Topic 2

Question 1

What are the 3 spheres of government?

Answer 1

There are 3 spheres of government: national, provincial and local.

Question 2

What part of he Constitution highlights the spheres of goverment?

Answer 2

Each sphere of government has its own legislative authority as stated in section 43 of the Constitution

Question 3

What are the three spheres and there legislative authority?

Answer 3

The three spheres and their legislative authority:
- National sphere: vested in Parliament (section 44 of the Constitution)
- Provincial sphere: vested in the various provincial legislatures (section 104 of the Constitution)
- Local sphere: vested in the Municipal Councils (section 156 of the Constitution)

Question 4

What does section 42(1) of the Constitution highlight?

Answer 4

Section 42(1) of the Constitution highlights a bicameral legislature (two Houses of Parliament), the National Assembly (NA) and the National Council of Provinces (NCOP)

Question 5

What is the reason for the bicameral legisature?

Answer 5

• Different interests: NA caters for the interest of the electorate, NCOP cater for the interest of the provinces,
• They act as checks on one another, creating a thorough consideration of the houses

Question 6

How does the NA and NCOP conduct their work?

Answer 6

• in plenary sessions (where Members of a house meet together in one group)
• in joint sittings (when Members of both houses meet as one group)
• in Portfolio Committees (smaller groups of Members)

Question 7

What is proportional representation?

Answer 7

Participation in committees that include minority parties; along the lines of proportional representation

Question 8

What is the NA intended to represent?

Answer 8

The NA is intended to represent the interests of all SA, while the NCOP is intended to represent the interests of the national legislature

Question 9

How many members does the NA comprises off?

Answer 9

The NA comprises 350 to 400 members (section 46(1) of the Constitution). This is currently sitting at 400 members

Question 10

What are the members of NA are made up of?

Answer 10

• Democratically elected house of Parliament
• Elected by citizens through an electoral system based on a national common voters roll (closed party list) designed to produce proportional representation
• Political party allocated seats in NA based on the percentage of votes it receives

Question 11

Where do the NA set in?

Answer 11

The NA seat is in Cape Town found in s42(6) of the Constitution but might sit elsewhere based on public interest, security, and if set out in the NA rules

Question 12

How long is the NA elected and according to what?

Answer 12

The NA is elected for five years (s49(1) of the Constitution).

Question 13

What are the the expections found to the NA elected term?

Answer 13

These exceptions are found in s50(1) and (2) of the Constitution, the president must dissolve if a supporting vote of majority decides to do so and if they have already sat for 3 year or if there is a vacancy in the presidents office

Question 14

When does the NA sit?

Answer 14

The first sitting of NA: must take place within 14 days after the election results are announced, on a time and date determined by the Chief Justice (s51(1) of the Constitution. They might have other sittings determined by the NA, although the President may summon the NA to an extraordinary sitting for special business

Question 15

What is the function of the NA and where is it found?

Answer 15

Section 42(3) of the Constitution highlights its functions:
- Election of President: At its first sitting after its election (or when necessary), the NA must elect a President from amongst its members (section 86 of the Constitution)
- National forum: It serves as a national forum for public consideration of issues
Passing legislation: The NA may consider, pass, amend or reject legislation
- Oversight: The NA scrutinises and oversees executive action, holding the executive accountable

Question 16

What is the power of the NA and where is it found?

Answer 16

The powers of the NA are highlighted in s55 of the Constitution:
- Exercise legislative power
- Must provide a mechanism of accountability

Question 17

What is the quorum in the NA?

Answer 17

• A Bill or an amendment to a Bill, a majority of members (201) must be present
• On any other question before the NA, at least one-third of members (134) must be present (s 53 of the Constitution)

Question 18

How are questions before the NA determined and where is this found?

Answer 18

Questions before the NA are determined by a “majority of votes cast” (s53(1)(c) of the Constitution).

Question 19

Who cannot vote in the NA?

Answer 19

The Speaker has no deliberative vote but casts a deciding vote in the event of a deadlock. President and Ministers who are not members of the NA may attend and speak in the NA but may not vote

Question 20

What does the NCOP represent?

Answer 20

The NCOP represents the provinces “to ensure that provincial interests are taken into account in the national sphere of government”

Question 21

What does section 42(4) state?

Answer 21

S42(4) of the Constitution highlights how the NCOP works:
- By participating in the national legislative process
- By providing a national forum for public consideration of issues affecting the provinces

Question 22

What does the NCOP represent?

Answer 22

The NCOP forms part of Parliament (the national legislature). It represents provincial and local government and it ensures the responsiveness of the national government to provincial interests.

Question 23

Which members make up the NCOP?

