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CSL2601 CONSTITUTION OF LAW QUESTIONS AND ANSWERS
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lOMoARcPSD|5714801CSL2601-exam questions
Constitutional Law (University of South Africa)
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Exam Questions - CSL 2601
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Study Unit 1 – 3
1 Explain what is meant by constitutional law? (3)
Constitutional law is the aggregate (sum total) of binding rules relating to the distribution and
exercise of state authority. The rules of constitutional law define the relationship between the
organs of state inter se (between themselves), and between the organs of state and individuals
2 Distinguish between public and private law, and state why constitutional law is said to (5)
be part of public law
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
semi-public corporations or private contractors.
4 Discuss the 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 in a particular state as well as the relationship between the citizens of the
state and the organs of the state. May also refer to a written document which contains
some or most of the constitutional rules.
Legislation or Statute. It is expressly left to legislator to add the flesh to the basic
framework 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. S39(2) of the Constitution
requires that the courts develop the common law to bring it in line with the
constitutional precepts.
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Case law(stare decisis). Past judgments are binding and Illustrates the practical
application of the constitutional principles, rules and values and tells you how a
particular case alters or contributes to the development of the law.
International law. Section 39(1) of the Constitution makes it compulsory for a court to
consider international law in the determination of constitutional issues.
Other sources of constitutional law
a. Academic writings-Courts refer to academic opinions expressed in books and articles
in journals.
b. policy documents - Current government policies expressed in green papers, white
papers and other documents issued by the organs of state help to shape the
legislative agenda; these are often translated into legal norms.
c. reports by state institution supporting constitutional democracy eg. public
protector, Auditor General)
d. foreign Law - 39(1)(c) of the Constitution provides that the courts may consider
foreign law, that is, especially case law from other. A discretionary power to
consider the laws of other countries where there is insufficient guidance available
from South African sources.
Is a supreme constitution and an inflexible constitution the same thing? Give reasons for your
answer. (5)
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 superior status to ordinary laws of the land and
requires a special amendment procedure. Eg. two-thirds majority vote. An example is the 1996
constitution of South Africa.
6 Does South Africa have a flexible or inflexible constitution? Why? (3)
South Africa has an inflexible constitution as it enjoys superior status to the ordinary laws of the
land and its amendment provided for in s74(1) – (3) requires special procedures and special
majorities. S1(c) states that one of the values South Africa is founded upon is the ‘supremacy of
the constitution and the rule of law’.
(a) Are the following statements true or false? Give reasons for your answer.
(i) An inflexible constitution enjoys the same status as the other laws of the
country and does not require any special procedures for its amendment. (5)
False.
1. It enjoys a higher status than the ordinary laws of the land.
2. It requires special procedures and majorities for amendment.
3. This makes it harder for the majority to effect amendments to the Constitution for self
serving purposes.
4. Example: the South African Constitution of 1996.
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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 usually but not always
inflexible. Any law which is inconsistent with it will be declared invalid (referred to as the
Grundnorm, against which all other legislation is tested for validity).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 because S 1(c) lists the supremacy 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. Eg South
Africa There are also constitutions which maintain continuity with established norms and
tradition which are also indigenous. Eg. Netherlands
Finally there are superimposed constitutions whose contents are largely unrelated to the history
of the country; this is an example of an allochthonous constitution eg Zimbabwe. 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.
Distinguish between autochthonous and allochthonous constitutions. Give an example of
each. (5)
Autochthonous constitution
Refers to indigenous or home grown constitutions.
This means that the constitution is a result of context (political/economic/social/historical). An
example would be the 1996 Constitution or the German Constitution.
Allochthonous constitution
Refers to a borrowed constitution. Has no bearing on context. Inherited from another state.
An example would be Zimbabwe.
(2) Discuss the 1996 Constitution in the light of the following:
(a) flexibility/inflexibility
(b) whether it is autochthonous or allochthonous
In each case, your answer needs to include the efinition of these concepts.(10)
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