Transcript for:
Constitutional Law Key Concepts and Exam Prep

sarah um can you uh switch your camera off please sarah yes perfect thank you uh let's see how many of us there are okay with the numbers are growing things are looking good we should start soon then okay i am going to start because i am recording this lecture and i think we we should finish today but we might have to have another lecture given that your exam is now the 6th of september much to our great shock and horror so i'm going to start now today's lecture very much the same as how i started in april at our very first lecture because at that time when i referred you to tutorial letter 102 and to page six where this diagram is it obviously and i can understandably so confirm that it meant nothing to you because it just looks like it makes no sense and you have no idea how this actually translates to what constitutional law is and how it works and what it's all about so today's lecture is for me to re re-explain this diagram because by now you have a much better understanding of what words and what the particular cases that are being referred to actually mean to you and how they are applicable to constitutional law so the the very first point when thinking about constitutional law is firstly it is defined as that branch of the law that relates to the relationship between the citizens and the state and even though i'm emphasizing citizens and it sounds as though i'm therefore excluding foreign nationals from the protection of the constitution that that is a very literal interpretation but why we have to emphasize the word citizens in constitutional law is because we know that in terms of democracy for example only citizens have the right to vote in elections and only citizens have the right to then be appoi or elected and therefore assume a position in the national assembly likewise if we look at the judiciary it actually states specifically in the constitution that a person is eligible to be a judge in south africa if they are a citizen so that's why i'm emphasizing citizens but that does not mean that non-south africans are not protected because non-south africans are protected by the public protector by the very notion of the rule of law by the national prosecuting authority for example they cannot refuse to investigate a case just because you're a foreign national so i'm starting with that definition because of its importance for if you will that the foundation of constitutional law which is democracy but before we even discuss democracy we need and i'm saying this now very deliberately for preparation for exam purposes because i know that you are all extremely stressed and you're looking at past exam papers and you're thinking you're going to get a similar kind of question as in the past and i can assure you that i have tried to make this exam paper as straightforward as possible also what is very different from this exam that most of you will not have ever seen before is that while we have 25 true and false questions you must remember that you don't just answer true or false and then move on because a full 50 marks of the exam paper is purely for how you explain why you said true or false so those 75 marks of the exam are easy marks to get and i'm saying that a because none of the questions are deliberately you know tricky to the point where you won't be able to quickly be able to identify if it's true or false and be able to give an explanation moreover in constitutional law and this really does apply or should apply to most other modules but often you might have a completely different point of view and if you are able to substantiate your point of view by using the correct provisions of the constitution or the correct reading of a case you might equally be able to get the marks for it so i don't want you to be stressed and thinking i will i'm going to fail because i won't know if it's true or false you you have the inherent right and duty to interpret the question accurately and give a compelling and persuasive answer so that when whoever marks it reads it even if it isn't what i might have said the answer is if the marker is convinced by your answer you get the mark for that and then the 25 mark essay is because it's not even something that i need to to hide from you it is going to deal with constitutional law as a whole and this diagram is that but obviously you can't just redraw the diagram and think that that's your essay there are per specific aspects of this diagram that i want you to be able to explain in a such a compelling manner that whoever reads your answer realizes that you know why we have constitutional law in south africa how it works and how it has developed over the years precisely because as your tutorial letter 101 states and 102 in fact 102 says it even more clearly constitutional law is probably the most fast developing and dynamic of any of the modules you're studying at unisa at the moment right now we're sitting with just day before yesterday we had this unprecedented situation where the judicial service commission said we believe that judge john lopez should be impeached it's never happened before in south africa's entire history so these are important developments that you need to be aware of um and it's in the news so you can't say oh i didn't know i have no idea these are things that are happening every day so you actually know everything anyway all i need to know is that you can explain for example why the judicial service commission made that decision or why they made the decision and what the next process is so i'm going to start by saying to you start at the beginning meaning section one of the constitution section one of the constitution is the most important section in the entire constitution because it lays the basis for everything that you need to know for constitutional law and let us so let us quickly look at section one section one starts by saying that south africa is a sovereign democratic state so already in the first sentence you see the word democracy and then you need to know hang on what does it actually mean what does democracy mean and that the fact that south africa doesn't just have one form of democracy remember we have five forms of democracy all operating at the same time and then the constitution goes on to say that the state is founded on human dignity achievement of equality and advancement of rights and freedom now is that not the epitome of constitutional law is that our human dignity is given effect to when we are allowed to participate in the elections and our voice is heard and the people that we or the party who that who we voted for the representatives who are on the list of that party now have assumed their position in parliament and they are going to speak for you and they are going to make sure that you as an uh you know a dignified valuable human being that your views will be taken into account because you are equal in status to every other south african citizen who has also participated in those elections and that when parliament is making laws or making decisions that affect us they have to make sure that our human rights and our freedoms are protected but more importantly than that i mean well when i say more importantly it's only here because i'm i'm not going to place too much emphasis on section 1b which says that the state is also premised on ensuring non-racialism and non-sexism i mean that actually should go without saying so we know that the government is trying really hard to promote gender equality and we know that there are numerous laws in place passed by parliament such as the broad-based black economic employment act and the employment equity act all of those pieces of legislation were passed by our democratically elected legislature in order to ensure non-racialism and non-sexism that's that really as i say kind of goes without saying because that issue is probably something you might focus more on in the fundamental rights module because what institutional law on c and d section 1 c starts by saying supremacy of the constitution is one of the fundamental foundational features of south african constitutional system and that is why at the very top of this diagram i have the word constitutionalism remember and this is all in the slides to chapter 2 of the textbook constitutionalism has at least 10 different elements all confirming whether south africa is a constitutional state and the very first feature of a constitutional state is whether or not the plate the country has a supreme constitution and there is therefore no doubt that we have a supreme constitution because section 1 c unambiguously says we have a supreme constitution another feature of a constitutional state in other words a state that adheres to constitutionalism is the rule of law and that's why i've tried to situate the rule of law so centrally in this diagram because you by now after having answered assignment 2 know that the rule of law is of paramount importance in this democracy that we are still in the process of fully establishing and that's why section 1c says we will be promised on the rule of law so they cannot be any doubt about the fact that at all times everyone must comply with the rule of law and so everyone includes um sorry i just want to hear if everyone else can hear yes no sound on their device so they might have to try and listen to the recording okay so rule of law as i've just said means that every single one of us must at all times comply with the law even the president even the speaker of the national assembly all members of the national assembly all cabinet members who are part of the executive every single government official working in the department of home of fees the department of transport department of health department of higher education the list obviously goes on and on and on but everyone is bound by the rule of law because that ensures that we have a society that is governable and i use that term because we've seen that some of the allegations about the recent protest action and that the looting and writing the the the messages that were being conveyed on social media were we must make the state ungovernable and in fact all we're expecting in a constitutional state is a country that is characterized by good governance meaning that even everyone in power follows the rules follows the policies only does what they're allowed to do no more than that less than that so constitutional constitutionalism as we've now started together has of its ten elements one would be a supreme constitution two would be the rule of law and there's so much to say about the rule of law meaning that the rule of law essentially means at its most literal everyone is equal before the law everyone must therefore be subject to the same law there shouldn't be a situation where certain laws apply to certain people and certain laws apply to others or where certain people are above the law the rule of law also means and now of course this con this is the the sort of the antiquated british idea of the rule of law but it still has a lot of reasonings in south africa and that is that the ordinary courts are duty-bound to interpret any matter that comes before them purely by looking at what the law says and comparing it to the situation that they've been confronted with and to reach a conclusion that enables us to better understand how that law has been violated or might not have been violated so you see our courts are still playing the dominant role in informing us of what the rule of law means and so the best example yes do you have a question no can you possibly turn off your camera and i don't know if it's you know it's not you whose microphone is on so toulani you you can save yourself a lot of internet if you turn off your camera um and i don't know who's in um microphone was on but could you try and turn it off please um so the point i was making is our courts on a daily basis are still interpreting exactly what our constitution actually means so that we live in a society where the laws are clear they are predictable in other words you know exactly what will happen if you violate that law that they are generally known to everyone because they are published in the government statutes which are printed by the government gazette that are even easier to obtain simply on the internet that the rule of law is a concept that has as its underlying feature the idea that there must always be a close relationship between the power that has been conferred on any person holding a position of public power and the manner in which they execute that power and therefore the rationality test is what become sort of default option when we are trying to establish the rule of law and we're not quite sure if the president in that particular example acted correctly or not so the court is very often then going to use the rationality test and ask itself is the president allowed to shuffle his cabinet at midnight in march twenty i think that's how far yes it is that far long ago to shuffle his cabinet at midnight and the explanation he provides is because i received an intelligence services document that said there was going to be this attempted coup and so the court as you've seen in the case of the democratic alliance versus president of the republic of south africa the decision of the counting counting north high court of the 4th of may 2017 where the court said we as the court cannot tell the president when where or how he can shuffle his cabinet but all we as the citizenry can expect is that there's a rational connection between the power of the president to shuffle his cabinet and the way in which he did it and the reasons upon which he did it and so that's why that court case which became moot in other words it was no longer of any real significance other than for academic purposes when jacob zuma was recalled by the party and then resigned and tsuru ramaphosa took over and so by then if there was no longer the need to actually pursue the question of show us that intelligence report that you relied on but the court therefore showed us that it is different and i'm using the word difference because if you're doing administrative law by now you should know that our courts do try as far as possible to be different to the legislature and the executive and not just you know bombard them and say you've done the wrong thing we're going to tell you what to do they always have to be conscious of the limits of their power so that little discussion um on the rule of law is certainly not an ex exhaustive discussion on the rule of law but what i wanted to try and bring to your in attention is that when discussing the rule of law you need to be able to state that an inherent feature of the rule of law is the principle of legality which is a common law principle and the principle of legality is useful when it comes to interpreting the rule of law because as i've said to many students when the constitution just simply has one line that says south africa must guarantee non-racialism for example the constitution hasn't elaborated in any depth about what that means so if someone goes to court and says but i as a black female am still being degraded dehumanized abused not given opportunities purely because i'm a black woman then the court would have to interrogate the issue closely by going deeper and saying what is the rational connection between the law that says we must promote non-racialism and this conduct of whoever it might be maybe it's a university that is not promoting a black woman for example and she then argues that she's feeling denigrated and dehumanized because it seems as though the only reason she's not being promoted is because she's a black woman and the court then must look at the the situation in the vein of the principle of legality by just looking at what is the power conferred on the university for example it can promote people who are eligible and who comply with the minimum requirements and why then did they not promote this particular person who has complied in every material