CSL2601 - Portofolio Exam- OCT/NOV 2021 PDF

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Dean White46423095CSL2601 – September ExamSection A False Section 41(3) of the constitution states that an organ of the state involved in a intergovernmental dispute must exhaust every reasonable avenue possible to resolve the issue internally before approaching a court, Section 41(4) further declar...

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Dean White 46423095 CSL2601 – September Exam

Section A

1. False Section 41(3) of the constitution states that an organ of the state involved in a intergovernmental dispute must exhaust every reasonable avenue possible to resolve the issue internally before approaching a court, Section 41(4) further declares that if a court is not satisfied that all reasonable steps has been taken to resolve the matter internally, the court will revert the matter back to the disputing parties to be resolved amongst themselves. 2. False Frank Chikane addressed the legality of the ANC’s NEC decision to Remove president Mbeki from office in 2008. According to Frank the then President could have refused the decision of the NEC, but this could have had dire consequences for the former President Mbeki at the time. His refusal could have led to a suspension from the ruling party and as the ANC were the majority of the National Assembly they could have relied on Section 102 of the constitution and impeachment the them President. 3. True Section 146(2) declares that National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation, provided it complies with the conditions as set out in subsections A – C, Section146(2)(C) is of specific reference to the set out question. 4. False Section 2 of the Constitution affirms the Supremacy of the Constitution, which means that Parliamentary actions are subject to the Constitution and any actions that are unconstitutional can be challenged through Judiciary Channels. 5. True Section44(2) sets out the circumstances in which Parliament may intervene by passing legislation in accordance with Section76(1) within a matter falling within a functional level area listed in Schedule 5. 6. False

7. True There are three statements in the pre-amble that can be seen as transformative, namely “recognise the injustices of the past” and as well as “improve the quality of life of all citizens

and free the potential of each person” and “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”

8. True The Constitution falls under public law, public law regulates the relationship between the government and its subjects. The Constitution sets out how those in power may exercise this power, it further provide for anyone to challenge the constitutionality of how power is exercised by the government. Furthermore, the Constitution makes provision for checks and balances between the three branches of government . 9.

False Section 165 deals with Judicial Authority and provides that the Courts functions independently and are only subject to the Constitution and law, which should be applied impartially without fear, favour on undue influence.

10. False As the head of the state the President can exercise his powers independently and does not need to consult other members of cabinet when making decisions, but as the head of the National executive the President needs to make decisions in consultation with other members of Cabinet. 11. True

12. True The court found that the notice of withdrawal from the Rome Statute signed by the Minster, without approval from Parliament was un-constitutional. 13. True Executive authority is concerned with the day-to-day functioning of government. 14. True

15. True The Constitution specifically makes provision for the independence of the Judicial branch of government and Section 165 lists the mentioned provisions in the set out question. 16. False Co-operative governance deals with the three spheres of government namely, National, provincial, and local government spheres. 17. False The Constitution are considered the most important source of Constitutional law, this is reenforced by section 2 of the Constitution. The Constitution also makes provision for any law or conduct to be found unconstitutional should be repealed or aligned with the constitution.

18. True The Apartheid regime, functioned on a supreme parliament and could bring any law into force as long as it adhered to the requirements needed to pass a law. This was used to suppress the majority of citizens and protect the interest of the minority. Under the Constitution all laws that are passed need to be Constitutional and the Constitution also advocates a free and fair South Africa for all that are within its borders. 19. False The main policy maker is Parliament which consists of the ruling party as well as members of the opposition parties. In order to pass a new law parliament needs to vote on the proposed bill and only after reaching the required majority a bill can be passed. 20. False The Municipal Systems Act provides that municipalities has an obligation to provide basic municipal services for those under their jurisdiction. The coincides with the principal of Subsidiary, which requires that the exercise of public power takes place as a level as close as possible to the citizens. 21. False Equality is about providing everyone with the same treatment and opportunities no matter their background, race, religion, gender, etc. Equality is about eliminating discrimination between people. 22. True A state is an independent country that operates without the intervention of outside forces, government is elected through having regular elections and are subject to change, the constitution also provides that a President may not serve more than two terms. The president elects his cabinet and does not need to justify the selections to anyone, as long as it is considered Constitutional, this means that the Cabinet or Government will change with each ne elected President. 23. True The doctrine of Separation of Powers dictates that the three spheres should work together when it comes to the “running” of the country without interference of one of the other Spheres of government. 24. False The Constitution provides that feuding organs of the state must resolve issues amongst themselves before approaching any court. 25. True Although government are required to act on recommendation made by the Public Protector, the Public Protectors recommendations are not binding.

Section B The Constitution1 was founded on the core value of a free and fair society to all whom domiciles within the borders of South Africa no matter race, religion, gender, sexual preferences, or any characteristic values of a person. When the Constitution 2 were developed towards the end of an extremely discriminatory period in South Africa, the writers of the Constitution3 wanted to make sure that the past injustices were addressed and that it would be extremely difficult to repeat these atrocities. When one takes a look at the Constitution4 as whole with the founding values on realises that these founding values are emphasised throughout various sections of the Constitution5, most of these founding values are protected by the bill of rights and the stringent requirements that needs to be met before rights of citizens are restricted reassures the great value that the Constitution6 places on the right to equality of each Citizen of South Africa. The first ground-breaking case by the Constitution Court was that of S v Makwanyane7 held in 1995. The court found in favour of the accused and confirmed the Constitutions intention to preserve human life, despite the majority public opinion or the fact that it could have been argued that it is in the interest of public safety to find in favour of the death penalty. The Constitutional Court also confirmed that no one is above the law or any legal process in The President v SARFU8, when the court found that the President is liable to testify in court should the need arise. The Constitution9 places the highest value on Human dignity and as found in Geldenhuys v Minister or Safety and Security10. The Court confirmed that an objective normative value system seeks to establish a society based on human dignity. Equality and freedom. The court further stated that a part of this system is institutions of Government which are open, transparent, and accountable to the people whom they serve. One can come to the conclusion that the founding values of the Constitution 11 is the “backbone” of the value system we strive towards as a society.

1

The Constitution of the Republic of South Africa, 1996 the Constitution 3 the Constitution 4 the Constitution 5 the Constitution 6 the Constitution 7 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995) 8 President of the Republic of South Africa and Others v South African Rugby Football Union and Others (CCT16/98) [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (10 September 1999) 9 the Constitution 10 Geldenhuys v Minister of Safety and Security and Another (13169 / 99) [2002] ZAWCHC 2; [2002] 3 All SA 82 (C) (30 January 2002) 11 the Constitution 2

S v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995)...