UNIVERSITY EXAMINATIONS

January/February 2021

CSL2601
Constitutional Law
100 Marks
4:00 Hours
EXAMINERS:
First: Prof L Stone
Second: Prof M J Mathenjwa

CONFIDENTIAL
INSTRUCTIONS FOR A TAKE HOME EXAM ON MYADMIN

PLEASE READ THE FOLLOWING INSTRUCTIONS CAREFULLY BEFORE ANSWERING

THE EXAMINATION QUESTIONS.

1. This examination paper consists of 7 pages

2. The examination question paper counts 100 marks.

3. Section A consists of 25 true or false questions, worth 2 marks each (ie: 50

marks). Section B consists of three questions: two are out of 20 marks and the
other is out of 10 marks. You must answer all questions from Sections A and B.

4. The duration of the examination is 4 hours. Your portfolio must be submitted via
myUnisa on 12 February 2021.

5. Refer to binding and precedent-setting case law and/or other legal authorities to
support your answers.

6. Take note of the marks allocated to each question and make sure that your answer is
reconciled with this mark allocation. In other words, do not write a comprehensive
answer if the question only counts for a few marks; and the opposite also applies.

7. While the examination is in progress, you are not allowed to consult another person or
any source in order to assist you to answer any of the questions contained in this
question paper. While the examination is in progress, you may not assist another
student in answering any of the questions contained in this question paper.

8. Your answers to this examination must be submitted online on myUnisa.

8.1 How do I upload my answer file?

8.1.1 On the landing page for myUnisa, before login, go back to the link where you
downloaded your examination paper: Login and download my Exam Question Paper
for Jan/Feb 2021.
8.1.2 Login using your student number and myUnisa password
8.1.3 On the next screen, find the module code for which you want to submit an answer file.
Click on the link to “submit answer file”. This link will only display if the examination
session is still open for file submissions.
8.1.4 A new screen will open that will guide you through the steps to upload your answers.
Step 1: Load answer file from your phone or computer to myUnisa and complete the Honesty
Declaration
• Click on the Browse button next to File Name
• In the Choose File dialog box, select the file you want to upload, and then click OK. Be
careful. Select the correct document.
• Select the correct programme format from the File Format drop-down list. Most
modules only allow PDF formatted files to be uploaded.
• Read the Honesty Declaration statement.
• If you agree with the Honesty Declaration statement, type I AGREE in the text box.
You cannot continue with the upload process if you do not complete the requirements
of the declaration.
• Click on the Continue button.
Step 2: Verify the file details for final submission of your answer file
Use this step to verify that you are uploading the correct answer file to the correct course and
assessment number.
• Click on the Continue button to submit your answer file. If you do not click Continue,
no submission action will take place.
• Large files will take longer to upload than smaller files. Please be patient after you’ve
clicked Continue.
• If the wrong details, e.g. file name, appear on the screen, click Back to restart the file
upload process.
Step 3: Assessment submission report
This is your proof that your answer file was submitted. It is advisable to print this page or make
a screen capture for record purposes. A copy of this page will also be emailed to your myLife
email account.

8.2 Preparing your answer file

8.2.1 Your answer file must contain ALL the pages you want to submit. Do not submit your
scanned pages one-by-one. Each time you upload a file it REPLACES the previous
submission. Only the last file received by Unisa will be marked.
8.2.2 Do not password-protect your file. A 0 mark will be assigned.
8.2.3 The first page should clearly state your name, student number and the module code.
See the examination question paper for details.
8.3 Number all the pages in your answer file.
8.4 Write with a black pen, not a pencil, if hand-writing the submission.
8.5 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.
8.6 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.

9. The cover page must include your name, student number and the module code.

10. It is preferred that your portfolio is typed, however, handwritten submissions will also
be accepted. If the portfolio is typed, the maximum length is 8 pages (which includes
 the cover page and the bibliography). If the portfolio is handwritten, the maximum
length is 10 pages (which includes the cover page and the bibliography).
11. Whether your answers are typed or handwritten, your submission on myUnisa must be
made in the form of one PDF document.
12. If your answers are typed, ensure that the following requirements are adhered to. Items
11.4-11.6 applies to written assignments as well.
12.1 The text must be typed in Arial font, size 12 with single line spacing within the
paragraph, and double line spacing after the paragraph.
12.2 All of the pages must be numbered in the bottom right hand corner of the page.
12.3 All margins must be 2.5cm, with the text justified.
12.4 South African English and not American English should be used.
12.5 Do not use abbreviations or SMS language.
12.6 All quotes of two lines long (or less), must form part of the main text, and be bracketed
by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in italics in size 11 font and must be indented by 1 cm. No
quotation marks are required when the quotations stand alone. Use quotations
sparingly. In this portfolio, a maximum of 5% of the text may be quoted.

