Assignment 2

Student full name: B.Laboff

Student number: 19792417

Group number: CSL2601

Name of department and University: (Department of

Public, Constitutional & International Law)
Course code and name: (CSL2601 – Constitutional
Law)

Due Date: 2024-04-03

Mylife email address:

[email protected]
Table of Contents
Part A: .................................................................................................................................. 3

Part B ................................................................................................................................... 8

Compare and contrast the institutions established in terms of sections 178; 179; 182 and
190, respectively, of the Constitution. You must provide a full discussion of the purpose,
function and status of each of these institutions. Rely on appropriate case law to fully and
convincingly substantiate your answer. .............................................................................. 8

References ........................................................................................................................ 10
Part A: Justify and explain (with references) why the statement is either True or False

1. 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 that the judiciary has too much political
power and intrudes into the executive domain.

The statement made ‘that the judiciary has too much political power and intrudes into the
executive domain’ is false if we refer to the case of Economic Freedom Fighters v Speaker
of the National Assembly 2018 (2) SA 571 (CC) (EFF II). In actuality, this case upheld the
judiciary's function as a check on the use of public power, especially in light of the National
Assembly's unwillingness to hold the President responsible. In this case, the Constitutional
Court's ruling highlighted the critical role that the judiciary plays in protecting the
Constitution and guaranteeing accountability in the government.1

2. As a member of the uMkhonto we Sizwe party, former President Jacob Zuma has
announced his intention to campaign against the right of LGBTIQ+ people to a family life.
His opinion is that the ‘legislation supporting same-sex marriage lacks support from the
majority of SA’. This scenario is an example of the principle of subsidiarity.

The statement made by President Jacob Zuma the “campaign against the right of LGBTIQ+
people to a family life” and his opinion that the ‘legislation supporting same-sex marriage
lacks support from the majority of SA’ is regarded as an example of the principle of
subsidiarity is false. The principle of subsidiarity emphasizes that decisions should be made
locally as possible, with higher authorities or levels of government only becoming involved
when absolutely necessary. The goal of the campaign and his opinion is an attempt to sway
laws at a higher legislative segment and not those of the principle of subsidiarity. 2

3. When carefully analysed, the recent case of United Democratic Movement and Others v
Eskom Holdings SOC Ltd and Others [2023] ZAGPPHC 280; 005779/2023 (5 May 2023)
– the “loadshedding” case – is an instance of judicial over-reach.

The above statement made is false. The case of United Democratic Movement and
Others v Eskom Holdings SOC Ltd and Others {2023} ZAGPPHC 280; 005779/2023 (5
May 2023) isn’t an instance of judicial over-reach if the case is thoroughly analysed. The
loadshedding case, United Democratic Movement and Others v Eskom Holdings SOC Ltd

1
CSL2601, ‘Tutorial Letter 102/2024’ (2021) CSL2601/102/2024 pg.81
2
Zackie Achmat, ‘Why is Jacob Zuma attacking queer people?’ (2024) <
https://groundup.org.za/article/why-is-jacob-zuma-attacking-queer-people/> accessed 31 January
2024
 and Others {2023} ZAGPPHC 280; 005779/2023, court’s decision was based on the
interpretation of, and application of existing laws and regulations related to the this case,
rather than an instance of judicial over-reach.3

4. The counter-majoritarian dilemma has no relevance to South African Constitutional Law. It

is simply a convenient excuse that politicians invoke when the judiciary is
counterrevolutionary.

A term used in constitutional theory to describe the conflict between judicial review and
democracy is the "counter-majoritarian dilemma." It raises the question of whether
legislation made by elected legislators should be voidable by judges who are not elected.
The problem is pertinent to South African constitutional law since the court is essential to
maintaining the Constitution, particularly when it comes to defending fundamental rights.
But it's crucial to remember that charges against the court for being "counter-
revolutionary" are political assertions that need to be carefully considered in light of the
evidence and legal standards. Consequently, it is false to say that the counter-
majoritarian issue is merely a handy justification used by politicians and has no bearing
on South African constitutional law.4

5. The horizontal distribution of power in South Africa is exactly how multi-sphere

governance works in South Africa.

