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TOPIC 1: BASIC CONCEPTS OF CONSTITUTIONAL LAWWhat is a constitution
- It is often said to be the founding document of a nation, and the authority of the state is
derived from it
- It sets up the structures of government, authorizes as well as regulates the exercise of power
by the elected branches of government and judiciary.
What is constitutionalism?
- It is a political community where elected politicians, government officials, and judicial officers
must act in accordance with the law
- it’s power and legitimacy is derived from the constitution
Constitutionalism: 2 issues?
- How to establish a government with sufficient power to realise the political community’s
shared purpose and implement programmes?
- Structure the government and control the exercise of power by institutions and structures of
government.
Characteristics of Constitutionalism
- It is to identify and establish the branches of government; 3 spheres of governance,
legislature, executive and judiciary; 3 levels of governance, national, provincial and local
government
- Constitutionalism is concerned with the formal and legal distribution of public power among
the different institutions and structures of governance
Features of modern South African Constitutionalism
Constitutional supremacy:
- Republic of South Africa; it is one, sovereign democratic state that is founded on the
following values; human dignity, non-racialism and non-sexism; supremacy of the
constitution and the rule of law
- Constitutional Supremacy: it is the supreme law of the country, and conduct that is
inconsistent with it is invalid, its obligations must be fulfilled
Substantive rule of law:
- It is the same content as the constitutional supremacy; meaning that it is the supreme law of
the country, and conduct inconsistent with it is invalid
Bill of Rights and strong substantive Judicial Review
- Rights: this bill is the cornerstone of the democracy of South Africa. It enshrines the rights of
all citizens in our country and affirms the democratic values of human dignity, equality and
freedom
- Application: the bill of rights applies to all law, and binds the legislation, the executive, the
judiciary and all organs of the state.
Separation of powers:
, 1. Trias politica – this principle divides the governmental powers across three branches;
namely the legislative branch, the executive branch and the judicial branch
2. Separation of functions – this principle provides that distinct areas of responsibility and
authority must be conferred on each of the three branches
3. Separation of Personnel – this principle provides that each branch must have a specific
person assigned to it who is responsibility for the performance and the execution of the
branches functions
4. Checks and balances – it entails that each branch will to held accountable by another branch
for its checks and balances and exercise of power by the branch.
Legislature
- function: enact law + hold the executive accountable
- personnel: members of parliament
Judiciary
- function: interpret and adjudicate legal disputes + declare invalid law or acts contravening
the constitution
- personnel: judges and magistrates
Executive
- function: make policy + implement and administer law + make crucial appointments
- personnel: president, deputy president, ministers and their departments
Co-operative federalism:
- In the republic, government is constituted as the national, provincial and local spheres of
government which are distinctive, independent and interrelated.
Democracy:
- representative democracy
- some elements of direct democracy (eg. referendums)
- participatory democracy
Procedural and substantive review
Procedural only – incorrect process followed – law is unconstitutional regardless of content
- correct process followed – law is constitutional
Procedural and substantive review – incorrect process followed – law is unconstitutional regardless
of content
unjust substance – law is unconstitutional regardless of process followed
1983 Tricameral Constitution:
- Executive: amalgamation of head of state and head of executive + many prerogative powers
- Judicial review: still limited to process, through substantive review creeps into administrative
law
1993: The Interim Constitution
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