CSL2601 Assignment 2 – semester 1 (2024)

This assignment has 2 parts (Part A and Part B). All questions must be answered.

It is essential that you fully reference all of your answers using footnotes, where you illustrate
precisely what authority you are relying on to support your answers and convince the reader
that your answer is justified, plausible and logically sound.

You are not allowed to copy and paste any answers out of your study material or from the
internet or any other source. Please note that your examination answers will all be processed
using the Invigilator App, so if you do copy and paste information, it will be immediately
apparent. Furthermore, the use of the thesaurus/synonym function to try to disguise that the
work is copied is not acceptable. For example, if the sentence reads “The Minister of
International Relations and Co-operation referred the letter of withdrawal to the International
Criminal Court”, you will be charged with academic dishonesty if you change the wording to:
The Pastor of Global Relationships sent the letter of withdrawal to the World Crook Tribunal.

The report generated by the Invigilator App clearly indicates copied text in red ink and shows
the words where synonyms were used. This is the evidence that will be used against you if you
are referred for disciplinary proceedings:
An example of the referencing required from you is below. Assume that the question you need to
answer is: Write a brief essay in which you explain South Africa’s transition to democracy.

1 Introduction

In the early 1990s when South Africa was contemplating her transition to democracy, Wiechers
advanced the case for the establishment of a constitutional court. He acknowledged that a
constitutional court would be able to
protect and enforce human rights and liberties [and] to provide expert knowledge and the political as well
as socio-economic understanding which is needed to judge intricate constitutional processes and issues.1

In its development of a unique form of the separation of powers doctrine2 and in pursuit of ensuring a
modern, robust constitutional democracy, the judiciary has viewed its role as complementary to (as
opposed to distinct from) the legislative and executive branches of the state.3

2 A constitutional democracy
Constitutional supremacy;4 separation of powers;5 and the rule of law6 are some of the most prominent
features of South Africa’s constitutional democracy. Systematic failure to comply with the rule of law
culminates in what was described in the Kirland case as ‘a vortex of unpredictability, uncertainty
and irrationality’.7 This is consistent with how Bishop describes public participation: deliberation
is a reciprocal process and ‘involves, at a minimum, “arguments offered by and to participants
who are committed to the values of rationality and impartiality”’ (emphasis in the original). 8
Sustaining order in society is achieved through the application of the concept of constitutional
democracy. The judiciary is empowered to declare any law or any conduct that is not consistent
with the Constitution, invalid.9

3 Conclusion
There is wide-spread acceptance of the Constitution as reflecting the needs and interests of all South
Africans. It has transformed society and the entire legal system to progressively achieve the
objectives of a democracy that promotes freedom, human dignity and equality.

1
Marinus Wiechers ‘A constitutional court for South Africa’ in DJ van Vuuren et al South Africa in the Nineties
(HSRC Publishers 1991) 290.
2
De Lange v Smuts NO 1998 (3) SA 785 (CC) para 60.
3
Pierre de Vos & Warren Freedman (eds) et al South African Constitutional Law in Context (2 ed Oxford University
Press 2021) 56.
4
de Vos & Freedman (n 3 above) 49.
5
de Vos & Freedman (n 3 above) 97.
6
de Vos & Freedman (n 3 above) 79.
7
MEC: Health, Eastern Cape & Another v Kirland Investments (Pty) Ltd 2014 (5) BCLR 547 (CC) para 103.
8 Michael Bishop ‘Vampire or prince? The listening Constitution and Merafong Demarcation Forum & Others
v President of the Republic of South Africa & Others’ (2009) 2 Constitutional Court Review 321.
9 Sec 172 of the Constitution of the Republic of South Africa, 1996 as read with secs 1, 2 and 165 of the
Constitution.
 ASSIGNMENT 2 QUESTIONS

Part A: Justify and explain (with references) why the statement is either True or False
[40 marks. Each answer is worth 2 marks]

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.

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.

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.

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 counter-
revolutionary.

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

governance works in South Africa.

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

incompetence is known as recusal.

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.

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.

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

to become law.

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.
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.

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.

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”.

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.

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.

16. The recommendations of the Public Protector are not binding.

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

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

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

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.

Part B
[20 marks]

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.

{Total: 60 marks}