respect with those requirements and so the court would be to say therefore there is a violation of the rule of law because the conduct of that university and that's really just an example is contrary to the constitution itself and is contrary to other laws like the the laws i referred to earlier the broad-based black economic empowerment legislation the employment equity act and the whole ethos of our constitution which is to promote equality and dignity because of the racist dehumanizing systematically abusive system of apartheid um so again my little discussion now on the rule of law you have an opportunity to be able to explain in very deep detail and with reference to relevant recent interesting case law what the rule of law means and how it is so central to ensuring that we have a country that is not characterized by anarchy chaos abuse of power corruption state capture so you see that's why the rule of law is such a central feature but the rule of law is only the second of the ten distinct features of a constitutional state because another feature of a constitutional state is that we will have a separation of powers between the three principal branches of the state and that's why you see the word separation of powers in capital letters where with their arrows showing you that the separation of powers refers to the fact that we have a legislature an executive and a judiciary each of these three are independent from each other and they all have their own unique and specific functions so it would be a violation of the rule of law if the executive suddenly decides that they have the power to amend a law and that's why i have in italics under the words executive and the short description the case of executive council of the western cape which is of an old case so it was from one of the foreign in terms of section 16a of the transitional government act suddenly the western cape provincial legislature saw at parliament had conferred on the president to president mandela the right to amend the law and change the wards for elections and that's why that's such an important case because in that court said the role of the executive is not to create repeal or amend any legislation and you will hopefully remember because i've said this repeatedly that president mandela then said i am grateful to the court for making this pronouncement and for clarifying the position and i will therefore respect the decision and i appreciate the fact that the court has clarified that my role even though i'm the president i don't have the power to amend the law that is an exclusively legislative power so separation of powers is important for you to be able to differentiate between the powers of the three principal branches of the state so you know you must instantly know that the power of the executive is to yes formulate policy because that's where the who's responsible for health for example might say i think we need a new policy that in future will say that or a new law that will in future say that everyone must have the covert vaccine whether they want to or not and that then would be an issue that will be debated and discussed and will then finally get to the legislator in the form of a draft bill and then the legislature who are speaking on our behalf because we put them there they are the ones who will make the final determination about whether this kind of a law would pass constitutional muster in other words can it be justified when contrasted against the right to bodily integrity and a person might say i refuse to have a vaccine i'd believe it's going to kill me or i believe it's going to cause me serious harm our legislature must carefully look at and in fact one of the parts that you um are also now familiar with the legislature needs to call upon the public and say to the public make representations or submissions to us on this draft bill you tell us what whether you think this bill in its current very draft form is acceptable appropriate and resonates with the needs of the country and the needs of you as citizens and if the citizenry say well yes we actually agree that everyone should be vaccinated to protect society and therefore there's an overriding obligation of this on the state to ensure the health of every single person in the country they will pass the law and the president as you know once the law has been passed he is the one who is given this law and told you must now look at it and decide if you think this should become the law or not and he ascends to the the bill by son and once he has signed it yes okay was that a question sorry sorry bro i would like to get clarity on something to see if i understand what you're explaining not long ago um the former minister of finance announced that um citizens will be able to get a share from their pension fund right do they need to pass a bill for that and if they do will the public be invited is is that process going to be followed where the public views will also be taken into consideration or is it something separate all together what he was talking about no every s i love that question because it it sort of does it it relates to rule of law and to supremacy of the constitution and to democracy and of course to the separation of powers and and the fact that remember that the minister of finance is a member of the executive and therefore he might be the one formulating this policy because it is a decision policy decision means it's a sort of a a working document where at this stage it's just preliminary thoughts it still needs to be elaborated upon but it can be a law passed by the executive it has to go to the legislature for the legislature to actually debate on this law and require the public to participate in the decision making and only if they do pass the law then do you see the next part under the executive where it says that the executive must then implement that law so the executive yes formulates policy but that's pretty much where it stops because then they have to relinquish their power to the legislature which is democratically elected to speak on our behalf and it is the legislature that will then take that policy and the policy is what you so you will have seen this when it's in a very early form it's called a green paper so showing that it's very early stages still nothing's final and then the state law advisors look at it and they give some input and then there might be a little bit of you know changes here and there and then once it's been refined further it becomes a white paper and it's that process when it's enough been clarified and refined further and it actually now comes across as a draft law then it goes to the legislature it has to go to the legislature does that answer your question yes prof thank you very much yes well sorry i i'm i'm appreciative of that question because that is exactly the issue about how our constitutional state functions that the legislature and the executive do work closely in that the minister of finance will make a statement in the national assembly and he will say you know i'm now the new minister of finance and i think that because of the serious economic hardship course by covert we need to think about giving people an access to their to their pensions nothing happen in constitutional law if it has not followed the correct process and i'm i'm emphasizing that because the doctors for life case is excellent authority for the fact that if the proper process has not been we lost you prof hello we lost you i also don't have anything you do this oh okay let me look quickly okay you should still have me uh my microphone's still on we hear you now we lost you at when you think oh okay great for life then you got this okay um yes so really the doctors for life case is our precedent for the argument that even when the minister of finance stands in parliament and says i think we need to change the law to allow people access to their pensions all he is doing is formulating policy meaning hello okay sorry i also disappeared there slightly but the actual thing of the law making it a statue roughly lost you okay you lost me and i've now changed devices because my internet was problematic so really the the point is that the doctors for life case is the one that tells us in clear and unambiguous terms that each of these three sphere rather these branches of the state must do only what they're allowed to do and they must follow the law strictly so and there's going to be more discussion i'm just trying to sort of give the framework now so constitutionalism as i've already mentioned is implies um now what have i done um sorry i seem to have lost that page i was on um okay no i don't know i don't know what i've done um sorry i'm gonna have to find that page again okay because the page has disappeared right yes ma'am it's not showing okay yeah i've somehow i think i pressed escape okay so we're back yes now okay so we back here page six um yeah something funny happened there um so constitutionalism has of the these 10 features being a supreme constitution the rule of law separation of powers and then an important fourth feature of a constitutional state is that not only do we have a separation of powers with a separate judiciary but that judiciary must be absolutely impartial independent and not subject to any unlawful or improper interference that is why we see the dotted line going up to the judicial service commission on the right hand side of the page and it's a dotted line because the judicial service commission judiciary it is a completely independent constitutionally established body similar to the public protector and the iec but those are characterized as chapter nine institutions supporting constitutional democracy whereas the judicial service commission and the national prosecuting authority have also got inherent original constitutional powers but their powers are not as broad as the chapter 9 institutions they are very strictly demarcated in section 177 and 178 and 179 of the constitution um well not yes so that's that's why there's a dotted line there showing you that the judicial service commission is not part of the judiciary but as section 178 of the constitution tells us the judicial service commission has as its paramount role to advise the president and to advise not just the president but even more broadly than that advise the national assembly about when a judge is deemed to be fit and proper and therefore can be appointed as a judge so that's why we see those interviews um on tv when when the judicial service commission is interviewing prospective judges and they the the chief justice is the chairperson of the judicial service commission the deputy chief justice is usually the deputy chairperson of the commission and then the commission is composed of some members of parliament so there's a little bit of a political persuasion there but also composed of acting advocates attorneys legal academics so there's a broad mix of diverse views and it is those persons who are the ones who need to decide is the person that we are currently interviewing fit and proper and therefore eligible to be appointed as a judge and likewise like we've seen two days ago with judge john florpie the judicial service commission is also the same body that is tasked with deciding when a judge must be impeached because they are no longer fit and proper and therefore that they have violated section 165 of the constitution for example which says in no uncertain terms that no one may interfere in the independence impartiality and integrity of the judiciary and that even includes another judge because i don't i'm sure you're all familiar with the facts of the floppy case and i'm expecting you to be familiar with him because it's been an issue for 12 long years so i don't know if you need me to re cap the facts of the the the slow pay matter or are you sufficiently familiar please do recap okay i i was hoping you already knew because it's been in the news so much but essentially what happened is the constitutional court was about to make a decision that related to former okay so what happened there um sorry my page disappeared again so now you're looking at we can see it oh can you yeah okay okay great okay now i i preached something funny um so essentially the constitutional court was now about to make a decision about zuma's um relationship with foreign or multinational companies where it is alleged that he was unduly enriched in other words that there might have been corruption in the awarding of certain tenders to this foreign company and john flopper is the judge president of the western cape so he is in charge of the court in the western cape and he when he was appointed as a judge he had to take or swear the oath that is in terms of schedule two of the constitution that says i hereby solemnly swear that as a member of the judiciary i will at all times respect the constitution uphold the rule of law and will execute my duties without fear favor prejudice or any other impropriety and so despite the fact that he'd already taken this oath and he was a judge who'd been a judge for a long time so he knew what section section 165 of the constitution says he made what is stated in the media as a unsolicited visit to prom fontaine so now beaning he got onto an airplane traveled to johannesburg and apparently it was to attend a different a meeting but in the time he was in johannesburg he made a special visit to the constitutional court situated in bram fontaine and he went and spoke to judge chris jafta allegedly you know a very cordial conversation but in the conversation he said you know that out the zuma matter is coming up and he apparently used the words you are our last hope you must find in favor of our comrade and then so that was to chris jafta and then after that john florpie went to see judge bess and kabinda and again there was the same kind of conversation and he was speaking zulu to her but the same idea came across where he said essentially you must find in favor of our comrade so even though he never used the word jacob zuma as soon as well yeah pretty much as soon as john florpie left the building both judge jafta and kabinda went to pius longa who was the the chief justice at the time and they said we're quite concerned by the fact that we've just had these conversations with john florpie and it was pious lunga and dikhang mossaneke who was then the deputy chief justice who both said this is a very serious matter we must refer this to the judicial service commission for them to decide whether he has done anything wrong and so i i'm trying um there's a lot i need to say but i'm going to try and keep it brief um but it all relates really to the rule of law so this was on or about the 8th of april 2008 that these words were uttered to judge jafta and in kabinda and so within days a complaint was lodged in the name of all 11 judges of the constitutional court against john lopey and the judges of the constitutional court literally just said to the judicial service commission investigate this case and there were a tragedy of errors along the way being the following in the first instance section 178 1k of the constitution says when the judicial service commission deals with any matter concerning a judge of a particular province then the premier of that province must be present at the deliberation and helen ziller was the premier of the western cape at the time but the judicial service commission and now it might be the secretary it might be the chairperson we not even very sure but no one ever informed helen ziller that there was going to be this need to come together and decide the case so helen ziller had to approach the high okay let me let me that's jumping ahead a little bit uh um and you can imagine that the judicial service commission received this complaint and it it is and i used the words earlier unprecedented because it is the first time ever that we've had to decide we being the judicial service commission speaking on our behalf having to decide whether a judge should be impeached which is the same as impeaching