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Constitutional law: Structures > Topic 3 > Flashcards

Topic 3 Flashcards

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1
Q

How is the President appointed?

A

Appointment of the President:
- The NA elects the president from among their members in the first sitting after a national election, as seen in s86(1)
- The date of the President’s election is determined by the Chief Justice within 30 days after the vacancy s86(3)
- The President must be an MP before the election, but ceases to be a member of the NA after s87

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2
Q

How long is the Presidents term?

A

The President’s term is at max 2 terms, which is 10 years as highlighted in s88(2). The exception is that if the President is elected to fill a vacancy between elections.

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3
Q

What happens if the President resigns or dies?

A

If the President resigns, or dies, the Deputy President is typically appointed to act in the position, then there is a line of other possibilities to ensure that there is no power vacuum (s90(1) of the Constitution)

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4
Q

What are the things that can lead to presidents impeachment?

A

The requirements are:
- Serious violation of the Constitution or the law
- Serious misconduct
- Inability to perform the functions of the Office

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5
Q

What are the requirments to get the president impeched?

A

The President can be impeached according to s89(1). This needs to be supported by ⅔ majority, and happens to safeguard the nation against the abuse of power by the President.

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6
Q

When can impeachment on the president happen?

A

The removal of the president in terms of section 89(1) of the Constitution is the impeachment. Impeachment could only commence if it were established that the President had committed a serious violation of the Constitution or serious misconduct or that there are incapacitated.

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7
Q

What did the CC in EFF II stated?

A

The CC in EFF II stated that a removal of the president where none of the grounds is established would not be a removal contemplated in section 89(1) and therefore woulf be unconstitutional.

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8
Q

What benefits does the impeached president get?

A

An Impeached President may not receive any benefits of the office (like a pension) and
cannot serve in public office again (s89(2) of the Constitution)

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9
Q

What is the vote of no confidence of the President?

A

A President can be removed from office through a motion of no confidence. This requires a simple majority, and this would mean that the whole Cabinet must resign. This is sought for political reasons and highlighted in Section 102(2)

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10
Q

When can the president be removed from office?

A

The President can also be removed from office for purely political reasons in terms of section 102(2) of the Constitution, by a vote of no confidence.

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11
Q

What was held in UDM about the motion of no confidence

A

In UDM it was held that a motion of no confidence exists to strengthen regular and less fatal accountability and oversight mechanisms.

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12
Q

What was held in Mazibuko case about motion of no confidences?

A

In Mazibuko the CC stated that any member of the NA can now propose a motion of no confidence in the President and have it debated in the NA without first having to obtain the consent of the Programming Committee, and thus in effect the majority party.

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13
Q

When will a vacancy in the Office of the President arise?

A

A vacancy in the Office of the President will arise when:
- The President is absent from the Republic
- The President is unable to fulfil his duties
- When the President resigns, dies, a motion of no confidence is passed, or he is removed from office

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14
Q

What is the hierachy of acting president according to s90(1)?

A
  1. The deputy president will usually be appointed as acting president when a vacancy arises
  2. A minister designated by the President
  3. A Minister designated by other members of the Cabinet
  4. The Speaker of the NA
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15
Q

What does section 90 of the Constitution states about the acting president?

A

Section 90 of the Constitution states that an acting President has all the responsibilities, powers and functions of the President. The acting resident must swear or affirm faithfulness to the Republic and obedience to the Constitution in accordance with the oath contained in Schedule 2 of the Constitution

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16
Q

What is the legal significance between head of state and head of executive is that the head of State?

A

The legal significance of this distinction between head of state and head of executive is that the head of State (the President) can exercise authority alone, and acts in consultation with the Cabinet.

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17
Q

When can the the President not abdicate the exercise of their power by?

A

The President cannot abdicate the exercise of their power by:
- Unlawful delegating
- Acting under instruction from others
- Referring the decision to someone else

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18
Q

What is the two roles of the President?

A

The President has two roles as Head of State v Head of the Executive s83(a).

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19
Q

What does the President do as head of state?

A

As the Head of State, the President is the representative of the people as seen in s84(2). In the Hugo case, the President is seen as the head os state through assenting to and signing Bills, pardoning offenders

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20
Q

What does the president do as head of the executive?

A

As the Head of the Executive, the President is responsible for exercising executive authority as seen in s85. In the Maetha case, the President, as head of the executive, is shown through the implementation of national legislation, coordinating the functions of the departments

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21
Q

How does the President exercise powers as head of state and head of executive?

A

The President can exercise the Head of State powers alone, but must exercise the Head of the Executive powers in consultation with members of the Cabinet.

