ASSIGNMENT (FORMATIVE ASSSESSMENT) COVER PAGE

Student name Fabian Heinrich de Kock

Student number 21310617

ID number: 90081500068

Module/subject name Constitutional Law

Module/subject code LCO500

BY SUBMITTING THIS ELECTRONIC ASSIGNMENT,

I DECLARE THAT THIS ASSIGNMENT IS MY OWN WORK.

WHERE I HAVE USED THE WORK OF OTHER PERSONS, THE SOURCES OF

THE OTHER WORK OR INFORMATION HAVE BEEN DETAILED / CITED /
REFERENCED EXPLICITLY IN THE ASSIGNMENT.

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YES / NO Fabian Heinrich de Kock

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Table of Contents

Contents
Question 1 ............................................................................................................................................................. 3
Question 2 ............................................................................................................................................................. 5
Question 3 ............................................................................................................................................................. 6
Question 4 ............................................................................................................................................................. 9
Question 5 ........................................................................................................................................................... 10
Question 6 ........................................................................................................................................................... 12
Question 7 ........................................................................................................................................................... 13
List of Reference ................................................................................................................................................ 17

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Question 1

What is an Electoral System?

It’s a system or a mechanism by means which citizens also known as the electorate
elect representatives of their choice and establishes rules for political party election
(how votes are cast and translated into seats in legislature). Normally, it governs; the
franchise, method of voting, frequency of elections, translation of votes into seats,
qualification and nomination of candidates, determination and declaration of results,
Section 46(1) of the Constitution.
There are numerous forms of electoral systems, however the main types of electoral
systems in South Africa can be divided into two categories, namely constituency
systems and systems of proportional representation.
Constituency systems
This system is the oldest type of electoral system also known as the
territorial/geographical system which is characterized by the Westminster system
brought by British colonies, with their colonial expansion to southern Africa in the late
18th and early 19th centuries, the British not only claimed South Africa as their own
but, in addition, implemented their way of life, morals, values, virtues and system of
politics. One of the key features of the Westminster system is the way in which it
maintains a strict demarcation between the powers of the executive and those of the
legislature and was operational in South Africa prior to 1994.
How it works?
National territory is divided into constituencies, voters in each constituency elects
their representative or representatives for that constituency directly. Advantages: it is
simple, conducive in a strong and stable government, closer bond between
representative and voter (visible accountability). Disadvantages: does not reflects the
relative strength of the parties, favours stronger parties to the detriment of weaker
ones. Artificial delineation of constituencies can give rise to imbalanced in
constituency and may lead to gerrymandering.
Systems of proportional representation
All parties participating in an election obtain representation in parliament that directly
reflects the votes cast for these parties in such an election. It can be regarded as the
most inclusive system of representation. Advantages: fair reflection of voter’s opinion,
eliminates delimitation of electoral districts as they are all the same Gauteng or
Limpopo, votes carry same weight, carries wider representation of parties than
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territorial representation, coalitions can be formed against the power of a majority

party. Disadvantages: may lead to weak unstable government as no party can have
absolute majority, impersonal no link between representation and voter, complex and
difficult to understand, no by-elections to test political trends.
Which electoral system is used in South Africa?
Prior to 1994, South Africa used a Westminster type of system
(Constituency/territorial), however the Section 46 of the Constitution provides the use
of electoral system which results in general proportional representation. The principle
of proportional representation should be retained in general even if combination of
proportional representation and constituencies is adapted. The current electoral
system has been criticized mainly for not promoting the values of accountability and
representation. In the absence of constitutional representatives, the voters feel
alienated from the elected representatives. The 1993 constitution implemented the
list system of proportional representation, which required voters to vote for a single
party. The 1996 constitution leaves it to an act of parliament to determine the
electoral system of the country, but that system must be a proportional system.

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Question 2

The relationship between the “state” and the “government”

Let`s first unfold the difference between the state and government; A state is a
permanent legal entity consisting of a territory, community, a legal order, an organized
government and a measure of political identity whereas a government is a temporary
bearer of state authority and represents the state at a particular time. Some would say
that a state is like a ship and a government is like the crew who runs the ship,
conversely one might compare them to a business organization wherein the state is
the business entity while the government is the management team of the business.

