UNIVERSITY EXAMINATIONS

September/October/November 2021

CSL2601
Constitutional Law
100 Marks
4:00 Hours
EXAMINERS:
First examiner: Prof L Stone
Second examiner: Mr P Mudau
READ THE INSTRUCTIONS CAREFULLY BEFORE ANSWERING THE QUESTIONS
1. This examination paper consists of 5 pages.
2. The examination question paper counts 100 marks.
3. Question 1 consists of 25 true or false questions where you need to justify your
answer, worth 3 marks each (i.e.: 75 marks). Question 2 consists of one question
out of 25 marks. You must answer all questions.
4. The duration of the examination is 4 hours. Your portfolio must be submitted via
myUnisa by no later than 13:59 on 6 September 2021.
5. Refer to binding and precedent-setting case law and/or other legal authorities to
support your answers.
6. Take note of the marks allocated to each question and make sure that your answer is
reconciled with the mark allocation.
7. While the examination is in progress, you are not allowed to consult another person in
order to assist you to answer any of the questions contained in this question paper.
While the examination is in progress, you may not assist another student in answering
any of the questions contained in this question paper.
8. Your answers to this examination must be submitted online on myUnisa.
8.1 Login using your student number and myUnisa password.
8.2 On the next screen, find the module code for which you want to submit an answer file.
Click on the link to “submit answer file”. This link will only display if the examination
session is still open for file submissions.
8.3 A new screen will open that will guide you through the steps to upload your answers.
Step 1: Load answer file to myUnisa and complete the Honesty Declaration.
• Click on the Browse button next to File Name.
• In the Choose File dialog box, select the file you want to upload, and then click OK. Be
careful. Select the correct document.
• Select the correct programme format from the File Format drop-down list. Most
modules only allow PDF formatted files to be uploaded.
• Read the Honesty Declaration statement. If you agree with the Honesty Declaration
statement, type I AGREE in the text box. You cannot continue with the upload process
if you do not complete the requirements of the declaration.
• Click on the Continue button.
Step 2: Verify the file details for final submission of your answer file.
Use this step to verify that you are uploading the correct answer file to the correct course and
assessment number.

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• Click on the Continue button to submit your answer file. If you do not click Continue,
no submission action will take place.
• Large files will take longer to upload than smaller files. Please be patient after you’ve
clicked Continue.
• If the wrong details, e.g. file name, appear on the screen, click Back to restart the file
upload process.
Step 3: Assessment submission report
This is your proof that your answer file was submitted. It is advisable to print this page or make
a screen capture for record purposes.
8.4 Your answer file must contain ALL the pages you want to submit. Do not submit your
scanned pages one-by-one. Each time you upload a file it REPLACES the previous
submission. Only the last file received by Unisa will be marked.
8.5 Do not password-protect your file. A 0 mark will be assigned.
8.6 Number all the pages in your answer file.
8.7 Write with a black pen, not a pencil, if hand-writing the submission.
8.8 Use proper PDF conversion software to create the final file for upload. Free PDF
conversion software is available on the Internet.
8.9 Add your student number and the module code in the file name. That will assist you to
select the correct document to upload during submission.
9. It is preferred that your portfolio is typed, however, handwritten submissions will also
be accepted. Whether your answers are typed or handwritten, your submission on
myUnisa must be made in the form of one PDF document.
10. If your answers are typed, the text must be typed in Arial font, size 12 with single line
spacing within the paragraph, and double line spacing after the paragraph. All margins
must be 2.5cm, with the text justified.
10.1 All quotes of two lines long (or less), must form part of the main text, and be bracketed
by quotation marks. Where a quotation is longer than two lines, it must be typed in a
separate paragraph in size 11 font and must be indented by 1cm. No quotation marks
are required when the quotations stand alone. Use quotations sparingly. In this
portfolio, a maximum of 5% of the text may be quoted AND YOU MUST ENSURE
THAT YOU PROVIDE FULL AND DETAILED REFERENCES.
10.2 When answering the questions, remember that an open-book exam is a test at a higher
level than the usual type of exam. In an open-book exam, you are expected to prove
that you can use information, rather than merely repeat it. In brief, what is being tested
is factual knowledge, understanding and the correct application thereof, not memory
skills. For this reason, you do not earn marks by merely detailing a list of all the
information that you think might be relevant to a particular question. You are expected
to identify precisely what information applies, and then explain why you think so. You
are assessed on your level of understanding of the legal principles by looking at how
well you applied the principles to the questions. When using case law to support your
answer, please include complete references to the relevant cases in your footnotes.
This means that you must also insert the exact page and section and/or paragraph
where the information can be found. The same applies to articles and books. DO NOT
CUT AND PASTE ANSWERS FROM THE STUDY GUIDE (OR ANY OTHER
SOURCE) AS YOU WILL BE SEVERELY PUNISHED AND AWARDED 0.
11. The arguments that you make must be logical, well-structured and substantiated by all
of the relevant legal principles. You are given four hours to complete the portfolio.
PLEASE NOTE:
If you experience technical problems, of any kind, on the day of the examination and your
examination answers are not submitted by the cut-off time, you will be marked as absent. You
have to apply online to be deferred to the next exam opportunity.
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 SECTION A
TRUE OR FALSE:
FOR EACH STATEMENT YOU ARE REQUIRED TO JUSTIFY AND EXPLAIN
WHY YOU BELIEVE THAT THE STATEMENT IS TRUE OR FALSE