Answer 23

The NCOP consists of 90 members made up of single delegations of 10 members from each of the 9 provinces. This means that there is equal representation for small and big provinces

Question 24

What are the 9 provincial delegations?

Answer 24

The 9 provincial delegations are appointed by the provincial legislature in each province. Individual delegation slots are allocated proportionally to the various parties in each of the respective legislatures. The NCOP is thus an indirectly elected body

Question 25

What are the 10 delegates that each provincial delegation is made up of?

Answer 25

- 4 special delegates - 6 permanent delegates - Special delegates include: the Premier and three (3) other members from the provincial legislature

Question 26

What is a permanent delegates?

Answer 26

Permanent delegates are appointed based on party affiliation and proportional representation according to a set formula (sections 60 to 62 of the Constitution). They are appointed for a fixed term, however they cannot be both member of provincial legislature and act as permanent delegates tothe NCOP.

Question 27

Where does the NCOP sit?

Answer 27

They sit where they determine although the President may summon the NCOP to an extraordinary sitting for special business (s63 of the Constitution)

Question 28

What does section 70 of the Constitution state?

Answer 28

The NCOP can make its own internal arrangements and procedures (s70 of the Constitution)

Question 29

What varies the role and power of the NCOP?

Answer 29

The role and power of the NCOP varies according to: - impact of legislation on provinces - nature of legislation

Question 30

How are votes casted in the NCOP?

Answer 30

Each provincial delegation casts a single vote under instruction or mandate of provincial legislature. All questions before the NCOP are agreed when the majority (5 delegations) support a decision (s65(1) of the Constitution)

Question 31

What can the NA and the NCOP do under the Constitution?

Answer 31

- determine and control their internal arrangements, proceedings and procedures - make rules and orders concerning their business, with due regard to representative and participatory democracy, accountability, transparency and public involvement (s57 and 70 of the Constitution)

Question 32

What are the mechanisms used for Parliament to hold the Excutive to account?

Answer 32

These include: - Putting questions to the Executive - Oversight through the Parliamentary Portfolio Committees - Passing of budget votes - Debates on matters of public importance - Motions of no confidence - Impeachment of the President

Question 33

Which section of the Constitution gives parliment the power to call members of the Executive and public administation to account for activities?

Answer 33

Parliament (NA, NCOP and their Committees) has the power to call members of the Executive and public administration to account for their activities as seen in **s56 and s69 **of the Constitution and the Rules of the NA and NCOP

Question 34

what does s44(4) of the Constitution state?

Answer 34

When exercising its legislative authority, Parliament is bound by the Constitution and must act in accordance with, and within the limits of, the Constitution (s44(4) of the Constitution)

Question 35

What did the courts hold about the political power of the NA in EFF v Speaker of the NA case?

Answer 35

In the EFF v Speaker of the NA case, the Court held that the NA has not only the political power and function but also a constitutional obligation, to hold the President accountable

Question 36

What did the court in the UDM case states about the MPs service?

Answer 36

Despite the CC view in the UDM judgment held that MPs needed to serve the people above their party. Political parties and their leaders still hold enormous power over the elected members of the legislature in South Africa.

Question 37

What is stated in De Lille about jthe exercise of parlimentary privilege?

Answer 37

The exercise of parliamentary privilege is subject to judicial review and the supremacy of the Constitution as stated in De Lille

Question 38

What was held in De Lille case about s58(1)?

Answer 38

In the De Lille case it was found that s58(1) is a fundamental right the tenor and spirit must conform to all other provisions of the Constitution relevant to the conduct of proceedings in Parliament

Question 39

What does section 58(1) protect?

Answer 39

The right of free speech in the Assembly is protected by s58(1), a fundamental right crucial to representative government in a democratic society

Question 40

Who can initate legislation?

Answer 40

Most bills are initiated by members of the National Executive (specific portfolios) but any member of the NA may initiate legislation (s73(2) of the Constitution).

Question 41

What is JTM?

Answer 41

Before the bill is introduced to Parliament it is presented to the Joint Tagging Mechanism (JTM) for tagging (classifying)

Question 42

What is done during JTM?

Answer 42

During JTM there is no enquiry into the substance or true purpose and effect of the bill.

Question 43

What is the JTM tasked with?

Answer 43

- Determining what kind of bill the document before it is, and in so doing - Determine which enactment procedure is to be adhered to; and - Assessing whether the bill is constitutionally and procedurally in order - Whether it complies with the Constitution and the Rules of Parliament.

Question 44

How can the president refuse to sign a bill?

