CONSTITUTIONAL LAW

TAKEHOME EXAM
AQIEL NAIDOO – ST1003540

QUESTION 1:

Q.1.1)
1.1.1) J1
1.1.2) H2
1.1.3) I3
1.1.4) F4
1.1.5) G5
1.1.6) A6
1.1.7) B7
1.1.8) C8
1.1.9) D9
1.1.10) E10

Q.1.2.1) The South African Parliament is described as a bicameral legislature, this means
that it is made up of two separate houses. These are the National assembly and the National
Council of Provinces. The National Assembly is seen as superior of the two houses in terms
of constutionally and politically although the legislative authority is shared between the two
houses. Bicamerilsm is what encompasses the concept in which the National Assembly and
the National Council of Provinces have varying interests which allows for them to hold
eachother accountable. Due to the bicameral legislature the parliament is assisted in the
reduction of their workload and also assisted in the promotion of the extensive
consideration of the cases and situations placed before them and in turn this allows for a
greater representation for electorates in South Africa and it’s diverse society. The main
focus of bicameralism is to allow for the sufficient and appropriate representation of the
varying interests, in specific, those of the citizens who are represented by the National
Assembly and the 9 provinces, represented by the National Council of Provinces 11.

Q.1.2.2) The National assembly embodies the needs and the interests of South African
citizens in it’s entirety. Section 59 of the constitution of the Republic of South Africa, 1996,
outlines the minimum required amount of MP’s which are needed in order for the National

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de Vos, P & Freedman, W (Eds) Boggenpoel, Z Draga, L Gevers, C Govender, K Lenaghan, P Weeks, SM
Namakula, C Nuama,N Mailula, D Moyo, K Sibanda, $ Stone, L South African Constitutional Law in Context 2™*
ed (2021) 5
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de Vos et al South African Constitutional Law in Context 5
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assembly to make decisions12. These quorums also set apart the difference between Bills or
the ammendments made to Bills and any other questions that may arise in front of the
National assembly when making a vote. During the NA voting procedures there is a
minimum attendance of it’s members which is required and this is 201. When a vote is taken
on a question is posed to the NA, for which there is a minimum attendance requirement
which is a third of it’s members in total, this is 134 members. The speaker or the deputy
speaker has the power to halt or even postpone the decision and proceedings of the given
question if the minimum attendance requirement for the NA has not been met 5 to 15
minutes from the time of which the bell has been rung13. The majority of the questions
which are posed before the NA are decided upon by a majority vote of the “cast”, which are
made by the members who are present at that time, during the proceedings although in
some scenarios the requirements of voting and the quorum are even greater.
Q.1.2.3) Section 211 (1) states that the National House of Traditional leaders (National
House) may deal only with advisory powers rather than legislative powers. The National
House is simply advisory and due to this, the body doesn’t have the authority to participate
in non – advisory roles or change and reject legislation in terms of the processes which
surround legislature, this can be seen outlined in the Constitution in sections 74 to 77. The
National house is able to take the Bills which the secretary of Parliament refers to into
consideration with regards to the Framework Act, section 18. The National House has the
ability to consider Bills which are related to the customs of traditional communities and
customary law. This House also has the ability to “make recommendations” and “advise the
national government” regarding legislation and policy which concerns the role played by
traditional leaders, traditional leadership and the customs of communities who practice a
system which pertains to customary law and customary law in itself, whilst investigating and
giving information which concern traditional communities and leadership.=, including
customs and customary law. National government development programmes which affect
traditional communities, is a matter which also requires the consultation of the National
House. There are also duties which are placed upon the National House by the NHTLA. Most
of these duties put no imperative repercussions on Parliament and are unclear. These duties
are inclusive of cooperation with the provincial houses and the promotion of the following,
the role assumed by a traditional leader in a democratic and constitutional system. The
stability, peace and unity within communities are also included in this along with, Nation
Building, service delivery and socio – economic growth and betterment, the maintenance of
the traditions and cultures which are already embedded in communities, the modification
and altering of customary and custom law ensuring it’s compliance with the Bill of Rights as
per the constitution, the upkeep of the morality and renewal of society and the protection
and well being of communities as a whole14.

