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Study Unit 3 In-depth summary of the Separation of Power and the National Legislature (CSL 2601) (Textbook, Study Guide, Case Law, Constitution references covered)$3.53
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Study Unit 3 In-depth summary of the Separation of Power and the National Legislature (CSL 2601) (Textbook, Study Guide, Case Law, Constitution references covered)
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Course
CSL2601 - Constitutional Law
Institution
University Of South Africa (Unisa)
All you need to prepare for the exam.
In depth summary of the Constitutional law textbook and objectives in the study guide.
Including references to Constitution and Case Law.
• De Lille and Another v Speaker of the National Assembly 1998 (3) SA
430(C)
• Minister of Home Affairs v National Institute for Crime Prevention and
the Re-integration of Offenders (NICRO) and Others 2004 (5) BCLR 445
(CC)
• August v Electoral Commission 1999 (4) BCLR 363 (CC)
• Doctors for Life International v Speaker of the National Assembly and
Others 2006 (12) BCLR 1399 (CC)
• Merafong Demarcation Forum and Others v President of the Republic of
South Africa and Others 2008 (5) SA 171
• Richter v Minister of Home Affairs and Others (DA and Others
Intervening) 2009 (5) BCLR 448 (CC)
• The AParty v Minister of Home Affairs; Moloko v Minister of Home
Affairs 2009 (6) BCLR 611 (CC)
• Independent Electoral Commission v Langeberg Municipality 2001 (9)
BCLR 883 (CC)
Constitution Reference
Composition of Parliament Section 42
Composition and election Section 46
Powers of National Assembly Section 55
Public access to and involvement in National Assembly Section 59
Public access to and involvement in National Council Section 72
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,.
Composition of Parliament and the two houses of Parliament.
The national legislature (Parliament), aside from its legislative functions such as
considering, passing, amending or rejecting legislation, also has the power to
check the exercise of power by the national executive and other organs of state
to ensure that the national executive and various other organs of state are held
accountable
General rules regarding the operation of parliament
Openness and transparency
• The NA and NCOP must act in an open and transparent manner.
• For this reason, all sittings have to be held in public, although right of access may be
controlled in appropriate circumstances.
• The power to control right of access vests in the Speaker, but non-compliance with
this rule, for example if the public and the media are excluded, could render any
conduct at such a gathering invalid and unconstitutional.
Parliamentary privileges
• Members of the two houses and the Cabinet enjoy certain inalienable privileges
when appearing before the houses (parliamentary privilege).
• This is based on the notion that members of Parliament (MPs) must be able to perform
their duties in an uninhibited environment.
• They are guaranteed freedom of speech and are free from civil and criminal proceedings
brought regarding anything they produce in the houses.
• This privilege may be subject to judicial review if exercised in breach of a constitutional
provision.
• Parliament and its members thus enjoy parliamentary privilege so that they are able to
perform their functions without outside hindrance or interference.
• The power of Parliament to determine its own procedures is not only limited or qualified
by the constitutional requirements regarding openness, accountability and transparency
as well as specific duties imposed on Parliament by the Constitution
• Parliamentary privilege was developed in the British context to protect MPs
from interference by the monarch – now contained in the SA Constitution.
• Dikoko v Mokhatla – p. 204 (defamatory remarks) - section 28 of the Local Government Municipal
Structures Act P. 207 – Loud Speaker activity (Activity 3.8)
•
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, In South Africa, parliamentary privilege came under the spotlight in Speaker of the National
Assembly v De Lille MP and Another - The case arose from an incident in the NA in which one of the
opposition members, Ms Patricia de Lille, stated that she had information that 12 members of the
governing party had been spies for the apartheid government
The Speaker argued that the NA had exercised its parliamentary privilege to control its own affairs and
that the exercise of parliamentary privilege is not subject to judicial review. For this argument, the
Speaker relied on section 5 of the Powers and Privileges of Parliament Act.
This section provides that a court shall stay proceedings before it if the Speaker issues a certificate to the
effect that the matter in question is one which concerns
the privilege of Parliament.
The High Court held that, under a supreme Constitution, the exercise of parliamentary privilege is subject
to judicial review.
The National Assembly is subject to the supremacy of the Constitution. It is an organ of state and
therefore it is bound by the Bill of Rights. All its decisions and acts are subject to the Constitution and the
Bill of Rights. Parliament can no longer claim supreme power subject to limitations imposed by the
Constitution
The Judge concluded:
The nature and exercise of parliamentary privilege must be consonant with the Constitution. The exercise
of parliamentary privilege, which is clearly a constitutional power, is not immune from judicial review. If a
parliamentary privilege is exercised in breach of constitutional provisions, redress may be sought by an
aggrieved party from law courts
A fundamental right crucial to representative government in a democratic society.
Tenor and spirit must conform to all other provisions of the Constitution relevant to the conduct of
proceedings in Parliament’. The NA therefore had no constitutional authority to suspend Ms De Lille.
The Rules have since been amended to provide the Speaker or Deputy Speaker with the authority to
suspend a member for a period of between five and 20 parliamentary working days.
Parliament is a bicameral legislature which means that it is divided into two houses.
Bicameralism is that the two Houses of Parliament represent different interests and thus act
as a check on one another. Both houses have broad mandates to fulfil their duties, as they
are entitled to make rules and orders for their separate and joint functions and have the
power to conduct proceedings similar to court proceedings with witnesses and submissions.
Two Houses
National Assembly (NA) - Lower house –
• NA is constitutionally and political the dominant house.
• NA is intended to represent the interests of all South Africans.
• In the case of the NA, members are elected via their respective political
parties in a national election.
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