a president it has extremely serious financial and reputational repercussions and so when the jsc first set and they invited john florpie to give his version he just said i'm not coming i refuse to be there so it was then obviously a a sensitive issue and the judicial service commission at that stage used that to their advantage and they said well we don't have enough evidence that he should be impeached because he didn't provide he didn't actually come and provide us with any evidence so we're just going to close the case now it's over it's over and done with and that's when helen ziller came became aware that the judicial service commission had sat without her being present and that is a violation of the rule of law and so she implemented or instituted a case saying we have to reopen this entire case and i need to be present at the judicial service commission hearing when it happens also because of the importance of the case and the fact that the judicial service commission so quickly and easily just said there's really no case here let's close it shove it under the carpet act as though it never happened that's why you see in italics reference to the helen susman foundation and freedom under law because these non-governmental organizations where as you can sort of tell from their names their priority is to ensure that everyone complies with the rule of law no matter who who you are and so they also instituted a high court application saying asking the high court to declare that the judicial service commission had to restart the whole process from scratch and that is where the the real issue became apparent that issue is that even though the constitution says we have a judicial service commission and says that the judicial service commission has the power to decide whether or not a judge should be impeached what was fatally missing from the judicial service commission act is any particular regulations about how in fact they should make such a decision and that's why the case has been so severely delayed because then the judicial service commission realized we now need to establish a judicial conduct tribunal which is then a smaller group of members of the judicial service commission that has as its members real judges you know people who we have utmost faith in to decide whether or not the conduct is or amounts to impeachable conduct and so it was now about three months ago now where the judicial conduct tribunal finally said in our deliberations we have reached the conclusion that it the conduct that john florpie engaged in does amount to improper influence over another court and therefore he should be impeached and they then handed that document to the judicial service commission itself and as you know then two days ago the judicial service commission as a whole sat and looked at that report and then a majority of the members of the judicial service commission agreed that the findings of the judicial conduct con tribunal are compelling enough for a report to be given to president ramaphosa telling him that they there should be an impeachment process undertaken relating to john florpie but most importantly the president isn't the one that makes that final decision because we are a democracy and therefore because we appointed the 400 members of the national assembly to make decisions on our behalf and to represent all of us in important decision-making processes it's actually now the national assembly that needs to vote and decide whether or not john flope should be impeached and it's a relatively high threshold it's a three-quarter or three quarter majority so 66.7 percent of the members of the national process national assembly need to decide whether or not he is impeached and so now we're waiting for that process so all i'm showing you with this dotted line and these cases and in the word children and he had a mandate is that a question yes yes ma'am yes um so now let's say now the they decide to impeach him right they vote for the impeachment because i had on the on the news that this has never been done before the constitution doesn't have a provision for an impeachment of a charge so now how what processes are they going to follow with each should they decide to impeach him and will will this result to the constitution being amended to include an impeachment of the judge what would happen no look it's unprecedented um but the constitution does actually have sufficient uh clarified clarity on the process because section 177 says um that a judge can be removed from office firstly if the judicial services commissioners found that they should be impeached so that hurdle has been overcome and secondly it says if the national assembly votes with at least a two-thirds majority something yes it's 177. oh again 177 okay sorry and you'll see it's clear actually that as soon as the judicial service commission has made a recommendation it then has to go to the national assembly and all that the constitution says that the national assembly must vote on the report that they've received from the judicial service commission and they must vote by way of a two-thirds majority so 66.7 percent as to whether or not he should be impeached so there does not look to be any legal impediment it's a purely um formal process of the members of the national assembly receiving the reports from the judicial service commission reading them applying their minds and then simply voting the same way that they vote for example on who should be president or like we saw last week a vote on who should be the new speaker of the national assembly so there really shouldn't be any hurdles or insurmountable problems because the constitution is clear enough in its regulation that it is the national assembly that must vote so um it's where where it is difficult is because it's a uh you know it's it's it's never a nice decision to make because it's going to have serious financial consequences for that judge um so now of course we're all waiting to see what will happen and whether john cooper is going to ask for the the report by the judicial service commission to be reviewed because they might he might say it should be set aside you might have some very legitimate arguments i we are unsure so obviously the process is a developing process um but i'm just showing you that in reality the judicial service commission has only ever served the purpose of holding those interviews and then recommending to the president who should be appointed as a judge and the president has done so and they've never been any problems but now we see that the judicial service commission really does have teeth and can make far-reaching decisions um what i was busy saying i think i got cut off is so the the word children and he had a mandate that is because there was an article written and i know i've referred to this before an article written that i've given you a summary of at the very end of the study guide but where this author sujit chaudhary explained in great depth that it appeared as though john sloppy had been mandated by the anc to go and try to persuade these constitutional court judges so so that's where where there's all the information that we have about what happened is is known from um because john klorpe kept of course denying everything um and eventually the jsc had to decide based on this information that was in the public domain in an accredited journal article and of course having to hear the testimony of bess and kabinda and chris jafta and exactly what transpired on that particular day um so my point my point is so we are number four of the the features or elements of a constitutional state and that is that we have an independent judiciary and i've mentioned in the judicial service commission in so much depth because we now have authority to illustrate to us that the judicial service commission is empowered to make a finding about when the integrity and independence of the judiciary has been impaired and that is the floor pe case because in most dictatorships of which of course there are far too many on the african continent um the judiciary has no independence quite literally in those countries the president will tell the judge you will do this you will do that or else i will fire you but we have an independent judiciary because we know that our jew our judges have what is called security of tenure which means that they are appointed for a fixed term of office meaning that even if they make a decision against cyril ramaphosa and he doesn't like the decision he cannot fire that judge because he doesn't like the decision they made um in addition we know that judges have fixed salaries okay someone's got something that's repeating okay no it seems fine now we also know that the judiciary is in is protected in its independence because judges have fixed salaries and that's important for a number of reasons firstly because they are paid good salaries so that they are not going to try and say to the parties that come before before them give me a couple of hundred thousand rand and i'll find in your favor they don't need to do that secondly even if they find against cyril rama pausa tomorrow or do we never sorry monday on a case cyril ramaphosa cannot then say i will show that judge i'm going to cut his salary so you see how our constitution protects the integrity of our judiciary by having this oversight body known as the judicial service commission and the associated provisions which protect the judiciary from any unlawful or improper interference um so let me then move to number five on the list and number five on the list is is the country and in fact i'm going to have to tell let us use the very words of section one of the constitution because this is the best way to put it do we have a state where there is universal adult suffrage a national common voter's role regular elections multi-party system of democratic government so all of those go to the heart of the fact that we are indeed a democracy and we know that we are all five forms of democracy at the same time because a we are a representative democracy and we know that because while the elections are taking place each one of us are voting for the particular party that we think will best serve our interests and then the members of that particular party based on the proportion of votes that that party receives will assume their positions in parliament and will act on our behalf and in good faith in our best interests we also know that we are a constitutional democracy because and i so you can go back to the top where i've got the word constitutionalism there the way we know we're a constitutional democracy is because all law and all conduct must at all times comply with the constitution because we have a supreme constitution and the the uh i want to say the corollary of that to the extension of that is that we know that our judiciary in south africa even though it is independent impartial and is not ever supposed to intrude into the work of the executive or the legislature so it should be differential as much as possible if however the evidence in a case clearly illustrates that what the national assembly has done is unconstitutional the judiciary in terms of section 172 of the constitution not only should but in fact must declare that conduct or that law unconstitutional because that means that we have a supreme constitution because if the law or the conduct is contrary to the constitution it has to be declared invalid um so we also know that we're a multi-party democracy because not only does section 1 d of the constitution tell us we're a multi-party democracy but we know this because we see that the independent electoral commission calls for political parties who wish to be registered as political parties to come and register and they do have to pay a fee to register but they that's part of the process of making sure that you really are a bonafide political party and that that political party is then given an opportunity to actually stand for election and the therefore their uh icon or the um flag or whatever the symbol is that is associated with that political party is one of the options on the ballot paper so we know we're a multi-party democracy we also know now because we can contrast it against the oppressive apartheid system that we do have universal adult suffrage meaning that every adult citizen no matter their race is entitled to register to vote and to actually vote in the election we also have a national common voters role meaning it's one voter's role in the past there were there was a voter's role for black people a voter's role for colored people a voter's role for white people then eventually the apartheid system decided let's just do away with the black voters role we don't care they're not allowed to have a say we just doing away with the black voters role and we knew that the judiciary at the time didn't have much power so it couldn't do much then the colored voters role was also suddenly done away with and there was litigation to try and ensure that the colored voters role was reinstated and then indians had the vote for a while then it was taken away so we have now unambiguous got a system where there's one national common voters role we also know that our elections are regular because they have up until now always happened within the particular five-year frame framework we're only now for the first time ever based on last week's lecture confronted with the possibility that the local government elections may need to be postponed because of covert but that is still being decided by the constitutional court and that will be the first time ever that the regularity of our elections has been amended um and and so that's a very contentious issue as you will recall from last week's lecture because who really is the the body that is responsible for deciding whether these elections should be postponed shouldn't it be the legislature who draft an amendment act saying the elections that were going to be held on the 27th of october 2021 shall now take place on the 21st of march 2022 for example and yet the independent electoral commission approached the constitutional court and that that also has or seems logical because the constitutional court must at all times consider whether the conduct or the request being put to them passes constitutional master and would ensure that the constitution still supreme so they're in the very tricky position right now of deciding well do we actually have the right to say yes we can postpone the elections or should we make a decision and say sorry it's not our task to do that the legislature must make that decision or on the other hand based on some of the arguments by the amicus curiae so the friends of the court in the in the case the constitutional court might come to the decision that there's really no reason to um postpone these elections and they should therefore go ahead as scheduled so we but the court has the right and the power to do that because it is primarily concerned with making sure that our constitution is always given meaningful effect and is interpreted applied and implemented as it was conceived to function um so other features of democracy okay um let me not forget the so these two court cases that i've written here in italics are only two and we now know that there's the new nation movement case i'll discuss that as well here but why we know that we are a true representative democracy is because the august and the richter case confirm the fact that no citizen can be arbitrarily denied the right to register for elections and to vote for elections so in the august case the problem was that mr august and um obviously hundreds of others in a similar situation were in prison and the independent electoral commission of its own accord simply decided it's going to cost us too much money to go and register prisoners to vote so we'll just leave them out now there was absolutely no law allowing them to do that the constitution most certainly didn't give them the right to do that and that's why mr august had to go to court