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22
Q

Where are the prerogative powers of the state President codified?

A

The prerogative powers of the State President are codified in section 84(2) of the Constitution

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23
Q

When does the President exercise powers as ead of state alone?

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A
  • Assent Bills
  • Refer the Bill back to the NA for reconsideration
  • Refer the Bill to the CC
  • Summon the NA, the NCOP or parliament
  • Appoints a mission of enquiries
  • Calls a national referendum in lieu of an act
24
Q

What was held in the President of the Republic of SA v Public Protector?

Study These Flashcards
A

In the President of the Republic of SA v Public Protector, the High Court held that the Public Protector’s remedial powers include the authority, not only to instruct the President to perform their obligation as the Head of State but also to determine the manner in which the President should do so in those cases in which they suffer from a conflict of intrest. It was held that the president cannot abdicate the exercise of powers explicitly bestowed on him by the Constitution

25
What was held in the Corruption Watch case?
In the Corruption Watch case, it dealt with a situation in which the President was required to appoint a new National Director of Public Prosecutions, but where the President was conflicted because the NDPP would be required to decide whether the President should be prosecuted for corruption while potentially facing corruption charges himself. The court relied on section 90(1) of the Constitution, which requires the Deputy President to act as President when the President is unable to fulfil the duties of President. This solution better accords with the settled principle that the President cannot abdicate their power and should not exercise power at the direction of any other person
26
What does section 85(1) of the Constitution state?
Section 85(1) of the Constitution states that the executive authority of the Republic is vested in the President,
27
What does section 85(2) of the Constitution state?
Section 85(2) confirms that the President exercises the executive authority together with the other members of the Cabinet.
28
How does the president execerise executive authority together by theother members of cabinet?
The President exercises executive authority, together with other members of the Cabinet, by: - Implementing national legislation except where the Constitution or an Act of Parliament provides - Developing and implementing national policy - Coordinating the functions of state departments and administrations - Preparing and initiating legislation - Performing any other executive function provided for in the Constitution or national legislation
29
What is the formal limits on the manner in which the president can act as head of state?
Several constitutional provisions place formal limits on the manner in which the President must exercise as Head of State and head of executive powers. The President can only appoint a person with the prescribed qualifications. In exercising his executive powers, the President must act lawfully and rationally
30
What was held in Corruption Watch II?
In Corruption Watch II, the CC declared invalid the President's appointment of the NDPP based on the manner in which the former NDP vacated his office. The court held that the appointment of the NDPP was an act consequent upon the constitutionally invalid vacation of office by Mr Nxasana. The President could not extend the term of office of the NDPP, as this would undermine the independence of the NDPP. The president cannot suspend the NDPP without pay and for an indefinite period, as this could compromise the independence of the NPA.
31
What was held in section 174(3) of the Constitution?
In section 174(3) Constitution, when appointing the Chief Justice and Deputy Chief Justice, the President must first consult with the JSC and the leaders of opposition parties in the NA. They must also consult the JSC before appointing the President and Deputy President of the SCA.
32
What is held in section 101 of the Constitution?
In section 101 of the Constitution, a delusion by the President must be in writing if it is taken in terms of legislation or has legal consequences. Another Cabinet member must countersign a written decision by the President if that decision concerns a function assigned to that other Cabinet member.
33
What dose the Hugo case do to limit govermental power?
In the Hugo case, the CC also places substantive limits on the exercise of powers by the President. Courts can review the exercise of power by the resident and set aside any decision by the President on certain substantive grounds. The exercise of power by the President is constrained in that such an exercise of power, subject to the provisions contained in the Bill of Rights.
34
How is the Presidents powers limited by the Bill of Rights?
The exercise of the powers by the President must not infringe any provisions of the Bill of Rights, and the President must act in good faith and must not misconstrue their powers
35
How does the CC limit the President?
The courts have to balance their duty to enforce the provisions of the Constitution, respect for the fact that the decisions of the President and the executive often contain a political component with which the courts should be slow to interfere.
36
What does section 91 state?
Section 91 of the Constitution states that the President is given a wide discretion to appoint the Deputy President and the members of the Cabinet
37
What was held in the Masethla case?
In Masethla case, the decision of the President to dismiss the head of the NIA was challenged. The basis of the challenge, that it was unfair to do so because the President did not afford Mr Masetlha an opportunity to be heard before the impending dismissal in contravention of the common law administrative law right codified in section 33. The CC focused on the nature of the power of the President to appoint and dismiss the head of the NIA as set out in section 209(2) of the Constitution. The court dismissed the challenge, arguing that the dismissal constituted executive action rather than administrative action, particularly in this special category of appointments of members of the NIA.
