Stuvia 4418325 csl2601 Assignment 2 Quality Answers Semester 1 2024

CSL2601 Assignment 2 (QUALITY
ANSWERS) Semester 1 2024
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CSL2601
Assignment 2 Semester 1 2024
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Due Date: April 2024
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PART A
QUESTION 1 (2 ANSWERS PROVIDED)
This statement is False.
The most significant aspect of the case of Economic Freedom Fighters v

Speaker of the National Assembly 2018 (2) SA 571 (CC) (EFF II) is not that the
judiciary has too much political power and intrudes into the executive domain.
The case was significant because it addressed the issue of whether the
President of South Africa, Jacob Zuma, had violated the Constitution by failing
to implement the recommendations of the Public Protector, as well as the
powers of the National Assembly in holding the President accountable. The
Constitutional Court ruled that Zuma had failed to uphold the Constitution and
the powers of the Public Protector, and therefore acted unconstitutionally. This
case was significant in reaffirming the importance of the rule of law and the role
of the judiciary in upholding the Constitution, rather than a case of the judiciary
intruding into the executive domain.
The significance of the Economic Freedom Fighters case is well explained in

various legal analyses and commentaries, such as "The Constitutional Court
has issued a landmark judgment for South Africa’s democracy" by Pierre de
Vos, a prominent expert in constitutional law, which highlights the importance
of the case in upholding the constitutional principles and checks and balances
within the government.
OR
This statement is False. The most significant aspect of the EFF II case is not
that the judiciary has too much political power and intrudes into the executive
domain, but rather that it upheld the principle of separation of powers and the
rule of law in South Africa. In the case, the Constitutional Court ruled that the
National Assembly failed to hold President Jacob Zuma accountable for
violating the Constitution, and it ordered the National Assembly to establish a
process for the President's impeachment. This decision reaffirmed the
judiciary's role in upholding the Constitution and ensuring accountability of the
executive branch.


Additionally, the EFF II case highlighted the importance of the independence of

the judiciary in ensuring that the government acts within the bounds of the
Constitution and the law. This is in line with the principles of constitutionalism
and the rule of law, which are foundational to the South African legal system.
Reference:
Economic Freedom Fighters v Speaker of the National Assembly and Others;

Democratic Alliance v President of the Republic of South Africa and Others
[2016] ZACC 11; 2016 (3) SA 580 (CC).
The statement provided does not align with the principle of subsidiarity.
Subsidiarity is a principle in social organizations, specifically in politics and
governance, which holds that decision-making should occur at the most local
level capable of addressing the issue effectively. It emphasizes the autonomous
functioning of social groups and organizations and is often used to argue for
decentralization and local autonomy in governance.
The scenario described in the statement does not reflect the principle of
subsidiarity because it involves a national political figure, Jacob Zuma,
expressing opposition to the rights of a specific group (LGBTIQ+ individuals) at
a national level. Zuma's stance on the rights of LGBTIQ+ people does not reflect
the delegation of decision-making to the most local level capable of addressing
the issue effectively.
Furthermore, Zuma's stance on LGBTIQ+ rights is not in line with the South
African constitution, which explicitly prohibits discrimination based on sexual
orientation and grants same-sex couples the right to marry. Zuma's views on
this issue do not reflect the principles of inclusivity and non-discrimination
enshrined in the South African constitution.
OR

The principle of subsidiarity asserts that matters should be handled by the

smallest, lowest, or least centralized competent authority, rather than a higher
or more centralized authority. In this scenario, former President Jacob Zuma's
intention to campaign against the rights of LGBTIQ+ people to a family life does
not align with the principle of subsidiarity. His position represents a top-down
approach where a higher authority seeks to impose its will on a minority group,
rather than allowing the issue to be addressed at a more local or individual level.
References:
Constitution of the Republic of South Africa, 1996:

https://www.gov.za/documents/constitution-republic-south-africa-1996-0
Subsidiarity in the European Union: A Literature Review by Deirdre K. Mulligan,

2003.
QUESTION 3
The statement is false.
Judicial overreach occurs when courts go beyond their constitutional mandate

to interpret laws and begin making policy decisions or otherwise intervening in
matters reserved for the legislative or executive branches. Assessing whether
a particular judicial act constitutes overreach often involves subjective
interpretation and depends on one's perspective regarding the appropriate role
of the judiciary in a constitutional democracy.

The statement is false because the counter-majoritarian dilemma does have

relevance to South African Constitutional Law. The counter-majoritarian
dilemma refers to the tension between the principle of majority rule and the
protection of minority rights, particularly as it relates to judicial review of
legislative and executive actions. In South Africa, the Constitutional Court has
frequently been called upon to adjudicate issues that involve balancing the will
of the majority with the rights of minority groups, especially in the context of the
post-apartheid society.
The relevance of the counter-majoritarian dilemma in South African

Constitutional Law is evident in several landmark cases, such as the 1995 case
of National Coalition for Gay and Lesbian Equality v Minister of Justice, which
dealt with the rights of LGBTQ+ individuals, and the 2005 case of Minister of
Health v Treatment Action Campaign, which concerned the availability of
HIV/AIDS treatment. In both instances, the Constitutional Court had to weigh
the interests of minority groups against the will of the majority, demonstrating
the relevance and significance of the counter-majoritarian dilemma in South
African jurisprudence.
Furthermore, the idea that the counter-majoritarian dilemma is a convenient

excuse for politicians when the judiciary is "counter-revolutionary" is a simplistic
and unfair characterization of the complex relationship between the branches
of government in South Africa. The judiciary's role in upholding the principles of
the Constitution and protecting individual rights cannot be reduced to a mere
political tool. Rather, it is an essential aspect of maintaining the rule of law and
ensuring that the rights of all citizens are respected.
OR
The counter-majoritarian dilemma is highly relevant to South African