13. When answering the portfolio questions, remember that an open-book exam is a test
at a higher level than the usual type of exam, where memory is tested as much as
insight. In an open-book exam, you need not memorise any information. You are
expected to prove that you can use information, rather than merely repeat it. In brief,
what is being tested is factual knowledge, understanding and the correct application
thereof, not memory skills. For this reason, you do not earn marks by merely detailing
a list of all the information that you think might be relevant to a particular question. You
are expected to identify precisely what information applies, and then explain why you
think so. Also, because you have the guide available when answering questions, we
do not give marks for direct quotations from the guide. You are therefore assessed on
your level of understanding of the legal principles by looking at how well you applied
the principles to the questions. PLEASE DO NOT CUT AND PASTE ANSWERS
FROM THE STUDY GUIDE (OR ANY OTHER SOURCE) AS YOU WILL BE
SEVERELY PUNISHED AND AWARDED A MARK OF 0.

14. The arguments that you make must be logical, well-structured and substantiated by all
of the relevant legal principles. You are given four hours to complete the portfolio.
14.1 Ensure that you give reasons for each answer. Substantiate your answers by referring
to ALL of the relevant authorities, e.g. sections from relevant legislation and/or court
cases in the text or in your footnotes.
14.2 You are required to have read and summarised the prescribed cases yourself. The
summaries in the Study Guide are not sufficient for this exam. When using case law to
support your answer, please include complete references to the relevant cases in your
footnotes. This means that you must also insert the exact page and section and/or
paragraph where the information can be found. The same applies to articles and books.
PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your
examination answers are not submitted by the cut-off time, you will be marked as absent. You
have to apply online to be deferred to the next exam opportunity. No other type of submission
of your examination answers will be accepted.
 SECTION A: TRUE OR FALSE

Starting on a new page, you must answer each of the following questions by
writing True or False for your response to each of the 25 statements below.

1. The case of Abahlali baseMjondolo Movement SA and Another v Premier of the

Province of KwaZulu-Natal and Others 2010 (2) BCLR 99 (CC) has set out a
compelling method of establishing whether the substance of a law falls within
the functional mandate of the national or provincial legislature. (2)

2. Section 1(d) of the Constitution affirms that South Africa has made the radical
shift from parliamentary sovereignty. (2)

3. The Constitution of South Africa of 1996 is an inflexible constitution. (2)

4. Democracy is the central pillar around which the South African state is arranged,
thus making South Africa a constitutional democracy. (2)

5. Judicial authority in South Africa is vested in the president who appoints judges
of the Constitutional Court. (2)

6. Under no circumstances can the president of the Republic of South Africa

dissolve the National Assembly, because the president himself is elected by the
National Assembly. (2)

7. The president is obligated to appoint ministers only from members of the

National Assembly. (2)

8. The Supreme Court of Appeal may decide disputes between organs of state in
the national or provincial spheres concerning the functional status of any of
those organs of state. (2)

9. A decision of the Judicial Service Commission about the appointment or non-

appointment of judges is not reviewable by a court of law. (2)

10. The rally cry “Burn to be heard” was employed during the 2015/2016 student
protests at South African universities. The primary demand by students is for a
decolonised and Africanised education. However, because South African
Constitutional Law is based on the colonial Westminster parliamentary system,
there is no way that Constitutional Law can be decolonised or Africanised. (2)
11. In Premier: Limpopo Province v Speaker of Limpopo Provincial Legislature 2011
(11) BCLR 1181(CC), it was held that, unlike Parliament, which has plenary
legislative powers, the legislative powers of provinces are clearly defined. (2)

12. The Public Protector’s remedial action might at times have a binding effect.
Thus, compliance with the remedial action of the Public Protector is optional. (2)