Answer 44

The President does not have a general right to veto Bills duly passed, so the President has to sign them. however, the President may refuse to sign if he/she has reservations about its constitutionality. In such cases, the President must refer the Bill back to the NA for reconsideration

Question 45

What is the last stage related to the president refusing to assent a bill?

Answer 45

If the President still has reservations after the NA has reconsidered the Bill: the Bill may be referred to the Constitutional Court. If the Constitutional Court decides the Bill is constitutional, the President must assent to and sign the Bill.

Question 46

What happens once a bill is signed by the president?

Answer 46

Once the President signs a Bill and it is published in the Government Gazette, it becomes an Act of Parliament. When the Act becomes effective depends on the wording; it may be when the President assents to it, or on a date to be determined.

Question 47

What does s80 of the Constitution provide?

Answer 47

s80 of the Constitution provides that the constitutionality of an Act can be challenged if a sufficient number of MPs apply to the Constitutional Court for an order declaring the Act unconstitutional.

Question 48

What does s59(1) and s72(1)(b) of the Constitution require?

Answer 48

S59(1)(b) and s72(1)(b) of the Constitution requires both the NA and the NCOP to conduct their business in an open manner and hold their sittings and those of their committees in public.

Question 49

What was found in the Primedia Broadcasting case in realtionto regulation of access to Parliment?

Answer 49

In the Primedia Broadcasting case, the test to be applied to determine whether the regulation of access to Parliament is reasonable and therefore constitutionally permissible, is not only whether the limitation is proportionate to the end or would do so without limiting others' rights

Question 50

What was found in the Doctors for life case about objective standard?

Answer 50

In the court case, the CC stated that in the Doctors for Life stated the reasonableness is an objective standard, which is sensitive to the facts and circumstances of a particular case

Question 51

What are the factors that will be used to determine reasonableness in Doctors for Life?

Answer 51

The factors that will be used to determine reasonableness are as follows: - The nature and importance of the legislation and the intensity of its impact on the public - The saving of money and time in itself is not just inadequate for public involvement - To be appropriate public involvement in the light of the legislation content, importance and urgency

Question 52

What is public participation?

Answer 52

Parliament cannot pass legislation or engage in other important processes without considering the need to facilitate some form of public participation. This is a voluntary activity by which members of the public, directly or indirectly, engage with members of the legislature

Question 53

What is schedule 4 of the Constitutions?

Answer 53

Schedule 4 of the Constitution sets out matters on which both national and provincial legislatures can pass laws, it sets out areas in which the provincial legislature has coexisting competence with the national legislature.

Question 54

What is schedule 5 of the Constitution?

Answer 54

Schedule 5 of the Constitution sets out matters on which provincial legislatures alone may legislate

Question 55

What does s44 of the Constiution confer on the NA the power?

Answer 55

s44 of the Constitution confers on the NA the power: - to amend the Constitution (s74) - to pass legislation with regard to any matter

Question 56

What power is confored on te NCOP by the national legislative authority vested in Parliament confers?

Answer 56

- To participate in amending the Constitution (s74) - To pass legislation with regard to any matter within a functional area listed in Schedule 4 (s76) - To consider any other legislation passed by the NA (s75)

Question 57

What are the different kinds of bills and where are they found?

Answer 57

- Bills amending the Constitution = Section 74 Bill - Ordinary Bills not affecting the provinces = Section 75 Bill - Ordinary Bills affecting the provinces = Section 76 Bill - Money Bills = Section 77 Bill

Question 58

What happens when ordianry bills affect and dont afect provinces?

Answer 58

Ordinary Bills that contain provisions that both affect the provinces and that don’t affect the provinces are a mixture of s75 and s76 Bills

Question 59

What are s74 Bill outline?

Answer 59

- Require special procedures and special majorities - Can only be introduced in the NA - May not deal with matters other than constitutional amendments - Must be published in the - Government Gazette – with a call for public comment – 30 days before being introduced

Question 60

What are the four broad types of Section 74 Bills?

Answer 60

1. Amendments to section 1 (founding provisions); section 74(1) - Require a 75% majority in the NA and the support of at least 6 of the 9 provincial delegations to the NCOP 2. Amendments to Chapter 2 (the Bill of Rights); section 74(2) - Require a two-thirds majority in the NA and the support of at least 6 of the 9 provincial delegations to the NCOP 3. Certain amendments to the Constitution are relevant to provinces; section 74(3) - Requires a two-thirds majority in the NA and the support of at least 6 of the 9 provincial delegations to the NCOP. The NCOP may not pass the Bill or the relevant part unless it has been approved by the legislature of the province concerned 4. Any other amendments to the Constitution - Require a two-thirds majority in the NA. The support of at least 6 provincial delegations to the NCOP is not required for these ordinary amendments

Question 61

What does s74(3) bills apply to?

