QUESTION 1 (25 MARKS)
Analyse the Traditional Leadership Governance Framework Act 41 of 2003 (the Framework Act) and the Traditional and Khoi-San Leadership Act 3 of 2019 (TKLA) with reference to: Recognition of traditional leaders. Refer to relevant sections of legislation as part of your answer.
QUESTION 2 (20 MARKS)
Read the below scenario and answer the question that follow:
Advocate Thandi Zulu was appointed as the Public Protector on 26 February 2020. A year, after Adv. Zulu was appointed as the Public Protector, some of her reports and methods of investigations were challenged and question. In April 2021, a complaint was lodge with the Public Protector, to investigate, the Milk farm project. The Milk farm project was established by the government, to empower black farmers with the knowledge and skills of operating a successful dairy farming enterprise, which would contribute to the local economy and improve the livelihoods of its communities. However, the local community didn’t end up benefitting from the project. The complaint alleges, that various prominent political party members from the Moela political party stole most of the funds. During the investigation, Adv. Zulu instructed and apprehended her staff and investigators involved in the Milk farm project, not to make any adverse findings against the politicians that were involved in the Milk farm project. Adv Zulu also instructed the investigators to declared in their reports that there was no evidence against the politicians involved in the Milk farm project. The Chief Whip of the, ATTTN Freedom Fighters, Ms Malone tabled a motion to initiate an enquiry, in terms of section 194 of the Constitution, for the removal of the Public Protector, Adv. Zulu. ATTTN Freedom Fighters submitted a request to the Speaker of Parliament to have the Public Protector removed from office, citing the following adverse findings against Adv. Zulu as the Public Protector:
• Adv. Zulu secretly had meetings with the political officials involved in the Milk farm project. Advocate Zulu failed to report these meetings. Adv Zulu lied under oath that she never had previous meetings with the politicians involved in the Milk farm project, where in fact she did and there is ample evidence to support this contention.
• Adv. Zulu also failed to investigate certain political figures that were accused of corruption and money laundering involved in the Milk farm project and instructed her staff members and investigators not to investigate these politicians.
• When the Public Protector released the Milk farm project report to the Public, the report indicated that Adv. Zulu relied on the incorrect interpretation of the
In the scenario above, on what grounds can Adv. Thandi Zulu be removed from office as the Public Protector. Refer to case law in your answer. (15 marks)
Note to student: Students will be awarded with ten (10) marks for theory and additional five (5) marks will be awarded for application.
Assume that one of the listed grounds is established to remove Advocate Zulu from office in 2.1, fully explain the process the Parliament or National Assembly must follow to successfully remove her from office? (5 marks)
QUESTION 3 (10 MARKS)
Discuss the concept of ‘constitutional democracy’ and refer to the relevant provisions in the Constitution that support this concept.
QUESTION 4 (20 MARKS)
Read the following scenario and answer the question that follow:
Zac Naidoo is a 45-year-old, Regional Court Magistrate, in Durban. Mr Naidoo has more than 8 years’ experience in criminal matters but does not have a lot of experience in civil and constitutional law matters. Mr Naidoo acted as a judge in the High Court in 2021. During his period, as acting judge of the High Court, Mr Naidoo struggled to get his judgments out and it emerged that at one stage Mr Naidoo had effectively gone AWOL and returned to Durban without permission, missing an important meeting. Mr Naidoo also ignored the comments and suggestions of senior judges, even after the other judges had suggested edits, the judgments that came out was incorrect and had to be “substantially corrected,” giving the impression that Mr Naidoo struggled to proofread his own judgment. Mr Naidoo blamed the error on his Personal Assistant (PA), Ms Samuels. Mr Naidoo also, applied the incorrect legal principles in one of his judgments. Mr Naidoo is still using a fax machine and handwrites all his judgments, and does not have the basic computer literacy skills. One evening during an urgent application, Mr Naidoo was drunk and yelled at his PA. Ms Samuels did not report the matter due to fear that she will lose her job. Mr Naidoo also told his PA, that he lied to the Judge President one morning that he was sick, instead he was playing golf with his friends the whole day. Mr Naidoo also told Ms Samuels that he doesn’t like the job of a judge and is only doing it because of the money and that he will accept bribes if he is appointed permanently as a High Court judge.