The statement made above is true.

The division of authority and responsibilities among the national, provincial, and local
fields of government is known as "multi-sphere governance" in South Africa. According to
the Constitution, each field is guaranteed to have its own domains of authority and
responsibility thanks to this horizontal division of power. With each sector contributing
uniquely to the nation's overall governance, this method enables a more inclusive and
balanced approach to governing.5

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

incompetence is known as recusal.

The statement made is not true. Recusal is not the term used to describe the official
removal of an office-bearer due to gross misconduct or gross incompetence.
The act of a judge or prosecutor recusing himself from a case because of a conflict of
interest or for other moral reasons is known as recusal. It doesn't include formally
dismissing an official for misbehaviour or incapacity.6

7. According to the case of de Lille and Another v Speaker of the National Assembly 1998
(3) SA 785 (CC), parliamentary privilege is the right to freedom of speech of members of
parliament and the protection not to be held liable to civil or criminal proceedings, arrest,
imprisonment or damages for saying or revealing anything in Parliament.

3
CSL2601, ‘Tutorial Letter 102/2024’ (2021) pg.56
4
CSL2601, ‘Tutorial Letter 102/2024’ (2021) pg.38-42
5
CSL2601, ‘Tutorial Letter 102/2024’ (2021) Chapter 8 pg.90-95
6
The recusal application, SAFLII Case CCT 16/98
 In the 1998 (3) SA 785 (CC) decision of de Lille and Others v. Speaker of the National
Assembly, the South African Constitutional Court upheld the idea of parliamentary
privilege. This privilege protects members of parliament from arrest, jail, civil or criminal
lawsuits, and financial penalties for remarks made or disclosed in Parliament. It also gives
them the right to free speech inside the chamber. It's crucial to remember that legislative
privilege has limitations. This privilege has restrictions and exceptions even though it
offers a great deal of protection. Parliamentary privilege might not apply, for instance, to
remarks made outside of the bounds of parliamentary activity or in violation of other legal
requirements.

Consequently, even while the statement is generally accurate, it's important to take into
account the specifics and restrictions of parliamentary privilege as stated in the de Lille
case and other pertinent court decisions.7

8. The responsibility placed on the legislature to include the views of interested parties by
permitting submissions being made and considering these views in good faith is known
as public participation.

In the statement, the idea of public involvement in the legislature is explained. It entails
accepting submissions from interested parties and honestly evaluating their opinions.
Public participation is the term used to describe this procedure. Thus, the statement is
true.

9. “Confirmation” is the pre-requisite process in order for a national or provincial constitution

to become law.

The statement made above is false.

The majority of constitutional systems enact or approve a national or provincial
constitution instead of having it confirmed. Usually used to describe a ratification or
approval procedure, confirmation is not necessary for the enactment of a constitution but
may be necessary for international treaties or accords.

10. Universal adult suffrage; a national common voters roll; regular, free and fair elections;
and a multi-party system of government are characteristics of democracy.

The statement made is true.

The characteristic of democracy is:8

Every adult citizen has the right to vote in a universal adult suffrage system.
A single, national voter registration method is known as the "national common voters roll."
Elections are free from force or manipulation, held on a regular schedule, and provide all
parties and candidates an equal chance to compete.
Government with multiple parties: Various political parties can take part in the political
process and vie for power.

7
CSL2601, ‘Tutorial Letter 102/2024’ (2021) pg.61
8
Wikipedia, ‘Politics of South Africa’ (2024)
https://en.wikipedia.org/wiki/Politics_of_South_Africa#:~:text=South%20Africa%20is%20a%20parliam
entary,the%20Cabinet%20of%20South%20Africa accessed 17 February 2024
 These qualities are essential to a democratic system's operation.

11. The rule of law is arguably the most fundamental feature of South Africa’s democratic
dispensation: it imposes a binding duty on the government and individuals to adhere to
prescribed conduct.

It's true. In fact, a cornerstone of South Africa's democratic system is the rule of law. It
makes everyone, including those in positions of power, subject to the law by placing an
obligatory obligation on the government and individuals to follow established conduct
guidelines.