Constitutional Law. The concept of the counter-majoritarian dilemma is based
on the tension between the judiciary's role in protecting individual rights and the
potential for it to undermine the will of the majority as expressed through elected

representatives. In the South African context, the Constitution provides a strong

framework for protecting individual rights, and the judiciary has played a crucial
role in upholding these rights, particularly during the apartheid era and in the
post-apartheid period.
The Constitutional Court of South Africa has been active in striking down laws
that are inconsistent with the Constitution and has played a key role in
advancing equality and non-discrimination in the country. One of the most
notable examples is the case of Minister of Home Affairs v Fourie, where the
Constitutional Court declared the prohibition of same-sex marriage to be
unconstitutional, leading to the legalization of same-sex marriage in South
Africa.
Furthermore, scholars have recognized the significance of the counter-

majoritarian dilemma in the South African context. For example, Professor Stu
Woolman has written extensively on the topic, highlighting the tension between
judicial review and democratic decision-making in South Africa. This
demonstrates that the counter-majoritarian dilemma is a real and relevant issue
in South African Constitutional Law and cannot simply be dismissed as a
convenient excuse invoked by politicians.
References:
National Coalition for Gay and Lesbian Equality v Minister of Justice, 1999 (1)
SA 6 (CC)
Minister of Health v Treatment Action Campaign, 2002 (5) SA 721 (CC)
Constitution of the Republic of South Africa, 1996

The horizontal distribution of power in South Africa does not exactly reflect how
multi-sphere governance works in the country. Multi-sphere governance in
South Africa refers to the division of powers and functions between national,
provincial, and local government spheres, as enshrined in the Constitution of
South Africa.
While the concept of multi-sphere governance does involve the distribution of

power across different levels of government, the actual practice of governance
in South Africa has been criticized for centralizing power at the national level
and not fully implementing the principles of multi-sphere governance.
The South African Local Government Association (SALGA) has highlighted the
challenges faced by local governments in accessing resources and decision-
making power, indicating that the horizontal distribution of power is not fully
realized in the country.
Furthermore, the Centre for Constitutional Rights has pointed out that the
vertical and horizontal sharing of powers between different spheres of
government in South Africa has not been effectively implemented, leading to
imbalances in the exercise of power.
OR
The horizontal distribution of power in South Africa is not exactly how multi-
sphere governance works. Multi-sphere governance refers to the division of
powers and responsibilities between the national, provincial, and local spheres
of government. This division of powers is enshrined in the South African
constitution and is aimed at promoting effective governance and service
delivery at all levels of government.
However, the horizontal distribution of power refers to the separation of powers

between the executive, legislative, and judicial branches of government. This
principle is also enshrined in the South African constitution and is aimed at

preventing the abuse of power and ensuring checks and balances within the
government.
These two concepts are related, but they are not exactly the same. The
horizontal distribution of power focuses on the separation of powers within each
sphere of government, while multi-sphere governance focuses on the division
of powers between different spheres of government.
Reference:
Constitution of the Republic of South Africa, 1996. Available online:

https://www.gov.za/documents/constitution/constitution-republic-south-africa-
1996-republic-south-africa-1
The statement is false.
Recusal is actually the act of disqualifying oneself from participation in an official

duty, such as a judge or other official stepping down from a case or decision
due to a conflict of interest.
In South African law, the process for removing an official office-bearer for gross
misconduct or incompetence is typically referred to as impeachment.
Impeachment is a formal process outlined in the Constitution of South Africa
and involves the National Assembly initiating proceedings to remove the
President, Deputy President, or a judge from office.
OR
The formal removal of an official office-bearer for gross misconduct or gross

incompetence is actually known as impeachment. Recusal refers to the act of
a judge or prosecutor disqualifying themselves from a legal case due to a
conflict of interest or bias.

The distinction between recusal and impeachment is important as they are

separate legal concepts with different implications and processes.
Reference:
Constitution of the Republic of South Africa, 1996. Chapter 9: Institutions

Supporting Constitutional Democracy. retrieved from:
https://www.gov.za/documents/constitution/chapter-9-institutions-supporting-
constitutional-democracy#Jud_Sup_Rem_Efici on November 11, 2021.
The statement is true.
Parliamentary privilege is indeed the right to freedom of speech of members of

parliament and the protection from being held liable to civil or criminal
proceedings, arrest, imprisonment, or damages for anything said or revealed in
Parliament. The case of de Lille and Another v Speaker of the National
Assembly 1998 (3) SA 785 (CC) is a landmark case in South African law that
solidified the concept of parliamentary privilege. In this case, the Constitutional
Court of South Africa found that members of parliament have the right to
freedom of speech and debate in the legislature, and should not be hindered
by fear of legal action outside of Parliament for statements made within its
chambers. This case established that parliamentary privilege is crucial for the
effective functioning of a democratic legislature.
Furthermore, the concept of parliamentary privilege is also recognized in many

other legal jurisdictions around the world, including the United Kingdom,
Canada, and Australia. These privileges are seen as essential for allowing
members of parliament to fulfill their duties without fear of legal consequences.
In conclusion, the case of de Lille and Another v Speaker of the National

