Topic 5

Question 1

What does section 40(1) of the Constitution state?

Answer 1

Section 40(1) of the Constitution provides in the respect that in the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, independent and interrelated

Question 2

What is quasi federal system?

Answer 2

Quasi-federal system, the division of power between different spheres of government, however there isnt a strict division of power.

Question 3

What is the divided model of federlism?

Answer 3

In a divided model of federalism. The subject matters in respect of which polices and laws may be made are strictly divided between the different spheres of government. In an integrated model of federalism some subject matters are allocated exclusively to one sphere of government but most are concurrent or shared.

Question 4

What is the integrated model?

Answer 4

The integrated model is a mechanism that must be put in place to regulate the overlap of power between the various spheres of government.

Question 5

What does s40(2) state?

Answer 5

S40(2) of the constitution highlights the fact that spheres f government must adhere to cooperative governance

Question 6

What does s41(2) state?

Answer 6

s41(2) an act of parliament must to be passed to give effect to intergovernmental relations

Question 7

What does s41(3)?

Answer 7

s41(3) requires that organs of state involved in an intergovernmental dispute “make every reasonable effort to settle the dispute by means of mechanisms and procedures provided for for that purpose, and must exhaust all other remedies before it approaches a court”

Question 8

How is s41(3) given effect?

Answer 8

s41(3) requires that organs of state involved in an intergovernmental dispute and courts can enforce this through s41(4)

Question 9

What does IGRFA state?

Answer 9

Intergovernmental Relations Framework Act (IGRFA) established bodies for coordinating the executive activities of different spheres of government.

Question 10

Which schedules do the 9 prvincial governments share the power to make laws?

Answer 10

The nine provincial governments share the power to make laws on a wide range of important matters with the national government. These subject matters are listed in Part A and B of Schedule 4 of the Constitution

Question 11

Who shares power in Part A and Part B of schedule 4?

Answer 11

The national and provincial governments share power over the subject matters listed in Part A and the national, provincial and local governments share power over the subject matters listed in Part B.

Question 12

Which laws cant be passed in Part B of schedule 4?

Answer 12

While the national and provincial government are entitled to pass laws regulating the local government matters set out in Part B of schedule 4, they are not entitled to pass laws giving themselves the power to administer or implement laws.

Question 13

What happens if national and provincial laws conflict?

Answer 13

If the laws made by the national and provincial governments conflict with each other, the national law will overide the provincial law, but only if the law satisfies the criteria set out in section 146 of the Constitution.

Question 14

Who can adminsiter the functions in part A of schedule 4 and 5?

Answer 14

Part A of schedule 4 and 5, only the provincial legislature can administer this function in accordance with s125(b)

Question 15

Who can administer the functions in part B of schedule 4 and 5?

Answer 15

Part B of the schedule 4 and 5, local government has exclusive competence to administer in these regards

Question 16

What is stated in s125(2)(c)?

Answer 16

Provincial executives may have slightly different administrative powers that are delegated to provincial executives by the national legislature in accordance with s125(2)(c).

Question 17

What happens when a blaw is in coonflict with legislation?

Answer 17

Section 156(3) of the Constitution states that subject to section 151(4) a by-law that conflicts with national or provincial legislation is invalid.

Question 18

Who makes laws in accordance to schedule 5 part A and B

Answer 18

Provincial governments also have the exclusive power to make laws on the matters set out in Part A of Schedule 5 and provincial and local governments have the exclusive power to make laws on the matters set out in Part B of Schedule 5

Question 19

What does s139 of the constitution highlight?

Answer 19

S139 highlights how the provincial government can intervene in local administration

Question 20

When will national goverment interevne in schedule 5 matters?

Answer 20

Schedule 5 powers have been exclusively reserved for provincial and local government, section 44(2) of the Constitution provides that the national government may intervene and pass a law on a Schedule 5 matter if it is necessary

Question 21

Which matters does the National legislature have the following competence in?

Answer 21

• Matters not on the schedules (residule matters) - regulated thorough s75 or s75
• Matters in schedule 4 - regulates through s76
• Matters in Scedule 5 if in accordance with s44(2) - regulated through s76

Question 22

When is it necessary for the courts to intervene in accordance with s44(2)?

