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Summary Constutional law Chapter 3
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- Constitutional law (PBL210)
- Institution
- University Of Pretoria (UP)
Notes covering all the content in chapter 3 of public law
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lOMoARcPSD|8128673CHAPTER 3: IMPORTANT CONST CONCEPTS AND PRINCIPLE
Introduction
Dispute resolved through application of direct rules/ principles of the law (including Const)
and, when not sufficient, broader general principles are used and influence constitutional
interpretation.
• Principles of rule: derives from definition of CL
CL: Incorporates body of fundamental principles formulated as normative rules that
determine and structure functioning, power and authority of organs of state in relations to
state and its organs and state and citizens
• Presupposes that all governmental powers are subject to specific limits and
procedures and all rights are exercised i.t.o letter and spirit of the law (Inc Const)
• Mere existence of Const does not ensure compliance with principle of
constitutionalism • Although all states have a Const, only some can be considered to
be constitutional.
What principles of constitutionalism requires:
Const is Supreme~s2
• Government should derive its powers from law (most found in form of written Const)
• Government’s powers should be limited to those powers set out in the law and Const
Can be either Prescriptive or Descriptive
Prescriptive: refers to what Const and law determines
Descriptive: Requires a more critical analysis of what a Const and the law ought to be
Madison explained: “If men were angels, no government would be necessary. If angels were
to govern men, neither external nor internal controls on government would be necessary. In
forming a government which is administrated by men over men, the great difficulty lies in
this: you must first enable government to control government, and in next place obliged
it control itself”
Minister of Correctional Services v Tobani:
• Charges against respondent were withdrawn after being a prisoner at St Alban’s
Prison.
• State had no legal authority to keep detainee in prison since all grounds for detention
ceased to exist once charges were dropped
• Held state exercised public power when it received persons into custody. Detention of
persons in custody could only be done i.t.o authority set out in Correctional Services
Act. Sate thus constrained by principles of legality imposed by Const.
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•
• Held Common Law was not body of law separate from Const derived from Const and
subject to const control. Pubic power vested in courts i.t.o Const Onus of justification
rested on person who effected the detention and it did not matter that it was done
Without knowledge of wrongfulness. Common Law test of unlawfulness fitted with
principle of Const legality
Challenges with constitutionalism:
• Balance needs to be achieved between establishing a government with enough power
to govern on one hand, and a government without absolute power on the other Ways
in which Const limits powers of government:
• Poses structural and procedural limitation whereby government powers are to be
exercised.
• Sets substantive limitations through incorporation of BOR(Bill of Rights)
Democracy.
Principles of democracy and public participation
Most important concept of CL: Democracy
Government can only be legitimate if it has the consent of the majority of people falling
under its aegis (government of the people, for the people) a traditional view of democracy
Democracy: people should be allowed to govern themselves, directly or through a system
of representation, and should be permitted to participate in crucial decisions that impact
their lives and will influence their futures. Origin of democracy:
Period of classical antiquity (2 400 years ago) In
city states of Ancient Greece Founded on 2 Greek
words:
➢ Demos: people
➢ Kratos: power
• Relationship between government and people is based on consent, not power
• Does not mean majority decision-making only (is modern view v traditional view)
(Power to govern vested in people)
• Law or conduct inconsistent with democracy is invalid
• Const confirms that BOR is cornerstone of democracy
• Mostly vertical application
Argument that principle of democracy has no horizontal operation:
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•
• Unlike provisions in BOR, remainder of Const generally imposes obligations on State
only
Const recognises 3 forms of democracy:
Representative democracy
• Participatory democracy
• Direct democracy
Representative democracy: (Political) indirect form of democracy, directed at political
representation of citizens of state (selected who should rule on one’s behalf) Advantages of
Representative democracy:
• Practical form of governance
• Relieves ordinary citizens of burden of decision –making
• Puts government in hands of people with special knowledge and skills’ Creates
stability
De Lille v Speaker of National Assembly:
Held principles of representative democracy lay at heart of Const. . The suspension of a
member of the NA from Parliament for contempt was not consistent with the requirements
of representative democracy. Such suspension would be a punishment calculated to
penalise not only the member for contempt but also his/her party & those of the electorate
who had voted for that party & who were entitled to be represented in the NA by their
proportional number of representatives.
Participatory Democracy: (taking part) Participation of individuals or institutions in
government processes that have an effect on them.
Doctors of Life International v Speaker of NA:
CC held that i.t.o provisions of Const, International Law and even foreign case law, SA
democracy included principle of participatory democracy.The gov. as contemplated in the
Constitution was partly representative & partly participatory & as such accountable,
responsive & transparent. Since the Constitution demands, the gov. had to make provision
for public participation in the law-making processes. State must take steps to ensure that the
public is indeed afforded sufficient opportunities to participate in the legislative processes &
procedures. Direct democracy: (referendums) direct involvement of citizens of the state,
referendum are divided(obtain Public opinion); Public opinion can be dangerous.
Advantages of direct
democracy:
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