Assembly 1998 (3) SA 785 (CC) and the recognition of parliamentary privilege
in other legal jurisdictions demonstrate that the statement is true. Parliamentary

privilege does indeed protect members of parliament from legal consequences

for their speech within the legislative chamber.
OR
The case of de Lille and Another v Speaker of the National Assembly 1998 (3)
SA 785 (CC) affirmed the concept of parliamentary privilege as the right to
freedom of speech for members of parliament and the protection from legal
repercussions for anything said or revealed in Parliament.
In this case, Patricia de Lille, a member of the South African Parliament, faced
disciplinary action for disclosing information in Parliament. The Constitutional
Court ruled that parliamentary privilege is essential for the functioning of
Parliament and democracy, as it allows members of parliament to freely debate
and deliberate important matters without fear of legal consequences.
The judgment emphasized that parliamentary privilege is rooted in the

Constitution of South Africa, which grants members of parliament immunity from
civil or criminal liability for anything said or revealed in the course of
parliamentary proceedings. This protection is necessary to uphold the principle
of separation of powers and ensure that parliamentary debates can be
conducted without undue influence from external legal proceedings.
In summary, the case of de Lille and Another v Speaker of the National

Assembly affirmed the importance of parliamentary privilege as the right to
freedom of speech and immunity from legal repercussions for members of
parliament when speaking in Parliament. Therefore, the statement is true.
This statement is True.
In South Africa, public participation is a fundamental principle of the legislative

process and is enshrined in the Constitution. Section 59(1) of the Constitution

of the Republic of South Africa, 1996, mandates that the National Assembly and
Provincial Legislatures must facilitate public involvement in the legislative and
other processes of the Assembly and its committees.
Additionally, the Promotion of Administrative Justice Act, 2000 (PAJA) also

emphasizes the importance of public participation in decision-making
processes. Section 3(2) of PAJA states that "Consultation should include the
disclosure of information to the person so far as this is necessary for the proper
exercise of his or her rights and legitimate interests."
Furthermore, the South African legal system recognizes the role of public
participation in ensuring legitimacy and accountability in the legislative process.
The Constitutional Court has emphasized the importance of meaningful public
participation in various landmark cases, such as the Doctors for Life
International v. Speaker of the National Assembly and Others case.
Therefore, it is true that the responsibility placed on the legislature to include

the views of interested parties by permitting submissions and considering these
views in good faith is known as public participation in South African law.
OR
In South African law, public participation is indeed a key principle that requires
the legislature to consider the views of interested parties. The Constitution of
the Republic of South Africa, 1996, in section 59, provides for public
participation in the legislative process. It states that the National Assembly and
the National Council of Provinces must facilitate public involvement in the
legislative and other processes of Parliament and its committees. This includes
allowing for submissions from interested parties and considering these views in
good faith. The Constitutional Court of South Africa has also emphasized the
importance of public participation in the legislative process in various cases,
such as the Doctors for Life International v Speaker of the National Assembly
and Others (CCT12/05) [2006] ZACC 11. Therefore, the statement is true in the
context of South African law.

In South African law, the process of confirmation is not a pre-requisite for a

national or provincial constitution to become law. The Constitution of the
Republic of South Africa, 1996, which serves as the supreme law of the country,
outlines the procedures for amending the constitution in Chapter 18. According
to section 74 of the Constitution, an amendment to the Constitution can be
made by a bill passed by both the National Assembly and the National Council
of Provinces, with at least two-thirds of the members of each house voting in
favor of the bill. Once the bill is passed by the required majority, it is then
submitted to the President for assent.
There is no specific requirement for a process of confirmation before a national

or provincial constitution becomes law. The process primarily involves the
legislative bodies and the President, as outlined in the Constitution.
Therefore, the statement that "confirmation" is the pre-requisite process in order

for a national or provincial constitution to become law is False in the context of
South African law.
OR
In South African law, the process of confirmation is not a pre-requisite for a

national or provincial constitution to become law. The Constitution of the
Republic of South Africa, 1996 outlines the process for the adoption and
amendment of the national constitution. According to Section 74(3) of the
Constitution, a bill to amend the national constitution must be passed by both
the National Assembly and the National Council of Provinces, and it must be
referred to the president for assent. Once the bill is assented to, it becomes law
without the need for a separate confirmation process.
Additionally, Section 74(8) of the Constitution states that a constitutional

amendment bill cannot be referred to a referendum for confirmation. Therefore,
in South African law, there is no requirement for a separate confirmation
process for a national or provincial constitution to become law.