The concept government can be better understood if it is distinguished from the

concept “state”. Government is all the organs and functions of state. Government
relates primarily to the executive function and having a particular bearing on the
formation and implementation of policy.
A state is defined by the following requirements:
• a specific geographically defined territory
• a community of people who live in that territory
• a legal order in which the community is subject
• an organized system of government which is able to uphold the legal order
• a measure of separate political identity

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Question 3

Acquisition of citizenship
The South African Citizenship Act of 1995 specifies three ways to obtain citizenship:
birth in a state's territory (ius soli), descent from state citizens (ius sanguinis), and
naturalisation.
1. Birth
The usual norm is that everybody born on South African soil is a citizen of the
country. South African citizenship laws also recognise birth outside of the country
with at least one parent who is a South African citizen to be a form of acquisition
of citizenship by birth.
(a) A person who was a South African citizen by birth before the South African
Citizenship Amendment Act took effect on 7 December 2010 is still a South
African citizen by birth in accordance with S 2(1)(a) of Act 88 of 1995 as
amended.
(b) Any individual born in the Republic is a citizen by birth if one of his or her
parents was a citizen of South Africa at the time of birth, S 2(1)(b).
(c) Any person born in the Republic who is not a South African citizen by birth
because he or she was not a citizen by birth prior to the commencement of the
act, or because at least one of the parents was not a South African citizen at the
time of birth, shall be a South African citizen by birth if:
• His or her birth is registered in the Republic in line with the Births and Deaths
Registration Act, 1992; and • he or she does not have the citizenship or nationality
of any other country or has no right to such citizenship or nationality.
(d) Any individual born within the Republic of parents who have been conceded
into the Republic for permanent residence and who isn't a South African citizen
qualifies to be a South African citizen by birth, if he or she has lived within the
Republic from the date of his or her birth to the date of becoming a major and his
or her birth is enlisted within the Republic in understanding with the Births and
Deaths Registration Act, 1992. The same run the show applies to an individual
born within the Republic but whose parents are not one or the other South African
citizens nor permanent inhabitants. The Citizenship Act bargains with this
occasion beneath the heading Citizenship by naturalisation.
(e) Any individual born outside the Republic may be a citizen by birth if one of his
or her parents is a South African citizen at the time of his or her birth. Even

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though the citizenship of an individual born outside the Republic is in this case
dependent on the South African citizenship of a parent, therefore legally speaking
is an occurrence of citizenship by descent, the Act gives that it will be regarded
South African citizenship by birth.
(f) Birth in an aircraft or on a ship is considered to be in the state to which the
aircraft or ship belongs or where it is registered, not in the state where the aircraft
or ship is physically present at that time.
2. Descent
Citizenship by descent in South Africa presently only applies to those who were born
outside the country and then adopted by a South African citizen.
Any individual who is adopted by a South African citizen in accordance with the
Children's Act and whose birth is recorded in accordance with the Births and Deaths
Registration Act, 1992, is a South African citizen by descent.
3. Naturalisation
Naturalisation is the process through which foreigners who settle in a country
and meet specific criteria become citizens.
A person who became a South African citizen through naturalisation before
the South African Citizenship Amendment Act came into effect is a South
African citizen by naturalisation.
Citizenship via naturalisation is usually given on application to the minister of
home affairs. There are several types of instances that may be distinguished:
(a) A foreign national who meets the following requirements:
• becoming maturity; • obtaining permanent residency;
• great character;
• the deliberate to dwell within the Republic or enter into, or proceed within,
the benefit of the government, an international association of which the
Republic may be a part of or an individual or affiliation inhabitant or set up in
South Africa;
• palatable capacity to communicate in any one of the official languages;
• satisfactory information of the obligations and benefits of South African
citizenship;
• He or she is a citizen of a nation that permits dual citizenship, provided that if
his or her country does not allow dual citizenship, he or she renounces that

