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constitutionalism as a prescriptive and descriptive doctrine
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Nelson Mandela Metropolitan University (NMMU)
Constitutional Law (JJTV200)
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CONSTITUTIONAL LAW QUESTIONS
AND ANSWERS.
Study Unit 1
This study unit introduces a number of constitutional concepts. It is easier to understand the
constitution if you know what the constitutional concepts mean.
1 Explain what is meant by constitutional law? (3)
We can define constitutional law as those rules that regulate the manner in which state
authority is exercised and shared. It also relates to those rules which regulate the
relationship between organs of state inter se, and between organs of state and individuals.
2 Distinguish between public and private law, and state why constitutional law
is said to be part of public law (5)
Public law is the branch of law which regulates the exercise of state authority in
relationships of inequality. Private law, in contrast, governs the relationships between
people who are on an equal footing. Constitutional law forms part of public law as it
regulates public interest which comes into play in legal relationships of subordination, either
between administrative authorities themselves or between administrative authorities and
private individuals.
,3 “The distinction between private and public law has become blurred in
modern times”. Discuss this statement with particular reference to the
reasons why this blurring has occurred. (6)
The reason why the distinction between public and private law has become blurred is that
the modern state has become very involved in private law relationships, such as the
relationship between employee and employer. The new constitution expressly provides for
relationships between private individuals in the Bill of Rights. It also authorizes parliament to
enact legislation to prohibit unfair discrimination by private persons and companies. Finally
traditional public functions such as public transport or telecommunications are being
privatized and being run by semipublic corporations or private contractors.
4 Discuss the five sources of constitutional law. (10)
The five sources of constitutional law are:
• The constitution, which means the entire body of rules governing the exercise of state
authority or a written document which contains some or most of the constitutional rules.
• Other statutory sources, it is often left to legislation to flesh out the norms and values of
the constitution.
• Common law. English common law played an important role in the history of South African
law and must therefore be taken into account.
• Case law. Past judgments are binding and determine the meaning of constitutional
provisions.
• Other sources are also taken into account such as academic writings, policy documents
and reports of various government bodies (such as the public protector).
5 Distinguish an inflexible constitution from a flexible one and mention an
example of each. (6)
A flexible constitution has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 constitution of South Africa. An
inflexible constitution usually enjoys a higher status to other laws and requires a special
amendment procedure. An example is the 1996 constitution of South Africa.
,6 Does South Africa have a flexible or inflexible constitution? (3)
South Africa has an inflexible constitution. Section 2 of the constitution states the
constitution is the supreme law of the land. Section 74(1) – (3) lays down the requirements
for amendment to the constitution.
7 Distinguish between a supreme constitution and one that is not supreme.
Give an example of each. (5)
A supreme constitution ranks above all other laws of the state and is normally associated
with an inflexible constitution. An example of a supreme constitution is the 1996 constitution
of South Africa. On the other hand, a constitution that is not supreme does not enjoy any
special status to other laws in the land and the government can declare laws which conflict
with the basic principles of the constitution. An example of a constitution that is not supreme
is Britain.
8 Explain why South Africa has a supreme constitution. (3)
The South African constitution is supreme. Section 1(c) lists the supremecy of the
constitution as a founding value. Section 2 states that the constitution is the supreme law of
the republic. Section 172(1)(a) requires the courts to declare any law that is not consistent
with the constitution invalid in terms of its inconsistency.
9 Explain the difference between autochthonous and allochthonous
constitutions. (5)
Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive
constitutions which aim to resolve specific issues of the past are indigenous. There are also
constitutions which maintain continuity with established norms and tradition which are also
indigenous. Finally, there are superimposed constitutions whose contents are largely
unrelated to the history of the country; this is an example of an allochthonous constitution. It
is often difficult to find an example of a constitution that fits distinctly into either category.
For instance, the 1996 constitution of South Africa is considered to be an indigenous
, constitution as it was drafted in the light of South Africa’s history, but at the same time
borrowed on the experience of other countries and was influenced by international law.
10 Discuss the following concepts:
a) state (5)
b) government (5)
c) sovereignty (5)
A state is defined by the following requirements:
• a specific geographically defined territory
• a community of people who live in that territory
• a legal order in which the community is subject
• an organized system of government which is able to uphold the legal order
• a measure of separate political identity
The government is a temporary bearer of state authority, whom represents the state at a
particular time. Initially government did not have a political connotation and was associated
with the judicial function. Gradually government became a general term covering all
functions and organs of state. Today government relates primarily to the executive function
with particular bearing on the formation and implementation of policy.
A sovereign state defines a state which is autonomous and independent and therefore not
subject to the authority of any other state. It was historically used to refer to the monarch of
a country, however in recent times it has been associated with the sovereignty of the people
to indicate that the power of government rests in the hands of the people. This gave rise to
the concept that parliament is sovereign, which meant that legislative authority was vested
in parliament and it could enact any law no matter how reasonable or unjust and the courts
could not challenge this decision.
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