Answer 61

Section 74(3) bill process applies to amendments which: - Affecting the NCOP, - Alter provincial powers, boundaries, functions or institutions OR - Deal with a specific provincial matter

Question 62

What are section 75 Bills?

Answer 62

Section 75 Bills are ordinary Bills that do not affect the provinces. These bills do not fall within the functional areas referred to in Schedules 4 or 5 and are neither constitutional amendments nor Money Bills. When a Bill is tagged as a Section 75 Bill it may only be introduced in the NA.

Question 63

How are section 75 Bills passed by the NA?

Answer 63

Section 75 Bills must be passed by a vote of a majority of members present in the NA (50% + 1). A quorum of one-third of the delegates must be present.

Question 64

What happens if a section 75 bill isnt passed by the NA ?

Answer 64

If the NA does not pass the Bill or decides not to proceed with it, it lapses.

Question 65

How is the s75 bill passed by the NCOP?

Answer 65

All 90 delegates exercise their vote individually and the Bill must be passed by a simple majority (50% + 1) of votes. The reason for individual votes is that, as the Bills do not affect the provinces, voting is not required to take place on provincial instructions

Question 66

What happens if the NCOP rejects a s75 bill?

Answer 66

If the NCOP rejects the Bill or passes an amended version of the Bill, it must be referred back to the NA, which must take into account any amendments proposed by NCOP.

Question 67

What can the NA do if the NCOP rejects the s75 bill?

Answer 67

The NA can then: - abandon the Bill, or - accept the proposed amendments, or - reject the proposed amendments passing the Bill again with an overriding majority; the Bill will then be sent to the President for assent

Question 68

When will a bill be tagged a section 76 Bill?

Answer 68

- A Bill will be tagged in this way if it falls within a functional area listed in Schedule 4 or provides for legislation envisaged in particular sections of the Constitution - A Bill will also be tagged in this way if it purports to intervene in Schedule 5 matters - A Bill dealing with the seat of Parliament must also be tagged as a section 76 Bill - Mixed bills that contain provisions that affect the provinces and that do not affect the provinces must be passed in terms of the Section 76 process

Question 69

Where is a s76 Bill introduced?

Answer 69

A Section 76 bill can be introduced either in the NA or NCOP.

Question 70

What is the process of a s76 bill if it begins in the NA?

Answer 70

- The NA passes the bill with an ordinary majority - The bill then goes to the NCOP where votes are made en bloc, there is a total of 9 votes. The NCOP can accept it, reject it or propose amendments - If the NCOP passes the Bill without amendment, the Bill must be submitted to the President for assent - If the NCOP makes amendments, the amended Bill must be referred back to the NA, which can accept or reject this amended version - If the amendments proposed by the NCOP are accepted by the NA, the Bill goes to the President for assent - If the amendments proposed by the NCOP are rejected by the NA (or if the NCOP rejects the original bill) then the Bill is referred to the Mediation Committee (s78 of the Constitution - Once the Bill proposed by the mediation committee is accepted by the relevant House, it goes to the President for assent. If it is rejected, it lapses.

Question 71

What can a mediation committee do?

Answer 71

- Agree to support the Bill as passed by the NA (in which case the NCOP must confirm the decision) - Agree to support the amended Bill as passed by the NCOP (in which case the NA must confirm the decision) - Agree to pass its own version of the Bill (in which case the Bill must be referred to both the NA and the NCOP)

Question 72

What is the goal of the mediation committee?

Answer 72

The mediation committee tries to reconcile the difference between the NCPO and NA. If the Mediation Committee cannot agree on any option within 30 days of the Bill’s referral, the Bill will lapse

Question 73

What is the mediation comittee made up off?

Answer 73

It consists of 9 members of the NA and nine delegates of the NCOP.

Question 74

How is a s76 Bill that started in the NA passed, if the NCOP don't vote in favour?

Answer 74

The NA can revive a s76 Bill that started with it if it is passed with a two-thirds majority. The Bill will then go to the President for assent without passing by the NCOP. The NA may effectively override a decision of the NCOP.

Question 75

What is a money bill according to s77(1)?

Answer 75

- Appropriates money; - Imposes taxes, levies, duties and surcharges; - Abolishes or reduces, or grants exemptions from, any national taxes, levies, duties or surcharges; or - Authorises direct charges against the National Revenue Fund, except a Bill envisaged in section 214 authorising direct chargesW

Question 76

What is the Process of a s77 bill?

Answer 76

The process is as follows: A Money Bill must be introduced by the Minister of Finance Money Bills are passed in the same way as ordinary Bills not affecting the provinces (section 75 Bills)