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lOMoARcPSD|6552690Constitutional Law (PUBLIC LAW) Study Notes
PUBLIC LAW: Branch of law that regulates the exercise of state authority in relationships of
inequality – the induvial is always subordinate to the government organ, which is vested with
the state authority.
STUDY UNIT 1:
SOURCES OF CONSTITUTIONAL LAW:
• refers to the places where you can find legal rules that govern a particular
branch of law.
• refer to a written document which contains some or most of the constitutional
rules.
The Constitution also prescribes the consequences that may arise in the event of state
authority being improperly exercised.
The Constitution sets out the framework, principles and lets the changeable legislation
spell out the rest.
- “authoritive sources” – used to denote the weight or force of a particular source of
law. / A court will be bound by such sources.
- “persuasive sources” – have no binding or commanding force, they tend to
influence matters.
AUTHORATIVE SOURCES:
1) THE CONSTITUTION:
• Section 2 provides the Constitution is the supreme law of SA.
• Refers to an entire body of written and unwritten rules governing the
exercise/distribution of state authority & governing relationships between
organs of states, and relationships between organs or state and legal subjects.
• Provides ONLY a framework.
2) LEGISLATION/STATUTES:
• Written law enacted by an elected body authorised by other legislation or the
Constitution.
• Legislation must be passed to give effect to provisions in the Constitution.
• IMPORTANT LEGISLATION:
2.1) The South African Citizenship Act 88 of 1995
2.2) The Electoral Act 73 of 1998 (as amended)
2.3) The Local Government: Municipal Structures Act 117 of 1998.
3) COMMON LAW:
• Unwritten law of SA – not confined in legislation.
• Refers to the writings on law by 17/18th century Roman-Dutch jurists.
• English common law is recognised in SA
• English Common-Law somewhat enforced parliamentary sovereignty, when
constitutional supremacy came up, it became substituted.
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• Section 39(2) of the Constitution, the courts & other tribunals are required to
develop the common law and bring it in line with constitutional precepts.
4) CUSTOMARY LAW:
• System of law derived from custom.
• It must meet certain requirements:
4.1) the custom must be reasonable
4.2) it must have existed for a long time
4.3) the custom must be generally recognised and observed by the community
4.4) the contents of the custom must be definite and clear
• The recognition of customary law is recognised by legislation, such as,
4.1.1) the Recognition of Customary Marriages Act 120 of 1998 (as amended
by the Judicial Matters Second Amendment Act 42 of 2001) = recognises
customary marriages.
4.1.2) the Traditional Leadership and Governance Framework Act 41 of 2003 =
recognises the role and institution of traditional leadership in the administration
of justice.
4.1.3) Traditional Courts Bill [B15-2008] (STILL PENDING) = the structure and
functioning of traditional courts.
5) CASE LAW/STARE DECISIS:
• Practical application of constitutional principles & rules and principles by our
courts.
• Courts have full testing/reviewing powers.
• The Constitution and its written provisions for how state authority is exercised
and the justifiable BOR has led to an increase in case law.
6) INTERNATIONAL LAW:
• In terms of section 39(1) of the Constitution, a court must consider international
law when determining constitutional issues.
• Protects and promotes human rights.
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LEGISLATION DESCRIPTION APPLICATION
SECTION 39(2) “When interpreting any • This shows how
legislation, and when common law, even
developing the common after the Constitution
law or customary law, every still exists in SA.
court, tribunal or forum must • It is the empowering
promote the spirit, purport provision to the
and objects of the BOR. development and
use of the
constitution in
today’s legal
framework.
• It empowers the use
and development of
common law in our
courts.
SECTION 211(3) “The courts must apply • Empowering
customary law when that provision to the
law is applicable, subject to constitutional right of
the Constitution and any the application of
legislation that specifically customary law.
deals with customary law”. • NOTE: it governs and
is applicable mostly
in the framework of
Traditional Leaders.
SECTION 39(1)(b) and (c) “When interpreting the BOR, • Provision for the use
the court, tribunal or forum of international law is
(b) must consider to interpret the BOR.
international law (c) may • AND provides for the
consider foreign law”. OPTIONAL use of
foreign law.
PERSUASIVE SOURCES:
1) FOREIGN LAW:
➢ Section 39(1) – shows the courts discretionary power.
2) ACADEMIC WRITINGS:
➢ Books & Journals.
3) POLICY DOCUMENTS:
➢ Documents issued by organs of state involved in the legislation-making process.
➢ GREEN PAPERS – Consultative documents.
➢ WHITE PAPERS – final document -> Blue print for government policy.
4) REPORTS BY STATE INSTITUTIONS: CHAPTER 9 OF CONSTITUTION.
Discuss the history of the adoption of the Constitution of the Republic of South:
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- The Constitution of the Republic of South Africa 1996 was the product of a long
process of popular struggle, multiparty political negotiations and democratic
deliberation in which politicians, lawyers, representatives of civil society and ordinary
people all played a major role.
- Prior to 1994, there was Parliamentary Sovereignty. Parliament Supreme – any law-
couldn’t be challenged.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson
Mandela (2 February 1990), unbanning of liberation movement. Eventually multi-party
negotiations.
- The two-stage process: First, the interim Constitution was adopted at the multiparty
negotiations. Second, democratic elections for SA’s first fully representative
Parliament which double as the Constitutional Assembly.
- The Constitutional Principles (“pact” to stick to the principles, when the final
Constitution was drawn up), the First Certification Judgment and penultimately the
final Constitution, The Constitution of the Republic of South Africa, 1996. (Parliament
Sovereignty was replaced with Constitutional supremacy. Adopted by the CA (NA
and Senate) +2/3 majority before the new text came into operation. CC had to certify
that it complied with Constitutional Principles in Schedule 4 of the Interim Constitution.)
CLASSIFICATION OF CONSTTITUITONS
FLEXIBLE AND INFLEXIBLE CONSTITUTIONS:
FLEXIBLE INFLEXIBLE
▪ Require no special procedure or ▪ Require special amendment
majorities for amendments. procedures and majorities before
▪ Can be amended in the same they can be amended (s74 of
manner as legislation. Constitution)
SA Constitution 32 of 1961 – Republican SA Constitution 32 of 1961 – Republican
Constitution. Constitution.
▪ contained a few provisions
required for amendment & could
be amended easily.
SA Constitution of 1983 – “Tricameral” SA Constitution, 1996.
Constitution.
▪ amendment requires special
▪ less flexible. procedures. SECTION 74.
▪ contained more clauses, still ▪ two-thirds majority of NA & a vote
easily amendable. in favour by 6/9 provinces in
NCOP.
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