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country's citizenship and provides the minister with the required

documentation of renunciation.
(b) If a minor foreigner continuously and legitimately stays in the Republic, he
or she may be naturalized on the application of the responsible parent or
guardian.
(c) A foreigner who is or was the spouse of a South African citizen and is
allowed to the state for permanent residence may be granted citizenship if the
person has lived with the spouse in the Republic or outside the Republic after
the marriage (if she or he was employed in the service of the government).
Applicants above the age of 18 must sign a loyalty statement.
If new information is obtained that may have impacted the initial judgement, the
minister must review an application that has been denied. Otherwise, the minister is
not obligated to review such an application, and he or she may not do so within a
year following the denial.
4. Marriage
Marriage does not alter a person's citizenship in South Africa, according to the
law.
A person who marries (or enters into a customary union with) a South African
citizen does not automatically obtain South African citizenship, and a South
African citizen who marries a foreigner does not automatically lose his or her
status.
The prohibition of unfair discrimination on the basis of marital status in the Bill
of Rights' equality clause is given effect by this regulation.

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Question 4

In accordance with Section 92 of the Constitution; For the exercise and execution of
their powers and responsibilities, the President, Deputy President, and each minister
are individually accountable to parliament.
Individual responsibility entails the following, (De Villiers, 1994)…:
A responsibility to explain to parliament how the authorities and responsibilities
vested in him or her have been exercised and carried out. Members of the cabinet
are required by the Constitution to submit complete and timely reports to parliament
on subjects within their jurisdiction. See Section 92(3)(b)
• A responsibility to admit when a mistake has been made and vow to correct it; • A
responsibility to quit if personal responsibility has been recognised. The
circumstances under which a minister must resign in both the Great Britain and
South Africa have long been contentious.
The reference to "members of the Cabinet" in section 92(2) does not imply that the
President is personally liable solely for authorities and responsibilities exercised and
performed as "head of the national executive together with the other members of
Cabinet." The President is personally responsible to parliament for the exercise and
execution of all of his or her duties and tasks, including those delegated to him or her
alone as "President." The President's individual accountability to parliament stems
from the fact that the National Assembly elects him and may remove him from office.
De Villiers, B. (1994) Birth of a constitution / edited by Bertus de Villiers. 1st ed.
Kenwyn: Juta.

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Question 5

(a)
Introduction
The South African Constitutional Court is the highest court in the Republic.
The Chief Justice, the Deputy Chief Justice, and nine other justices make up
the Constitutional Court. At least eight judges must hear a case before the
Court.
The appointment of Judges: Section 174 of the Constitution
A judge is appointed for a 12-year tenure but must retire at the age of 70
unless the term is extended by an act of parliament. The Judges'
Remuneration and Employment Act 47 of 2001 essentially increases the term
to 15 years or 75 years. The judges must be adequately qualified and South
African nationals in good standing. At least four members must be always
judges at the time of their nomination to the Constitutional Court.
When appointing judges, like with all other judicial authorities, the requirement
for the judiciary to represent the racial and gender makeup of South Africa
must be taken into account. After conferring with the heads of the parties in
the National Assembly, the President, together with other members of the
government, chooses the judges. And:
• the Chief Justice and Deputy Chief Justice, after meeting with the Judicial
Service Commission; and • the other judges, after conferring with the Chief
Justice and selecting from a list of candidates provided by the Judicial Service
Commission. The President must receive a list with three names more than
the number of appointments to be made. If any of the applicants are
undesirable and no appointments have been made, the President may ask the
Commission to supplement the list. The list must then be supplemented by the
Commission, and the President must make the final appointment(s) from that
list.
On the proposal of the Minister of Justice and with the consent of the Chief
Justice, the President may appoint an acting Deputy Chief Justice (from
among the other judges) or another acting judge if there is a vacancy or if a
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judge is absent. When judges recuse themselves from hearing a specific

issue, the term "absent" in the clause does not apply.

(b) In accordance with Section 174(3), After consulting the Judicial Service
Commission, the President and Deputy President of the Supreme Court of
Appeal are appointed by the President, along with the other members of the
cabinet, and all other judges are appointed by the President on the suggestion
of the Judicial Service Commission.
(c) Section 174(6) states that judges of all other courts must be appointed on the
advice of the Judicial Service Commission by the President.

