Reference no: EM133376742
According to the decolonial critique of constitutionalism in South Africa - the 1996 Constitution reflects an 'attachment to hegemonic North American and European legal traditions and schools of thought' and a reproduction 'of global patterns of legal knowledge that perpetuate the marginality of Southern law and African jurisprudential approaches in knowledge production on South African constitutionalism'.
a. With reasons, state whether you agree or disagree with this critique.
b. Assuming, following the decolonial critique, you are required to redesign the South African Constitution without modelling it on the concept of prescriptive constitutionalism, outline some ideas on how governance in such a system could be structured and on the possible mechanisms such a Constitution might contain to advance the decolonial project and limit the potential abuse of public power.
2. In Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (CCT76/17) [2017] ZACC 47, former CJ Mogoeng starts his judgement with the statement, 'The second judgment is a textbook case of judicial overreach - a constitutionally impermissible intrusion by the Judiciary into the exclusive domain of Parliament.' para [233]
With reasons, state whether you agree or disagree with the Chief Justice. Your answer should provide an analysis of what judicial overreach means and why the Chief Justice believes the second judgement to be a textbook case of judicial overreach.
3. In United Democratic Movement v Speaker of the National Assembly and Others 2017 (5) SA 300 (CC) (the UDM case) a unanimous Constitutional Court held that the Speaker of the National Assembly had the discretion to order that a vote of no confidence in the President and his or her cabinet in terms of section 102(2) be conducted by secret ballot.
a. Provide a summary of the factors that should, according to the judgment, guide the Speaker when exercising this discretion either in favour of a secret ballot or of an open ballot.
b. Conduct research on recent requests to hold a vote by secret ballot in the South African Parliament. What was the context of the request (what was being voted on, who made the request)? What did the Speaker of the National Assembly (the Speaker) decide? Further, applying the factors in the UDM case, state whether you agree with the Speaker's decision.