NAME: PRENESHA

SURNAME: GOVENDER

DATE 6 APRIL 2023

CLS2601: CONSTITUTIONAL
LAW

ASSIGNMENT 2

STUDENT NUMBER: 54079209

QUESTION 1.1

In constitutional law there are 4 different forms of democracy, they are:

 Direct democracy
 Representative democracy
 Participatory democracy
 Constitutional democracy

Below each will be discussed

DIRECT DEMOCRACY
 Direct democracy means that all major political decisions are taken by the people
themselves. This form of democracy may work in a very small political community,
where people can get together on a systematic basis (e. in the town or community
hall) to discuss and decide matters of common interest.
 Direct democracy is in the word itself, in practice it would require every piece of
legislation to be voted for by every member of society. Because of this direct
democracy is somewhat limited with very few identifiable instances of its
institutionalisation in modern society
 The constitutional expression of direct democracy is said to be found in several
provisions that guarantee and recognise mechanisms for citizens to act directly in
influencing decisions, examples are picketing, petitions, right to assemble etc.
 Other expressions identified in the constitution itself are found in provisions allows
for the executive to seek citizens view on an issue or set of issues directly through the
ballot by the way of referenda.
 The case of Merafong demarcation forum and others V President of the Republic of
South Africa and others raised a lot of questions about the content and limits of direct
democracy, however the judgment stood firm.

REPRESENTATIVE DEMOCRACY

 Representative democracy is characterised by the fact that the citizens of a state elect
the legislative body of their choice, and these representatives express the will of the
people. Note that a representative democracy is created by the process of elections.
These elections should be held at regular intervals, and reasonably often
 Consent is central to the idea of representation. Representation entails government
power being exercised by representatives of the people on their behalf, and with their
consent. In parliamentary terms, representation refers to the constitutional system for
 electing members of the judicial body who will work for the interests of those who
elect them
 In addition to being a representative democracy, South Africa is also a constitutional
democracy. Evidence of recognition of political parties by the constitution in certain
constitutional clauses both substantive and procedural
 In terms of the NA, the high court decision of De Lille and Another V Speaker of
National Assembly highlighted the importance of ensuring that the citizenry is
properly represented in the working of the NA (National Assembly) this is fine
example of representative democracy.

PARTICIPARY DEMOCRACY
 In participatory democracy, the public is actively involved in decision- making
processes such as law making and oversight. The intention of public participation and
involvement in democratic processes is mainly to influence decision-making
processes that imitates ‘the will of the people’
 Subsequently, the South African Legislative Sector recognised the need to operate
within a structured framework of participation. The Legislative Sector, consisting of
Parliament and all nine provincial Legislatures, thus conceived a Sector Public
Participation Framework that provides a documented platform for shared
understanding, alignment and minimum requirements and guidelines for Public
Participation.
 Elections take place periodically, usually every 5 years in South Africa this is an
example of participatory democracy.
 The constitution recognises participatory democracy as a vital element in South
African democracy. In Doctors for Life International V Speaker of the National
Assembly and Others Ngcobo J stated among other things that participatory
democracy is of special importance to those who are relatively disempowered in a
country like ours where great disparities of wealth and influence exist.

CONSTITUTIONAL DEMOCRACY
 South Africa is a Constitutional democracy country that upholds representative and
participatory democracy. In an illustrative context, the Members of Parliament
embody the views of the voters whilst in a participatory democracy the public is
actively involved in decision- making processes such as law making and oversight.
 In Oriani-Ambrosini, MP v Sisulu, MP Speaer of the National Assembly 2012 The
Court stated that South Africa’s constitutional democracy “is designed to ensure that
the voiceless are heard”, and is one in which the “views of the marginalised or the
powerless minorities cannot be suppressed”
 In practice, this means a democratic society that is not simply majoritarian in its
direction and practice but also one that accepts that judicial review is real where it is
employed to give effect to the constitution.
 Constitutional democracy is also the highest law of the land and no one can overrun
it, not parliament or even the president.
QUESTION 1.2
 South Africa is a constitutional democracy that encompasses the principle of separation of
powers – based on the trias politica principle – which denotes to the division of governmental
power into 3 branches, namely
 The legislature,
 The executive,
 The judiciary.
 By virtue of section 2 as read with section 172 of the Constitution, the Constitution is the
supreme law of the land and all law and conduct inconsistent with it is invalid.
 Thus the Constitution is an enforceable and binding document that keeps these branches is
check.
 In the case of In re Certification of the Constitution of the Republic of South Africa
 The CC established that the separation of powers was firmly established in the South
African Constitution.
 In the case of De Lange v Smuts NO –
 Court revealed that SA has a unique, special and evolving form of the separation of
powers doctrine.
 The separation of powers doctrine can mean any of all of the following:
 The formal division of state authority among the legislature, executive and judiciary.
 The separation of personnel so that one person should not perform functions within
more than one branch of government at the same time.
 Separation of functions so that one branch of government cannot usurp the functions
and powers of another.
 Checks and balances (each branch of government is given powers to restrain the other
branches and thus achieve the desired balance among the three components of
government authority).