and say to the court even though i'm imprisoned that doesn't mean i'm no longer a citizen of this country and i therefore have the right to register to vote but because i'm in prison the year the iec has to come to me to make sure i register and so that's the first hurdle and secondly when the elections happen again i can't go stand in a queue somewhere to vote the iec must come to us here in prison and the court agreed absolutely with the contention that the even if you're in prison the iec must make sure that every eligible south african citizen even if you're in prison has a right to participate in the elections and then the richter case concerns south african citizens who were living outside of south africa and they also then lodged a court case and said why are we being denied the right to vote simply because we're not living in south africa or won't be in south africa on the actual election date and again the court said there is no logical reason why you're being excluded and therefore every embassy in or throughout the world where there's a south african embassy must have a facility where you can go to the that embassy and to register to vote in the elections and then subsequently go back to that same embassy and vote in the election even though you are living in the united kingdom united states of america china wherever it may be so you see that our courts have been absolutely committed to upholding democracy um so i also said that we yes well the fourth form of democracy then is we are a participatory democracy because we and this is from the discussion we had earlier we have to participate in election or rather in decisions that will affect us so not only should we buy law be compelled to vote in elections and in australia for example you are fined if you don't vote in the election so we haven't gone that far yet but we know we're a participatory democracy because when the legislature is passing laws they cannot do it in secret they have to call on us the public and say come and give us your opinion and we then have the right to do so and we then participate in these processes that will affect our lives and then the final form of democracy is direct democracy and of course the lecture material emphasizes the fact that direct democracy is really not ideal in small in rather in huge countries such as south africa and it is used sparingly in the form for example of a referendum because a referendum is when every single person goes and gives an individual vote on one specific issue but south africa is a direct democracy because we see virtually every single day service delivery protests where the affected individuals who are not receiving the delivery of essential services like water electricity housing um surgery waste removal from the government they do protest and you can therefore see the link between that protest action which can often have very serious consequences because roads are closed or even worse buses are burnt and other infrastructure is burnt or damaged and then the government responds so we do actually have direct democracy in action at the same time so we're now on i think the fifth form of constitutionalism and every if we not don't worry we'll it'll it'll sort itself out um because everything i'm saying is on this this single page so the sorry the sixth one next one oh you're already on the sixth wow look at this yeah okay the six i i'm not now talking about okay i'm not so i'm finished with democracy so the sixth element of constitutionalism which is also implied by the very words in section 1 c that we have a supreme constitution and that we are premised on the rule of law is the fact that our constitution is an entrenched constitution so that's why the word entrenched is in small letters under the word constitutionalism and so section 74 of the constitution explains to us and proves to us that we have an entrenched constitution because it tells us that it is not easy to change the constitution there are particular rigorous processes and procedures that need to be complied with before the constitution can be amended most notably there must be at least 30 days notice of any amendment so that the members of parliament who are going to be deciding on whether or not there should be any amendment have enough time to fully read the relevant documentation think about it analyze it critique it and then be able to vote accordingly but even more so we know that we have an entrenched constitution because of the high threshold of votes that are required to change the constitution and that is one of the primary safeguards so when it comes to changing any provision of the constitution except section one and except for chapter two which are the the rights the fundamental rights so when it comes to amending section 177 for example as one of the students said earlier oh we're not quite sure if the constitution is clear enough on whether the national assembly can actually impeach john florpie there is the possibility that that might be an argument and then section 177 might have to be amended and for that type of amendment to take place a vote again of a two thirds majority is required which is as i've said repeatedly 66.6 percent and i emphasize that because it's it's difficult to reach that threshold because even though the anc have the majority in parliament they don't even have 66.6 percent by themselves so they would have to try and sort of negotiate and persuade other political parties to vote with them on particular issues of serious concern um i i just want to sort of refer here very briefly to the current amendment of the constitution on land expropriation without compensation where at first the eff were very willing to support the anc in the vote and it was conceivable that the vote would have well the requisite threshold of two-thirds majority would have been achieved but then there was this disjuncture because the eff's idea of what exactly expropriation of land without compensation means was far more far-reaching than what the a and c had envisaged and neither party were willing to compromise so that's also delaying the matter so that just proves to you that 66.6 is still difficult to achieve but and now this really confirms that we're a constitutional state this very section that i'm reading to you from which is section one and section the whole of chapter two if that needs to be amended a 75 majority is required and you know from studying constitutional law you might get 66.6 in the exam quite easily but getting 75 does require a lot more from you so you see that sometime it although 75 has quite literally made it out of reach and the reason of that for that is to protect this constitution that was the result of yours of conflict violence the deaths of steve biko chris harney i can't even remember the full list all of the people who were so committed to ensuring that south africa became a real constitutional democracy so that's what one of the other features is that we our constitution is entrenched so then the seventh factor and it's also inherent in section one of the constitution that proves that we're a constitutional state is that we do protect human rights and that's why we have an entire section which is chapter 2 and that's why section 1 confirms in section 1a that human dignity equality freedom and human rights must be protected but for constitutional law terms that's all you need to know you don't need to tell me about the intricacies of substantive equality versus direct equality that belongs in the module fundamental rights so for constitutional law purposes a constitutional law a constitutional state is one where human rights are protected that's pretty much all you need to know for constitutional law and you can discuss the various rights and how they're interpreted in the fundamental rights module the eighth feature of a constitutional state is that we have institutions that have been specifically created to enhance our constitutional democracy and that is why we have the top right of the page chapter 9 institutions and our lecture from it last week on the public protector and the iec those are really the only two you those are the only two you need to know for constitutional law purposes is that we have a public protector and i've put it at the top right of the page so that you have this idea that at all times the public protector is watching the executive because we know that the public protector cannot under any circumstances investigate court decisions so the judiciary is not affected by the chapter 9 institutions at all or the public protector in particular the public protectors fundamental role is to make sure that the executive branch of the state is not engaging in any form of abuse of power mismanagement corruption fraud illegitimate conduct or anything that violates the law and that's why the public protector who well because i said so her at the moment and has been for the second time now her mandate is not only found on the constitution but is also found in the public protectors act which says that the public protector must investigate these allegations of corruption and mismanagement and abuse of power in every sphere of government meaning and this is what i'm going to get to meaning at the national sphere so if it's in the national department of housing that there's rampant corruption the public protector can investigate if it is in the shouting provincial department of housing the public protector can investigate and similarly if it is in a municipality and it is obvious that there is some kind of corruption happening and certain government officials are being given housing that should be given to those who cannot afford housing the public protector can not only can investigate must but must investigate and what's interesting about the public protectors powers is that she doesn't need to sit and wait for someone to come to her and make a complaint if there is sufficient information in the public domain like newspaper reports and the service delivery protests that are happening where the people are saying housing is being given to government officials and not to us the public protector actually is empowered to and the terminology is mero motu meaning of her own accord investigate and then the public protector must investigate write a report and that report needs to get given again to the people that we have put in the national assembly to speak on our behalf and to represent us and they must make sure that the decision is implemented so that's why directly under the words public protector and iec i have the case of eff versus speaker of the national assembly 2016 because that is the case that we've discussed at some length um where tully madonsela received numerous complaints that it looked to her or well it looked to them and therefore she was asked to investigate whether jacob zuma had been unduly and corruptly enriched at taxpayers expense when upgrades were conducted at the encounter homestead and some of the features that were described as security upgrades certainly didn't appear to be security upgrades and even though tuli madoncella gave her report to the legislature and said here is my report in my report i have recommended that president zuma pay back that portion of money by which he was enriched the reason why the economic freedom fighters ended up having to go to court is precisely because the speaker of the national assembly at the time also was caught in a position of knowing that her ties to the political party being the anc were actually stronger than her mandate to be an independent person whose job is to make sure that parliament functions effectively and therefore she tried to we use the word launder the report and what i mean by that is she first then sent the report to an ad hoc committee which she created so she said okay you couple of ministers come together um you decide where the public whether the public protectors report should be implemented and of course they said no there's no merit in this report this report should be ignored jacob zuma himself ignored the report um and then balakomberte said because of course the eff kept saying as as i've said to you before when will the president pay back the money and you'll recall that at the um state of the nation address i think it was 2019 what it probably was then the the four minutes into the into the state of the nation address the entire eff membership stood up and said we would like to know when will the president pay back the money and that's what caused the whole state of the national address really to to sort of dissolve into chaos because the eff and i want to actually sort of bring in the last part of section one of the constitution the eff were ensuring accountability responsiveness and openness but their attempts were thwarted because when they then brought um parliament or the state of the nation address to a standstill was the very self-same person who then called in the police who are part of the executive branch of the government to remove members of the legislature so you see there there was a violation of the separation of powers and it just became this tumultuous affair where then the minister of police was finally asked you tell us whether these all of these security upgrades are legitimate security upgrades and he also said absolutely everything is above board and the eff would not accept that this report by the public protector was not being taken seriously and the and president zuma was not being held accountable and that's why they were forced to go to court so you remember i've said this before de kang was book keeps on saying courts do not look for cases cases find courts and that's why the eff had tried every single mechanism available to them to hold the president accountable in the national assembly to no avail and they therefore had to approach the judiciary and we know that the judiciary is there to make sure that the constitution reigns supreme and the judiciary then said we agree that and that's why i keep on quoting for example paragraph 31 of that judgment where the court said the president is a constitutional being he exists and he moves within the constitution therefore he must comply with the constitution and as such if a public protector has been appointed in terms of a proper procedure because the constitution itself says that we have must have a public protector and taxpayers money is being used to enable the public protector to conduct these into these investigations and the report then comes to the national assembly and nothing happens to ensure accountability and responsiveness then we have a serious problem because it's a violation of the rule of law and that's when the judiciary said the president must pay back that portion of money by which he was enriched so you see that when parliament is not functioning as it should there is every right for political parties in parliament to approach the judiciary and that's not seen as being a violation of the separation of powers and i i i say that for a number of reasons firstly because i think it was sort of point number three about constitutionalism is that not only do we have a separation of powers but we know without any fear of contradiction that our judiciary is indeed independent and they will do their utmost to make the decision that is the most sound and logical based on the law and the facts so that's exactly what happened in eff one which is the 2016 case um let me see okay i'm going to then carry on with the features of a constitutional state then we can come back and discuss some of the other cases just for more sort of substance but one of the other defining features of a constitutional state and which is unfortunately not actually mentioned in section 1 but you can infer it by the fact that it says that south africa is one democratic state that must be accountable responsible i mean responsive and open is we have what is usually termed devolution of powers meaning that there is no centralization of powers where all the power is only exercised at the national sphere