12. The case of Roe v Wade 410 U.S. 113 (1973) is excellent authority when conveying how
the separation of powers doctrine operates in the South African context.

The statement is incorrect to say that the South African separation of powers concept and
Roe v. Wade are comparable. A woman's legal right to an abortion was established by the
famous U.S. Supreme Court case Roe v. Wade. It has nothing to do with the theory of
separation of powers in South Africa. Referencing pertinent South African decisions and
constitutional ideas is more applicable when addressing the South African separation of
powers.9

13. A far-reaching and intrusive power conferred on the executive branch within any of the
nine provinces to guarantee that a municipality within such province complies with a
statutory or constitutional obligation is “intervention”.

The statement made is untrue. The term "intervention" describes the authority granted to
the national executive to become involved in a province's governance in order to
guarantee adherence to laws or the Constitution. This authority is not unique to a
province's executive branch.

14. Section 146 of the Constitution contains the method to determine which Act will prevail
when there is uncertainty about the status of a national or provincial law.

The statement is true. In circumstances where there is question about the status of a
provincial or national law, the procedure for deciding which law would take precedence is
outlined in Section 146 of the South African Constitution.10

15. When referring to the Constitution of 1996 it is necessary to cite the Constitution as the
Constitution of the Republic of South Africa Act 108 of 1996.

It is not required to refer to the 1996 Constitution as the "Constitution of the Republic of
South Africa Act 108 of 1996" while discussing it. All that needs to be cited is "Constitution
of the Republic of South Africa, 1996."11

9
‘Justia: U.S Supreme Court ’(2024) Roe v. Wade, 410 U.S. 113 (1973) ,
https://supreme.justia.com/cases/federal/us/410/113/ accessed 2024
10
CSL2601, ‘Tutorial Letter 102/2024’ (2021) pg.64
11
van Heerden, M. ‘The 1996 Constitution of the Republic of South Africa:
16. The recommendations of the Public Protector are not binding.

The South African Constitution states that the Public Protector's recommendations are
legally binding. The Public Protector is empowered to take necessary corrective action,
and until a court sets it aside, this action is legally obligatory.12

17. Local government elections will be taking place in South Africa in the first half of 2024.

The statement is false.

Local government elections will be taking place in the second half of 2024 on the day 29th
of May.

18. Parliament is prohibited from delegating subordinate regulatory authority to other bodies.

It is lawful for Parliament to assign other organizations subordinate regulatory authority.

This is a standard procedure in many legal systems, whereby Parliament may grant
authority to other bodies or administrative agencies to draft comprehensive regulations
that fit inside the parameters established by the main legislation. As such, the claim that
"Parliament is prohibited from delegating subordinate regulatory authority to other bodies"
is untrue.

19. In terms of the Constitution of the Republic of South Africa, government spheres should
resolve their problems and disputes in the Constitutional Court.

Governmental sectors are required by the Constitution of the Republic of South Africa to
settle their disputes and disagreements before the Constitutional Court.

Before turning to the Constitutional Court, government domains are urged by the
Constitution of the Republic of South Africa to settle their conflicts and issues through
cooperative governance and other channels. But when all other options fail to settle a
disagreement, the Constitutional Court continues to be the last arbiter.

20. The state is a permanent object, whereas the government changes when elections are
held and this impacts on the composition of the legislature and the executive.

The statement above is true.

The people, territory, governance, and sovereignty are all represented by the state, which
is a permanent entity. However, elections change the structure of the government,
affecting the structure of the executive and legislative branches. In the fields of political
science and governance studies, this distinction is crucial.

Ultimately supreme without a number’ <

https://uir.unisa.ac.za/bitstream/handle/10500/2904/vheerden2.pdf?sequence=1&isAllowed=y#:~:text
=Section%201(1)%20of%20the,the%20year%20must%20be%20used.>
12
CSL2601, ‘Tutorial Letter 102/2024’ (2021) pg.84
Part B

Compare and contrast the institutions established in terms of sections 178; 179; 182
and 190, respectively, of the Constitution. You must provide a full discussion of the
purpose, function and status of each of these institutions. Rely on appropriate case
law to fully and convincingly substantiate your answer.