13. In Economic Freedom Fighters and Others v Speaker of the National Assembly
and Others 2018 (2) SA 571 (CC), it was held that since the National Assembly
plays no role in the appointment of members of the Cabinet, it does not have the
power to remove members of the Cabinet from office. (2)

14. The executive power conferred upon the president to appoint and dismiss
ministers is wide-ranging, but at the very least the exercise of the power must
meet the test of rationality. (2)

15. Parliament may assign its legislative authority, including the power to amend
the Constitution to a provincial legislature. (2)

16. South Africa’s National Development Plan 2030 projects the characteristics that
are integral to South Africa’s future: ‘its emerging identity, ethics, morality,
indigenous systems, struggle for liberation, the Constitution, and the creation
of a non-racial society’. Since the rule of law is not specifically mentioned, there
is no obligation on government to comply with the rule of law. (2)

17. The National Council of Provinces (NCOP) oversees the national executive by
reviewing intervention of the national executive in a province. (2)

18. The provincial legislature cannot recall a permanent delegate to the NCOP. (2)

19. The Independent Electoral Commission is not required to observe and adhere
to the principles of co-operative government in terms of section 41(2) of the
Constitution. (2)

20. The Constitution of the Republic of South Africa, 1996 establishes a form of
parliamentary government which requires members of the Cabinet to account
and report to Parliament regularly. (2)
21. The majority party in the National Assembly is allowed to use its majority and
block the tabling, discussion and voting on a vote of no confidence to the
president. (2)

22. The counter-majoritarian dilemma poses a threat to South Africa’s democracy

because the judiciary has more power than the legislature or the executive and
is often seen to be counter-revolutionary. (2)

23. A Bill is usually introduced by a Cabinet Minister in the National Assembly, but
a member of the National Assembly is also entitled to initiate and introduce a
Bill in the National Assembly. (2)

24. The role of the Judicial Service Commission (JSC) in the appointment of judges
differs depending on the nature of the appointment to be made. Thus, the
president appoints the Chief Justice on the recommendations of the JSC. (2)

25. Traditional courts are not recognised under the Constitution of the Republic of
South Africa, 1996, because they are still regulated by egregious apartheid law
– the Black Administration Act 38 of 1927. (2)
[50]
SECTION B
Answer the following three (3) questions in as much detail as possible and by
relying on appropriate authority to substantiate your answers.

Question 1
In the “Nkandla case” (Economic Freedom Fighters v Speaker of the National Assembly
and Others; Democratic Alliance v Speaker of the National Assembly and Others 2016
(3) SA 580 (CC), Chief Justice Mogoeng Mogoeng made the following remarks:
The rule of law requires that no power be exercised unless it is sanctioned by law, and no
decision or step sanctioned by law may be ignored based purely on a contrary view. It is
not open to any of us to pick and choose which of the otherwise effectual consequences of
the exercise of constitutional or statutory power will be disregarded and which given heed
to. Our foundational value of the rule of law demands of us, as a law-abiding people, to
obey decisions made by those clothed with the legal authority to make them or else
approach courts of law to set them aside, so we may validly escape their binding force.

In light of this statement by the Chief Justice as well as relying on relevant authority to
substantiate your view, you are required to fully explain exactly what the three
concepts of ‘the rule of law’, ‘constitutionalism’ and ‘separation of powers’ means and
how they are applied in South Africa. (30)
Question 2
Provide your own analysis of the importance of the case of Corruption Watch NPC &
Others v President of the Republic of South Africa; Nxasana v Corruption Watch NPC
2018 (10) BCLR 1179 (CC) for Constitutional Law. Your analysis must include a
discussion of the role and function of the National Prosecuting Authority. (10)

Question 3
In City of Cape Town and Others v Robertson and Others 2005 (2) SA 323 (CC), the
Constitutional Court made it clear that the Constitution has moved away from a
hierarchical division of governmental power. It has ushered in a new vision of
government in which the local government is interdependent, ‘inviolable and
possesses the constitutional latitude within which to define and express its unique
character’ subject to constraints permissible under our Constitution.

Against the backdrop of this short description, provide a summary of how co-operative
government works in South Africa. (10)
[50]
Total: {100}
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UNISA 2020