and no powers are exercised lower down so that's why the the term that is used in chapter three of the constitution is cooperative government but we also refer to it as multi-sphere government or multi-level government but essentially it is devolution of powers meaning that the national sphere of government is independent but it is also interdependent with the provincial sphere that's why i've tried to show some overlap in the spheres or the spheres of those big circles um and the arrows on the on the right hand side are to show that there is this relationship that is mutually respectful between the national sphere the provincial sphere and the local sphere and as mr mudao explained we have a system of government where at all times the national sphere of government is monitoring and supe we could even go as far as using the word supervising um supervising provincial government um i think let us use the situation right now with the north west government where the national national government and we know that the the government at national level um is the african national congress which has the is the majority party they as the national government didn't just let allegations of abuse of power or corruption in the northwest province go un untouched and they therefore did apply some pressure on job mukhoro and job mokhoro then of course he had to sort of try and rest you know restore his own dignity by asserting that he had done nothing wrong but he did eventually relinquish power and say i will resign as the premier of this province likewise when at the local sphere things are going horribly wrong in a municipality the national government and the provincial government cannot act as though they don't know what's happening and think let's just leave it because it's too much work for us to deal with they have to i don't i don't want to use the word interfere but they have to intervene in fact that's that's the best word and that is the terminology that mr model used there is intervention monitoring supervision so all of this terminology conveying that there's a a relationship of trust be meaning and i'm now referring to chapter three of the constitution which says that each of these three spheres of government must act in good faith and that there must not be any improper intrusion one sphere into the geographical or functional or other powers of another sphere but chapter three also says if there really are problems then it is necessary for there to be some form of supervision and monitoring and maybe even placing a municipality under administration so that the powers of those who've been exercising their powers allegedly in a corrupt manner are told you no longer have those powers you must step aside and we are going to put in place someone to see what's actually going on so that we can rectify the situation um so and that's what mr mudal spent his lectures on explaining that these spheres and i'm going to say this as well because i've had many many students uh asking me this by email please try to avoid the use of the word level of government i know it actually it does sort of slip off the tongue much easier than saying sphere of government but the reason why why we are deliberately trying to eradicate the word level of government from our vocabulary is because during apartheid the national government had all the power because they were literally on their own predetermined mission to um eliminate any black power and any um transgressions against the hold over the government power and so what the national government then had to do to protect itself is it did create the four provinces that we used to have and even though they were those four provinces none of them had original constitutional powers like we see in the constitution now they were told you will do xyz and if you don't we'll take away your powers and even more so the local sphere during apartheid were under even more scrutiny because that's where the actual implementation of the law was happening and so where for example black persons had to obtain a pass which was a form of permission to stay in a white suburb during the week or for any protracted period of time because they might have been working for a white family um the government the national government would still make it extremely difficult and they would say the person who's applying for this permit must have a contract of employment and they must prove that they've stayed in this um in this employment contract for an un um what is the word i'm looking for here a unbroken period of one you and so what would happen and i'm saying this because i i hope that it's a case that you've already studied in it's the ricotta case uh that i hope you've studied an administrative law but it just shows how absurd the south african government was where every year when the person would go on leave at christmas and go home to the homeland where they had been forced to go to when they would return the government would then give them another permit to stay for a year and the the legislation said if it's been an unbroken term of 10 years that the person has been ordinarily resident in the white suburb then they actually no longer need a this permission but then the government suddenly started saying oh no but when you went away on holiday every year that broke your contract of service with your employer um so you see how the national government was then manipulating the local government and doing everything they could to minimize the powers of the land the local government and try to and threaten them really with if you don't do what we tell you we are going to have no power so you as the mayor of this little village out of town are going to lose the power and the the benefits that accrue with you being the mayor and now in our constitutional democracy we have these separate spheres precisely to show that they have original constitutional powers that no one can take away from them and that if there is going to be the monitoring the intervention or the the supervision that is envisaged in the constitution that is only permissible when there is unambiguous proof that that provincial government is not functioning functioning effectively or that that particular municipality is not functioning effectively but for the most part each of these three spheres have their own powers and can get on with doing their own things and remember that they at all times when they are in a situation where they disagree with each other and chapter 3 is absolutely clear on this too it says they must not rush to court they must try by all means necessary to resolve their problems without resorting to litigation and that's why there are rules in schedule four and schedule five of the constitution that assists the provincial government and the local government and the national government to try to resolve conflicts amongst themselves without having to go to court but unfortunately there have been numerous instances where the parties have had to go to court because they could not resolve the issue internally there are many examples some of them being um the abbas case which i think is referred to somewhere probably not here but definitely in in the feedback to the activity questions which is that near the end of this same document where the issue was can a province pass legislation on housing or is housing and that meaning impacting on low-cost housing and the elimination of slums is that actually a national sphere power or can it be a provincial sphere of power um and so the court had to try and read schedule four read schedule five try to determine what exactly the legislation that the kwazulu-natal provincial legislature had passed was referring specifically to in other words was it referring to housing in the literal sense or was it referring to the elimination of slums which is not quite in the literal sense of housing issue so you see that sometimes matters that should be dealt with between the spheres of government without resorting to court have had to go to court because they are complex and because we have a relatively new democracy where our constitution is still being fully interpreted and the meaning of the constitution is constantly being developed and so i'm just now ready to move back up the page because i'm sort of at the bottom of the page now moving back up just to cover some of the cases that i haven't dealt with yet to show you how they all fit in um the and this is what was one of your true and false questions for assignment one is about the the power and the obligations on the speaker of the national assembly and the question you got was she's not expected to be as impartial as a judge and obviously the answer is false because the the very essence of the role of the speaker of the national assembly is to somehow disabuse her mind of the fact and i said her because it was balakan betty disabuse her mind of the fact that she's actually an anc member she was supposed to somehow then become this neutral person and unfortunately she is the one ballet combated where lots of cases were brought against her because she struggled so much with trying to separate her position as the speaker and her position as a member of the of the anc and we saw that then already in the the 2016 eff case but we saw it equally in the udm case where the united democratic movement said speaker of the national assembly please can you make the vote on whether the president should be removed from office be a vote by secret ballot so that all members here in this house can vote with their conscience and not due to party dictates and balakum betty even though the constitution says she has the power to regulate the functioning of the national assembly she said i don't have that power and that's why the udm had to go to the constitutional court and the constitutional court said actually on a plain reading of the provisions of the constitution the speaker does have the power to decide if the if the vote should be my secret ballot or not and so then a vote was held by secret ballot on whether or not president zuma should be removed and he wasn't removed but i'm mentioning it now in the context of the possible impeachment of john floppy it would probably be in the interests of democracy and good governance and accountability if that vote is by secret ballot but it remains the discretion of the speaker of the national assembly now a new news speaker she might have a different view and might have decided all votes will be secret or no votes will be secret whatever she may decide um so the the the point i'm making is that the speaker plays such an important role in making sure that parliament functions as it should and if we and i have to mention jon florpie now in a completely different light and that is if we go back to the de lille case where as i've said before patricia de lille who at the time was a member of the pan-africanist congress in parliament and she stood up one day and she was had been democratically elected as a member of the pac as a member of parliament and she stood up and said i have information that some of the members here are apartheid era spies and so the speaker of the national assembly at the time um forced her to apologize which she did do and forced her to withdraw the statement and she did it although once you've heard it you don't really unhear it but in any event so she would at least was i was sorry trying to get the ball um moving with showing that she was committed to um sorry now i've lost things um that she was committed to three i'm telling to type as i talk because i've deleted things and added things by mistake um she was then suspended from parliament and why it's pertinent that i bring this case up is because it was the same john florpie who's now potentially going to be impeached who made a fantastic decision that reinforces our constitutional democracy because he said if patricia de lille was duly elected by the voters to assume a position in parliament and to represent the people then even if what she said might be deemed unparliamentary the fact that she did re actually withdraw the statement and apologize means that her suspension from parliament is invalid because she should be there representing the people and that's really the the point that we now care have carried forward that once the members of parliament are sworn in they are there to represent us at all times and there are very limited circumstances under which they can be um suspended from parliament and that includes such things as simply not attending important meetings for weeks at a time for example and without providing any explanation because why were they appointed if they're not there to actually do their job and then they should if the party is going to hold them accountable they should actually be removed from the list of members of parliament because they are in dereliction of their duty um then uh yeah um i'm just trying to think what other cases are i haven't mentioned that you aren't familiar with okay so the oriani ambrosini case i've also mentioned this often before the relevance of this case is simply that the rules of the national assembly always used to state that in order for legislation to be initiated in the national scene the majority or permission let me say permission needs to be provided and because the speaker of the national assembly has always been a member of the majority political party whenever a member of a minority or opposition party would wish to introduce legislation the speaker would simply say no you can't we're not providing you with permission and so the oriani ambrosini case is important because it has fundamentally changed that position that there's no longer the requirement to request permission and therefore anyone who's a member of parliament irrespective of which party they belong to are equally entitled to introduce legislation if necessary um i'm just trying to get us back sort of on track to sort of the overall picture because i have now actually provided you with the overall um picture which is and as i say about the nine or ten i'm right now i think i've only got to nine and i can't remember what the other characteristic of constitutionalism is um it's probably here somewhere on the page anyway um in fact i i actually do know what it is it is what we've been talking about in section one of the constitution is that a constitutional state is one that is open responsive accountable and holds everybody to account for their conduct and so all of these cases that are the italicized cases all over the page all of them confirm to us that we have a state where everyone is actually held to account and so that brings us let me start with the eff2 case so the eff you'll we've discussed eff1 so i'm saying i'm talking about them as eff1 and eff2 because in the exam if you are going to refer to case law the general rule is the first time that you mention a case you must give its full citation so the actual year in which the judgment was handed down the law report within which you can find it so is it the butterworth's constitutional law reports or is it the all south african law reports and then the particular volume of law reports so is it one two three or four and as far as possible as well then don't just mention the case but try to mention specific pertinent paragraphs as far as possible to support your answer and so thereafter you can say here and after referred to as eff1 and hereafter referred to as eff2 so that you don't have to keep writing out economic freedom fighters versus speaker of them as you get what i'm saying but the eff ii case is important for proving that we have a judiciary that is committed to ensuring openness accountability responsiveness is that even though our constitution in section 89 and in section 102 provides the two mechanisms mechanisms for how to remove a president from power there never was any rules created like similar to what happened with the judicial service commission where the judicial service commission was told you decide if a judge should be impeached