38
What was held in Premier, Province of Mpumalanga case?
In the Premier, Province of Mpumalanga case, it is cautioned that procedural fairness should not be made a requirement for the exercise of every decision by the executive, as this will inhibit their ability to make and implement policy effectively.
39
What was held in the Justice Alliance case?
The CC in the Justice Alliance case found that the power to extend the term of office is explicitly conferred on Parliament and not on the President. The court stated that section 176(1) contains clear textual indicators that the Constitution does not empower Parliament to delegate the power to extend the term of service of a judge of the CC as was purportedly done by section 8(a) of the Judges Remuneration and Conditions of Employment Act.
40
What was held in Hugo case?
In Hugo it is the exercise of power by the President that is controlled through the requirement that when exercising any duly authorised power, the President has to act rationally and in good faith
41
What was held in the Albutt about the rational of thecase?
In Albutt the CC case, found that where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are relationally related to the objective sought to be achieved. What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that coils have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking, they are not Constitutional.
42
What was held in Minister of Home Affairs v Liebenberg?
In Minister of Home Affairs v Liebenberg, the CC pointed out that when taking the President to court, it would be important to avoid imprecise and open-ended citing og the President in litigation. When asking a court to declare the conduct of the President unconstitutional, it is necessary to indicate precisely which conduct is attributable to the President and falls foul of the Constitution.
43
What does section 91 state?
S91 highlights that the NA is made up of the President, Deputy President and Ministers.
44
What makes the requirment that the executive is more directly accountable to the electroate?
The requirement that all but two of the members of the Cabinet have to serve as members of the NA affirms the principle of parliamentary government. mirroring to some degree the Westminster system. This, in theory, suggests that the executive is more directly accountable to the electorate because it allows the democratically elected NA to control the conduct of the executive.
45
What is emphasised in section 92(2) of the Constitution?
The overlap of the separation of powers in personal provides an important mechanism by which the legislature is able to check the exercise of power by the executive, which is emphasised by the provisions of section 92(2) of the Constitution. This includes that members of the cabinet are accountable collectively and individually to Parliament for the performance of their functions
46
What gives the President the power to dismiss memebers of the executive?
The President (s91(2)) or the NA(s102) can remove the Deputy President and the other members of the Cabinet from office. The power of the President to dismiss members of the Cabinet is political in nature and will usually be exercised after consultations with the leadership of the majority party.
47
What is the sole authority of the President as the head of the national executive?
The Sole authority of the President as the head of the national executive: - Appoint Deputy President, cabinet ministers and deputy ministers s91(2) - Appoint a leader of the government business in NA from amongst the members of the NA s91(4)
48
What is the role of the NA in the day-to-day running of the country as highlighted in s85(2)?
The role of the NA is the day-to-day running of the country as highlighted in s85(2). Their roles are: - Preparing, initiating & implementing legislation - Developing & implementing policy - Coordinating the functions of government departments
49
What is found in section 102 of the Constitution?
In terms of section 102(1) of the Constitution, the NA can also pass a vote of no confidence with a simple majority vote in the Cabinet, after which the President must reconstitute the Cabinet. This distinction from a motion of no confidence passed in terms of section 102(2), which would require the President and the Cabinet to resign. In theory, section 102(1) of the Constitution provides the NA with a powerful tool to hold individual members of the Cabinet accountable.
50
What is found in section 91(2) of the Constitution?
Section 91(2) of the Constitution simply states that the President assigns powers and functions to the Deputy President and Minister
51
What is found in section 91(5) of the Constitution?
Section 91(5) states that the Deputy President must assist the President in the execution of the functions of the government.
52
What does section 90 of the Constitution state?
Section 90 gives the deputy the power to act as president in the president's absence.
53
What does section 96 of the constitution highlight?
Section 96 highlights the collective and individual responsibilities of Cabnite members, that they must act in accordance with the code of ethics prescribed by legislation, they may not take any other paid work, or act in a way inconsistent with their office.
54
What does section 2 of the Executive Members Ethic Act state?
In terms of section 2 of the Executive Members' Ethics Act, the President publishes the Executive Code of Ethics with which members of the cabinet, deputy ministers and members of the provincial executive council must comply in performing their official responsibilities.
55
Where is the president of powers, values and functions found?
The president's powers and functions are found in s84, the president's values and functions s83
56
When is consultation needed before the President makes decision?
When the president is exercising his powers in terms of s84 as head of state, no consultation is needed; however, when acting in accordance with s85 as head of the executive, consultation is needed

Constitutional law: Structures (6 decks)

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