Question 1:

In Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC), the Constitutional Court was asked to consider whether the existing mechanisms to impeach the President in terms of section 89 of the Constitution (provided for in the rules of the National Assembly) was constitutionally compliant or not. As the power to impeach the President is reserved for the democratically elected National Assembly, the essential question in the case was whether the courts should intervene and order the National Assembly to adopt a procedure for impeachment, and, furthermore, to order the National Assembly to begin the process that would consider whether or not to impeach the President.
Former Chief Justice Mogoeng Mogoeng started his judgment with the following statement: “The second judgment is a textbook case of judicial overreach – a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament.”

Required:

With reference to the case of Economic Freedom Fighters and Others v Speaker of the National Assembly and Another 2018 (2) SA 571 (CC), critically explain whether you agree or disagree with Chief Justice Mogoeng Mogoeng’s statement in the scenario above.

• You are required to state whether you agree or disagree with Chief Justice Mogoeng Mogoeng’s statement concerning the issue of judicial overreach, and provide reasons justifying your answer.

QUESTION 2 (20 marks)

Read the below scenario and answer the questions that follow:

The following scenario is fictitious:

Transformation in the higher education sector has been on the agenda for the past few years in South Africa but has become an especially pressing issue. This is as a result of the fact that, at the end of the 2022 academic year, a large majority of learners writing their Grade 12 examinations (Matric) at public schools throughout South Africa performed poorly. Resultantly, too few learners obtained Matric Exemption, which is the right for learners to enrol for tertiary education at university.
On 10 February 2023, a Member of Parliament, Mr Gumede, belonging to The One Nation Political Party, introduces a Bill in Parliament:
• It is titled: The Transformation of Tertiary Education Bill (‘the Bill’).
• The purpose of the Bill is to empower the Department of Basic Education to adjust the marks of every Matric student upwards. In other words, the marks of every student in public schools will be automatically increased by 7% to ensure that more students have access to tertiary education.
On 12 March 2023, the National Assembly passed the Bill in Parliament with 268 votes. Thereafter, Parliament issued a statement indicating that the law is consistent with the imperative to increase the number of graduates with tertiary qualifications in South Africa.
On 20 April 2023, the Bill was sent to the President of the Republic of South Africa for assenting in order for it to enter into force. The President signed the Bill, and it became known as The Transformation of Tertiary Education Act 4 of 2020 (‘the Act’).
Two weeks later in a Question and Answer session in Parliament, President Ramaboko made an announcement to all public schools that they should increase the marks of every Matric learner by 14% instead of the 7% as laid down in the Act. On 30 April 2023, President Ramaboko issued a formal statement to all public schools that they should disregard the fact that the Act states that marks should be increased by 7%, and, instead, must increase the marks by 14%.
The AZ Party was outraged by President Ramaboko’s instructions to ignore the percentage contained in the Act. Advise the AZ Party whether there is any institution established by the Constitution that could be approached to investigate President Ramaboko’s conduct. In your answer, refer to relevant constitutional provisions and the constitutional powers and functions of the institution. (10 marks)
Required:

With specific reference to the idea of the rule of law, explain whether President Ramaboko has the power to declare that public schools have the right to ignore the provisions of the Act and adjust students’ marks by 14%, instead of 7%. Refer to case law in your answer.

QUESTION 3 (20 marks)

Discuss the treatment of traditional leadership during the transition period to a constitutional democracy, as well during the democratic era. In your answer, you should include a discussion of how the Constitutional Court has approached the development of traditional leadership under customary law in South Africa. Refer to relevant legislation and case law.

QUESTION 4 (15 marks)

Read the following scenario and answer the question that follows:

Judge Bruce Wayne is a High Court judge in the Johannesburg High Court. Judge Wayne is close friends with a well-known and high-ranking politician, Mr. Zizi. Mr. Zizi is facing serious allegations of fraud and corruption, and both matters are pending in the Johannesburg High Court. Mr. Zizi contacted Judge Wayne and asked if he could help Mr. Zizi by discussing it with the presiding judge, because Mr. Zizi believes that there is an agenda against him, and he is innocent. Judge Wayne replied that he would see what he could do, and he would talk to his colleague presiding over the matter.

A week later, Judge Wayne visited his colleague’s chamber, Judge Musa, who had been allocated the cases involving Mr. Zizi. Judge Wayne told Judge Musa the following: “You are our last hope; you must find in favour of our comrade, Mr. Zizi”.
Judge Musa was surprised by the remarks made by Judge Wayne and wants to lodge a complaint against Judge Wayne on the basis that Judge Wayne had attempted to influence him to find in favour of Mr. Zizi.
Judge Musa approaches you for legal advice. You are a senior advocate at the SK Chambers in Sandton.