but there were no rules telling them how to do it likewise with eff ii it's analogous parliament is told you can impeach a president or you can remove a president who has lost the support of his political party but nowhere were there rules that regulated how exactly this should happen and that's why the eff were again compelled to go to court and say that the speaker of the national assembly is not doing anything substantive to ensure that we have a proper debate and deliberation on when the president should be impeached and therefore removed from power and so this is why every vote that's being held the african national congress are of course going to vote in terms of their political party leanings and not with their conscience because there's no preliminary report to guide them in the decision-making process and that's why in the eff2 case the constitutional court said parliament must create specific rules and a specific committee that can look at what it is that the president is alleged to have done and how it is a violation of the rule of law because you must recall that section 89 of the constitution says that in fact the president must be impeached if he or she has committed a serious violation of the constitution or a serious violation of any other law all perpetrated any other gross misconduct so we had these words on paper but to actually implement it is where there was a failing and that's why the eff2 case is so important to prove to us that we have this evolving constitutional system because when the drafters of the constitution sat together already it was such a contentious process because we had the national party which knew it had a lot of power because it was already in power against the anc pac and ifp and there was this constant stress because everyone was trying to fight for you know their power to be restored in the case of the national party and to to allow democracy to arise and so neither of the two sides trusted each other there was it was certainly not easy for them to engage and and to negotiate so there were lots of compromises and that's why cadesa collapsed because there just couldn't be consensus on some of the most fundamental elements of the constitution and so cadessa was revived by a different name but the constitution we have at the moment then is a work in progress we are constantly having to ask our judiciary to interpret the constitution and tell us if the executive has actually violated the constitution or not or whether the legislature has violated the constitution um so the only other case that i think is of any real consequence right now for purposes of the rule of law is that con constitutional law cannot be divorced from international law and i know you're only going to do international law in your final year but all you really need to know at this stage is that during apartheid south africa was completely ostracized by the international community and the membership of the what was then the organization of african unity and of the united nations was withdrawn so we were this little island unto ourselves no one wanted anything to do with us there were sanctions against us we weren't even allowed to go and play cricket or rugby overseas because no one wanted anything to do with us so when we became a democracy one of the first things that our new government did was say and that's why section one of the constitution refers to the word sovereignty that we wanted the outside world to recognize south africa as now a sovereign state a sovereign state means a state that is autonomous so we know we were no longer being controlled by colonizers or these apartheid um regime individuals who were you know continuing on the apartheid route despite the serious criticism of south africa so we were trying we now well president mandela is the one who made these declarations to the international community we now want to be recognized again as a sovereign state where you recognize us as part of the international community and therefore you allow us to rejoin the united nations and the organization of african unity and therefore we can cooperate as equals in the international forums and so one of the things that happened quite soon into our democracy in fact is that they'd always been talk of an international criminal court to hold those who are the main instigators of genocides crimes against humanity the crime of aggression and other crimes that are abhorrent to the human conscience that those leaders must be held accountable and be punished and of course you you need to re you most of you i think are far too young to know this but literally at the very time that south africa was having its very first democratic election there was a genocide being perpetrated in rwanda where um they say that up to a million people were murdered in the most gruesome manner purely because they were tutsis and the hutu government wanted to eradicate the tutsis so that they could have power so you see the remnants of colonization there because it was the colonizers who came along and said oh we can see that the tutsis have these characteristics the hutus have these characteristics we are going to put the tutsis in power because we think they look more civilized i'm using inverted commas and so of course the hutus always wanted power and there was this constant tension between the hutus and the tutsis which culminated in not the first but it was the 1994 genocide so genocide is the intentional elimination of a whole group of people and that is what was happening so of course nelson mandela kept trying to make statements about that the you know the international community must intervene in rwanda to end the genocide but that didn't seem to help the international community came in too late the point i'm making is that that was 1994 from 1998 so not long after that at the u.n discussions started taking place about the creation of an international criminal court to actually hold these perpetrators of genocides and crimes against humanity accountable and south africa was one of the main negotiators of this document as well and was one of the first to ratify the the rome statute it's called the statute establishing the international criminal court and south africa then we're proclaiming our absolute commitment to the rule of law and that we would not allow impunity to occur you know because of our history and then 2015 happened um and i know i've discussed this but i don't want to bore you with all the rehashing of the details but you must remember that that was when omar al-bashir who was accused of the genocide of the darfuri people in sudan and who was accused of other serious war crimes and crimes against humanity he arrived in south africa for an african union meeting because by that stage the organization of african unity had changed its name to the org to the african union and so he arrived and of course then litigation started to try in terms of our international obligations as read with our domestic obligations because we had not only ratified this international treaty saying we're going to comply with it but we had even gone as far as our own legislature drafting a law called the implementation of the rome statute of the international criminal court act number 27 of 2002 which again said verbatim we will arrest any perpetrator of genocide crimes against humanity and war crimes if they enter our territory and yet omar al-bashir arrived had a wonderful meeting in santon and while the national prosecuting authority was being requested to issue this arrest warrant to detain omar al-bashir he got back onto his airplane and flew back home to sudan and so um and that's why the national prosecuting authority is mentioned um on the right-hand side of the page and i've hardly mentioned it yet but you'll see then that we had at that time clearly and unambiguously violated our international and domestic obligations and so the analogy i use is that just like a small child having a tantrum and throwing their things around because they're not getting their way or they the rules are no longer convenient to them suddenly our minister of international relations and cooperation at the time was lindiwe sulu she said she just made a pronouncement and said we have decided we are withdrawing from the international criminal court and that's when the democratic alliance had to go to court and say but hang on how can a member of the executive say that we're withdrawing when it's actually the responsibility of our national assembly to repeal the law so to repeal that implementation act that we'd um created domestically and to then formally make the application to the international criminal court to say we will we want withdrawal so that it was out of sheer embarrassment that we hadn't complied that we then threatened to withdraw and then there's been talk i think in the last two weeks where now we're saying no we're not going to withdraw anymore we really are committed to the rule of law um and so hopefully that litigation was successful and we will be again obviously complying with our international obligations should something similar happen happen in future okay i'm now worried can you even hear me still i don't want to spend too much more time because there's not much more i need to say i honestly tell you that this single page diagram should be your starting point for your studies because if you understand everything that's on this page and with the detail you need for the case law you understand pretty much everything about constitutional law so i'm going to end now with a short discussion of the national prosecuting authority because i've neglected it up until now and i have mentioned this before that we have a national prosecuting authority which is again why they are dotted lines with the judiciary it's not part of the judiciary it's not part of the executive and i'm emphasizing that because even though the head of the national prosecuting authority who is now shamila batoy must every so often report to minister ronald lamoula the minister of justice about what is happening and how successful the little you know the the or the success rate of the national prosecuting authority is it is not acceptable for the minister of justice to ever tell the head of the national prosecuting authority what it can or can't do so that's where i need you to see that there's a relationship but it's certainly a situation where again like the judicial service commission it is completely independent and is not subject to any political interference i'm going to start with the manzi semilani case because it's a sort of sort of a logical starting point to show you that unfortunately um for at least 20 years we in south africa had a national because it right this is literally from the first national director of national prosecutions soon after we became a democracy we always had a national prosecuting authority that was described as being ineffective malleable in other words you can manipulate them susceptible to corruption that were not committed to the rule of law and where there were serious problems with the national prosecuting authority so i start with the somalani case because you remember from how we started today's lecture on floppy and how i kept using the term fit and proper because that is the terminology used in the constitution that if you want to be a lawyer or a judge or work for the national prosecuting authority you need to prove that you are fit and proper which means you need to prove that you are honest you are a person of integrity you are not open to corruption that you have um the utmost respect for the rule of law that you've never been found guilty of any criminal offence that you are an upstanding citizen and so that that is the test that was used for john sloppy because he was fit and proper when he was originally appointed as a judge and as i said earlier he made a fantastic decision in the dilil case and he's made other very very good decisions but unfortunately when he tried to improperly manipulate a court case that is expressly prohibited in terms of section 165 of the constitution it rendered him no longer fit and proper which is what the jsc's finding ultimately is in menzie simalani's case president umbeki appointed manzi somalani as the national director of public prosecutions and the democratic alliance had to go to court and say this decision is incorrect and invalid and cannot stand because we know that menzies similani lied under oath during the january commission of inquiry he lied under oath which makes us believe that he's not an honest person with integrity he also apparently lied in an affidavit about what he did in his role as the director general of home affairs i think it was because this is a long time ago but the essence of it is that the court agreed that nancy similani is not a fit and proper person and section 179 of our constitution says the person who is appointed as the director of national prosecutions must be fit and proper and so that really was a starting point for showing that our national prosecuting authority was not as reputable and had didn't have a reputation of being absolutely beyond reproach in any way and in any form and that's why the corruption watch or policy in kasana case is so important and these cases that i'm referring to are in the same document so you must please try and read them or as much of them as possible and at least read the summary at the end of it because it's in this corruption watch case that revealed to us as the south african population how bad the rot in the national prosecuting authority had actually got where president zuma appointed coliseum kasana precisely because he thought that inkasana would protect him because of these pending cases against him and then as soon as coliseum became a little bit too independent and there was word that there were arrest warrants going to be issued is when president zuma went to nuncalisenkasana and said i'm going to suspend you because you didn't tell me that you had an uh charge against you for assault or for dishonesty i can't even i mean i can't remember all the details right now for something to do with two cases that he apparently had never divulged and um then said well fine do it suspend me investigate the matter and then president zuma didn't do that but then president zuma said to him how much do you want you know i can give you a blank check and so it then transpired that jacob zuma said i want you gone policy and i'll give you whatever you want and i agreed on 17 million rand which is what was paid tolisi and he would then quietly resign as the head of the prosecuting authority and so that all you know there wasn't much knowledge about it but very soon afterwards sean abrahams was appointed the head of the national prosecuting authority and again there were all these allegations that and i'm using the it's not my own terminology so hopefully you don't hold it against me but people would refer to him as shaun the sheep because he would do whatever he could to protect jacob zuma and so corruption watch which is a non-governmental organization eventually got to the point where they went to court and they said we need this court to declare that there has been rampant malfeasance in the workings of the national prosecuting authority for years and it's all related to appointing people who are seen to be malleable and corruptable and therefore we want this court not only to declare that in fact nucleolisin casano's resignation was not a legitimate resignation and that he should pay back some of the money because he wasn't due that money jacob zuma had no right to pay that money from taxpayers money and they wanted a declaration that sean abraham's appointment was equally invalid and the court then agreed and they said yes we agree but circumstances have now changed and we cannot reinstate in kasana we certainly um can't do anything because by now by that stage shamila batoy had been appointed as the new national director of public prosecution so again the case had pretty much become moot