 The other part of constitutional democracy from a South African perspective

specifically is that South Africa has an autochthonous Constitution meaning we have
Indigenous words like UBUNTU
 This is an African concept and we should understand, interpret and develop the law
with indigenous values
 The above was mentioned by The philosopher Paolo Freire wrote in 1975, he also
mentioned that “students must become active participants in creating and negotiating
knowledge so as to prevent the situation where they simply ‘adapt to the world of
oppression’ by consuming information without thinking critically”
 Ubuntu is applicable to participation in the legislative process. As such, the people
should be afforded an opportunity to provide their opinion on decisions that will
 affect them. What the case of Merafong Demarcation Forum and Others v President
of the Republic of South Africa and Others has revealed to us in paragraphs 133 to
140 is that genuine public participation should occur.
 With this in mind Ubuntu is one of the things that makes constitutional democracy
from a South African perspective very unique since we take this own countries
indigenous laws and try to adapt it to constitutional law.
QUESTION 1.3
 The Electoral Commission was established under chapter 9 of the constitutional as
one of the state institutions supporting constitutional democracy. The structure is
addressed in the electoral act of 1961
 “although the Electoral Commission is an organ of state as defined in section 239 of
the Constitution, the requirement that it be independent from the government means
that it cannot be said to be a department or an administration within the national
sphere of government over which Cabinet exercises authority” – this was stated in the
case of Independent Electoral Commission v Langeberg Municipality 2001 (9) BCLR
883 (CC)
 The Panel consists of the president of the constitutional court, and representatives
from each of the following institutions:
 The human rights commission
 The public protector
 The commission of gender equality.

 The nominees of the above must be approved by the committee of the National
Assembly.
 Commissioners are appointed for a 7 year term and can be removed by office of the
president on the grounds of misconduct upon a finding.
 The independence of the commission is specifically guaranteed in both the
constitution and the electoral act. The commission is accountable to the national
assembly
 The commission is responsible for managing elections (constitutional democracy) of
the national, provincial and municipal bodies. They must ensure that the elections are
free and fair.
 The Independence of the electoral commission first requires financial independence In
the case of New National Party v Government of the Republic of South Africa and
Others, the Constitutional Court affirmed the principle that these institutions must
have financial independence in order to function independently and to be able to
exercise their duties without fear, favour or prejudice.
 The commission also need to enjoy administrative independence, this implies that
there will be no control over matters directly connected with the functions which the
commission has to perform under the constitution and the electoral act. So the
commission cannot be part of the national government in any manner.
 In August and Another V Electoral Commission and others the constitutional Court
pointed out that the right to vote in section 19(2) of the constitution is unqualified. It
therefore cannot be take away from any citizen arbitrary or in a way that is not
reasonable or justifiable. In an open and democratic society.
 In Richter v Minister for Home Affairs and Others 2009 (3) SA 615 (CC) “The right to
vote, and the exercise of it, is a crucial working part of our democracy. Without voters
who want to vote, who will take the trouble to register, and to stand in queues, as
millions patiently and unforgettably did in April 1994, democracy itself will be
 imperilled” the court decided unanimously that South Africans living abroad have a
right to vote if they are registered.
 In the above one can see clearly how the Electoral commission strengthens
constitutional democracy, the independence of the commission as well as the
inclusion of the public all points to this.
BIBLIOGRAPHY
 https://www.ecfsadc.org/members/south-africa-independent-electoral-commission/
 Tutorial Letter 101 of CLS2601 (Study Guide for 2023)
 Pierre de Vos & Warren Freedman (eds), Zsa-Zsa Boggenpoel, Lisa Draga,
Christopher Gevers, Karthy Govender, Patricia Lenaghan, Sindiso Mnisi Weeks,
Catherine S. Namakula, Nomthandazo Ntlama, Douglas Mailula, Khulekani Moyo,
Sanele Sibanda & Lee Stone South African Constitutional Law in Context 2 ed
Oxford University Press (2021) pg. 84 – 95
 Pierre de Vos & Warren Freedman (eds), Zsa-Zsa Boggenpoel, Lisa Draga,
Christopher Gevers, Karthy Govender, Patricia Lenaghan, Sindiso Mnisi Weeks,
Catherine S. Namakula, Nomthandazo Ntlama, Douglas Mailula, Khulekani Moyo,
Sanele Sibanda & Lee Stone South African Constitutional Law in Context 2 ed
Oxford University Press (2021)
pg. 135-138
 Law cases referenced above

