RHODES UNIVERSITY

FACULTY OF LAW

EXAMINATIONS: JUNE 2022

CONSTITUTIONAL LAW A
(LLB)

LEGAL THEORY 2
(BA, BSoc Sci, BCom, BSc)

External Examiner: Prof J Botha Marks: 60

Internal Examiner: Prof R Krüger Duration: 2 hours

GENERAL INSTRUCTIONS TO CANDIDATES

1. ANSWER ALL THE QUESTIONS.

2. References to “the Constitution” are references to the Constitution of the

Republic of South Africa, 1996 unless the context indicates otherwise.

3. The scenarios set out in the questions are fictional.

4. A planning document is available to you on the back of this cover sheet. You
are entitled to detach and to write on this planning document during reading
time, and during the examination.

5. Time management is very important. You should determine how much time to
dedicate to each question by determining how many minutes per mark for the
whole paper (eg 120 minutes for 60 marks) and then multiplying that figure by
the amount of marks for each question.

6. It is in your interest to write legibly.

7. The Oxford Concise English dictionary may be used during this examination for
the purpose of looking up words that are not legal terms relevant to the course
content. Invigilators may ask you which word you wish to look up, to determine
whether the use of the dictionary is appropriate.

8. It is in your interest to read the ENTIRE question carefully before attempting to

answer any of the questions.

9. At the end of the examination, place all extra answer books inside the first
book. Make sure that you have filled in all the required information on the front
cover. This includes how many books you have handed in, what questions you
have answered, and the order in which they have been answered.

Constitutional Law A – June 2022 Page 1 of 4

 PLANNING

Constitutional Law A – June 2022 Page 2 of 4

Question 1

You are a legal advisor to the President of South Africa, and are requested to advise
the President in relation to the following scenario:

Parliament passed, and the President assented to, legislation to amend the
Domestic Violence Act 116 of 1998 to expand the definition of domestic violence and
the relationships to which the Act applies. The Amendment Act further empowered
the President to determine the date on which the amended provisions would come
into operation. Following a consultation with the Minister for Justice and
Constitutional Development, the President caused a government notice to be
published in the Government Gazette proclaiming to bring sections 2 and 4 of the
Amendment Act into operation. However, the relevant section containing the
expanded definitions is section 1, with sections 2 and 4 amending different sections
in Act 116 of 1998 to place explicit obligations on court officials and police officials to
assist victims of domestic violence. The requisite regulations for placing additional
obligations on police and court officials have not been finalised and the amendments
(per section 2 and 4 of the Amendment Act) were brought into operation in error by
the proclamation. The President ought to have promulgated the expanded
definitions contained in section 1. In an attempt to rectify his mistake, the President
caused an amendment of the previous government notice to be issued to correct his
mistake. Are the amended definitions in force?

Write an essay in which you advise the President. In the course of your answer,
explain the nature of the power exercised by the President when he brings legislation
into operation and explain the constraints that exist in relation to this exercise of
power. Refer to case law.

[15]

Question 2

You are consulted by Bonga Monyane, a leader of one of the minority parties in the
national legislature. Monyane recently introduced a private member’s Bill in the
National Assembly to allow for passive euthanasia. After the first reading of the Bill,
the office of the Speaker indicated to Monyane that no public comment on the Bill will
be allowed, since the Bill did not originate with the majority party, and because its
subject matter is too controversial. Monyane suspects this view to be in
contravention of the Constitution and seeks clarity on the position regarding the
introduction of legislation and providing opportunities for public input, and the weight
that should be attached to such input. Advise fully with reference to case law.

[15]

Constitutional Law A – June 2022 Page 3 of 4

Question 3

Acting on the basis of section 8(b) of the Judges’ Remuneration and Conditions of
Employment Act 47 of 2001, the President of South Africa is contemplating an
extension of the term of office of the President of the Supreme Court of Appeal. The
relevant section reads as follows:

“A President of the Supreme Court of Appeal who becomes eligible for discharge
from active service in terms of section 3(2)(a) or 4(4), may, at the request of the
President, from the date on which he or she becomes so eligible for discharge
from active service, continue to perform active service as President of the
Supreme Court of Appeal for a period determined by the President, which may
not extend beyond the date on which such President of the Supreme Court of
Appeal attains the age of 75 years.”

The President of South Africa particularly wants you to advise him on the impact of
this provision on the notion of judicial independence. In the course of your answer,
explain the concept of judicial independence and advise the President with reference
to relevant case law.

[15]

Question 4

You are consulted by Joan Matopo, a community leader in Makhanda. She seeks
your advice on the notion of co-operative governance and its possible relevance to
what she calls a “service delivery crisis” in the local municipality.

Write an essay in which you explain the concept of co-operative government to Ms

Matopo and its application in relation to service delivery by municipalities. Refer to
relevant constitutional provisions and case law.

[15]

END OF THE EXAMINATION PAPER

Constitutional Law A – June 2022 Page 4 of 4