UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007

SUBJECT, COURSE AND CODE:

CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM)

DURATION: 3 HOURS External Examiner: Internal Examiners:

TOTAL MARKS: 70

Professor C Murray Professor W Freedman Ms A Strode ________________________________________________________________________

STUDENTS ARE REQUESTED, IN THEIR OWN INTERESTS TO WRITE LEGIBLY.

PLEASE NOTE:

This exam consists of (SIX) 6 pages. Please ensure that you have them ALL.

INSTRUCTIONS TO STUDENTS: This examination consists of two parts. Students must answer both Part I and Part II. Use separate answer books for Part I and Part II

UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM) PAGE 2

PART I Professor W Freedman

In this part of the examination, you must answer both Section A and Section B SECTION A On 1 April 2007, the Minister of Agriculture introduced the Abattoirs Control Bill in the National Assembly (this is a fictitious Bill, but you are to assume it exists for the purposes of this question). The purpose of this Bill is to establish and maintain essential national hygiene standards in respect of abattoirs. Clause 3 of the Bill provides that no person may slaughter an animal at any place other than a registered abattoir. Clause 9 provides that an application for the registration of an abattoir must be made to the Director-General of the national Department of Agriculture and that the Director-General may only issue a registration certificate if an abattoir complies with the relevant hygiene standards set out in the Schedules to the Bill. Clause 15 provides that when the Director-General registers an abattoir he must register it as an Export Abattoir; a National Abattoir; or a Local Abattoir. Export Abattoirs supply meat to foreign countries; National Abattoirs supply meat across the country as a whole and Local Abattoirs supply meat in the province in which they are located. The Bill passed through the various legislative stages required by section 76(1) of the Constitution and was approved by both Houses on 1 October 2007. The Bill was then sent to the President for his assent and signature. The President has examined the Bill and has reservations about the constitutional validity of clause 3 read together with clause 9 and clause 15. The President believes that these sections may infringe upon the provincial legislatures exclusive legislative competence and could, therefore, be unconstitutional. This is because abattoirs are a functional area of exclusive provincial competence listed in Part A of Schedule 5 of the Constitution. The President approaches you for advice. He wants to know if clause 3 of the Abattoir Control Bill read together with clause 9 and clause 15 falls within the legislative competence of Parliament. Advise him. In your answer you must also set out and discuss: (a) Parliaments exclusive legislative competencies; (b) Parliaments concurrent legislative competencies; and (c) Parliaments power to intervene in areas of exclusive provincial competence. TOTAL SECTION A: 20 MARKS

UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM) PAGE 3 SECTION B Answer either Question B.1 or Question B.2. Do not answer both questions. QUESTION B.1 In Executive Council of the Western Cape Legislature v President of the Republic of South Africa 1995 (4) SA 877 (CC), the Constitutional Court held that the nondelegation doctrine imposes certain limits on Parliaments authority to delegate its lawmaking powers to another body or person. Write an essay in which you set out and discuss the judgment of the Constitutional Court in Executive Council of the Western Cape Legislature v President of the Republic of South Africa supra. In your essay you must also explain what is meant by the nondelegation doctrine. (15 marks) QUESTION B.2 In United Democratic Movement v President of the Republic of South Africa (No.2) 2003 (1) SA 495 (CC), the Constitutional Court held that Parliament may amend the Constitution so as to allow members of the National Assembly, the Provincial Legislatures and the Municipal Councils to change parties (ie to cross the floor) and still retain their seats. Write an essay in which you set out and discuss the judgment of the Constitutional Court in United Democratic Movement v President of the Republic of South Africa (No.2) supra. In your essay you must also set out the requirements which a member of the National Assembly must satisfy if he or she wishes to cross the floor and retain his or her seat. (15 marks) TOTAL SECTION B: 15 MARKS

UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM) PAGE 4 PART II Ms Ann Strode (USE A SEPARATE ANSWER BOOK FOR PART II) In this part of the examination, you must answer both Section C and Section D SECTION C On 1 March 2007 Parliament passed the Suppression of Terrorism Act 23 of 2005 (this is a fictitious Act, but you are assume it exists for the purposes of this question). Section 56 of this Act provides that a terrorist may be detained without trial for a period of 60 days provided his or her detention is authorised by the Director of Public Prosecutions and provided the Director of Public Prosecutions has a reasonable belief that the detained person poses a threat to the national security of the Republic. A terrorist is defined in section 1 of the Suppression of Terrorism Act as an individual who is a member of an international or local organisation which has the express purpose of achieving political change through violence Assume that you are a candidate attorney employed at the Legal Resources Centre in Durban. You have been approached by the family of Mr Ishmail Bhamjee, a Tanzanian national who has refugee status in South Africa. Mr Bhamjees family tell you that he has been detained in terms of section 56 of the Suppression of Terorism Act. They also tell you that they have been informed by the Director of Public Prosecutions that the reason for Mr Bhamjees detention is that he is a suspect in a number of recent international terror attacks. Mr Bhamjees family believe that section 56 of the Suppression of Terrorism Act is unconstitutional as it infringes his right to a fair trial as guaranteed in section 35 of the Bill of Rights. They now want your advice on the issues set out below: (a) whether the Bill of Rights applies to this dispute, including whether the fact that Mr Bhamjee is a foreigner would have any bearing on this issue; (b) if the legislation was to be challenged, which court(s) would have jurisdiction to hear the dispute; (c) whether detention without trial in terms of the Act is a justifiable limitation of Mr Bhamjees rights; and (d) if successful, the remedies that would be available to the court. TOTAL SECTION C: 20 MARKS

UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM) PAGE 5 SECTION D Answer either Question D.1 or Question D.2. Do not answer both questions. QUESTION D.1 Section 84(2) of the Constitution provides that the President is Aresponsible for appointing commissions of inquiry@. Acting in terms of this section, the President has appointed a commission of inquiry to investigate allegations of financial corruption and mismanagement in the affairs of the South African National Netball Federation (Athe Netball Federation@). Dr Louise Late is the chairperson of the Netball Federation. Dr Late has raised a number of objections to the appointment of the commission of inquiry. She writes a letter to the President setting out her objections. One of her objections is that before appointing the commission of inquiry, the President should have given the Netball Federation an opportunity to present its views to him on the allegations of financial corruption and mismanagement. Write an essay in which you set out and discuss the powers that have been allocated to the President in the Constitution. In your essay you must also set out any limits the Constitution imposes on the manner in which the President can exercise these powers. In addition, you must also indicate whether the President should have given the Netball Federation a hearing before deciding to appoint a commission of inquiry. [15 marks] QUESTION D.2 Mr Uptight-Angry is outraged that he has been charged with contravening various wildlife statutes by using his dogs to hunt wildlife in a game reserve. He becomes even more concerned when he is advised that his case will be heard by Justice Animal-Lover and Justice Dog-Hater. He argues that they will be biased as they are both members of the SPCA and Justice Animal Lover was, before becoming a judge, a member of EAGLE, a radical animal rights movement which was recently responsible for throwing blood on women wearing fur coats. continued . . .

UNIVERSITY OF KWA-ZULU NATAL: PIETERMARITZBURG EXAMINATIONS : NOVEMBER 2007 CONSTITUTIONAL LAW (LAWS2CS) (PLA3CLM) (PLP3CLM) PAGE 6 Question D.2 continued . . . Write an essay in which you critically discuss the elements of judicial independence articulated by Rautenbach and Malherbe in Constitutional Law. In your essay you should address whether on the present facts Mr Uptight-Angry would be justified in arguing that the Justices could be biased, and if so what he ought to do to remedy the situation. [15 marks] TOTAL SECTION D: 15 MARKS