Reference:
Constitution of the Republic of South Africa, 1996, available at:

https://www.gov.za/documents/constitution-republic-south-africa-1996
This statement is FALSE.
In South Africa, the process for a national or provincial constitution to become

law does not require a specific process called "confirmation." Instead, the
process involves several steps including drafting, public participation, approval
by the relevant legislative body, and assent by the President.
The Constitution of South Africa Act, 1996 outlines the process for the adoption
and amendment of the constitution. According to Section 74, a bill to amend the
constitution must be passed by both the National Assembly and the National
Council of Provinces with a supporting vote of at least two-thirds of the
members. Once the bill is passed, it is then submitted to the President for
assent, and if the President assents, the constitution is amended.
Therefore, the prerequisite process for a national or provincial constitution to

become law in South Africa does not include a specific "confirmation" process.
Instead, it involves the approval and assent of the relevant legislative bodies
and the President.
OR
In South African law, "confirmation" is not a pre-requisite process for a national

or provincial constitution to become law. According to the South African
Constitution, a national or provincial constitution becomes law once it has been
passed by Parliament and signed by the President or the relevant provincial

Premier. The process of confirmation is not mentioned as a necessary step in

the enactment of a constitution.
Reference:
- The Constitution of the Republic of South Africa, 1996.
This statement is TRUE.
In South Africa, universal adult suffrage, a national common voters roll, regular,
free and fair elections, and a multi-party system of government are all
characteristics of democracy.
Universal adult suffrage is enshrined in the South African Constitution, which

grants all adult citizens the right to vote in elections. This is in line with the
fundamental principle of democracy that all citizens should have the opportunity
to participate in the political process.
The national common voters roll, which is also mandated by South African law,
ensures that every eligible voter is registered and can vote in elections. This
contributes to the fairness and inclusivity of the electoral process.
Furthermore, South Africa has a history of holding regular, free, and fair
elections, particularly since the end of apartheid. This commitment to
democratic elections is a key characteristic of the country's political system.
Lastly, the multi-party system in South Africa allows for a diversity of political
parties to participate in the democratic process, providing voters with a range
of choices and viewpoints. This is essential for a democracy to function
effectively and represent the interests of the population.
In conclusion, the characteristics of democracy outlined in the statement are all

present in South African law and are integral to the country's democratic
system.

OR
According to the South African Constitution, universal adult suffrage, a national

common voters roll, regular, free and fair elections, and a multi-party system of
government are essential characteristics of democracy.
The right to vote for all adult citizens is enshrined in Section 19 of the South
African Constitution, which ensures universal adult suffrage. Section 8 of the
Constitution also guarantees the right to free and fair elections, and Section
19(3)(b) ensures the right to a multi-party system of government.
Additionally, the Electoral Act of 1998 outlines the regulations for the
establishment of a national common voters roll, further solidifying the
importance of this characteristic in the South African democratic system.
Therefore, based on the South African Constitution and electoral laws, it is true
that universal adult suffrage, a national common voters roll, regular, free and
fair elections, and a multi-party system of government are characteristics of
democracy in South Africa.
References:
- Constitution of the Republic of South Africa, 1996
- Electoral Commission Act, 1996
The rule of law is indeed a fundamental feature of South Africa’s democratic

dispensation. This is evident in the country’s Constitution, which explicitly states
that "the rule of law is the foundation of the Republic" (Constitution of South
Africa, 1996). The Constitution also outlines principles of the rule of law, such
as legality, accountability, and the separation of powers, which are essential for
the functioning of a democratic society (Constitution of South Africa, 1996).

Furthermore, the Constitutional Court of South Africa has consistently

emphasized the importance of the rule of law in upholding democratic principles
and protecting the rights of individuals. In the case of Government of the
Republic of South Africa v Grootboom (2000), the court highlighted that the rule
of law requires the government to take positive action to ensure the fulfillment
of socio-economic rights.
Overall, South Africa’s legal framework and judicial decisions demonstrate the
commitment to the rule of law as a fundamental feature of its democratic
dispensation. Therefore, the statement is true.
OR
The rule of law is indeed a fundamental feature of South Africa's democratic

dispensation. The country's constitution explicitly states the importance of the
rule of law in upholding democracy and protecting the rights of individuals. In
the case of Pharmaceutical Manufacturers Association of SA and Another: In re
President of the Republic of South Africa and Others (CCT31/99) [2000] ZACC
1; 2000 (2) SA 674; 2000 (3) BCLR 241, the Constitutional Court of South Africa
emphasized the importance of the rule of law in ensuring the government and
individuals adhere to prescribed conduct and act within the limits of their power.
Furthermore, the South African government has developed various institutions

and mechanisms to uphold the rule of law, such as the judiciary, the Chapter 9
institutions, and other independent bodies to enforce the law and ensure
accountability within the government and among individuals.
Therefore, the statement is true as the rule of law imposes a binding duty on
the South African government and individuals to adhere to prescribed conduct,
as outlined in the country's constitution and enforced through its legal and
judicial system.
This statement is FALSE.

The statement is false because the case of Roe v Wade is a US Supreme Court
decision related to abortion rights, and it does not provide relevant authority for
understanding the separation of powers doctrine in the South African context.
In South Africa, the separation of powers is based on the Constitution of the

Republic of South Africa, 1996. The relevant constitutional provisions and case
law from South African courts, such as the Constitutional Court, would be more
appropriate authority for understanding the operation of the separation of
powers in South Africa.
One of the key principles of the South African Constitution is the separation of
powers, which is enshrined in sections 1, 42, 43, and 44 of the Constitution.
These provisions establish the different branches of government - the
legislature, the executive, and the judiciary - and their respective powers and
functions.
In the South African context, relevant cases and legal commentary on the
Constitution would provide more appropriate authority for understanding the
separation of powers doctrine than a US Supreme Court decision such as Roe
v Wade.
OR
The case of Roe v Wade is not an excellent authority for conveying how the
separation of powers doctrine operates in the South African context. The case
of Roe v Wade is a landmark United States Supreme Court case that deals with
the issue of abortion rights, and its relevance is specific to the legal and
constitutional framework of the United States.
In the South African context, the separation of powers doctrine is based on its
own constitution and jurisprudence. The Constitution of South Africa, 1996,
explicitly outlines the separation of powers between the legislative, executive,
and judicial branches of government. The South African courts rely on their own