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Question 6

The courts' functional independence, also known as "substantive independence" or

"decisional independence," implies that they are solely bound by the law while
exercising their powers. This component of judicial independence safeguards judicial
bodies' neutrality — interference must be avoided as much as feasible.
The administrative operations of the courts, including the procedures followed in a
specific case and the decisions rendered, are not subject to the orders of any other
government entity in principle. Private individuals and pressure organisations are
also prohibited from influencing the courts. The fact that courts interpret and
implement law, and that a court may be bound by judgments of higher courts under
the system of precedents, does not negate this feature of judicial independence. See
(Soller v President of the RSA,2005).
Measures relating to judicial officers' immunity from civil proceedings and the crime of
contempt of court insulate the courts against outside pressure. (Penrice v Dickenson,
1945 AD).
Impartiality
In the case of Bangindawo v Head of the Nyanda Regional Authority the court set
aside the sentence imposed by the magistrate on the appellants, as it was clear that
the presiding officer did not apply impartiality or objectivity in relation to the issue and
parties in that particular case.
The impartiality of the courts refers to a court's attitude toward the issues and parties
in a specific case; In compliance with Section 165(2), the law must be applied without
favour or bias by the courts.
In general, judicial personnel are prohibited from engaging in any other employment
or performing any other public duty that is incompatible with the judiciary's
independence.
Judicial authorities pledge to deliver justice to all people without fear, favour, or
prejudice when they assume office.
Furthermore, there is a general rule against bias under which presiding judicial
officers in any case must, voluntarily or on request, recuse themselves from the
proceedings if there is a reasonable fear that they will give a judgement other than
that which is required by law due to partiality, prejudice, or any other recognised
ground. This rule now forms part of the right to a fair trial in the Bill of Rights.

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Question 7

In accordance with Section 104(1), Every province has a legislature vested with the
legislative authority of the province.
How is the provincial legislature composed/constituted?
Every provincial legislature is chosen directly pursuant to a proportional representation
election system in general.
A provincial legislature must have a minimum of 30 and a maximum of 80 members.
The Electoral Commission used a method specified in the Electoral Act to calculate
the precise number of members of each province legislature. The Eastern Cape has
63 members, the Free State has 30, Gauteng has 73, KwaZulu-Natal has 80, Limpopo
has 49, Mpumalanga has 30, the Northern Cape has 30, the North West has 33, and
the Western Cape has 42. The members are chosen according to the Electoral Act's
electoral system, which is based on the province's share of the national voter roll and
results in proportional representation in general.
Members of provincial legislatures must meet the same requirements as members of
the National Assembly. A member of a provincial legislature, like a member of
parliament, loses membership if he or she ceases to be eligible and is absent without
leave for reasons that the rules allow. National legislation governs the filling of
vacancies.
A provincial legislature is elected for a five-year term, but the period can be cut short
in the following circumstances: • If a legislature passes a vote of no-confidence in the
premier at any point during the term, the premier and other members of the executive
council must resign. • If the legislature fails to elect a new premier within 30 days, the
acting premier must dissolve the legislature; or if the legislature approves a resolution
to that effect with an absolute majority and three years have passed since the last
election, the premier must dissolve the legislature.
After the legislature is dissolved, an election must be held within 90 days, and if the
results are not declared within that time frame or are overturned by a court, a new
election must be held within another 90 days. From the day it is dissolved until the day
before the election, a provincial legislature can continue to operate.

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Powers
(1) General
(2) Exclusive and concurrent powers
(3) Pre-eminence in respect of concurrent powers
(4) Financial powers
General
A provincial legislature's legislative authority is enshrined in the Constitution.
In other words, there is a constitutional allocation of government authority between the
provinces and the national realm, and the courts have jurisdiction over it since it is
enshrined in the Constitution. A provincial legislature is solely subject to the
Constitution and the provincial constitution, according to the Constitution (if there is
one). A provincial legislature has legislative authority over the following:
• the adoption of the province's constitution.
• a list of functional areas over which the legislature has sole legislative authority.
• Any issue that is reasonably required for, or incidental to, the efficient exercise of a
power affecting the functional areas on which the legislature has concurrent legislative
jurisdiction, as defined by the Constitution.
• Any legislative authority, excluding the authority to draught a provincial constitution,
is delegated to a local council.
A provincial legislature may suggest to parliament that a legislation be passed on a
subject over which it has no jurisdiction. A legislature can ask parliament to alter the
name of the province by passing a resolution with a two-thirds majority.

