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Summary CSL2601 exam possible questions 2021
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- University Of South Africa (Unisa)
Summaries for the CSL2601 exam
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Exam Ques*ons - CSL 2601
(Check feedback to ac.vi.es as part of this study)
Study Unit 1 – 3
1 Explain what is meant by cons*tu*onal law? (3)
Cons.tu.onal law is the aggregate (sum total) of binding rules rela.ng to the distribu.on and
exercise of state authority. The rules of cons.tu.onal law de?ne the rela.onship between the
organs of state inter se (between themselves), and between the organs of state and individuals
2 Dis*nguish between public and private law, and state why cons*tu*onal law is said to (5)
be part of public law
Public law is the branch of law which regulates the exercise of state authority in rela.onships of
inequality.
Private law, in contrast, governs the rela.onships between people who are on an equal foo.ng.
Cons.tu.onal law forms part of public law as it regulates public interest which comes into play
in legal rela.onships of subordina.on, either between administra.ve authori.es themselves or
between administra.ve authori.es and private individuals.
3 “The dis*nc*on between private and public law has become blurred in modern *mes”.
Discuss this statement with par*cular reference to the reasons why this blurring has
occurred. (6)
The reason why the dis.nc.on between public and private law has become blurred is that the
modern state has become very involved in private law rela.onships, such as the rela.onship
between employee and employer. The new cons.tu.on expressly provides for rela.onships
between private individuals in the Bill of Rights. It also authorizes parliament to enact legisla.on
to prohibit unfair discrimina.on by private persons and companies. Finally tradi.onal public
func.ons such as public transport or telecommunica.ons are being priva.zed and being run by
semi-public corpora.ons or private contractors.
4 Discuss the sources of cons*tu*onal law. (10)
The ?ve sources of cons.tu.onal law are:
The cons.tu.on, which means the en.re body of rules governing the exercise of state
authority in a par.cular state as well as the rela.onship between the ci.zens of the state
and the organs of the state. May also refer to a wriKen document which contains some
or most of the cons.tu.onal rules.
Legisla.on or Statute. It is expressly leN to legislator to add the Oesh to the basic
framework of the cons.tu.on.
Common law. English common law played an important role in the history of South
African law and must therefore be taken into account. S39(2) of the Cons.tu.on
requires that the courts develop the common law to bring it in line with the
cons.tu.onal precepts.
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2
Case law(stare decisis). Past judgments are binding and Illustrates the prac.cal
applica.on of the cons.tu.onal principles, rules and values and tells you how a
par.cular case alters or contributes to the development of the law.
Interna.onal law. Sec.on 39(1) of the Cons.tu.on makes it compulsory for a court to
consider interna.onal law in the determina.on of cons.tu.onal issues.
Other sources of cons.tu.onal law
a. Academic wri.ngs-Courts refer to academic opinions expressed in books and ar.cles
in journals.
b. policy documents - Current government policies expressed in green papers, white
papers and other documents issued by the organs of state help to shape the
legisla.ve agenda; these are oNen translated into legal norms.
c. reports by state ins.tu.on suppor.ng cons.tu.onal democracy eg. public protector,
Auditor General)
d. foreign Law - 39(1)(c) of the Cons.tu.on provides that the courts may consider
foreign law, that is, especially case law from other. A discre.onary power to consider
the laws of other countries where there is insuZcient guidance available from South
African sources.
Is a supreme cons*tu*on and an inRexible cons*tu*on the same thing? Give reasons for your
answer. (5)
5 Dis*nguish an inRexible cons*tu*on from a Rexible one and men*on an example of
each. (6)
A Oexible cons.tu.on has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 cons.tu.on of South Africa.
An inOexible cons.tu.on usually enjoys a superior status to ordinary laws of the land and
requires a special amendment procedure. Eg. two-thirds majority vote. An example is the 1996
cons.tu.on of South Africa.
6 Does South Africa have a Rexible or inRexible cons*tu*on? Why? (3)
South Africa has an inOexible cons.tu.on as it enjoys superior status to the ordinary laws of the
land and its amendment provided for in s74(1) – (3) requires special procedures and special
majori.es. S1(c) states that one of the values South Africa is founded upon is the ‘supremacy of
the cons.tu.on and the rule of law’.
(a) Are the following statements true or false? Give reasons for your answer.
(i) An inRexible cons*tu*on enjoys the same status as the other laws of the
country and does not require any special procedures for its amendment. (5)
False.
1. It enjoys a higher status than the ordinary laws of the land.
2. It requires special procedures and majori.es for amendment.
3. This makes it harder for the majority to eaect amendments to the Cons.tu.on for self
serving purposes.
4. Example: the South African Cons.tu.on of 1996.
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