case law and constitutional principles in interpreting and applying the

separation of powers doctrine.
Therefore, using the case of Roe v Wade as authority in the South African
context would not be appropriate or relevant. Instead, it would be more
appropriate to reference South African constitutional law, court decisions, and
legal scholarship to understand how the separation of powers doctrine operates
in South Africa.
References:
- Constitution of South Africa, 1996
- "Constitutional Law of South Africa" by H.J. de Waal, Reinhard Zimmermann,

and others
This statement is TRUE.
According to the South African Constitution, Section 139(1) grants the provincial
executive the power to intervene in a municipality to ensure compliance with
statutory and constitutional obligations. This intervention can include the
suspension of the municipal council and the assumption of certain
responsibilities by the provincial executive. Therefore, the statement is true as
this power is indeed considered intervention according to South African law.
OR
In South African law, the term "intervention" is used to refer to the exercise of
far-reaching and intrusive power by the executive branch over a municipality to
ensure compliance with statutory or constitutional obligations. This is outlined
in Section 139 of the Constitution of the Republic of South Africa, 1996, which
allows for provincial intervention in a municipality in cases where the
municipality is unable to fulfill its executive obligations or its inability to provide

basic services. This intervention can include steps such as the dissolution of
the municipal council or the assumption of certain powers and functions by the
provincial government.
Reference:
Constitution of the Republic of South Africa, 1996, Section 139
South African Constitution, Section 139(1)
QUESTION 14
Section 146 of the South African Constitution does indeed contain the method
to determine which Act will prevail when there is uncertainty about the status of
a national or provincial law. This section states that national legislation prevails
over provincial legislation if the national legislation deals with a matter within
concurrent national and provincial legislative competence, and the national
legislation is aimed at preventing unreasonable action by a province that would
be prejudicial to national economic, transport, or communications interests, or
the national legislation is necessary for implementing international obligations.
OR
Section 146 of the Constitution of the Republic of South Africa, 1996, does
indeed contain the method to determine which Act will prevail when there is
uncertainty about the status of a national or provincial law. This section states
that if there is a conflict between national legislation and provincial legislation
in a specific area, the national legislation will prevail, unless the Constitution or
national legislation specifically provides otherwise.
Reference:

- Constitution of the Republic of South Africa, 1996. Available at:

https://www.gov.za/documents/constitution-republic-south-africa-1996-1
This Statement is TRUE.
According to South African law, when referring to the Constitution of 1996, it is

necessary to cite it as the "Constitution of the Republic of South Africa Act 108
of 1996." This is because the official title of the Constitution includes the
reference to the Act number 108 of 1996.
Section 238 of the South African Constitution states that "This Constitution is
the supreme law of the Republic; law or conduct inconsistent with it is invalid,
and the obligations imposed by it must be fulfilled." Therefore, it is essential to
accurately cite the official title and act number of the Constitution when referring
to it in legal matters or scholarly works.
In addition, this requirement is also reinforced by the South African legal

system, which places significant emphasis on accuracy and precision in legal
references. Therefore, it is necessary to cite the Constitution as the
"Constitution of the Republic of South Africa Act 108 of 1996" to comply with
legal standards and requirements.
OR
According to South African law, the full title of the Constitution of 1996 is the
"Constitution of the Republic of South Africa, 1996" and it is referred to as the
"Constitution of the Republic of South Africa Act 108 of 1996." This is specified
in Section 234 of the Constitution, which states that "This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is invalid, and
the obligations imposed by it must be fulfilled."
Furthermore, the South African government, including the Justice Department,

refers to the Constitution as the "Constitution of the Republic of South Africa,

1996 Act 108 of 1996" in their official documents and publications, further
emphasizing the importance of citing it correctly.
Reference:
Constitution of the Republic of South Africa, 1996. Available at:

https://www.gov.za/documents/constitution/constitution-republic-south-africa-
1996
The statement is True.
The recommendations of the Public Protector in South Africa are not legally
binding. The Public Protector's office is primarily responsible for investigating
and remedying improper conduct in state affairs and public administration.
However, the Public Protector's recommendations are not legally enforceable
and can be disregarded by government agencies and officials.
According to section 182(1)(c) of the South African Constitution, the Public

Protector may only "take appropriate remedial action" but does not have the
authority to compel compliance with their recommendations. Instead, it is
ultimately up to the relevant government body or official to decide whether or
not to implement the recommendations.
In a landmark case, the Constitutional Court of South Africa affirmed the non-
binding nature of the Public Protector's recommendations in the case of
Economic Freedom Fighters v Speaker of the National Assembly and Others
(CCT35/19) [2019] ZACC 31.
Therefore, the statement that the recommendations of the Public Protector are
not legally binding is true in the context of South African law.
OR

