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Summary CONLAW: semester 1 cases, readings, lecture notes
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DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL**These are key points taken from Word documents. SOME parts are directly quoted, others have been simplified by me. I do not take credit for any knowledge expressed in this document, only the summary
of notes and easy access to keympoints that I found important**
Ramelekana, Nomfundo. (2022). Conlaw material week 6-13. Unpublished manuscript, PVL2003H, University of Cape Town, South Africa.
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021. SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION. OXFORD: OXFORD UNIV PRESS
UK.
Pierre Vos, Pierre. (2022). Conlaw material week 1-5. Unpublished manuscript, PVL2003H, University of Cape Town, South Africa.
INTRODUCTION
Constitutional History
European settlers 1652. Precolonial hist of Khoisan & agro-pastoralists. Legal pluralism of SA society & LC. Cape & Natal Colonies had constitutional forms
similar to Westminster system (Parl Sov). But Brit had final say. Courts couldnt review laws. Boer Republics had SOP, directly elected pres. Courts could review
leg but rarely used. Non-colonised SA governed by indig chiefdoms, governed by CL. Expansion of colonial govs = indig increasingly subjected. Glen Grey Act
1894 excluded from Parl in Cape & separate reserve areas created. Territories unified into Union of SA in 1910 (4 Colonies). Negotiations & drafting of Union
Const = parliamentary democ for W & ignored B. Const gave GG control of native affairs Westminster style system created. 1936 all African voters moved from
comm voters roll & given sep rep. 1948 NP won election. 1961 Const confirmed Sup of Parl - combined with racist const syst = violated HRs of B. Homeland
syst by 1959. Role of chief remains controversial - patriarchal & undemoc but important to SA cultural Heritage. Late 70s gov tried to incorp coloured & Indi
through Tricameral leg - resistance. W gov backed by strong security became more authoritarian & oppressive & struggle intensified. Main movements: ANC,
SACP, UDF, Trade Unions, PAC, BCM. 1952 - ANC starts defiance campaign - passive resistance. ANC helped draft Freedom Charter. Sharpeville massacre
1960 = MK formed & violence employed. Rivonia Trial 1963/4 = 8 ANC leaders Imprisoned for life. Other leaders went into exile & orchestrated internal &
international resistance. Largely peaceful negotiation for transition starting mid 80s. Feb ‘90 unbanning of movements & leaders released 1991 CODESA,
involved all major political formations, drafted Interim Const. Declaration of Intent signed at CODESA - set out view on new const: united, democ, non-racial,
non-sexist, sovereign, multiparty democ, SOP, recognition of diversity HRs & freedoms. CODESA replaced by MPNF which adopted Int Const in ‘93 2 stage
transition from apartheid to democ: 1) Int const negotiated by unlelected MPNF & adopted by apartheid parl. Est. interim gov of national Unity. 2)
Constitutional Assembly to draft final const after 1st democ election. NA & senate sat as CA - had 2 yrs to adopt new const with ⅔ maj - only effective when
certified by CC as complying with Constitutional principles agreed. Const principles included: const democ, sup const, democ, SOP, protection of fundamental
Rs & civ libs, muli-party democ, protection against amendment.
‘94 election = ANC won but not ⅔ maj to write const alone. CA adopted unconstitutional const so had to amend, certified 2nd time. Mandela signed final in Dec
‘96 & came into effect Feb ‘97. Const created democ state based on: human dig, equality, non-racialism & non-sexism, sup const & ROL Detailed BOR that
places obligations on state & priv individuals to respect, protect, promote & fulfill Rs. Recognises role of traditional leadership & CL, subject to const &
applicable leg. Transformative nature - move from racist & unequal past to democ, universalistic, caring & egalitarian future - permanent work in progress.
Post-lib. Emphasises close connection between political Rs & socio-econ Rs of others. Emphasises participatory gov, multiculturalism & diversity within
framework of national reconciliation & ubuntu. Rejects traditional social contract model & hierarchies. Const must be interpreted holistically, criteria includes
comm law, precedent, hist, intel=national law, social context - holistic approach, teleological, multifaceted. CC has acknowledged unequal society - must be
considered in const interp. Nature of SAs political culture must be considered during interp - parties, specifically former lib movements play decisive role in
political sys due to electoral syst in place. CC must understand political landscape. ANC won every election = dominant party democ - potential tp erode checks
on exec, marginalise opposition & capture independent institutions & blur of boundary between party & state, resulting in arbitrary decision-making & reduced
ability of legislature to check executive. However, critics of this thesis argue that there are external checks on ANC, such as its internal democ & alliance
partners, that serve as functional substitutes for internal checks provided by formal institutions of parliamentary democ.