1. The Constitution of the Republic of South Africa, 1996 compels natural persons
to make every reasonable effort to use appropriate mechanisms and procedures
to resolve their intergovernmental disputes and to exhaust all other remedies
before they turn to the court to resolve the dispute. (3)

2. The 'recall' of the President by the governing party is unconstitutional. (3)

3. Section 146 of the Constitution of the Republic of South Africa, 1996 stipulates
that national legislation on a concurrent functional area that applies uniformly to
the country as a whole, prevails over conflicting provincial legislation if the
national legislation is necessary for the maintenance of national security and
democratic unity; the protection of the environment and the common market in
respect of the mobility of goods, services, capital and labour; the promotion of
economic activities across provincial boundaries; and equal opportunity or equal
access to government services. (3)

4. The Constitution of the Republic of South Africa, 1996 makes provision for
parliamentary sovereignty. (3)

5. In the concurrent functional area of education national government is obliged to

assist provincial government and under certain narrowly defined circumstances,
national government may intervene in provincial government affairs. (3)

6. The National Prosecuting Authority in South Africa has a long and well-
established reputation of being free from any corruption, undue influence and
impropriety. (3)

7. It is clear from the Preamble and content of the Constitution that it is a

transformative law. (3)

8. Constitutional law is often seen as the branch of law that regulates the way in
which the state exercises its powers over the natural and juristic persons that it
governs. A large part of constitutional law is therefore about the relationship
between the state and the individual. (3)
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9. The majority political party in the Republic of South Africa is empowered to control
the judiciary. (3)

10. The functions and powers of the president as head of a state and as head of the
executive are exactly the same. (3)

11. The concepts of “the government” and “the state” are synonymous with executive
authority. This is best exemplified in the case of Democratic Alliance v Minister
of International Relations & Cooperation and Others [2017] ZAGPPHC. (3)

12. It is generally accepted that executive authority is generally concerned with the
formulation of governmental policy and legislation. (3)

13. At its most elementary or essential level, the case of EFF v Speaker of the
National Assembly 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) illustrates
the delicate separation of powers between the legislature and the executive. (3)

14. The provisions of the Constitution that best explain the spirit of the judiciary in a
democratic South Africa are: Courts are independent; Courts are subject only to
the Constitution and the law; Courts must apply the law impartially; Courts must
be fearless; Courts must act without favour or prejudice; Courts must be dignified;
Courts must be accessible and effective. (3)

15. When Mogoeng CJ made the pronouncement at paragraph 223 of the case of
Economic Freedom Fighters and Others v Speaker of the National Assembly &
Another 2018 (2) SA 571 (CC) that: “The second judgment is a textbook case of
judicial overreach – a constitutionally impermissible intrusion by the judiciary into
the exclusive domain of Parliament. The extraordinary nature and gravity of this
assertion demands that substance be provided to undergird it, particularly
because the matter is polycentric in nature and somewhat controversial” what he
was conveying is the quintessential counter-majoritarian dilemma. (3)

16. Co-operative government can be summarised as taking the following form: On

the horizontal axis, the Constitution divides power between the legislature, the
executive and the judiciary in accordance with the separation of powers principle.
On the vertical axis, the Constitution divides power between the national,
provincial, and local spheres of government. (3)

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17. Legislation is the most important source of constitutional law. (3)

18. In 2015 and 2016, university students throughout South Africa used the
expression “burn to be heard” in their demands for a decolonised education.
South African constitutional law is already partially decolonised if we consider the
form that South Africa’s separation of powers, for example, takes. (3)

19. In South Africa, the main policymaker is the government. (3)

20. Subsidiarity is a nuanced concept, which in a modern context, has lost many of
its classical, hierarchical or centralist features. (3)

21. Equality is about treating people with respect for their inherent indignity, freedom
and uniqueness. (3)

22. The state is a permanent object, whereas the government changes when
elections are held and this impacts on the composition of the legislature and the
executive. (3)

23. The concept of democracy entails a partnership among the three spheres of
government requiring each (sphere) to fulfil a specific role. (3)

24. In terms of the Constitution of the Republic of South Africa, government spheres
should resolve their problems and disputes in the Constitutional Court. (3)

25. The recommendations of the Public Protector are not binding. (3)
[75]

SECTION B

In your own words and in the form of a well-substantiated essay where you rely on
relevant case law as authority, critically analyse the values that are foundational to the
Constitution of the Republic of South Africa, 1996. Your answer must clearly indicate
how these foundational values inform the South African constitutional dispensation.
[25]
Total: {100}

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UNISA 2021