 SOLUTIONS ...................................................................................................................................... 9 Question 1 ..................................................................................................................................... 9 Question 2 ..................................................................................................................................... 9 Question 3 ................................................................................................................................... 16 Question 4 ................................................................................................................................... 17 OCTOBER/ NOVEMBER 2018 ........................................................................................................ 21 SOLUTIONS .................................................................................................................................... 25 Question 1 ................................................................................................................................... 25 Question 2 ................................................................................................................................... 25 Question 3 ................................................................................................................................... 30 MAY/ JUNE 2018 ............................................................................................................................... 33 SOLUTIONS .................................................................................................................................... 42 Question 1 ................................................................................................................................... 42 Question 2 ................................................................................................................................... 42 OCTOBER/ NOVEMBER 2017 ........................................................................................................ 54 SOLUTIONS .................................................................................................................................... 59 Question 1 ................................................................................................................................... 59 Question 2 ................................................................................................................................... 59 MAY/ JUNE 2017 ............................................................................................................................... 65 SOLUTIONS .................................................................................................................................... 71 Question 1 ................................................................................................................................... 71 Question 2 ................................................................................................................................... 71 OCTOBER/ NOVEMBER 2016 ........................................................................................................ 81 SOLUTIONS .................................................................................................................................... 86 Question1 .................................................................................................................................... 86 Question 2 ................................................................................................................................... 86 Question 3 ................................................................................................................................... 89 MAY/ JUNE 2016 ............................................................................................................................... 92 SOLUTIONS .................................................................................................................................. 100 Question 1 ................................................................................................................................. 100 Question 2 ................................................................................................................................. 100 Question 3 ................................................................................................................................. 105

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SOLUTIONS Question 1 Question 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Answer False False False False True True True True True True True True False False False True False False False True

Question 2 1) The Constitution states in section 92(2) that members of Cabinet are accountable to Parliament and must report to Parliament regularly. Accountability conveys that members of the executive must explain and justify their actions to Parliament and its committees so that Parliament can play a role in checking the exercise of power by members of the executive. Holding the executive accountable has two parts to it: • Parliament may call members of the executive and the public administration to account for their activities. This is designed to enhance the integrity of public governance and prevent corruption, nepotism, abuse of power and other forms of inappropriate behaviour. It should also improve the performance of the Cabinet and public administration. This is consistent with the Constitution’s emphasis on transparency, responsiveness and answerability. It is also designed to give the public confidence in government; to bridge the gap between the governed and the government. It is section 56 and 69, respectively, that empower the NA and NCOP to summon any person to appear before it to give evidence on oath or affirmation, or to produce documents’ and require ‘any person or institution to report to it’. No one so summonsed may refuse to appear. There are regular question-and-answer sessions in Parliament where MPs may pose probing questions to the President, Deputy President and the Cabinet Ministers. These questions must be responded to by way of statistics, details of the expenditure on various items and to defend the policies they have adopted. 9

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Parliament has the power to take remedial action and even dismiss members of the executive who fail to account properly for their actions. This means institutional arrangements must exist to ensure democratic control over the executive as they have not been directly elected by the people.

