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CSL2601 - Constitutional Law Best Examination notes
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CSL Memory NotesChapter 1: SA Constitutional Law in Context
Intro:
• Founding document of a nation as the authority of the state is derived from it.
• It setup the structures of government and authorises as well as regulates the
exercise of power by the elected branches of government and the judiciary.
• It also places limits on the exercise of that power and set out the ground rules
according to which a country must be governed.
• Constitutional law can be described as the most political branch of the law.
• Constitutions are living documents that judges have to interpret and apply in
an ever changing political, economic and social environment.
• Many of the justices of South Africa CC have tentatively acknowledged the
open-ended nature of the language of the SA Constitution.
• There may be a need to refer to extra-legal values and texts, including SA
political context and history to justify their decisions.
• S v Zuma and Others Kentridge J signalled an awareness of issue of what
judges should do when confronted with constitutional text that contains
sometimes vague and open-ended phrases when he remarked:
I am well aware of the fallacy of supposing that the general language
must have a single objective meaning.
Nor is it easy to avoid the influence of one’s personal intellectual and
moral preconceptions.
But it cannot be too strongly stressed that the Constitution does not
mean whatever we might wish it to mean.
Drafting and adoption of the final 1996 Constitution
1st Certification Judgement:
CC found that the text did comply structural requirements.
Court found that the details of the text was not compatible with the
Constitutional principles on 9 discrete grounds.
Constitutional Assembly was found to have adopted a unconstitutional
constitution.
The Assembly had to amend the text to comply with the CC judgement.
Constitution was adopted by a democratically elected body the CC had the
final say on whether the provisions agreed on by this body were complaint
with the Constitutional Principles negotiated by the unelected MPNF.
,The transformative nature of the Constitution:
Parliamentary sovereignty has been replaced by constitutional sovereignty.
This means the Constitution is the supreme law of the country.
Any law or conduct inconsistent with the constitution is invalid.
It contains a detailed BOR that sets out a list of civil, political, social and
economic rights.
The BOR also places both a negative and positive obligation on the state and
in some cases on private individuals and institutions to respect, protect,
promote and fulfil the rights in this BOR.
The Courts with the CC are the guardians of the Constitution and the BOR,
They have the power to declare any act or legislation that’s inconsistent
invalid.
Cons recognise the institutions, status and role of traditional leadership
according to customary law.
Constitution was written in response to the social, economic and political
history of South Africa and is often described as a transformative Constitution.
A document committed to social, political, legal and economic transformation.
SA constitutionalism attempts to transform our society from one deeply
divided by the legacy of a racist and unequal past into one based on
democracy, social justice, equality, dignity and freedom.
Several unique characteristics of the Constitution:
Social rights and a substantive concept of equality.
▪ Freedom of expression, housing and health care
Affirmative state duties
Horizontality
Participatory governance
Multiculturalism
▪ Diversity within framework of national reconciliation and Ubuntu.
Historical self-consciousness
Interpretation of the Constitution:
✓ Starting point will always be the text of the relevant provisions in the
constitution.
✓ Should not read provisions in isolation. Should read it holistically.
✓ Through interpretation the constitution will evolve over time.
✓ S v Mkwanyane approach of CC:
❖ What CC is required to do in order to resolve an issue
❖ Is to examine the relevant provisions of the constitution.
❖ Their text and their context
❖ The legal precedent relevant to resolve the problem
❖ The domestic Common law and public international law impacting on
its possible solution.
❖ Factual and historical considerations bearing on the problem.
❖ Significance and meaning of the language used in provisions.
, Chapter 2: Basic Concepts of Constitutional Law
Basic Characteristics of Constitutionalism to understand its nature:
First, it’s concerned with the formal and legal distribution of power within a
given political community in which a government is ordinarily est in terms of a
written constitution.
Provides for the est of the institutions of governance, such as the legislature,
the executive and the judiciary.
Brings about the creation of binding rules or laws for the regulation of the
political community and its institutions of governance and the governed.
Plays NB role in determining the nature and basis of relations that exist
between institutions of governance and those they govern.
Prescribes limits on the exercise of state power and provides mechanisms to
ensure that the exercise of power does not exceed the limits set by the
constitution.
Constitutionalism:
▪ Refers to government in accordance with the Constitution.
▪ Government derives its power from, and is bound by the Constitution.
▪ Government’s powers is thus limited by the Constitution.
▪ Devenish “commentary on SA Constitution”
➢ Constitutionalism is the basis of the operation of 1996 Cons has a
cogent, moral basis.
➢ Moral basis is genesis in ethical content of teachings and principles of
the major religious traditions and philosophies of civilisation of both the
east and west, as well as in indigenous values like Ubuntu.
➢ It does however reflect a secular morality that has a strong element of
universality about it and therefore can be adhered to by all the
disparate communities of SA.
▪ SA Cons is primarily AUTOCHTHONOUS, having its roots in indigenous
ideas, principles and experiences.
▪ Rechtsstaat
Features:
1. Constitutional Supremecy
2. Rule of law
3. BOR
4. Democracy
5. Accountability, Responsiveness and openness
6. Separation of powers
7. Independent Judiciary
8. Cooperative Government and devolution of power
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