Constitutional Law Case Study: Presidential Powers & Courts

Question 1

Read the hypothetical case study below and answer the questions that follow.

Data Privacy Bill

Parliament passed the Data Privacy Bill to protect citizens’ digital rights. The bill was sent to the President for assent. However, bowing to pressure from large tech companies, the President simply ignored it. He left the bill on his desk for months, refusing to either sign it or return it to the National Assembly with his reservations.

The Foundation for Rights and Justice (FRJ) launched a legal challenge against the President’s
inaction. In response, the Presidency issued a statement declaring, “The power to assent to
bills is a unique Presidential power. It is not an administrative action and is therefore immune from judicial review. The courts have no power to compel the President in this matter.”

Undeterred, the FRJ’s lawyers filed their application in the Cape Town Magistrate’s Court,
seeking an order to force the President to fulfil his obligation. The President’s legal team
immediately moved to have the case thrown out, arguing that the court lacked the jurisdiction to hear the matter.

Discuss the following principles of constitutional law, citing case law and provisions of the Constitution where relevant. Then, explain how these principles apply to the case study above.

• The President’s obligations regarding consenting to bills                                                (10)
  • Powers of the President in terms of section 84(2) of the Constitution                               (10)
  • Exclusive jurisdiction of the Constitutional Court                                                             (10)

For each sub-question, structure your answer as follows:

• Legal principles (7)
• Application
  • Relevant facts. (1)
  • Application of the legal principles to the case study. (2) For question 1 as a whole, marks will be awarded as follows:
• Content (30)
• Referencing (footnotes in the correct format) (3)
• Use of authoritative sources (textbook) (2)

Question 2

• Summarise the case of Certification of the Constitution of the Republic of South Africa 1996 First Certification Judgment of the New Text (NT) which provided for members of executive government also to be members of legislatures at all three levels of government were a violation of Constitutional Principle (CP) VI.               (30)

Structure your answer as follows:

• Background to the case (11)
  • Issue in question (1)
  • Ratio decidendi (court s reasoning & conclusions regarding the legal principles) (7)
  • Conclusion (1)

For question 2.1 as a whole, marks will be awarded as follows:

• Case summary (20)
• Referencing (footnotes in the correct format) (5)
• Use of the case as the source, evidenced by citing paragraph numbers in the footnotes (5)

The page limit for question 2.1 is 3 pages in the prescribed format. Anything beyond the page limit will not be considered.

• Evaluate, in an essay, whether the court decided the issue correctly. Why is having members of the executive remain members of legislatures “a singularly important check and balance on the exercise of executive power”?                                                           (10)

Marks will be awarded as follows:

• Introduction (1)
• Evaluation (6)
• Conclusion (1)
• Referencing (footnotes in the correct format) (1)
• Use of authoritative sources (case law, journal articles, textbook) (1)

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Expert Answers on Above Questions on Constitutional Law

President obligation regarding accent to bill

Legal principles – the president is required to either sign the bill or refer it back to the national assembly in case of constitutional concerns, as required under section 79 of the Constitution of the Republic of South Africa 1996. It is not possible for the President to ignore a bill indefinitely, and the president is required to comply with the constitution. Failure to fulfill the constitutional duties would be regarded as unlawful.
In the given case scenario, the president ignored the data privacy bill for months, and it can be considered as unconstitutional as the President is required to comply with the duty to act.

Powers of the president

The powers of the President are defined under section 84 (2) which includes assenting and signing the bills, and referring bills to the constitutional Court. The constitution directly constrained these public powers, and they are subject to legality review. It is important for the President to be rational and lawful.
In the given fact, the presidency claims assent is immune from review, and the application 2 is incorrect as the President power is reviewable if it is exercised irrationally.

Exclusive jurisdiction of the constitutional Court

The constitutional Court has exclusive jurisdiction as provided under section 167(4) of the Constitution of the Republic of South Africa, 1996 in relation to whether the president has failed to fulfill a constitutional obligation. These matters cannot be decided by lower courts. In respect to the fact one, FRJ approached the Cape Town Magistrate court, and in application 2, the magistrate Court lacked jurisdiction. This implies that the matter must go to the constitutional Court.

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