The manifestation of the legislature holding the executive accountable is when the legislature seeks to impeach the President or institute a motion of no confidence in him. Relevant case law is EFF & Others v Speaker of the National Assembly (2017) – a follow-up to the 2016 EFF v Speaker of the National Assembly decision. The UDM case is also important because it was held in this case that it is the Speaker’s duty to decide whether or not the vote should be by way of secret ballot. The conclusion reached in EFF 2 (the 2017 case) is that the NA did not succeed in fulfilling its obligations because it had not put in place appropriate mechanisms for a committee to first determine whether the President had objectively committed a serious violation of the law or the Constitution. 2) To uphold the rule of law – one of the most important founding values of the Constitution – what the South African state must guarantee is a prosecuting authority that is not “malleable, corrupt or dysfunctional”. More specifically, the prosecuting authority must exercise its powers independently. That is, without any fear, favour or prejudice (as per section 179(4) of the Constitution) and subject only to the Constitution and the law (in terms of section 32(1)(a) of the National Prosecuting Authority Act). In order for these objectives to be achieved, the minimum requirement of a National Director of Public Prosecutions is that they must be “fit and proper”. What this means is that the person must exhibit conscientiousness and integrity. If this is the case, the NPA’s independence will then be secured. As the Constitutional Court has previously stated at para 146 of the Certification judgment: “[t]here is ... a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts”. Recently, Yacoob ADCJ declared in the 2012 DA v President of the Republic of South Africa case that the office of the NDPP “is located at the core of delivering criminal justice”, meaning that a well-functioning criminal justice system is central to any functioning constitutional democracy. As such, if you subvert the criminal justice system, you subvert the rule of law and constitutional democracy itself. Unsurprisingly, the NPA Act proscribes improper interference with the performance of prosecutorial duties. Section 32(1)(b) of the NPA Act provides: “Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions. A prosecuting authority that is corrupt, malleable and dysfunctional would be susceptible to political interference and nefarious political agendas, with criminals (especially those holding positions of influence) never answering for their criminal deeds. Such a situation is contemptuous of the rule of law, but it characterises the South African prosecuting authority for the last decade at least. Moreover, this dysfunction has rendered the National Prosecuting Authority paralysed by instability. 10

In relatively quick succession, National Directors of Public Prosecutions have been appointed. None of them completed the stipulated 10-year tenure. Vusi Pikoli was succeeded by Menzi Simelane, who was succeeded by Mxolisi Nxasana, who was replaced by Shaun Abrahams. The matter of Justice Alliance v President of the Republic of South Africa (2011) established that security of tenure is an integral part of ensuring independence. Although that matter concerned the independence of the judiciary, the principle is analogous to the prosecuting authority. The Corruption Watch/Nxasana matter relates to former President Jacob Zuma’s removal of Mr Nxasana from office. In para 25 of the judgment, Madlanga states it thus: “Zuma was bent on getting rid of Mr Nxasana by whatever means he could muster. His was an approach that kept on mutating: it was first a stick; then a carrot; a stick once more; and eventually a carrot”. Mr Nxasana was offered a settlement amount from public coffers. Over time that amount increased progressively. An earlier offer contained in a draft settlement agreement was R10 million. Mr Nxasana did not accept it. Thereafter, Mr Nxasana received another draft settlement agreement with the amount left blank for Mr Nxasana to fill it in himself. Mr Nxasana signed the settlement agreement on 9 May 2015. In terms of the agreement Mr Nxasana would relinquish his position as NDPP and receive a sum of R17.3 million as a settlement payment. As Madlanga eloquently states at para 28, “The inference is inescapable that [Zuma] was effectively buying Mr Nxasana out of office. … conduct of that nature compromises the independence of the office of NDPP.” Mr Nxasana was paid an amount of R10 240 767.47. The rest was retained by the state for income tax. Evident from this scenario is that Nxasana did not vacate office voluntarily (as regulated by section 12(8) of the NPA Act). The majority of the Court concluded that the settlement agreement; Nxasana’s vacation of office and the payment of R17.3 million were all constitutionally invalid and violated the required independence of the office of the NDPP. Consequently, Abrahams’s appointment was also constitutionally invalid. Nxasana’s removal was invalid for the fact that in terms of section 12(6)(b) of the NPA Act, it is Parliament (as part of its role of ensuring accountability on the part of the executive and representing the people) that must resolve to remove an NDPP.

3) The President’s chances of success are slim to none. On the basis of the number of votes received per political party, representatives of those political parties are then elevated to the National Assembly in proportion to the votes received. Based on the number of votes each party obtains, they will have representatives of the people in Parliament. This process is entirely democratic. Even more so, once the 400 people assume their positions as Members of Parliament, another election takes place within Parliament itself. Therefore, our representatives, speaking on our behalf, vote for the President. As soon as the President is elected, he is no longer a member of Parliament (the legislature), but immediately assumes his position as Head of the Executive. As the person elected to the position in accordance with the wishes of the people, the President then has the right to appoint the Deputy President and the members of his Cabinet (Ministers responsible for various government departments). For the most part, the legislature is then democratically empowered by us to pass, amend and repeal laws. Likewise, the executive officials all have the powers vested in them in terms of the Constitution to ensure the implementation of those laws (thus 11

