Exam (elaborations)
CSL 2601 Final Exam Typical Exam Questions 2021.
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- Exam Elaboration (CSL2601)
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- University Of South Africa (Unisa)
CSL 2601 Final Exam Typical Exam Questions 2021.
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CSL 2601 Final Exam Typical Exam Questions 2021, Typical Questions for CSL 101 – J
Study Unit 1
This study unit introduces a number of constitutional concepts. It is easier to understand the
constitution if you know what the constitutional concepts mean.
1 Explain what is meant by constitutional law? (3)
We can define constitutional law as those rules that regulate the manner in which state authority
is exercised and shared. It also relates to those rules which regulate the relationship between
organs of state inter se, and between organs of state and individuals.
2 Distinguish between public and private law, and state why constitutional law is said
to be part of public law (5)
Public law is the branch of law which regulates the exercise of state authority in relationships of
inequality. Private law, in contrast, governs the relationships between people who are on an equal
footing. Constitutional law forms part of public law as it regulates public interest which comes into
play in legal relationships of subordination, either between administrative authorities themselves
or between administrative authorities and private individuals.
3 “The distinction between private and public law has become blurred in modern
times”. Discuss this statement with particular reference to the reasons why this
blurring has occurred. (6)
The reason why the distinction between public and private law has become blurred is that the
modern state has become very involved in private law relationships, such as the relationship
between employee and employer. The new constitution expressly provides for relationships
between private individuals in the Bill of Rights. It also authorizes parliament to enact legislation
to prohibit unfair discrimination by private persons and companies. Finally traditional public
functions such as public transport or telecommunications are being privatized and being run by
semipublic corporations or private contractors.
4 Discuss the five sources of constitutional law. (10)
The five sources of constitutional law are:
• The constitution, which means the entire body of rules governing the exercise of state
authority or a written document which contains some or most of the constitutional rules.
• Other statutory sources, it is often left to legislation to flesh out the norms and values of
the constitution.
• Common law. English common law played an important role in the history of South
African law and must therefore be taken into account.
• Case law. Past judgments are binding and determine the meaning of constitutional
provisions.
• Other sources are also taken into account such as academic writings, policy documents
and reports of various government bodies (such as the public protector).
5 Distinguish an inflexible constitution from a flexible one and mention an example
of each. (6)
A flexible constitution has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 constitution of South Africa. An
inflexible constitution usually enjoys a higher status to other laws and requires a special
amendment procedure. An example is the 1996 constitution of South Africa.
6 Does South Africa have a flexible or inflexible constitution? (3)
, South Africa has an inflexible constitution. Section 2 of the constitution states the constitution is
the supreme law of the land. Section 74(1) – (3) lays down the requirements for amendment to
the constitution.
7 Distinguish between a supreme constitution and one that is not supreme. Give an
example of each. (5)
A supreme constitution ranks above all other laws of the state and is normally associated with an
inflexible constitution. An example of a supreme constitution is the 1996 constitution of South
Africa. On the other hand a constitution that is not supreme does not enjoy any special status to
other laws in the land and the government can declare laws which conflict with the basic
principals of the constitution. An example of a constitution that is not supreme is Britain.
8 Explain why South Africa has a supreme constitution. (3)
The South African constitution is supreme. Section 1(c) lists the supremecy of the constitution as
a founding value. Section 2 states that the constitution is the supreme law of the republic. Section
172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid
in terms of its inconsistency.
9 Explain the difference between autochthonous and allochthonous constitutions. (5)
Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive
constitutions which aim to resolve specific issues of the past are indigenous. There are also
constitutions which maintain continuity with established norms and tradition which are also
indigenous. Finally there are superimposed constitutions whose contents are largely unrelated to
the history of the country; this is an example of an allochthonous constitution. It is often difficult to
find an example of a constitution that fits distinctly into either category. For instance the 1996
constitution of South Africa is considered to be an indigenous constitution as it was drafted in the
light of South Africa’s history, but at the same time borrowed on the experience of other countries
and was influenced by international law.
10 Discuss the following concepts:
a) state (5)
b) government (5)
c) sovereignty (5)
A state is defined by the following requirements:
• a specific geographically defined territory
• a community of people who live in that territory
• a legal order in which the community is subject
• an organized system of government which is able to uphold the legal order
• a measure of separate political identity
The government is a temporary bearer of state authority, whom represents the state at a
particular time. Initially government did not have a political connotation and was associated with
the judicial function. Gradually government became a general term covering all functions and
organs of state. Today government relates primarily to the executive function with particular
bearing on the formation and implementation of policy.
A sovereign state defines a state which is autonomous and independent and therefore not subject
to the authority of any other state. It was historically used to refer to the monarch of a country,
however in recent times it has been associated with the sovereignty of the people to indicate that
the power of government rests in the hands of the people. This gave rise to the concept that
parliament is sovereign, which meant that legislative authority was vested in parliament and it
could enact any law no matter how reasonable or unjust and the courts could not challenge this
decision.
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