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Constitutional Law summary
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Summary of 20 pages for the course Constituional Law 271 at SUN
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Constitutional Law 271Theory
A2
Highlighted stuff is in the Constitution
Constitutional History
Changes the interim - Political equality
Constitution brought - Legislative and executive power is divided among national and
provincial spheres of government.
- System of proportional representation
- End of the reign of Parliamentary supremacy.
Historical Timeline - J – Jan van Riebeeck – Dutch East-India Company VOC - 1652
- B – British came into power – 1806.
- A – Anglo-Boer War – 1899 -1902
- U – Union Constitution (House of Assembly and a Senate)– 1909
- W – Statute of Westminster – 1931
- S – Separate Representation of Voters Bill – 1951
- H – Harris II – 1952
- S – South African Amendment Act – 1956
- S – S59 of Republic Constitution – 1961.
- P – PAC, SACP, SAIC, UDF, Black Consciousness Movement,
trade unions – 1912
- D – Defiance Campaign – Passive resistance – 1952.
- F – Freedom Charter drafted and adopted by the ANC – 1955.
- S – Sharpeville Massacre – 1960
- S – Soweto Uprising – 1976
- R – Resistance against Apartheid system grew stronger and the
repression of the opposition on the part of the NP led government
intensified – 1976.
- R – Revolution and the tricameral constitution (1983) – 1980
- C – CODESA convened – 1991.
- A – ANC walked out of CODESA as a protest against slow progress
– 1992.
- I – Interim Constitution implemented – 1993.
- E – Election – 1994.
- C – Constitution certified and signed by Mandela – 1996.
- A – Adopted the Constitution – 1997.
Westminster - Legislative authority was given to a bicameral Parliament.
Constitution features - The union Constitution was unitary and not federal.
- Parliamentary supremacy
External constraints - The supremacy of the Parliament was limited by the Union’s status
on Parliament via-a-vis its colonial principal.
, - South Africa was not a sovereign independent state.
- All Parliamentary Bills had to be sent to the Governor-General.
- South Africa was also subject to the Colonial Laws Validity Act.
Internal constraints - Union Parliament was free to amend the Constitution by ordinary
on Parliament procedures, except for a small number of measure which required a
special procedure.
- Entrenched sections
- S152 would only be valid if the Bill was passed by both Houses of
Parliament sitting together and agreed to at the third reading of the
Bill by not less than two-thirds of the total number of members of
both houses.
Parliamentary - Defining feature of Westminster constitutionalism
supremacy - Union Constitution created a divided state.
- Vast majority of the population were characterised as existing
outside of civilised society and were subject to a system of tribal
authority.
- White minority were politically empowered to manipulate the legal
system to perpetuate their dominance over South African society.
- Exclusion of judicial review.
Constitution A constitution is the founding document of a nation which sets up the
structures of government and regulates the exercise of power by the
organs of state. It sets the ground rules according to which a state is
governed. The Constitution is not static.
Difficult not to revert - Pre-colonial history was never written down.
back to colonial - There is insufficient clarity about the multitude of governing
imposed markers structures through which pre-colonial indigenous populations of SA
when discussing governed themselves.
history - SA with its current borders came into existence only in 1910.
Chiefdoms - Chief
- Headmen
- Together the chief and headmen were the council.
- Family or kraal heads
- Zulu kingdom – Dingiswayo, Chief of the Mthethwa – King Shaka
- Glen Grey Act (1894) – Cape colony – excluded the vast majority of
Africans from the Cape Parliament.
- Langden Commission (1903) – Vision of SA based on the territorial
segregation of black and white as a permanent mandatory feature of
life.
Freedom Charter - The people shall govern.
- The people shall share in the country’s wealth.
- The land shall be shared among those who work it.
- All shall be equal before the law.
- All shall enjoy equal human rights.
- There shall be houses, security and comfort.
Rivonia Trial of 1963 - 10members of the ANC were tried for sabotage.
and 1964 - Nelson Mandela, Walter Sisulu, Govan Mbeki, Rusty Bernstein
- PAC leader Robert Sobukwe led the march to the local police station
which led to the Sharpeville Massacre.
, - The new General Law Amendment Act was passed – imprisonment
could be renewed – Sobukwe Clause.
- Black Consciousness Movement – Steve Biko – Soweto Uprising –
Died at the hands of the police.
Establishing the CC The resolution of this conflict involved an elaborate compromise in which
the cabinet appointed various members of the CC for a non-renewable
period of 7 years following 3 distinct processes:
- The President appointed a President of the CC in consultation with
the Cabinet and Chief Justice.
- 4 members of the court were appointed from among the existing
judges of the supreme court after consultation between the
President, Cabinet and the Chief Justice.
- The President, in consultation with the Cabinet and the President of
the CC, appointed 6 members from a list submitted by a Judicial
Service Commission, which was dominated two-to-one by members
of the legal profession.
Principles that the - Principle 2 – Everyone shall enjoy the fundamental human rights.
court found that the - Principle 4 – The labour relations act, no legislation can be seen as
CA did not comply higher than the Constitution.
with in the drafting of - Principle 15 – Amendments to the Constitution requires special
the Constitution procedures and special majorities.
- Principle 28 – Employers and employees and their right to engage in
collective bargaining.
- Principle 29 – Offices of the auditor general and public prosecutor
was not the same, they were independent.
CC evaluated the text - It asked whether the basic structures and premises of the final
of the final constitutional text were in accordance with those contemplated by
constitution the Constitutional Principles.
- The court then proceeded to consider the details of the text and
found that it was not compatible with the Constitutional Principle on
nine discrete grounds.
Characteristics of the - Social rights and a substantive concept of equality.
Constitution - Affirmative state duties
highlighted by Klare - Horizontality
- Participatory governance
- Multiculturalism
- Historical self-consciousness
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