 SAfrica is a constitutional
democracy that encompasses the
principle of separation of
powers – based on the trias
politica principle – which refers
to the division of
governmental power into 3
branches, namely –
o The legislature,
o The executive, and
o The judiciary.
 By virtue of section 2 as read
with section 172 of the
Constitution, the Constitution is
the supreme law of the land and
all law and conduct inconsistent
with it is invalid.
 Thus the Constitution is an
enforceable and binding
document that keeps these
branches is check.
 In the case of In re
Certification of the Constitution
of the Republic of South Africa –
o The CC established that the
separation of powers was firmly
established in
the SAfrican Constitution.
 In the case of De Lange v
Smuts NO –
o Court revealed that SA has a
unique, special and evolving form
of the
separation of powers doctrine.
 In summary, the separation of
powers doctrine can mean any of
all of the following:
o The formal division of state
authority among the legislature,
executive and
judiciary.
o The separation of personnel
so that one person should not
perform
functions within more than one
branch of government at the same
time.
o The separation of functions so
that one branch of government
cannot usurp
the functions and powers of
another.
o Checks and balances (each
branch of government is given
powers to restrain
the other branches and thus
achieve the desired balance
among the three
components of government
authority).
CONSTITUTIONAL LAW
EXAM PREP
CSL2601
2. Explain the principle of
separation of powers. With ref to
case law also explain whether
this doctrine forms part of the
SAfrican constitutional
democracy. (10)
 SAfrica is a constitutional
democracy that encompasses the
principle of separation of
powers – based on the trias
politica principle – which refers
to the division of
governmental power into 3
branches, namely –
o The legislature,
o The executive, and
o The judiciary.
 By virtue of section 2 as read
with section 172 of the
Constitution, the Constitution is
the supreme law of the land and
all law and conduct inconsistent
with it is invalid.
 Thus the Constitution is an
enforceable and binding
document that keeps these
branches is check.
 In the case of In re
Certification of the Constitution
of the Republic of South Africa –
o The CC established that the
separation of powers was firmly
established in
the SAfrican Constitution.
 In the case of De Lange v
Smuts NO –
o Court revealed that SA has a
unique, special and evolving form
of the
separation of powers doctrine.
 In summary, the separation of
powers doctrine can mean any of
all of the following:
o The formal division of state
authority among the legislature,
executive and
judiciary.
o The separation of personnel
so that one person should not
perform
functions within more than one
branch of government at the same
time.
o The separation of functions so
that one branch of government
cannot usurp
the functions and powers of
another.
o Checks and balances (each
branch of government is given
powers to restrain
the other branches and thus
achieve the desired balance
among the three
components of government
authority).
CONSTITUTIONAL LAW
EXAM PREP
CSL2601
2. Explain the principle of
separation of powers. With ref to
case law also explain whether
this doctrine forms part of the
SAfrican constitutional
democracy. (10)
 SAfrica is a constitutional
democracy that encompasses the
principle of separation of
powers – based on the trias
politica principle – which refers
to the division of
governmental power into 3
branches, namely –
o The legislature,
o The executive, and
o The judiciary.
 By virtue of section 2 as read
with section 172 of the
Constitution, the Constitution is
the supreme law of the land and
all law and conduct inconsistent
with it is invalid.
 Thus the Constitution is an
enforceable and binding
document that keeps these
branches is check.
 In the case of In re
Certification of the Constitution
of the Republic of South Africa –
o The CC established that the
separation of powers was firmly
established in
the SAfrican Constitution.
 In the case of De Lange v
Smuts NO –
o Court revealed that SA has a
unique, special and evolving form
of the
separation of powers doctrine.
 In summary, the separation of
powers doctrine can mean any of
all of the following:
o The formal division of state
authority among the legislature,
executive and
judiciary.
o The separation of personnel
so that one person should not
perform
functions within more than one
branch of government at the same
time.
o The separation of functions so
that one branch of government
cannot usurp
the functions and powers of
another.
o Checks and balances (each
branch of government is given
powers to restrain
the other branches and thus
achieve the desired balance
among the three
components of government
authority).
 SAfrica is a constitutional
democracy that encompasses the
principle of separation of
powers – based on the trias
politica principle – which refers
to the division of
governmental power into 3
branches, namely –
o The legislature,
o The executive, and
o The judiciary.
 By virtue of section 2 as read
with section 172 of the
Constitution, the Constitution is
the supreme law of the land and
all law and conduct inconsistent
with it is invalid.
 Thus the Constitution is an
enforceable and binding
document that keeps these
branches is check.
 In the case of In re
Certification of the Constitution
of the Republic of South Africa –
o The CC established that the
separation of powers was firmly
established in
the SAfrican Constitution.
 In the case of De Lange v
Smuts NO –
o Court revealed that SA has a
unique, special and evolving form
of the
separation of powers doctrine.
 In summary, the separation of
powers doctrine can mean any of
all of the following:
o The formal division of state
authority among the legislature,
executive and
judiciary.
o The separation of personnel
so that one person should not
perform
functions within more than one
branch of government at the same
time.
o The separation of functions so
that one branch of government
cannot usurp
the functions and powers of
another.
o Checks and balances (each
branch of government is given
powers to restrain
the other branches and thus
achieve the desired balance
among the three
components of government
authority).