but the essence is that our our judiciary said it is deeply troubling that for so many years we've had a national prosecuting authority that has been manipulated and politicized and unable to function as it was envisaged and that is a violation of the rule of law and is obviously a violation of the constitution which says you must have a national prosecuting authority that is able to function without fear favor or prejudice very quickly then for the glanister cases it was the situation where the african national congress realized that the scorpions had become too powerful because they wanted to arrest jackie celebi and so a political decision was made to amend the national police services act and the national prosecuting authority act to eradicate the scorpions and create the hawks instead where this new law made it imperative for permission to be obtained from the commissioner of police before investigations could be conducted and you'll recall that jackie celebi was the commissioner of police when he was about to be arrested and that's why hugh glinister just an average person went to court not once but twice the first time he got told sorry you've come to this court prematurely and that's where we saw the judiciary respecting the separation of powers because they said to hugh lannister you've come to us before the legislature has finished its work you first need to wait until the legislature has actually finalized these law these amendment laws and they've been assented to by the president then you come back to us and that's why there's a one and a two and so the second one is when the judiciary agreed with hugh lannister that there was a very real threat that these amendments would negate the independence of the national prosecuting authority act and then the court again respected the separation of powers by saying to the legislature you go back and amend these amendment laws but make sure that there is no possibility for any political interference in the working of the national prosecuting authority i mention the afri forum case only because i want to emphasize that our court constitutional court is as dedicated as it possibly can be to transforming south african society and to ensuring the decolonization of society so again the afri forum case is one of those that's in this tutorial letter 102 and it's really only relevant for you to see how our court used extremely emotive language to explain the injustices of apartheid and how people were judged purely on the basis of the color of their skin the shape of their nose the texture of their hair and they were marginalized from society and therefore when the city of chuani wanted to change street names from paul kruger street to nelson mandela street for example every forum jumped up and said how dare you den you know negate the afrikaners history and the court said how can we protect the history of a small minority and let the majority of people not feel like they are equally worthy and be able to see the names of their own heroes in street names so that's why i've got the case there it's not i mean it really just shows that the rule of law does reign supreme in south african society and our judiciary does not allow petty politics if you will to make its decisions because it is committed to transforming south african society where we are a true democracy and where every single word in section one of the constitution is given meaningful effect so where it says we shall be a non-racial society it means that we have to implement affirmative action measures and go out of our way to redress the injustices of the past including allowing for expropriation of land even if it is without compensation to somehow bring back equilibrium in our society um and from a psychological perspective and i think i've said this before as well i've read many books on on revolutions and changes of government and all of the theorists say that the only way for a society to succeed is if there is actually real social cohesion and that's what we are grappling with and that's why i've got the choi for uh case here to try and show that we need to work together racial differences are of absolutely no consequence there is no material difference between a white person and a black person in any respect except that my miniscule aspect of pigment and so the terminology is in order to get ahead in life we need to get along and that's why i have that case and showing you that our courts and our legislature and our executive really are committed to trying to ensure social cohesion and it redressing imbalances of the past and creating the kind of democracy that was envisioned in 1912 when the anc was established and even more so in the 1955 freedom charter and that the 1976 uprisings for example were not in vain that all of them have contributed to building the society that we have now and not repeating the history that we have unfortunately been subjected to so i'm going to end now because i'm tired and i'm sure you've lost track yes before you end can i quickly ask a question can we take it back to um judge sophie and that he's facing the disciplinar or the impeachment yes the first time that i can't hear you are you there i i just can't hear you at the moment hi can i also lose there okay hi hi hi prof are you the same person or a different person okay carry on while we wait for the other person to get back online i just wanted to find out so in our our referencing right um obviously with our classes we've made notes from from um what you've explained to us and things like that how do we go about referencing that so for instance i wanna i wanna write uh a phrase that that you've stated in class from my notes how would i go about referencing that in an exam or in my assignment look i would like you to find and use kind of the source material so if i said we have a participatory democracy for example you write participatory democracy and then you should usually say the authority for this is the case of doctors for life where the court unequivocally held that public participation in the legislative process is necessary or try to use if you can sort of the page number of the textbook because i i mean you can reference the lecture notes and say uh um lecture delivered on 16th of april it's just that's not great i'm wanting you to get to the point where you are able to make a convincing argument as though you would do in court because all the court cares about is what's your authority and you've got to give them the case name and the case paragraph number that they can read it for themselves and see whether they agree with you or not or the particular provision of the constitution that is relevant so i want you to reference the the source the primary source and only as a met ma sort of as a last resort use lecture notes if that i know that that sounds difficult but there are so many cases that are relevant for so many of the same issues and that's why you see a lot of them repeated on this page okay thank you that's the best i can tell you i'm afraid hi hi prof yes okay can i ask a question just to click clarity on something let's take it back to john shortest current situation where he is facing impeachment let's call it that and we say it's the first time that it happens in the country correct me i'm not sure if i'm not mixing i'm not comparing apples with pears here remember that that judge the one who has found the trump charge was he not in the same situation what happened to his case well you see that was that was that that's partly one of the things i read earlier today mottata had in his favor that he was older and he has he was about to retire so he actually got away with not being impeached because he was able to retire before any decision was made on his impeachment also because there wasn't this judicial conduct tribunal established yet even for his case so someone wrote earlier today that if if judge john floppy draws this case out long long enough by trying to review the jsc's decision and then try appealing a decision and his term of office ends in 2024 he might be able to also get away by resign retiring with all his benefits because he they will not have been a final determination yet or he might just resign from the judiciary and then then he that's sort of scuppered the whole case for the for the jsc anyway because he's then no longer it's no longer necessary to impeach him so that's that is where the difference is it was literally a timing aspect oh okay all right thank you prof thank you hi yes yes i would like to ask i would like to ask if south africa have been withdrawn from the international criminal court could we have been able to like they have applied to brenda gupta back to come to cotton south africa well you see there's a difference with the international criminal court which only can deal with cases of genocide crimes against humanity war crimes or the crime of aggression whereas the guptas are guilty of corruption fraud i would say so they they are not subject to the the jurisdiction of the international criminal court so whether south africa is a member of the international criminal court or not is not relevant to the guptas that's why what we've had to do is use what's sort of the diplomatic route and apply for the extradition in other words the sending back to south africa from dubai of the gupta so that they can stand trial in terms of south africa's ordinary criminal legislation and the legislation on the uh uh got a long name so like eradication of orchestrated crimes or something like that so it's it's this the icc has a very limited mandate whereas we are now looking to bring the guptas back to stand trial as an ordinary criminal matter um and it's because it's not they've not committed any war crimes or crimes against humanity even though they have committed very serious crimes it's not within the limited mandate of the international criminal court does that make sense okay yes that the textbook that i'm using is an online textbook so it doesn't show their page numbers and the edition number so um i just wanted to find out if maybe the marker um could be a lenient in terms of my references because i will be unable to show that page numbers and the the edition number and my second yeah my second question is is it too late for judge corper to apologize um your first question let me be very serious with you i fully understand that you might have an electronic copy that doesn't have page numbers and you are free to use it because what you could do because it might have something like section 2.8 you know that that's the part you're reading so that will be in that that would be enough and and you probably have the first edition anyway if you've got an electronic version without page numbers so you can just say first edition peer to force it all south african constitutional law and context and so try and be specific by saying section 2.8 of the textbook or section 3.1 since you don't have page numbers my problem is when students simply take that electronic copy and copy and paste whole pages and just paste it on the page and submit it as their own work without a single reference and then they wonder why they get zero so that's why i'm trying to emphasize that you need to reference firstly because in law that's where your marks come from your mark comes from showing that you can identify the issue so the issue being is south africa a constitutional state can you identify the the um relevant law yes it is the constitution and can you then in a convincing way with using cases and the provisions of the constitution to substantiate and explain your answer illustrate to us that you actually understand what we mean when we say south africa is a constitutional state so you can't just say we comply with the rule of law you need to say we know that south africa is de committed to the rule of law because no one is um section and you might have to refer to section 9 of the constitution but where you say our law is clear that everyone is equal before the law the ordinary courts of the land are mandated to deal with all similar cases there is no such thing in south africa of these secret military courts for example that torture people and hold them incommunicado no one knows where they are so you you can say it's clear that we have we are committed to the rule of law because section one c of the constitution describes south africa as being committed to the rule of law and then you can use any number of cases to show that our courts are committed to giving meaning and content and effect to the rule of law because you will say in the eff1 case the court held that the decisions of the public protector are now legally binding and must be implemented therefore this reinforces the rule of law so i hope that's answered your first question all i want is is you to make a compelling argument that is as far as possible your own ideas and not just copied from something else and then you with no references whatsoever and then you wonder why you fail as far as john john flop is concerned it's too late you know he was given many opportunities to come before the judicial service commission and explain what happened all he really did is what we call blanket denials he just said what i didn't do that it wasn't me you know they've misunderstood me so he himself has sort of prejudiced his own case by not saying i'm sorry but even if he had it is seen to be a clear-cut violation of section 165 of the constitution that says no one may interfere in any other court this decision-making process so that's my answer for those two yes yes prof i just want to check something with you quickly when you explain the devolution of powers i'm not sure that there i i got you well i think you said uh there is no uh centralization of of powers and he said i think you said the powers is only invested in the what national assembly then we went on further to explain the checks and and balances of the so i'm not sure if i had properly with my first statement well well let me what i was meaning is that and it's actually written down on the page is that where the national sphere has a legislature an executive and a judiciary they don't have all the powers because each of the nine provinces have their own legislatures that can make their own laws for their own provinces each um province has a premier who's the equivalent of a president and they have members of the executive council which are like ministers at the national level and they are implementing the nas the provincial and national laws in the provincial sphere um and i have the judiciary there but that's not we don't really talk about the judiciary in the context of devolution of power it usually only relates to the legislature and the executive but i just have the judiciary there showing that we also have high courts in each of the nine provinces so that when you sitting in um tata you don't have to come all the way to pretoria to go to court to say that a law is invalid you go to your um tata high court that you know that that's why each province has their own high court so that the judiciary is accessible to the people and that's also why then on at the bottom i explain that we have in the at the local sphere also the municipal council is both legislature and executive together so they mutually or altogether draw up the bylaws and ensure that they're implemented and when i say judiciary in that space i just say we have magistrates courts but they have no constitutional jurisdiction so don't worry or don't refer to them in constitutional law as being the court you would go to even if you live in a rural village and there's a magistrate's called near you if your case is something serious like the law is unconstitutional or you believe that the president has acted it irrationally you cannot go to a magistrate's court you unfortunately have to then find a good lawyer and lots of money and go to a high court that is closest to you so that's what i was trying to mean is that we have this devolution of power so that the national sphere of government