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2016 - TUTORIAL LETTER 201
Indicate whether the following statements are TRUE or FALSE. Use 1 for “true” or 2 for
“false”:
1. There is no criterion for the selection and appointment of judges to the Constitutional
Court. (1)
False. Section 174 of the Constitution states that the criteria for appointment of judges to
the Constitutional Court are: “appropriately qualified”; “fit and proper”; “woman or man”;
“South African citizen”; “racial and gender composition of South Africa must be
considered”; and “at least four members of the Constitutional Court must be persons who
were judges at the time they were appointed to the Constitutional Court”.
2. According to the Constitution, when appointing members of the Cabinet, the President
must select all Ministers from the members of the National Assembly. (1)
False. Section 91(3)(c) states that the President may select no more than two Ministers
from outside the Assembly when appointing members of the Cabinet.
3. The Constitutional Court in Doctors for Life International v Speaker of the National
Assembly 2006 (12) BCLR 1399 (CC) held that public involvement is one of the essential
features of participatory democracy in the law-making process, which had long been
established under the system of customary law through imbizos or lekgotlas. (1)
True. At paragraph 227 of the judgment, Sachs J states that, in South Africa, “we have
developed a rich culture of imbizo, lekgotla, bosberaad, and indaba”; hence public
involvement in our country “has ancient origins and continues to be a strongly creative
characteristic of our democracy”.
4. The provincial legislatures have exclusive legislative authority in relation to matters
which fall under Schedule 4 of the Constitution. (1)
False. Schedule 4 of the Constitution sets out those functional areas over which both the
national legislature and the provincial legislatures have concurrent competence. It is
Schedule 5 which sets out the functional areas over which the provincial legislatures have
exclusive legislative authority, albeit that Part B of Schedule 5 sets out the areas over
which local government may regulate its own affairs.
5. In the case of Democratic Alliance v President of South Africa and Others 2012 (12)
BCLR 1297 (CC), the court affirmed that the principle of legality has become possibly the
most important and often invoked principle of the rule of law in South Africa. (1)
True. The principle of legality can be described as the notion that the exercise of public or
governmental power is legitimate and valid only when it is lawful. As a principle of the rule
of law, this means that even the President is bound by the law and must apply his mind to
the provisions of relevant laws, such as the National Prosecuting Authority Act when
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appointing the National Director of Public Prosecutions. If the President fails to do so, his
exercise of public power is invalid.
6. According to section 42 of the 1996 Constitution, it is only the National Assembly that
should participate in the legislative process of the country. (1)
False. The National Council of Provinces also participates in the legislative process.
7. Although the principle of separation of powers is not expressly mentioned in the
Constitution, it is implicit in the Constitution and is of the same force as any expressed
constitutional provision. (1)
True. It is evident from the structure of the Constitution that a clear separation of powers
exists, in that Chapters 4, 5 and 8 of the Constitution make provision for the legislature,
the executive and the judiciary, respectively. Moreover, there has been a multitude of
cases where the courts have categorically stated that a distinct form of separation of
powers exists in South Africa and that each of the three principal organs of state must
respect the institutional integrity of the other.
8. The Constitutional recognition of customary law as a legitimate system of law
alongside other legal systems in South Africa means that customary law enjoys equal
recognition as a source of law. (1)
True. The only qualification is that, if the customary law concerned is not compatible with
the Bill of Rights, it must be developed so that it gives effect to the spirit, purport and
objects of the Bill of Rights (as stated in section 39(2) and (3) (read conjunctively)).
9. In a constitutional democracy like that of South Africa, Parliament is allowed to
delegate its “essential legislative functions”, including the power to amend its laws, to
the executive, including the President and Cabinet Ministers. (1)
False. According to the case of Executive Council of the Western Cape Legislature and
Others v President of the Republic of South Africa and Others, the court held that, while
delegation of legislative power is indeed permissible, the doctrine of separation of powers
demands that there be limits to the nature or extent of the power to be delegated by
Parliament to the executive. Therefore, Parliament cannot delegate its plenary (essential
legislative functions) to the executive branch; it can only delegate subordinate regulatory
authority to other bodies.
10. There is a difference between constitutional supremacy as a value captured in
section 1 of the Constitution and the declaration of constitutional supremacy as a
binding and enforceable rule set out in section 2 of the Constitution. (1)
False. The effect of constitutional supremacy being stated as a value and as a rule results in
the same conclusion. The effect of constitutional supremacy is that the Constitution is the
supreme law of the land and all law and all conduct must comply with the Constitution,
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failing which it must be declared invalid; hence even the value of constitutional supremacy
is binding and enforceable.
CSL2601
2014
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