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CSL2601 EXAM PACK 2023
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CSL2601EXAM
PACK
2023
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CSL 2601
QUESTION 1
1.1 By way of examples and references to the appropriate Constitutional Law authorities,
briefly explain the different forms of democracy. (16)
The different forms of democracy are : 1
➢ direct,
➢ representative
➢ participatory,
➢ deliberative or majoritarian
Direct democracy means that the people have a direct say.
Direct democracy occurs in the context of small geographical or territorial units where
every single member of the group has a personal say in the decisions that affect them.
This usually only applies in situations such as a referendum, so does not apply often at
all in a complex, large democracy such as south Africa.
Example: The Merafong Demarcation Forum and Others v President of the Republic of
South Africa and Others2 was a matter brought before the Constitutional Court
concerning the manner in which the legislature had opted to deal with the location of
Merafong City. Ultimately, when the matter came before the Constitutional Court, parts of
Merafong, particularly the township of Khutsong, had become ‘ungovernable’ and
resembled a war zone as residents refused to accept the decision to relocate the
Municipality. This judgment raises some searching questions about the content and limits
1 South African Constitutional Law In Context - Public Law. De Vos Pierre (Editors). Pg 163.
2 Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others
208.
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of direct democracy in South Africa.
Participatory democracy involves being permitted to contribute meaningfully during
decision-making processes. It means that whenever any decisions are made regarding
the amendment or introduction of new legislation occurs, the people must be given an
opportunity to meaningfully participate in this process, failing which the legislation would
be declared invalid for failure to comply with the procedural aspects of the constitution.
The most obvious instance of this is when a Bill is being debated in parliament and the
public is invited to participate.
EXAMPLE: The High Court decision of De Lille and Another v Speaker of the National
Assembly ,3 highlighted the importance of ensuring that the citizenry is properly
represented in the working of the NA. In this matter, the Court was required to decide on
the constitutionality of a decision by an ad hoc committee of the NA to suspend a
member of the NA as a form of punishment for statements she had made before it
Representative democracy entails that the people elect representatives who will speak
on their behalf. The most often cited example of this is where the 400 members of the
National Assembly have been elected by us, to represent us in Parliament.
EXAMPLE: In Doctors for Life 2006 (6) SA 416 (CC),4 the Constitutional Court held
that: participation by the public on a continuous basis provides vitality to the functioning
of representative democracy. It encourages citizens to be actively involved in public
affairs, identify themselves with the institutions of government and become familiar with
the laws as they are made. It enhances the civic dignity of those who participate by
enabling their voices to be heard and taken account of … It strengthens the legitimacy of
legislation in the eyes of the people. The Court held that any failure to afford the public
the ability to participate in proceedings of the NA would have grave implications for the
validity of any conduct in terms of which a law is passed.
The fourth and fifth forms are particularly relevant to the broader question of the proper
3 De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (C).
4 Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)
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functioning of Constitutional Law.
1.2 Succinctly explain, with reference to the relevant authorities, the principle of
constitutional democracy from a South African perspective. (18)
Constitutional democracy means that the entire democratic institution and/or structure of
the state is grounded in adherence to the specific provisions of the Constitution, which
entails that the letter and spirit of the Constitution must be complied with in all actions by
any organ or branch of state in the exercise of their powers.
In a constitutional democracy, such as South Africa, the state is deemed to operate on
the basis of the notion of constitutionalism. In line with the characteristics of a
constitutional state, the fundamental precepts of the South African constitutional state
are a supreme Constitution; the rule of law; democracy; protection of human rights; an
independent judiciary; accountability, responsiveness, openness and transparency (as
per section 1 (d) of the Constitution); and the separation of powers (even though the
separation of powers is not expressly mentioned anywhere in the Constitution).
In terms of s165 of the Constitution,5 the judicial authority of the republic is vested in the
courts who are independent and subject only to the constitution and the law which they
must apply impartially, and without fear, favour or prejudice. S165(5)6 further states that
an order or decision issued by the court binds all persons to whom and organs of state to
which it applies.
The epitome of the rule of law is that no one is above the law and the law applies equally
to everyone. In addition, if the law gives an indication that things should be a certain way,
then that is precisely what should happen. Authority for this line of thinking is found in the
cases of Glenister v President of the Republic of South Africa and Others (2011)7 and
5 Constitution of the Republic of South Africa, 1996. Sec 165.
6 Constitution of the Republic of South Africa, 1996. Sec 165(5).
7 Glenister v President of the Republic of South Africa and Others (2011)
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