A vacancy as a judge in the High Court of Pietermaritzburg, has recently been advertised. Mr Naidoo decided to apply for the position. He was shortlisted for the position and invited for an interview. Mr Naidoo’s former PA at the High Court heard that Mr Naidoo has been invited for an interview to become a judge. She is very concerned, as she is of the opinion that a person like Mr Naidoo should not be placed in such an important position. She decided that she will write a petition and motivation to the JSC (state in full before abbreviating) detailing why Mr Naidoo should not be appointed. She is, however, uncertain about the criteria for the appointment of a judge.
Explain to Ms Samuels whether Mr Naidoo will be eligible to be appointed as a member of the judiciary, taking into account the criteria developed by the JSC in addition to the requirements mentioned in the Constitution.
QUESTION 5 (10 MARKS)
Read the following excerpt and answer the question that follow:
“It is true that judicial review is an institution that is generally accepted as being of central importance to the South African constitutional project. However, judicial review, rather than serving to answer or resolve important constitutional questions, raises many of its own that go to the heart of our understanding of the relationship between democracy and separation of powers. For example, if we accept judicial review as being a legitimate practice in a constitutional democracy, how do we account for the fact that judicial review allows for the invalidation of laws supported by a majority? How is it possible that the judiciary can substitute its own decision for that of the executive when declaring a particular government policy to be unreasonable, even in instances where the executive has consulted widely?
What makes the decision of a few unelected judges carry more weight than the choices of the majority?
These questions taken together raise what is commonly referred to as the counter- majoritarian dilemma or difficulty.”
Explain in your own words what is meant by the phrase “counter-majoritarian concern”, (4 marks)
Based on the case study above, the counter-majoritarian concern and judicial review have elicited different type of responses and debates for its justification.
Explain the different responses or perspectives with regard to the justification for the counter-majoritarian concern? (6 marks)
Read the below scenario and answer the question that follow:
In 2020, a robbery occurred on the Presidents private game farm near Bela-Bela, Limpopo, South Africa. The incident occurred on 9 February 2020 in which an indeterminate amount of cash was stolen. Afterwards the President made several security upgrades to the farm using state funds. Mr Jones lodged a complaint with the Public Protector concerning aspects of the security upgrades that were being effected at the President’s private game farm. This triggered an extensive investigation by the Public Protector into the security upgrades to the farm. The Public Protector concluded that several improvements were non-security features. Since the State was in this instance under an obligation only to provide security for the President at his private residence, any installation that has nothing to do with the President’s security amounts to undue benefit or unlawful enrichment to him and his family and must therefore be paid for by him.
In reasoning her way to the findings, the Public Protector said that the President acted in breach of his constitutional obligations. Mr Jones had a meeting with a senior advocate and decided that he want to take the matter to court. Mr Jones was shocked when he discovered that the cost of litigation in the Constitutional Court is so expensive. The daily rate that the senior counsel was asking to argue the case in the Constitutional Court was over R500 000. Mr Jones, however, is unsure whether he can take the matter to the Magistrate Court, because he believes that the litigation cost would be much cheaper. You are appointed as the legal advisor and have been requested by Mr Jones to advise him on the way forward.
6.1 Explain to Mr Jones whether he can refer the dispute or matter to the Magistrate Court. Refer to relevant sections of legislation as part of your answer (10 marks)
6.2. Identify the Court to which Mr Jones will have to refer his dispute. (2 marks)
6.3 Explain to Mr Jones what the concept ‘jurisdiction’ entails and why it is important to approach the correct court. (3 marks)
Answers to Above Questions on Constitutional Law
Answer 1: An analysis of the traditional leadership governance Framework act 41 of 2003 and also the traditional and Khoi-San leadership act 3 of 2019 are important acts in South Africa and they are primarily responsible for the recognition of traditional leaders within the governance Framework across the country. The primary area of concern of both these acts is therefore on the recognition of traditional leaders and the ways in which they can enhance the local governance, conflict resolution and development.
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