CSL2601 EXAM PACK
2022/2023
,Indicate whether the statements are TRUE or FALSE by indicating 1 for TRUE or 2 for FALSE:
1. In March 2011, the Constitutional Court ruled that the Hawks (the corruption-fighting
unit of the South African Police Service) lacked sufficient operational and structural
independence to enable them to properly combat corruption. The Court therefore
declared that the laws which disbanded the Scorpions and created the Hawks in their
place (the National Prosecuting Authority Amendment Act and the South African Police
Service Amendment Act) were unconstitutional. In order to rectify the
unconstitutionality, the Court drafted a new law, called the Eradication of Corrupt
Activities Act 24 of 2013. (1)
False. In terms of the separation of powers doctrine, the judiciary is not permitted to intrude into
the proper domain of the legislature and write laws on its behalf. Therefore, the judiciary referred
the matter back to the legislature with the instruction to ensure that the new law that is drafted
guarantees the operational and structural independence of the Hawks.
2. Smallfontein is a town in the Gauteng province. It is run by a council which is elected
on an annual basis, has its own flag and currency. The community is also in the
process of applying to have Smallfontein declared an independent legal entity within
the City of Tshwane. In constitutional law terms, Smallfontein is a state. (1)
False. Smallfontein cannot yet be classified as a state. The characteristics of a state are:
1) a specific, geographically defined territory
2) a community of people who live within that territory
3) a legal order to which the community is subject
4) an organised system of government which is able to uphold the legal order
5) a certain measure, at least of separate political identity, if not sovereign political status.
From the facts we are able to determine that despite the fact that the first four requirements are
met, Smallfontein is still in the process of applying for independent legalstatus, thus it does not yet
have a separate political identity. Since not all of the requirements have been met, it is not a state.
3. The rule that Parliament may delegate powers to other branches of state is determined
by the “nature and extent of the delegation” and serves to ensure that the legislature is
not overwhelmed by the need to determine minor regulatory details. However, it is
imperative that a distinction be drawn between delegation to make subordinate
legislation within the framework of an empowering statute and “assigning plenary
2
, legislative powers to another body”. What this entails is that Parliament may not
delegate its “essential legislative functions” to the executive, although it is free to
delegate power to make regulations which are aimed at implementing legislation. (1)
True. The core duty of drafting original legislation is the exclusive responsibility of the legislature
in terms of the separation of powers doctrine. The legislation passed by Parliament isoften only in
“skeleton” form (like the Constitution itself, which does not elaborate on how its provisions are to
be interpreted, but merely states that law). Invariably, in order for the legislation to “come alive”
and be able to be implemented, regulations are required because these give substance (“meat”)
to the law. These regulations that accompany the law are drafted by the executive, since the
executive is responsible for implementing the law and it knows best how the law should be
implemented because it is in possession of the relevant detail concerning the amount of money
and personnel or other resources available in order to implement the law. Thus, the legislature
does delegate the power to make regulations to the executive and this is consistent with the
unique form of separation of powers that South Africa subscribes to.
4. In Executive Council of Western Cape Legislature v President of the Republic 1995 (4)
SA 877 (CC), it was held that Parliament can delegate its power to make, amend and
repeal Acts of Parliament because it is universally accepted in modern societies that
Parliament cannot attend to every single task that it is enjoined to perform. (1)
False. In terms of the separation of powers doctrine, it is the legislature’s duty to make, amend
and repeal Acts of Parliament, as provided for in section 44 of the Constitution. It would be an
invalid and unconstitutional delegation of power for the legislature to delegate this power to one of
the other branches of the state. The only exception to this rule, however, which still renders the
question false because the delegation is not a specific delegation, but one which is specifiedin the
Constitution, is that the national legislature is permitted to delegate the making of a law to a
provincial legislature if the matter concerns that province. This is not an unlawful delegation,
because the provincial legislature also has law-making powers.
5. Cooperative government refers to division of legislative and executive authority
between three spheres of state: national, provincial and local. (1)
True. The distinction between the separation of powers and cooperative (or multilevel
government as it is also referred to) is that the separation of powers concerns the division of
powers and functions between the legislature, the executive and the judiciary, while cooperative
government concerns how the legislative branch operates between the three spheres (namely
national, provincial and local) and how the executive branch operates at national, provincial and
local government level. It is acknowledged, however, that national government may intervene if
3
, local government is not performing its tasks in terms of the Constitution, whereas the legislature is
not permitted to intervene in the executive branch in the context of the separation of powers.
6. There is a dramatic difference between constitutional supremacy as a value captured
by section 1 of the Constitution and the declaration of constitutional supremacy as a
binding and enforceable rule set out in section 2. (1)
False. There is no difference between the two. See pages 54 to 59 of the textbook.
7. According to section 83 of the Constitution, the President is head of the national
executive; therefore his powers exclusively involve exercise of executive functions.(1)
False. Section 83 also states that the President is the Head of State. In his capacity as theHead
of State, his functions are not executive functions at all. As stated in section 84, there are certain
functions which only he must perform and which are not executive in nature, such as receiving
ambassadors, plenipotentiaries, and diplomatic and consular representatives. These persons
represent other sovereign states, thus the President is to receive them in his capacity as the
head of the sovereign state of South Africa.
8. Magistrates’ courts have power to declare conduct of the President unconstitutional. (1)
False. Section 170 of the Constitution explicitly states that “a court of a status lower than the High
Court of South Africa may not enquire into or rule on the constitutionality of any legislation or any
conduct of the President”. Therefore, magistrates’ courts have no constitutional jurisdiction (the
right to decide matters relating to the constitutionality of a law or conduct).
9. The case of S v Van Rooyen (General Council of the Bar Intervening) 2002 (5) SA 246
established the test for judicial independence. As such, the test for independence is
whether the court “from the objective standpoint of a reasonable and informed person,
will be perceived as enjoying the essential conditions of independence”. (1)
True. Paragraph 32 of the judgment, as discussed on pages 227 to 228 of the textbook, highlights
that this is the test to be used to ascertain whether the judiciary is independent.
10. The fact that the National Prosecuting Authority is legally and constitutionally required
to report to the Minister of Justice on its activities and decisions indicates that this
institution forms part of the executive arm of government because of the level of
ministerial oversight under which it operates. (1)
False. The National Prosecuting Authority is regarded as sui generis (of its own kind). In fact, it is
completely independent of the executive, because if it were part of the executive, this raises the
risk of the decisions by the National Prosecuting Authority concerning who is to be investigated
4