QUESTION 2:

2.1) when a person claims that a fundamental right within the Bill of Rights has been
violated or infringed upon by another person, a very specific process must be followed in

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order for it to be established whether the claim is truthful or not. Each stage requires for the
courts to pose various questions15.

The first of these stages is the application/procedural stage, the court must pose the
following questions; ‘Is party X able to go to court in order to allege that their right was
violated or infringed upon?’, ‘Which court has the authority to establish a threat or real
violation of the rights which are imbedded in the Bill of Rights?’, ‘Is the organization or
individual who supposedly violated the rights of party X legally bound by the obligations
given by the right?’, and ‘After the court “a quo” has held that the conduct or law is invalid,
is the process concluded?’16.

The limitation stage places the following questions before the court, ‘What is the content
and scope of the given right and does the accused violate this right?’, after this, if this is the
case, ‘would the violation be justifiable in terms of the limitation clause which is outlined in
section 36 of the Constitution?’17

After this, the final stage being the remedy stage, a singular question is posed; ‘In the event
that the court deems the conduct or law to unjustifiably infringe upon or violate the given
right, what can the court do in order to solve or remedy this infringement/violation?’ 18.

2.2) As the constitutions states, section 8(1) regulates the direct vertical application of the
Bill of Rights, whereas the direct horizontal application of the Bill of Rights 19 is regulated by
section 8(2). This section of the Constitutions states the following, ‘(a) provision of the Bill of
Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking
into account the nature of the right and the the nature of any duty that is imposed by the
right”. With reference to the case of Khumalo v Holomisa, the constitutional court had to
answer numerous questions. One of these questions were related to whether or not section
16 of the Constitution, in terms20 of the right to the freedom of expression, had a direct
relation to the question at hand, despite the fact that it had been governed by common law
and neither party that was involved formed as a part of the state or an organ of the state.
When answering these questions the court had two issues which they needed to remedy.
The first question was whether sections 8(1) or 8(2) of the constitution dealt with the direct
horizontal application of the Bill of Rights. The second question was whether section 8(2) of
the Constitution had controlled the direct horizontal application of the Bill of Rights,
whether or not section 16 properly fulfilled the requirements which are stipulated in section
8(2)21.

In terms of the initial question, the Constitutional Court found that section 8(2) of the
constitutionrather than section 8(1) had ruled the direct horizontal application of the Bill of
Rights. The court highlighted that section 8(1) and section 8(2) differentiate between two
different categories of institutions/establishments and individuals that are legally bound by
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the Bill of Rights22. The legislature, executive and the judiciary, as well as other parts and
organs of the state that don’t have qualification are bound by section 8(1). Section 8(2)
states that both juristic and natural persons are subject to and also bound by the Bill of
Rights23.

2.3) according to the stipulations with regards to juristic persons within the constitution,
(juristic persons such as universities and churches or even companies) which have a legal
personality, are entitled to a certain number of rights which are listed on the Bill of Rights in
certain circumstances. It should also be noted that juristic persons cant always claim 24 and
seek the protection which is provided by the fundamental rights as natural persons such as
human beings can25. In section 8(4) of the Constitution it is stated that a juristic person is
entitled to the rights which are listed on the Bill of Rights to an extent required by the
nature of said rights and the nature of that specific juristic person. The court must consider
two factors when determining whether a juristic person is able to claim rights under the Bill
of Rights. These are; ‘the nature of the right which is being invoked’ and the nature of the
juristic person who is in question. The first factor shows that there are specific rights which
due to their nature, aren’t applicable to juristic entities. Examples of these rights would be
the right to vote, the right to food and healthcare and even the right to social security. This
is due to the fact that these rights are meant to cater for human beings and therefore
cannot be claimed and used by juristic persons. However there are rights which juristic
persons are able to claim and these rights are rights such as, the right to privacy and the
right to freedom of association therefore giving the media company the eligibility to claim
the security and the benefits which are provided by the Bill of Rights26.

