Summary CSL2601 constitutional_law_exam_notes MUST READ.

Constitutional Law Exam Notes Study Unit 1 Overview of Unit 1.1 Sources of Constitutional Law CONCEPT KEYPOINTS Definition Sources of law refer to the places where you can find legal principles, and values and govern a particular branch of law. Meaning, limits, consequences. On one hand it could refer to an entire body of rules, both written and unwritten which govern the exercise of state authority. On the other hand it may refer to a written document which contains some or most of the constitutional rules. It also prescribes the limits that are imposed on the exercise of state authority. In some instances, the constitution also prescribes the consequences that may arise in the event of state authority being improperly exercised.* It cannot be repealed or amended but it must leave room for growth.(That’s why it only sets out the framework, the principles, and lets the changeable legislation spell out the rest. Legislation/statute It constitutes the second source in the hierarchy of binding sources. The constitution does not contain all the rules that are needed to deal with the interaction of state authority. It only sets out the broad language and sets for the provision of the legislation to then fill in. Common law It is the unwritten law of South Africa, it is not contained in any statutes. Since the inception of the constitution, common law has ceased to be an important source of SA law, it still existed and is applicable though. English common law somewhat enforced parliamentary sovereignty, when constitutional supremacy came up, it became substituted. Refer to section 39(2) of constitution. Customary law It is a system of law generally derived from custom, long established practices that have acquired the force of law by common adoption acquiescence. It is empowered in section 39(2) and 211(2) of the constitution. Note Pharmaceutical Manufacturers Association of SA case. By recognizing customary law, the constitution has put it at par with common law. Indigenous African law, previously seen under common law lens, now has its own formal standing and should be seen through the constitution now. However because of the multi-cultural diversity of SA, it is difficult to determine pure indigenous law. It is accepted that custom law comes in three forms (a) that practiced by a community, (b) that which is stipulated by legislation and case law (c) academic indigenous law used for teaching purposes. Case law It illustrates the practical application of the constitutional principles, rules and principles. In the past its application was limited but this has changed now. The constitution and its written provisions for how state authority is exercised and the justifiable bill of rights has led to an increase in case law Other sources International law: section 39(1) makes it compulsory for a court to consider international law in the determination of constitutional issues. With its conventions and practices, they help protect and promote the Bill of rights. Academic writings: writings in books and journals. Policy documents: Current gvt policy expressed in green papers. White papers and other documents issued by the organs of state. These are often translated to legal norms. Reports by state institutions: chapter 9 institutions reports and recommendations. Foreign law: section 39 1 ©, discretionary, the courts MAY choose to use it. LEGISLATION DESCRIPTION APPLICATION CASE LAW Section 39(2) “When Interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights” This shows how common law, even after the constitution still exists in SA. It is the empowering provision to the development and use of the constitution in today’s legal framework. It also empowers the use and development of common law in our courts. Section 211(3) “The courts must apply customary law when that law is applicable, subject to the constitution and any legislation that specifically deals with customary law” An empowering provision to the constitutional right of the application of customary law. Note, it governs and applicable mostly in the framework of traditional leaders. Section 39(1) (b) and (c) “When interpreting the bill of rights, a court, tribunal or forum (b) must consider international law (c) may consider foreign law” Provision for the use of international law to interpret the bill of rights, also provides for the OPTIONAL use of foreign law. STUDY UNIT 3 Summary of Case Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the Republic of South Africa 1996(10) BCLR 1253 (CC); 1996 (4) SA 744 (CC) The formal purpose of this judgment is to pronounce whether or not the Court Certifies that all the provisions of South Africa’s proposed new constitution comply with certain principles contained in the countries current constitution (IC). Acknowledged the deadlocks in the negotiations that included whether it was necessary to formulate a new constitution, the fact that those who were drafting the IC were not elected individuals therefore giving rise to the IC just being temporary and providing for the 1st democratic election in SA and the compilation of the final constitution there after. The other problem was the fear by other constituencies (whites) that the process might not take into congnisance their fears and anxieties and bulldoze them by majority and thereby rendering the negotiation process redundant. The gvt was willing to hand over power as long as they had a hand in the formulating the new constitution, the opposition being the ANC were adamant and claimed no one had the right to limit the power of the majority for any reason and that should be the only mode used in formulating the new law. A compromise was reached, this is were the two-stage transition came up, the IC and the constitutional assembly, and the elections that would be held fairly, there after forming a representative NA, the new constitution would be drafted. The CA adopted the new constitution after an 86percent of it majority and handed it in t the CC for deliberation and certification. The court then gave numerous stakeholders and civil society a chance to contest or support the new constitution by handing in written submissions and right of audience. The CC had a judicial and not a political mandate as spelt out by the IC but only to see if the choices made by the different parties in the Constitutional draft complied with the CP’s. The court could not certify the New Text as It stood because there were several respects in which there had been non-compliance with the CP’s The court went on to outline the approach that should be used to interpret the CP’s: Measuring NT vs CP’s, must be applied purposeful to give expression to the new order of fundamental rights and any interpretation that does not impede that realization should be avoided, they must not be interpreted with technical rigidity, they must be read holistically, no CP should be interpreted in a manner that is in conflict with another, NT provisions should be given a meaning to give it construction. The courts Objection’s: The Labour relations Act of 1965 and the Promotion of National unity and Reconciliation Act 34 of 1995 immunity from constitutional scrutiny, goes against CP’s provision of constitutional supremacy and fundamental rights protection and promotion. The amendment of the constitution, the NT provides for special majorities but not special procedure. The Courts feel it is necessary to provide for the latter,