Answer 22

• to maintain national security;
• to maintain economic unity;
• to maintain essential national standards;
• to establish minimum standards required for the rendering of services; or
• to prevent unreasonable action taken by a province which is prejudicial to the interests of another province or to the country as a whole.

Question 23

What is hels in s40(2)?

Answer 23

All spheres of government are required to observe and adhere to the principles of co-operative government set out in Chapter 3, in s40(2).

Question 24

What is held in s41(1)?

Answer 24

All spheres of government and all organs of state within each sphere must operate in accordance with s41(1)

Question 25

What is found in chapter 9 of the Constitution?

Answer 25

Chapter 9 enterenches the independence of the institutions identified in this Chapter and hence these institutions cannot simultaneously be independent of and yet part of government

Question 26

Why was the IGRFA passed?

Answer 26

The IGRFA was passed to establish structures to promote and facilitate intergovernmental relations and to provide mechanisms to sittle intergivermental disputes.

Question 27

What was was the purpose of the IGRFA?

Answer 27

The purpose of the IGRFA is to provide a framework for the various spheres of goveremnts and organs of state within those sphere to facilitate co-ordiantation in the implemention of policy and legislation

Question 28

What does s195 state?

Answer 28

Section 195 declares the the principles governing the public administration are an efficient, economic and effective use of resources and develeopent oriented and accountable conduct.

Question 29

What are the three requirments provinces are required to fulfill?

Answer 29

- Provinces provides a close link between voters and their government to ensure the government address the particular concerns and unique challenges and needs of discrete geographical areas - Provinces are required to implement national policies and plans relatinf to important service delivery areas auch as housing, health care, policing and education. - Provinces must oversee the smooth running of the local sphere of government within the boundaries of the provinces

Question 30

What does chapter 6 do?

Answer 30

The Constitution regulates the governance of the provinces in Chapter 6 and sets out the structure, powers and functions of the provincial legislature

Question 31

Which matters according to s104(1) are the provincial legislature able to pass legislation on?

Answer 31

- Within functional area listed in Schedule 4 - Within functional area listed in Schedule 5 - Outside those functional area and that is expressly assigned to the province by national legislation - For which a provision of the Constitution envisages the enactment of provincial legislation

Question 32

Where is the executive authority of a province vested in?

Answer 32

The executive authority of a province is vested in the Premier of that province who exercises it together with the other members of the executive council. The Premier role mirrors that of the President at national level.

Question 33

What is highlighted in s127(2)

Answer 33

Premiers powers as head of the provinces are highlighted in s127(2)?

Question 34

What is highlighted in s125(3)?

Answer 34

A Province has executive authority in terms of those functional areas listed in Schedules 4 and 5 of the Constitution, but only to the extent that the province has the administrative capacity to assume effective responsibility as stated in s125(3).

Question 35

How are premiers elected?

Answer 35

Premiers are elected by the provincial legislature, as stated in s128.

Question 36

What are the two ways a premier can be removed?

Answer 36

- Premiers can be impeached in terms of ection 130(3) for serious violation of the Constitution or the law, serious misconduct or inability to perform the functions of office - In terms of s141, a provincial legislature may remove a Premier for purely political reasons by instituting a motion of no confidence in the Premier

Question 37

What is the pith and sustance test?

Answer 37

The CC uses a pith and substance test requires the determination of the subject matter or the substance of the legislation or true purpose and effect of what the legislation is about. The pith and substance test was first applied by the CC in the Liquor Bill case.

Question 38

What are the facts in the Liqour bill?

Answer 38

In the Liquor Bill case, Parliment passed the Liquor Bill which sought to regulate the liquor industry comprehensively. The bill divided the economic activity of the liquor industry into three categories: manufacture, distribution na dretail sales. The Bill treated manufactured and distribution as national issues and retal sales as provincial issues. The President referred the Bill to the CC in terms of section 84(2)(c) of exhaustively regulated issues concerning manufacture and distribution and provided for the national sphere to control the issuing of liquor licences despite the fact that liquor licincing was an exclusive provincial competence in terms of Schedule 5. Parliament contended that the Bill primarily dealt with trade, economic and social welfare which are concurrent competence nterms of schedule 4. The Western Cape provincial competence in terms of Schedule 5.

Question 39

What was held in Liqour bill?