2.4) Section 39(2)27 of the Constitution provides for the indirect application of the Bill of
Rights to the common law. The Constitutional Court has taken various circumstances into
consideration under which courts may and are required to develop common law in various
instances. Although the court had established that in these cases even though the courts are
obligated to alter and develop the common law28, they aren’t obligated to do this in all cases
which are presented to them. In terms of the case between Carmichele v Minister of Safety
and Security, The constitutional court had found the following, the duty which is placed on
the courts in order to alter and develop the common law within the limitations shown in
section 39(2)29 of the constitution, it cannot be described as discretionary. Though, section
39(2), when interpreted in regards to with section 173, it becomes clear that the current
standing of the common law is inadequate in the promotion of the principles which are
exposed in section 39(2), therefore the courts sustain the task of sufficiently developing this
law sufficiently30.

QUESTION 3

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3.1) In terms of the Constitution, section 18, the right to freedom of association enables for
and protects the rights of people to; refrain from interacting with those who they choose, to
associate and interact with those who they choose, to protect and ensure a security for such
relationships form interference which is unwanted and to develop and make relationships
or even intimate connections with other individuals who they have things in common with
such as cultural and religious beliefs. In terms of the case of New Movement NPC and others
v President of the Republic of South Africa, the Constitutional Court was asked to
established whether or not section 19(3)(b) 31 of the Constitution had been violated due to
the party’s proportional representation electoral disallowed adult citizens from running for
election within the NA and provincial legislatures as independent candidates. Due to the
various stipulations in the Constitution needing to be interpreted in correspondence with
one another, the Constitutional Court found that it was appropriate to take the
interpretation of 19(3)(b) which was found to be the most coherent to numerous other
provisions which had been inbedded in the Constitution and that it correlated best with the
right of “freedom of association”32. When this decision had been reached it was made the
responsibility of the Constitutional Court to determine whether section 18 included the
positive right to associate and the negative right to not associate33.

3.2) The right to the freedom of expression is seen as very responsible for two main reasons,
these being; the right contributes to the objective of creating and consolidating democratic
society. The second reason being that the right acts as a fundamental of what the meaning
of being a human being is, this is because this right encourages and allows for people to
have the ability to make wiser and informed decsions with regards to their lives, this enables
people to determine who they are and how they want to lead their lives34.

QUESTION 4
4.1) The suspensions would be seen as fitting and therefore used in the case of a court
finding the conduct or legislation to be invalid at that time. This order takes effect
instantaneously. In section 17(1)(b)(ii) of constitution, a court is made able to aadjourn the
consequence and impact of a declaration of invalidity for a limited period of time, acting in
the interests of justice and equality when it is found that the law is found to be incoherent
or acting in violation of the Constitution. Parliament corrects the error within the given time
period and the legislative provision which had been determined to be invalid remains
effective in the course that the Court auapends or even imposes an order of invalidity. If it is
remedied in the given time period, the declaration is ceased and all or any actions taken
with regards to the law are deemed valid35. A court is also able to suspend or impose an
order of invalidity in the circumstances that the error found in the legislation in question can
be seen as completely procedural36.

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4.2) A structural interdict is also known as a supervisory interdict. This is an interdict which
is a form of an order that requires the government37 to report backl to the court at
regulated intervals in terms of the steps being taken to comply with the Constitution. the
goal of structural interdict is to reach mutually acceptable and attainable implementation of
a strategy which ensures constitutional rights. Said interdicts generally proceed through a
series of steps, which are as follows; the outline is a declaration which is made by the court
which provides that the given conduct in question or conduct given is invalid38 or
unconstitutional39. This is then followed by the court outlining steps required to be taken in
order to make the unconstitutional conduct constitutional. This is a process which is done by
the court extending an invitation to the department of the government which has been
unsuccessful in the execution of it’s constitutional obligation. Once the order is given the
department of government is needed to construct a plan 40 keeping in mind the human and
budget limitations which are put into place41.

REFERENCE LIST
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TABLE OF STATUTES:

The constitution of the Republic of South Africa

The Framework Act 41 of 2003

TABLE OF CASES
Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)
Khumalo v Holomisa 2002 (5) SA 401 (CC)
New Nation Movement NPC and others v President of the Republic of South Africa and
others 2019 (5) SA 533 (WCC)

BOOKS

de Vos, P & Freedman, W (Eds) Boggenpoel, Z Draga, L Gevers, C Govender, K Lenaghan, P

Weeks, SM Namakula, C Nuama,N Mailula, D Moyo, K Sibanda, $ Stone, L South African
Constitutional Law in Context 2™* ed (2021)