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lOMoARcPSD|4339232FUR2601 - Notes - Summary
FundamentalRights
Fundamental Rights (University of South Africa)
,)
, lOMoARcPSD|4339232
FUR2601 – Fundamental Rights – Notes
Chapters 1-4, 6-10 and 26.
Human rights:
- aka fundamental or constitutional rights.
- According to fundamental rights, people have certain inalienable rights
which may not be encroached upon by the state except where allowed by
law.
- Not deserved or worked for. Simply accrues to humans.
- Authority to encroach is subject to limitation.
- International concern.
Study Unit 1: Intro to Constitution and Bill of Rights
- Interim constitution provided a Bill of Rights
- Parliamentary sovereignty replaced with constitutional supremacy.
- Process of drafting and adopting the final Constitution was governed
by the 34 Constitutional Principles in Schedule 4.
- Brief history:
O Constitutional Revolution:
§ First constitution in 1994;
§ Final constitution in 1996;
§ Meant rights were applied across board without
racial qualification;
§ Parliamentary sovereignty was replaced with constitutional
supremacy;
§ Bills of rights put in place to safeguard rights;
§ Courts given power to invalid any law inconsistent with
BoR or Constitution.
§ Central government was replaced with legislative, executive
and judiciary government.
O Negotiations process and interim constitution:
§ FW De Klerk released Mandela in 1990, and released
sanctions on political party movements for free political
movement.
§ Negotiations formally began with convening of the
Conference for a Democratic South Africa (CODESA) and
ended tow years later with an interim Constitution.
§ CODESA negotiations failed but were continued through the
ANC and resumed through the Multi-party Negotiation
Process (MPNP).
§ The government elected in the 1994 elections acted under
the interim constitution adopted.
§ Interim constitution guaranteed a united SA from the
territorial fragmentation characteristic of Apartheid. It also
declared itself supreme law of the Republic.
§ Constitutional change is only possible through special
procedures and by a special majority of legislators – the
basic constitutional frame is not subject to lawful
1
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amendment unless there is nearly unamimous agreement
and the proposed changes do not fundamentally alter the
spirit of the constitution system.
§ Under constitutional supremacy, the courts are mandated
to enforce the constitution even to the point of striking
down the decisions of the democratically elected
legislature.
§ In 1996 the final constitution was adopted and the interim
was repealed and fell away.
O 1996 Constitution and the Certification process:
§ The Constitutional Assembly was given 2 years to produce a
constitution that conformed to the 34 Constitutional
Principles that had been agreed on during the 1991-3
political negotiations.
§ The initial draft was not certified as being compliant with
the Constitutional Principles and the draft was reviewed.
The amended draft was accepted and signed into power.
§ Following the Constitution being signed into power, the
34 Constitutional Principles fell away and cannot be raised
in any court ever again.
- Basic principles of the new constitutional order:
O Constitutionalism;
§ The theory of constitutional law;
§ A body of theoretical prescriptions.
§ Prescribes what a constitution should do as opposed to
describing what a particular constitution does.
§ Must provide enough power to govern but limit such power
to protect citizens.
§ Limitation works in two ways: restricting possible
actions by an organ of state and also prescribing a
procedure that must be followed.
§ Through the BoR, substantive limitations are imposed as
well – the state may not use its power to violate any rights
on the BoR and has a duty to promote and protect them.
§ Constitutional Supremacy ensures constitution is binding
on all laws and branches of government – any action or law
not in accordance thereof will not be binding.
§ For constitutional supremacy to be effective, the judiciary
must have the power to enforce it – section 172 allows a
court with jurisdiction to declare any law or conduct
inconsistent with Constitution to be invalid
§ The constitution is not only enforceable through court –
citizens may lobby and put pressure on the government
to give effect to their rights.
§ Entrenchment prevents parliament from amending the
Constitution without following special procedures and
without the support of special majorities. Whilst most
provisions may be amended by two third majority in
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