Required:

Explain to Judge Musa whether the conduct of Judge Wayne potentially infringes any constitutional value or constitutional principle. (5 marks)

Advise Judge Musa which judicial body or tribunal can be approached to lodge the complaint against Judge Wayne. Refer to legislation in your answer. (10 marks)

QUESTION 5 (10 marks)

Read the following scenario and answer the question that follow:

Kloofnek is a town in the Northern Cape province in South Africa. It is run by a council which is elected on an annual basis. It has its own flag and currency. Kloofnek is a place where mainly retired people could live together in safety and harmony. Only adult males are entitled to vote; women are excluded from voting. This rule was determined by a majority of males living in the town.

Required:

Would you describe Kloofnek as subscribing to the democratic values of South Africa? Refer to relevant provisions of the Constitution of the Republic of South Africa, 1996, in your answer.

Question 6 (10 marks)

Read the below scenario and answer the question that follow:

Assume that the South African Parliament has recently adopted a new law, the Prohibition of Racial Classification Act 102 of 2023 (‘the Act’). Section 2 of this new law reads as follows:

“Effective 1 January 2023, the state shall be prohibited from classifying any individual by race. For purposes of this section, “classifying” by race shall be defined as the act of separating, sorting or organizing by race, and includes profiling, or collecting such data on government forms.”
In passing this law, Parliament affirmed that the Act would bring a definitive end to the legacy of apartheid, which was primarily based on a system of racial classification that had no place in the new democracy in South Africa. Parliament stated that the Act would liberate all South Africans from the confining labels which the government currently imposes, and it would signal South Africa’s first step towards a genuinely colour-blind society.
Many interest groups are outraged by the law and argue that the government’s inability to collect and organise data on racial lines will harm the provision of socio- economic entitlements, especially for minority groups because these groups suffer disproportionately from poverty, illiteracy, unemployment, and ill health. They argue that the inability of the government to track these disparities will prevent the government from addressing them with additional resources or targeted outreach within these communities.
This is especially true in the context of education, where the majority of learners in rural areas are impoverished black Africans. One of the interest groups opposed to this new law is Equal for Education (‘EE’). EE works closely with rural schools and has become aware that the funding that was originally allocated to rural schools has been cut dramatically since the Act was passed. The result is that there is no more extended funding to provide for the subsidised school fees and the school feeding scheme, as well as the school uniforms that had been provided up until 30 November 2022. Consequently, Thando Maki, one of the learners at a rural school, has had to drop out of school because his parents cannot afford the school fees.

Required:

In light of the scenario above, the Western Cape High Court declared the Act invalid and unconstitutional. Explain whether this declaration of constitutional invalidity by the High Court is sufficient for the order to have force and effect, and if not, the process/steps that must be taken.

QUESTION 7 (10 MARKS)

Read the below scenario and answer the question that follow:

Advocate Mandisa Zuma was appointed as the Public Protector on 26 February 2021. A year after Adv. Zuma was appointed as the Public Protector, some of her reports and methods of investigations were challenged and questioned. In April 2021, a complaint was lodged 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 did not end up benefitting from the project. The complaint alleges that various prominent political party members from the Moela political party stole the majority of the funds. During the investigation, Adv. Zuma instructed 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 Zuma also instructed the investigators to declare 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. Zuma. 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. Zuma as the Public Protector:
• Adv. Zuma secretly had meetings with the political officials involved in the Milk farm project. Advocate Zuma failed to report these meetings. Adv Zuma lied under oath that she never had previous meetings with the politicians involved in the Milk farm project, when in fact she did and there is ample evidence to support this contention.
• Adv. Zuma 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.

Required:

In the scenario above, on what grounds can Adv. Mandisa Zuma be removed from office as the Public Protector. Refer to case law in your answer.
Note to student: Students will be awarded with five (5) marks for theory and additional five (5) marks will be awarded for application.

Answers to Above Questions on Constitutional Law

Answer 1: With respect to the agreement or disagreement in regards to Chief Justice Mogoeng Mogoeng’s statement, it is evaluated that the statement is all about the issue of judicial overreach, which suggest that the Judiciary should not intrude into the Exclusive domain of parliament especially in the context of matters related to impeachment of the President.

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