Exclusive and concurrent powers

A provincial legislature has both exclusive and concurrent legislative jurisdiction. It
has exclusive legislative authority that it exercises on its own and concurrent
legislative authority that it shares with parliament.
The list of functional areas in Schedule 5 of the Constitution gives provincial
legislatures sole legislative competence. Over the list of functional areas in Schedule
4 of the Constitution, a province legislature has concurrent legislative authority with
parliament. In comparison to the exclusive powers, the list is much longer.
From the beginning of the Constitution, a province legislature has complete
legislative jurisdiction over the topics mentioned in the Constitution and can pass
legislation in that regard. The Interim Constitution, as well as the Constitution,

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allowed that the President might delegate existing legislation to the provinces on
areas over which the provinces would now have legislative authority for the benefit of
efficiency.
The elements in Schedules 4 and 5 cover functional categories rather than individual
concerns. This means that a province does not always have total control over all
areas. When it comes to exclusive concerns, the provinces are fully responsible. If its
powers of intervention are justified, parliament will be allowed to create legislation in
certain areas if a province fails to do so. When it comes to concurrent concerns, the
provinces and parliament share legislative authority, and parliament will step in if a
province fails to do so.
Pre-eminence in respect of concurrent powers
When it comes to concurrent powers, national legislation takes precedence over
provincial legislation if specific requirements are met.
When several levels of government have concurrent legislative jurisdiction, a plan
must be in place for when their legislation on the same subject clashes. In this
regard, Section 146 of the Constitution includes a detailed arrangement. Of course,
before applying section 146 to a disagreement, it must be ascertained if both
legislatures operated within their respective domains of competence when adopting
the legislation. The aim and effect of a given legislation should be addressed while
answering this question.
The latter method is similar to the so-called "pith and substance" theory, which is
utilised in countries like Canada, India, and Australia to identify the essence of a
legislation before deciding whether or not the legislature acted within its authority.
Section 146 states that if national law on a concurrent subject applies consistently
across the country, it takes precedence over conflicting provincial legislation if it
meets one of many requirements (if it doesn't, the provincial legislation takes
precedence).
Financial powers
Provinces have limited taxation authority but are entitled to a fair portion of national
revenue.
The basic premise is that the Republic has a single revenue system, with all revenues
levied, collected, distributed, and spent on a national level.

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The three spheres' governments are all reliant on the national revenue fund. Argentina,
Brazil, Malaysia, Mexico, and India also manage their national revenue in a similar
fashion. As a result, the provinces' financial capabilities are restricted.
Taxes, levies or duties are among the taxes, levies, and fees that a provincial
legislature may levy excluding income tax, value added tax, general sales tax, property
rates and customs duties. Except for corporate taxes, value-added tax, property rates,
and customs duties, a provincial legislature may impose flat-rate surcharges on taxes
imposed by national legislation.
Casinos, gambling, wagering, lotteries, and betting should all be subject to provincial
taxation. A provincial legislature's taxation powers, on the other hand, must be
governed by legislation. The legislation must be passed via the procedures for laws
that impact provinces, which allow the National Council of Provinces to compel the
National Assembly to pass the measure with a two-thirds majority.
A provincial legislature may not use its jurisdiction to levy taxes in a way that affects
national economic policy, cross-provincial economic activity, or national mobility of
products, services, capital, or labour in a substantial and unreasonable way. Within the
context of acceptable criteria specified by an act of parliament, a province may raise
loans for capital or current expenditure.

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List of Reference

http://www.cplo.org.za/wp-content/uploads/2015/02/BP-380-South-Africas-
Parliamentary-System-May-2015.pdf
http://www.saflii.org/za/cases/ZACC/2006/11.html
https://www.gov.za/documents/electoral-laws-amendment-act-4-2021-1-jun-2021-
0000
https://www.sahistory.org.za/article/history-elections-south-africa
Rautenbach, IM (2018) Rautenbach-Malherbe Constitutional Law, 7 th ed
LexisNexis.\7

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