Answer 39

The courts held that legislative authority is vested in Parliament for the national sphere, in the provincial legislature for the provincial sphere and in municipal councils for the local sphere. A broad interpretation of the competence listed in Schedule 4 would have ultimately negated the exclusive competence of the provinces to legislate in respect of matters listed in Schedule 5. s44(2) states you must prove necessity, not consistency, this onus is on the national legislature to prove one of the conditions

Question 40

What does s146(2)(c) hold?

Answer 40

S146(2)(c) holds that it needs a higher standard before overruling the provincial legislation

Question 41

What does s146(3) hold?

Answer 41

s146(3) of the Constitution, national law will prevail over provincial law if it is aimed at preventing unreasonable action by a province or the country as a whole or impedes he implementation of national economic policy.

Question 42

How is conflict between national and provincial legislated resolved?

Answer 42

Schedule 5 is a conflict between national legilation and provincial legislation with resect to these matters must be resolved intersm of s147(2).

Question 43

What does s100 hold?

Answer 43

Section 100 allows for national intervention in provincial administration, this permits the national executive to intervene and take appropriate remedial measures if the province cannot or does not fulfill an executive obligation

Question 44

What does s100(1) state?

Answer 44

Section 100(1) states that if the national government is to interven, it must issue a directive to the prince describing the extent of the failure to fulfill his obligation and stating the steps required to fufill its obligations.

Question 45

What are the objectives of local goverment set out in s152(2)?

Answer 45

- to provide democratic and accountable government for local communities; - to ensure the provision of services to communities in a sustainable manner; - to promote social and economic development; - to promote a safe and healthy environment; and - to encourage the involvement of communities and community organisations in the matters of local government.

Question 46

What does s153 of the Constiution also provide that a municipality must do?

Answer 46

- structure and manage its administration and budgeting and planning processes to give priority to the basic needs of the community, - structure and manage its administration and budgeting and planning processes to promote the social and economic development of the community - participate in national and provincial development programmes.

Question 47

What does a municipal system act impose?

Answer 47

Municipal System Act, imposes an obligation on every municipality in the territory to provide basic municipal services to their inhabitants, such as water and electricity, irrespective of whether or not thet entered in a contract fot the supply of these services with the municipality

Question 48

What does a municipality have executive authority for?

Answer 48

The executive and legislative powers of a municipality are set out in s156, a municipality has executive authority in respect of and has the right to administer the local government matters listed in Part B of Schedul 4 and Part B of Schedule 5.

Question 49

What does s156 of the Consitution state?

Answer 49

Section 156 also provides that a municipality may make and administer by-laws fot the effective administration of the matters that it has the tight to administer.

Question 50

What does s156(5) provide?

Answer 50

Section 156(5) provides that a municipality has the right to exercise any power concerning a matter reasonably necessary fot the executive performance of its functions.

Question 51

What does s156(1)(a) provide?

Answer 51

Section 156(1)(a) provides that a municipality has executive and legislative authority in respect of the local government matters listed in Part B of schedule 4 and in Part B of schedule 5.

Question 52

Which section of the constitution states that the national and provincial goverment can pass laws listed in schedule 4B?

Answer 52

It conferred on the national and provincial government to pass laws on the matter listed in Schedule 4B it is limited by section 155(6)(a) and 155(7)

Question 53

Which section of the constitution states that the national and provincial goverment can pass laws listed in schedule 4B?

Answer 53

Schedule 5B is limited by section 155(6)(a) and 155(7).

Question 54

What does s44(1)(a)(ii) and s104(1)(c) state?

Answer 54

Section 44(1)(a)(ii) and 104(1)(c) provide that both the national and provincial governments may increase the legislative powers of specific municipalities of municipalities in general by assigning any of their legislative powers to a secivc municipality or municipalities in general.

Question 55

What does s156(4) provide?

Answer 55

s156(4) provides that the national and provincial overments must assign the administration fora matter listed in Part A of schedule 4 or Part A of schedule 5 to a municipal council if certain conditions are met.

Question 56

What are the conditions listed out in s156(4)

Answer 56

This is as follows: - The matter necessarily relates to local government - The matter would most effectively be administered locally - The municipality has capacity to administer the matter - The municipal council agrees to the assignment

Question 57

What does s156(5) state?

Answer 57

s156(5) provides that a municipality has the right to exercise any power concerning a matter that is reasonably necessary for or incidental to the effective performance of its functions.