Comparing the Constitutionally Established Institutions:

Section 178: Judicial Service Commission (JSC)

Section 178 of the Constitution establishes the Judicial Service Commission. The promotion
of the courts' efficacy, impartiality, independence, and dignity is its main goal. The JSC is in
charge of selecting judges, dealing with complaints against judges, and formulating
suggestions for enhancing the administration of justice. It is made up of a variety of people,
such as public representatives, judges, and attorneys.13

Section 179: National Prosecuting Authority (NPA)

Section 179 of the Constitution establishes the National Prosecuting Authority. Its role is to
bring criminal cases on behalf of the state and conduct just prosecutions free from bias, fear,
or favour. The NPA oversees looking into and prosecuting criminal charges, and it operates
impartially and independently. The National Director of Public Prosecutions, who leads the
NPA, is chosen by the President and answerable to Parliament.14

Section 182: Public Protector

Section 182 of the Constitution establishes the Public Protector. Its job is to look into and
correct any inappropriate or unfair behavior in public administration or state issues. As a
watchdog, the Public Protector makes sure that public servants and government institutions
follow the law and carry out their assigned responsibilities. Until overturned by a court of law,
the Public Protector's decisions are final and binding since they are unbiased and
independent.15

13
The Constitution of the Republic of South Africa, Chapter 8: Courts and Administration of Justice
(Section 178)
14
The Constitution of the Republic of South Africa, Chapter 8: Courts and Administration of Justice
(Section 179)
15
The Constitution of the Republic of South Africa, Chapter 9: State Institutions supporting
Constitutional Democracy (Section 182)
Section 190: Functions of Electoral Commission
According to Section 190(1) of the Constitution, the Commission's main responsibilities are
to oversee elections at all governmental levels, guarantee free and fair elections, and
announce election results as soon as feasible (within seven days, per the Electoral
Commission Act).16

Case law, such as the Constitutional Court's decisions in various cases involving these
institutions, provides further insight into their roles, powers, and limitations, substantiating
their significance in upholding the Constitution and the rule of law.

The Constitution of the Republic of South Africa, Chapter 9: State Institutions supporting
16

Constitutional Democracy (Section 190)

References
 CSL2601, ‘Tutorial Letter 102/2024: Wrap-around tutorial letter to accompany the
prescribed textbook: de Vos et al South African Constitutional Law in Context 2 nd
edition (2021) Oxford University Press’ (2021)
file:///C:/Users/Bernice/Documents/UNISA/2024/Semester%201/CSL2601/CSL2601%2
0102%202024.pdf
 Zackie Achmat, ‘Why is Jacob Zuma attacking queer people?’ (2024)
<https://groundup.org.za/article/why-is-jacob-zuma-attacking-queer-people/> accessed
31 January 2024
 Wikipedia, ‘Politics of South Africa’ (2024)
https://en.wikipedia.org/wiki/Politics_of_South_Africa#:~:text=South%20Africa%20is%20
a%20parliamentary,the%20Cabinet%20of%20South%20Africa accessed 17 February
2024
 ‘Justia: U.S Supreme Court ’(2024) Roe v. Wade, 410 U.S. 113 (1973) ,
https://supreme.justia.com/cases/federal/us/410/113/ accessed 2024
 van Heerden, M. ‘The 1996 Constitution of the Republic of South Africa: Ultimately
supreme without a number’
<https://uir.unisa.ac.za/bitstream/handle/10500/2904/vheerden2.pdf?sequence=1&isAllo
wed=y#:~:text=Section%201(1)%20of%20the,the%20year%20must%20be%20used.>
 ‘The Constitution of the Republic of South
Africa’,<https://www.gov.za/documents/constitution/constitution-republic-south-africa-
1996-chapter-8-courts-and-administration#:~:text=179.,-
Prosecuting%20authority&text=The%20prosecuting%20authority%20has%20the,incide
ntal%20to%20instituting%20criminal%20proceedings.&text=appropriately%20qualified
%3B%20and-,b.,subject%20to%20subsection%20(5).> accessed 2024