epitomizing the separation of powers doctrine). If, however, there is any allegation that a law is unconstitutional or that executive conduct is invalid, the third branch of the state – the judiciary – is tasked with determining whether or not the law or conduct is unconstitutional. It is here that the counter majoritarian dilemma arises. Whereas the entire process of constituting the legislature and appointing members of the executive is seen as an extension of the democratic process, the appointment of members of the judiciary is seen as markedly undemocratic because judges are appointed by the President after the President receives recommendations from the Judicial Service Commission. When a matter concerning the constitutionality of legislation or conduct is initiated, it almost always (unless it is especially urgent) starts in the High Court. In most cases heard in the High Court, a single judge decides the case (see for example, the decision by Judge Bashir Vally in the Gauteng North High Court relating to the President’s midnight cabinet reshuffle of March 2017). This is often criticized as being highly undemocratic because it conveys the impression that the power of one single judge who we may not know, may not like and may not approve of, far exceeds the power of all 400 Members of Parliament who voted for the President and therefore also exceeds the power of about 20 million South Africans who indirectly voted for the ANC of which the President is the leader. This is why it is called the counter majoritarian dilemma. Even when a case is decided by the Constitutional Court, there are only 11 judges deciding the case. Indeed, the reason why it is not a dilemma is because we the people (the majority) empowered the drafters of the Constitution to include section 172, section 1, section 2, etc. into the Constitution to enable the judiciary to declare the law or conduct invalid and unconstitutional so that they can ensure that the Constitution is actually upheld and enforced. When the courts adjudicate matters their principal task is to ensure adherence to the rule of law, which is founded on the following principles: o the government/state must act in terms of pre-announced/clear and general rules o rules that are created, must be enforced, and disputes pertaining to such rules, are then adjudicated by independent/impartial institutions (i.e.: courts) o no rights of people may be deprived/limited via wide/arbitrary discretionary powers of the state o no one is above the law: all persons/institutions including the state must act in terms of powers granted by law and comply with law o the state/others must act lawfully i.e. must comply with the law and law must comply with the legality requirement. Therefore, as one of the three branches of state, the judiciary does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government. Courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is therefore not for the Court to 12

prescribe to Parliament what structures or measures to establish or employ respectively in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. In general, therefore, the courts will only go so far as to declare law or conduct unconstitutional and leave it to Parliament or the executive to decide for themselves how they wish to rectify the invalid legislation or conduct. We have seen this in cases such as Glenister, Fourie, TAC. 4) The Public Protector. In terms of section 182(1), the Public Protector has the mandate of investigating “any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”. The case of Hlaudi Motsoeneng, the former CEO of the South African Broadcasting Corporation (SABC), highlights the confusion that has surrounded the status of the findings of the Public Protector. Initially, in Democratic Alliance v South African Broadcasting Corporation Ltd and Others 2015 (1) SA 551, Schippers J in the Western Cape High Court held that: 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).

The subsequent litigation in the Supreme Court of Appeal, on the other hand, lends support to the fact that the Public Protector’s findings are, indeed, binding. In South African Broadcasting Corporation Limited and Others v Democratic Alliance and Others (393/2015) [2015] ZASCA 156, the Supreme Court of Appeal held that: The Public Protector cannot realise the constitutional purpose of her office if other organs of state may second-guess her finding and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of section 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy for State misconduct, which includes the power to determine the remedy and direct its implementation.

In the recent Constitutional Court judgment of Economic Freedom Fighters v Speaker of the National Assembly; the Democratic Alliance v Speaker of the National Assembly ZACC 11 (31 March 2016), the Court affirmed that findings of the Public Protector were binding. Members of the public, including MPs, had lodged complaints with the Public Protector, Thuli Madonsela, concerning aspects of the security upgrades that had been carried out at President Zuma’s Nkandla private residence. The Public Protector investigated the matter and concluded that several improvements were non-security features and that any installation that has nothing to do with the President’s security amounts to undue ben...