According to South African law, the recommendations of the Public Protector

are not binding. The role of the Public Protector is to investigate complaints
against government entities and officials and make recommendations for
corrective action. However, these recommendations are not legally
enforceable, and it is up to the government entity or official to decide whether
or not to comply with them.
In the case of Economic Freedom Fighters v Speaker of the National Assembly

and Others; Democratic Alliance v Speaker of the National Assembly and
Others [2016] ZACC 11, the Constitutional Court of South Africa confirmed that
the Public Protector's remedial action is binding only if it is rational and related
to the findings in her report. The Court also clarified that the Public Protector
does not have the power to make binding orders. Therefore, the
recommendations of the Public Protector are not binding and do not have the
force of law.
In summary, according to South African law and the Constitutional Court's

interpretation, the statement that "the recommendations of the Public Protector
are not binding" is true.
The statement is True.
According to the South African Constitution, local government elections must

be held every five years. The last local government elections took place in 2016,
which means that the next elections should take place in 2021. However, the
Municipal Structures Act allows for a grace period of up to three months after
the five-year term has expired for the elections to be held. Therefore, it is likely
that the local government elections will take place in the first half of 2024.
OR
According to the Local Government: Municipal Structures Act of 1998 (Act No.
117 of 1998), local government elections in South Africa must be held every five

years, and the last local government elections took place in 2016. Since then,
the next local government elections are mandated to occur within the first half
of 2024. Therefore, it is true that local government elections will be taking place
in South Africa in the first half of 2024. (Source: Government Gazette, Act No.
117 of 1998, Chapter 2, Section 24)
Reference:
South African Constitution, Chapter 7: Local Government
Municipal Structures Act, Act No. 117 of 1998
QUESTION 18
In South Africa, Parliament is not prohibited from delegating subordinate

regulatory authority to other bodies. The Constitution of South Africa allows for
the delegation of legislative power to other bodies, provided that certain criteria
are met. Section 44(2) of the Constitution allows Parliament to delegate its
legislative authority to other bodies, which can then make subordinate
legislation within the bounds set by the empowering legislation.
The Constitutional Court of South Africa has upheld the principle of delegated
legislation, stating that it is a necessary and practical means of implementing
laws, as long as it is within the scope of the enabling legislation and subject to
oversight and scrutiny. (Glenister v President of the Republic of South Africa
and Others [2011] ZACC 6)
Therefore, it is false to say that Parliament is prohibited from delegating

subordinate regulatory authority to other bodies in South Africa.
QUESTION 19 (2 ANSWER PROVIDED)

According to the Constitution of the Republic of South Africa, the Constitutional

Court is the highest court in the country and has the authority to resolve
disputes between the different government spheres. Section 167(4) of the
Constitution states that the Constitutional Court has exclusive jurisdiction in
constitutional matters between organs of state at any level and may decide
whether and to what extent any of these organs have failed to fulfill a
constitutional obligation. This means that if there is a dispute between
government spheres, they should seek resolution through the Constitutional
Court.
Furthermore, the Constitutional Court has the power to make binding orders on
any sphere of government, including the national government, provincial
governments, local governments, and any other government body or public
entity. This reinforces the idea that government spheres should resolve their
problems and disputes in the Constitutional Court.
In practice, there have been numerous cases where disputes between

government spheres have been resolved by the Constitutional Court. One
prominent example is the case of Doctors for Life International v The Speaker
of the National Assembly and Others, where the Constitutional Court resolved
a dispute between the national government and provincial government
regarding the passing of the Choice on Termination of Pregnancy Amendment
Act.
Therefore, according to the Constitution and legal precedent, the statement that
government spheres should resolve their problems and disputes in the
Constitutional Court is true.
OR
According to the Constitution of the Republic of South Africa, Chapter 13,

Section 167(4), the Constitutional Court is the highest court in the country and
has the authority to hear disputes between different government spheres. This
means that when there are problems or disputes between different levels of

government (national, provincial, or local), they should be resolved in the

Constitutional Court. The Constitutional Court has the power to adjudicate on
matters involving the interpretation, protection, and enforcement of the
Constitution, and it plays a crucial role in ensuring that the principles of
cooperative government and intergovernmental relations are upheld.
Furthermore, in the case of Tongoane and Others v Minister of Agriculture and

Land Affairs and Another (CCT52/09) [2010] ZACC 29, the Constitutional Court
emphasized the importance of cooperative governance and the resolution of
disputes among government spheres, affirming the role of the Constitutional
Court in settling intergovernmental disputes.
Therefore, according to South African law and the Constitution, it is true that
government spheres should resolve their problems and disputes in the
Constitutional Court.
The statement is true.
In South African law, the state is regarded as a permanent entity, while the
government is a temporary structure that changes when elections are held.
The South African Constitution, in Chapter 3, outlines the structure and

functions of the state. Section 40 of the Constitution states that the state is
founded on the values of human dignity, the achievement of equality and the
advancement of human rights and freedoms. This indicates that the state is a
permanent entity that is founded on these principles.
Furthermore, Section 41 of the Constitution establishes the national

government as the central component of government in South Africa. The
national government consists of the President, Deputy President, and Ministers.
The President is the head of state and government, and the Deputy President
and the other Ministers are appointed by the President. This demonstrates that
the government is made up of individuals who are appointed and can change
through the electoral process.