doesn't have all the power it gives a lot of power to the provincial sphere and to the local spheres thank you broth excuse me professor lee um are you speaking of uh the devolution of powers as referring to concurrent powers absolutely it that's exactly it that's why i've got written on the side um schedule four refers to the concurrent competencies and schedule five refers to the exclusive competencies because you need to know what can the province do exclusively for example or what can the national government deal with exclusively in case there's any confusion so for example higher education is a an exclusive national competence so if you've got an issue with higher education and you want a law the law amended to allow for free education for example that is an issue that can only be dealt with in the national sphere so it's only the national executive being blatant zamande who you could try and approach and say we wanted an amendment to the law and he might then agree with you and he would start formulating policy and he would then send it off to the national assembly because only the national government can decide on higher education blade and zamandi cannot say to anyone in the provincial sphere and i want to say sufi because he's always in the news he can't say to lesufi oh just come help me deal with this issue on higher education that's impossible because sufi is in a provincial capacity and higher education for example can only be dealt with at the national sphere just as an example of what is exclusive and what is concurrent thank you so much professor professor yes you know i'm i'm i'm listening to all those things that you are mentioning that we should do like referencing to the page numbers and the paragraphs can we some of us are not fast with typing can we handwrite can we like print can hand right the timetable shows four hours yes it is four hours and you you do get the additional hour to submit uh let me tell you let me start by saying this uh now i've got a lot to say but let let me start by saying this when you open tutorial letter 102 on about page 3 starts with a heading about the personal is political and there's all this writing and you see i've got footnotes there where i say see the book by al patel on page 16 for example that's the kind of referencing we're looking for ideally because in a reference you need to show exactly where you got the information from so that whoever reads your work can go exactly to that document and see for themself if they agree with you so because your handwriting i'm not going to expect you to do footnotes and even if you are typing you don't have to use footnotes but as long as if you say the president is head of the executive and head of state in brackets afterwards you need to say c section 84 of the constitution of the republic of south africa 1996. um okay so that's the first thing so yes you need to show me that you actually know where to look for the right information to support your answer so that we can see okay this student really does understand the law and constitutional law in particular i will also say this when the exams were always venue based constitutional law exams would have 20 marks of true and false and then 80 marks of long essays and complicated problem questions and students would finish within two two hours because the exams were always two hours then in this current exam you're about to write 25 of the questions are true or false where you have to give a reason and your reason might be as short as a few words where you say no that's the wrong the wrong case is being referred to here in fact the correct case is makwanyani which held that the death penalty is unconstitutional for example so those and that's 75 marks worth that shouldn't take you too long so you're going to have more than enough time to write the little 25 mark essay more than enough time okay i promise you i i i really i say that because i genuinely believe it's more than enough time okay all right on that right um so we've lots of the other of us have been reviewing um the the exam paper that was done in may june yes the essay there is on black conscience and there's nothing there's not much in the study materials regarding that so in our exam that's coming up is it going to be context based where it's stuff that we've learned and in the in the study material that we've had or would it be just surrounding let me tell you the reason that that exam had that question is because those students the majority of those students who were writing were early completion students meaning that they were actually in their final year of their llb degree and only had about four modules left to complete the degree and so i deliberately then made their assignment question for that group on decolonization so they had time to read about black consciousness or at least maybe or have inherent knowledge about it but remember this is an exam where you're sitting and you do have access to the internet um and so that's why i made it quite a difficult question but i have not done it for this semester this semester's question is purely content based on everything that we have dealt with in the lectures so there's nothing i didn't make it you know difficult like that about something that you might never have heard of in your life and have no idea how to apply to constitutional law i did it because those were students who i really had to test that they were now competent to get the degree which is a bit unfair i know but yeah i was just asking because obviously working on that we haven't learned that safety so yeah that's that's a bit of an ease i think for all the students here to notice yes context-based thank you very much for that but that style is exactly the same there's 25 true and false for 75 marks you can get a distinction just on the true and false if you've got you know understand the work and can you find the right authority so i've i think i've made it extremely easy to do well thank you that was my plan so it better work yes uh the true false questions the answers that we must or the the referencing or the answers they must give must we reference them as well well yes usually as part of the answer so the question might say um let me think of what i what i mean i i'm using footnotes so mustard yes even there that's perfect okay so if the statement says okay let's let's use what i've just been discussing if the statement says the speaker of the national assembly has no right to decide that a vote on impeachment of a president is by secret ballot you would be able to say false and you will say this is absolutely not true and the relevant case is the udm case udm versus speak of the national assembly and then in the footnote try and give the full citation yeah to the case so that there's no no doubt about which udm case you're referring to and so you you don't even have to use a footnote there but you can if you want to okay great thank you and and and so you also then could you know for the two points say it is section i think it's 79 i just can't think right now that says that the national assembly can regulate its own affairs and therefore you say therefore the national assembly is empowered by section 79 i can't remember that's correct though as read with the binding decision of the constitutional court in the con the case of udm verses speaker of the national assembly okay okay thank you very much yeah yes hi professor yes i don't know who's speaking so jump in okay i just want to ask on the essay question you said you must look at the constitutional law as a war uh please can you can you say something more regarding that well i mean what did i ask um okay yes there is no right or wrong answer okay um and i don't have in mind exactly what your answer needs to look like all i want to see is that you are familiar with and and this is especially from chapter 2 of the textbook what are those fundamental concepts that permeate the whole of constitutional law being supremacy rule of law democracy um and therefore related to it how do we know that we're a democracy because we have separation of powers we have an independent judiciary we have devolution of powers so that there isn't too much power in the hands only of the national government but the provinces which are closer to the people also have sufficient powers to do what's in the best interests of the people living in that province um and that we have a supreme constitution that we have so i i and i this my own sort of interpretation that you you go on and you say you know we've actually got to the point where we have to some extent a decolonized form of constitutional law because our judiciary is not afraid to declare law or conduct of the president or of the national assembly invalid if they need to do so to uphold our constitutional democracy and that's why the city of chuana versus afriforum case is important okay um yeah so so that's what i mean is is if you know those fundamental concepts it means that you will be able to identify whenever there is a violation of the rule of law because if the if if you get a client one day who comes to you and says i am not allowed to vote because i'm a paraplegic you would be able to immediately say that is a violation of the rule of law because we know that in terms of south africa's democracy we have a an a common voters role with universal adult suffrage and no citizen may be excluded for any arbitrary grounds and if in the august case the people in prison succeeded in their case and getting ensuring that they can register and vote then paraplegics also have the right to expect the iec maybe to come to them to ensure that they get registered and can vote and that they don't have to go and step try and be in a queue um and are vulnerable you know that kind of logic is think about because the whole idea in law is we have a precedent system so hopefully you when you have to advise a client you'll be able to say to them and this is where predictability comes in you'll be able to say to them you have a good chance of winning your case because there was a similar case in the past where the court decided that and it you know you show the analogy and how close the situation is and therefore the court is likely to find in your favor because of that existing precedent that's that's most of what law is all about is it doesn't matter which case you remember as long as it's applicable because they could be umpteen that are applicable to your scenario but you must try and find the best case to support your argument so that you'll be able to persuade the judge to find in your client's favor that's really the essence of law yes problem yeah okay are you happy then everyone happy yes bro yes thank you so much one question yes one question proof when are we getting the feedback for the assignments oh god um monday i know i promised it last monday but i'm nearly finished it and then mr mudao said he'll look at it just to make sure that it looks good and quality assured but he's very busy today we had to submit an article um and he's i said during the course of the weekend we'll do it i i'm just i'm actually booked off on sick leave which is why i'm very slow at the moment or that which is not like me i usually get things done much faster but it's it's also because this exam caught us completely off guard and suddenly i had to make sure the 10 000 assignments could get marked in a much shorter space of time than i thought so that's taken a lot of time when i should have been trying to do the feedback on assignments so the actual 201 will come out no later than monday i mostly finished it anyway i'm just trying to make it as detailed as possible to give you guidance for how to answer in the exam you know showing you that you cannot make a statement without having authority to substantiate it does that make sense i just wanted to say them last friday you said monday and now again sunday but please don't say next week i know i don't know no i know that and that's why yesterday i was telling mr murdoch i said to him i'm nearly finished it i know i promised you last monday um but we know it's imperative that you get it but i also i must tell you i'm also still receiving assignments by email from some students because they couldn't submit to due to nazis not paying etc so i also i am sort of being strategic about not releasing it too soon and then suddenly students are all getting 100 for cheating and all of that nonsense but i promise you monday i do promise and i will make sure it happens by monday even sooner if mr murda is able to look at it tomorrow or sunday okay next friday i don't know how your exam timetable looks we probably can do one i don't know what more i could say but we there's a lot to talk about in constitutional law so if we need a lecture we can do it let's just see how how you're feeling closer to the exam okay just do the lecture prop well i'll think about what to say then yeah okay one question i think i think maybe maybe maybe if it is on sunday i think we need to be asking you questions on your presenting that sounds good too hopefully you don't catch me off guard but yes yeah that's what i think yeah okay no we can do it that's actually much better a sort of two-way conversation is better than me just talking to you i like that yeah well one question i just want to check in your explanation when you give like true or false answers maybe for example you know an answer is is true and maybe there's a section in section of the constitution that supports your answer and the case law however you only provide the section in the constitution but you don't maybe put the case law are you gonna you still need at least one you might get one and a half even so you should probably still get two marks out of three for that because there isn't always an exact provision and a case at the same time it just really depends on how you how convincingly you answer if you can say yes because the constitution says in section three that xyz you might get your full marks all right then the last part will be that since you said the exam is about four hours then one hour is for submitting so the put the example will be open for about five hours yes all right thank you and and honestly i'm try to finish in four hours because what happens is if you all wait until the last five minutes and then all 10 000 of you try and submit and you can't then there's nothing i can do to open the system any any longer so the idea is that hours actually for up uploading so there's enough time for everyone to upload without the system collapsing so try not wait until the last minute to upload okay hello yes can i ask the question please yes in regards to 201 that you're gonna um give us on monday most probably is it only gonna is it only gonna be focused on tax one and not touch 101 it's only double zero one i i i'm saying that because if you have answered a question from some um semester two from the 101 you go get getting zero we've been told that you were only allowed to answer the double zero one so i'm only giving feedback on the double zero one oh okay thank you so much yes i haven't i can't even i didn't set that this those assignment questions anyway that was professor matanjua last year who did it i can't even remember what he asked or what he was looking for so i've done not i've not got anything ready to give you for the for 101 semester two okay thank you so much okay so are we all happy for today yes yes you are happy bro thank you and we will be in touch and do a question and answer session next week that should hopefully clarify any last minute things thank you you thank you goodbye thank you bye-bye thank you so much thank you bye if we have one next week the question and answer one are we going to stick to the same friday afternoon three o'clock yes i think so because it's now settled and everyone's hearing what time it is let's not confuse issues if we can avoid it yes that would be good thank you very much ma'am thank you for your weekend bye-bye thank you [Music] thank you thank you hey you