Constitutional Critique
Diff forms. Focus on design flaws that can be remedied through amendment; Q normative content & negotiated settlement of constitutional project itself -
focuses on issues such as racial injustice, land dispossession, & cultural domination, constitutional project failed to address; Criticism that const is based on W
forms of reasoning & knowledge, which perpetuate subordination of indig cultures - challenges legitimacy of const, which rests on claims of objective normative
order, & calls for autochthonous product of indig culture to be basis of legitimate const. Culturalist critique, focuses on cultural content of resistance against
colonialism & suppression of "non-western" cultural forms - challenges triumphalist & legalist appraisal of Const, & raises issues that were not addressed by
previous appraisals. Idea of Rs in Const isn’t fixed, & that normative disagreement will continue to exist in complex societies. Recognise: recognition paradigm
, - targets forms of cultural domination rooted in social patterns of representation, interp, & communication; redistributive paradigm - identifies patterns of distrib
that are unjust from perspective of liberal political theory. Political econ perspective (Fraser) is criticised for being inadequate in addressing questions of
exploitation & commodification in processes of surplus extraction & appropriation. Fraser's framework is contrasted with Taylor's "recognition idea," which
proposes wider accommodation of diversity & inclusion of subordinated indig communities into institutions of majoritarian political order but doesn't address Qs
of political sovereignty. Eagleton cautions against cultural politics displacing politics based on concerns of poverty & inequality. Concept "constitutional
legalism" is concerned with adjudication of justiciable disputes & justification of institutions envisaged in constitution. Adoption of constitutional framework is
argued to have been important in facilitating transition to democ & in providing legal protection to vulnerable minorities & check on power abuse by
postcolonial elites. Fanon criticises postcolonial elites, who are typically involved in drafting of consts, for failing to subject state power to legal constraints, but
idea of constitutional limits on power isn’t foreign to precolonial African thought - Asante Kingdom W. Africa, C&Bs. Constl proj is based on 2 principles of
legitimacy: constitutionalism & self-government. Constitutional constraints are only legitimate to extent that they are imposed by ppl & open to revision by
democ processes.
Constitutionalism & social change: Constitutional legalists focus on interpreting const in best light to create just society, while critics of const critique its
normative content as source of post-colonial injustice. Both groups avoid examining relationship between constitutional & institutional structures & social &
econ structures, which are imp for understanding how social change occurs. Gap between constitutional norms & social facts can be explained by "collective
action problem" shaped by continuing structural conditions of post-coloniality & logic of capital outside text. Social transformation requires critical & strategic
approach that works from within constitutional text to continue process of decolonisation & transformation that has been ongoing since 19th cent. Principles of
political justice that underpin constitutionalism have many origins & were violated by colonialism & defended by anticolonial resistance. Const shouldn’t be
characterised as imposed & alien but rather rewritten to eliminate Eurocentrism & dualist cartography of colonialism.
Models of constitutionalism: nation state has become dominant form of gov globally, shaping general frame & content of constitutions & models of
constitutionalism - 2 main models = Westminster & US. German model has also been influential in SA. Westminster: legislative branch with House of
Commons & Lords, parl sov & no BORs. Execbranch, including PM & Cab, is drawn from & continues to be membs of parl & there is no strict SOP. Courts
can’t decide on constitutionality of leg but can review administrative decisions. Courts are institutionally less powerful than legislative branch, but still have
significant powers & can influence how laws are applied & their impact on situations. US Model: two-tier federal state with central federal gov & state govs.
Powers & functions allocated to national gov & states, respectively. Introduced C&Bs syst with 3 branches that have limited power to check exercise of power
by other branches to balance power. Defining feature = constitutional sup. Includes BORs that limits power of gov by setting out individual freedoms & liberties.
US Model includes judicial review, important check on legislature & exec, as it can declare any law or conduct contravening const as unconstitutional. German
model: Emerged after WW2. Emphasises normative V syst & seeks to create constitutional culture of broadly shared Vs. Concept of Rechtsstaat - demands law
& state actors protect freedom, justice, & legal certainty. Federal system with federal republic, & provincial govs have their own consts but generally must
conform with German const. German const grants lander govs exclusive & concurrent competence to legislate.
Constitutionalism in SA
Westminster model dominance: colonialism era & adopted by National Convention of SA in 1908-9, leading to adoption of Union Const in 1910. Model also
used by apartheid gov 1948-1961, where parl sov was used to secure power for W min & discriminate against black. 1961 = republican const, but parliamentary
sovereignty remained prominent. Constitutional Sup: Founding provisions of Const express as foundational V & as binding & enforceable rule. This has big
impact on how democ state operates & how gov power exercised. No diff between constitutional sup as V in S1 & as binding rule in S2. V-based constitutional
syst: Based on descriptive & prescriptive foundational Vs expressed in S1 const. Importance of Vs ievident as S1 can only be amended by special procedures &
maj in legislature. Const isn’t just set of rules, processes, & structures that limit gov but also expresses ideals & characteristics = objective normative V syst.
Cooperative federalism: Const provides for quasi-federal syst with powers divided among national, provincial, & local lvls of gov - cooperation & shared
responsibilities, rather than competition & clearly delineated powers as in traditional federal systs.
Separation of Powers
Const restricts public power: 1) Procedurally, includes SOP, which limits power of each branch through institutional, procedural, & structural division. SOP
aimed at preventing concentration of power, creating specialisation of functions, & protecting HRs & political liberty. Modern conception includes principles of
division of governmental power across branches, sep of functions, personnel, & C&Bs, which hold each branch accountable to others - emerged from Eng's
constitutional developments, which ended absolute power of monarchy. In SA, SOP is constitutional principle specified in interim const, which required final
const to incorporate it. Purp is to uphold & protect democ Vs - accountability, responsiveness, & openness. Final const left it up to drafters to determine how to
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