In addition, Section 42 of the Constitution establishes the National Assembly as

the legislative authority of the Republic. Members of the National Assembly are
elected by the public through national elections, which further illustrates that the
composition of the legislature changes through the electoral process.
Therefore, it is clear in South African law that the state is a permanent object,
while the government changes when elections are held, impacting the
composition of both the legislature and the executive.
OR
In the context of South African law, the state is indeed a permanent object,
whereas the government changes when elections are held. The state is the
entity that exercises authority and control over the people within a particular
territory, and it remains in place regardless of changes in government. The
government, on the other hand, refers to the elected officials and political party
in power at a given time.
This has been reiterated in the South African Constitution, which outlines the
distinction between the state and government. The Constitution of South Africa
of 1996 establishes the state as a sovereign, democratic state, and provides for
the election of a new government every five years through national and
provincial elections.
The impact of elections on the composition of the legislature and the executive
is significant, as the outcome of the elections determines the individuals who
will hold office and make decisions on behalf of the state. This demonstrates
the temporary nature of the government in contrast to the permanent existence
of the state.
Therefore, it can be asserted that the state is a permanent object, whereas the
government changes when elections are held and this does indeed impact on
the composition of the legislature and the executive in South African law

PART B (2 ANSWERS PROVIDED)
The Constitution of the Republic of South Africa, 1996, is a transformative

document that established and entrenched various institutions to support
constitutional democracy. Sections 178, 179, 182, and 190 of the Constitution
each create different institutions with unique purposes, functions, and statuses
within the governmental framework. Let's compare and contrast these
institutions:
Section 178: Judicial Service Commission
Purpose: The Judicial Service Commission (JSC) is tasked with advising the
government on judicial matters and plays a pivotal role in the appointment of
judges.
Function: Its main functions include interviewing candidates for judicial

positions and making recommendations for appointments to the bench. The
JSC is also involved in the discipline of judges and upholds the independence,
impartiality, dignity, accessibility, and effectiveness of the courts.
Status: The JSC has a status of significant independence from the other arms
of government, enabling it to carry out its functions without undue influence. It
is composed of a variety of members, including judges, members of the legal
profession, the Minister of Justice, and representatives from the National
Assembly and the National Council of Provinces.
In the case of "Helen Suzman Foundation v Judicial Service Commission 2018

(4) SA 1 (CC)", the Constitutional Court dealt with issues concerning the JSC's
processes for the appointment of judges.
Section 179: National Prosecuting Authority (NPA)
Purpose: The National Prosecuting Authority’s purpose is to ensure justice by

prosecuting criminal offences.

Function: It has the power to institute criminal proceedings on behalf of the

state, to carry out any necessary functions incidental to instituting criminal
proceedings, and to discontinue criminal proceedings. The NPA must exercise
its functions without fear, favour or prejudice.
Status: The NPA is guaranteed independence, but it is still accountable to the

Constitution and the law. It operates under the authority of the National Director
of Public Prosecutions.
In "National Director of Public Prosecutions v Zuma (2009) ZACC 1", the

Constitutional Court considered issues of prosecutorial discretion, underscoring
the NPA's requirement to act independently and without political interference.
Section 182: Public Protector
Purpose: The Public Protector is an ombudsman service provided to South

Africans for 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.
Function: The Public Protector has the power to report on that conduct and to
take appropriate remedial action. The institution operates independently and is
impartial.
Status: The Public Protector has considerable status as an independent

constitutional institution and is only accountable to the National Assembly for its
overall function.
In "Economic Freedom Fighters v Speaker of the National Assembly and

Others; Democratic Alliance v Speaker of the National Assembly and Others
(2016) ZACC 11", the Constitutional Court affirmed the binding nature of the
Public Protector's remedial actions, hence asserting the institution's significant
authority.
Section 190: Electoral Commission

Purpose: The Electoral Commission (IEC) is responsible for managing

elections of national, provincial and municipal legislative bodies in accordance
with national legislation in a manner that is free and fair.
Function: The IEC prepares, manages, and oversees elections and is also
tasked with ensuring that those elections are free and fair. Additionally, the
Electoral Commission can promote voter education.
Status: The Electoral Commission is an independent body that is subject only

to the Constitution and the law. It must be impartial and must exercise its powers
and perform its functions without fear, favour, or prejudice.
Case law specific to the IEC typically involves disputes around the fairness and
conduct of elections, but it does not always reach the level of the highest courts.
Each of these institutions serves a different critical role in South Africa's

constitutional democracy, ensuring checks and balances on power. The JSC
plays a key role in the judicial sphere, the NPA in criminal prosecution and
justice, the Public Protector in safeguarding the public's interest against
maladministration, and the IEC in ensuring the foundational principle of
democracy, free and fair elections. Their independence and impartiality are
central to their effectiveness, and their accountability to the law and the
constitution is an essential component for maintaining public trust and
supporting the rule of law.
OR
Section 178 - Judicial Service Commission
The Judicial Service Commission (JSC) exists to safeguard the independence

of the judiciary, which is fundamental to the democratic state. It provides

recommendations for the appointment of judges and handles matters pertaining

to judicial conduct.
The functions of the JSC include interviewing candidates for judicial positions
and making recommendations for appointments to the President. They also
deal with complaints against judges and can recommend the removal of judges
from office in instances of gross misconduct.
The JSC has a constitutionally mandated status, ensuring that it operates

independently from undue political influence. It consists of members from
various constituencies, including the judiciary, the legal profession, the National
Assembly, the National Council of Provinces, and others, as set forth in the
Constitution.
An example is the case of *Helen Suzman Foundation v Judicial Service

Commission* (2018), which dealt with the transparency of the JSC's
proceedings, particularly regarding the recording and decision-making
processes around judicial appointments.
Section 179 - National Prosecuting Authority (NPA)
The NPA's purpose is to ensure justice by prosecuting criminal cases on behalf

of the state, guided by principles of legality, impartiality, non-arbitrariness and
without fear, favor or prejudice.
The NPA prosecutes criminal offenses and performs other functions as

determined by national legislation. It also has the authority to discontinue
criminal proceedings in certain instances.
The NPA is an autonomous institution, although the Minister of Justice

exercises final responsibility over it. The Constitution guarantees the NPA's
operational independence.
Cases such as *Democratic Alliance v President of South Africa & Others;

Economic Freedom Fighters v President of South Africa & Others; Corruption
Watch NPC & Others v President of South Africa & Others* (2018) assert the

importance of the independence of the head of the NPA and their protection
from political interference.
Section 182 - Public Protector
The Public Protector is an institution supporting constitutional democracy. Its

main purpose is to investigate any conduct in state affairs or public
administration in any sphere of government that is alleged or suspected to be
improper or to result in any impropriety or prejudice.
The Public Protector has the power to report on that conduct and to take
appropriate remedial action. They also have the power to enforce executive
ethics and to address administrative grievances.
The Public Protector is an independent and impartial institution with the

authority to investigate, report, and take appropriate remedial action. The
position serves as a check against misconduct and maladministration in the
government.
A significant case is *Economic Freedom Fighters v Speaker of the National

Assembly and Others; Democratic Alliance v Speaker of the National Assembly
and Others (2016)*, which confirmed the binding nature of the Public Protector's
remedial actions unless reviewed and set aside by a court.
Section 190 - Electoral Commission
The Electoral Commission's purpose is to manage elections of national,

provincial, and municipal legislative bodies to ensure free and fair elections at
all these levels.
The Commission prepares, manages, and oversees elections and

referendums, and it must ensure that these processes are free and fair, regular,
efficient, and credible.

As with other institutions listed above, the Electoral Commission is independent

and must function without bias. Its status is constitutionally protected to ensure
that it executes its mandate without any form of manipulation.
An example is *African National Congress v Municipal Demarcation Board

(2003)*, where the Constitutional Court held that the demarcation of municipal
boundaries, which influences election processes, must be carried out in a
manner that does not infringe upon the Electoral Commission's duties to
conduct elections.
Each of these institutions carries a specific mandate intended to strengthen and

underpin the constitutional democracy of South Africa. They function
independently and are protected by the Constitution to ensure that they are
shielded from undue political influence, thereby maintaining their impartiality.
Enforcement of their mandates is a critical aspect of South Africa's legal system,
as demonstrated by the mentioned case law.

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CSL2601 Assignment 2 (QUALITY

ANSWERS) Semester 1 2024

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QUESTION 1 (2 ANSWERS PROVIDED)

This statement is False.

The most significant aspect of the case of Economic Freedom Fighters v

The significance of the Economic Freedom Fighters case is well explained in

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Downloaded by: ngcobohlengiwe | 1hlengiwen@gmail.com Want to earn

Additionally, the EFF II case highlighted the importance of the independence of

Economic Freedom Fighters v Speaker of the National Assembly and Others;

QUESTION 2 (2 ANSWERS PROVIDED)

This statement is False.

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The principle of subsidiarity asserts that matters should be handled by the

Constitution of the Republic of South Africa, 1996:

Subsidiarity in the European Union: A Literature Review by Deirdre K. Mulligan,

The statement is false.

Judicial overreach occurs when courts go beyond their constitutional mandate

QUESTION 4 (2 ANSWERS PROVIDED)

This statement is False.

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The statement is false because the counter-majoritarian dilemma does have

The relevance of the counter-majoritarian dilemma in South African

Furthermore, the idea that the counter-majoritarian dilemma is a convenient

The counter-majoritarian dilemma is highly relevant to South African

© Study Shack 2024. All rights Reserved +27 68 812 0934

representatives. In the South African context, the Constitution provides a strong

Furthermore, scholars have recognized the significance of the counter-

Minister of Health v Treatment Action Campaign, 2002 (5) SA 721 (CC)

Constitution of the Republic of South Africa, 1996

QUESTION 5 (2 ANSWERS PROVIDED)

This statement is False.

© Study Shack 2024. All rights Reserved +27 68 812 0934

While the concept of multi-sphere governance does involve the distribution of

However, the horizontal distribution of power refers to the separation of powers

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Constitution of the Republic of South Africa, 1996. Available online:

QUESTION 6 (2 ANSWERS PROVIDED)

The statement is false.

Recusal is actually the act of disqualifying oneself from participation in an official

The formal removal of an official office-bearer for gross misconduct or gross

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The distinction between recusal and impeachment is important as they are

Constitution of the Republic of South Africa, 1996. Chapter 9: Institutions

QUESTION 7 (2 ANSWERS PROVIDED)

The statement is true.

Parliamentary privilege is indeed the right to freedom of speech of members of

Furthermore, the concept of parliamentary privilege is also recognized in many

In conclusion, the case of de Lille and Another v Speaker of the National

© Study Shack 2024. All rights Reserved +27 68 812 0934

privilege does indeed protect members of parliament from legal consequences

The judgment emphasized that parliamentary privilege is rooted in the

In summary, the case of de Lille and Another v Speaker of the National

QUESTION 8 (2 ANSWERS PROVIDED)

This statement is True.

In South Africa, public participation is a fundamental principle of the legislative