What problems do I think constitutionalism and transformative constitutionalism were meant to
solve?
- South African Constitutionalism is meant to transform our society from one deeply divided
by a racist and unequal past, to one based on democracy, social justice, equality, dignity, and
freedom.
How do Constitutionalism and transformative Constitutionalism try to do it?
Social rights and a substantive concept of equality:
- The constitution endorses the view that political freedom and socio-economic justice are
linked. (Housing, healthcare)
- Democracy and the democratic rights that make democracy possible only have meaning if
they lead to the creation of a society in which people actually have the social resources that
they need to exercise their rights meaningfully.
Affirmative state duties:
- BoR imposes positive/affirmative duties on the state to combat poverty and promote social
welfare,
- So that people can actually exercise and enjoy their constitutional rights.
Horizontality:
- SA bill of rights = horizontal application
- Does not only limit the state’s power to interfere in the lives of individuals, but also binds
institutions and individuals, and in some cases, requires them to respect the rights of others.
- Section 8 (2) = BoR binds private parties in some cases
- Section 39 (2) = courts must take into account the spirit purport and objects of BoR when
interpreting and developing common law and customary law which to a large degree,
regulate private relationships.
Participatory governance:
- Participating of citizens at all levels and at all stages of decision making.
Multiculturalism:
- Constitution celebrates multiculturalism and diversity within a framework of national
reconciliation and ubuntu.
Historical self – consciousness:
- Rejects the notion of preserving the status quo that existed at the time of its adoption
- Democracy must be periodically reinvented
- Constitution must constantly be interpreted and reinterpreted to reflect the evolving needs
and problems a society faces.
Can these foundational principles solve the problems they were meant to solve?
- Uncertain > depends on the outcomes of this continuous interaction.
If not, what has gone wrong?
- One party dominant democracy.
- Legislature does not always hold the executive accountable
,- The judiciary is not always kept independent.
- The dominant party may ‘capture’ various independent institutions such as the judiciary,
police service and other corruption -busting bodies, by deploying its members to these
institutions to remove effective checks on the exercise of power by the government.
- This creates an opportunity for the executive to abuse its power.
Separation of Powers:
Legislature:
Function = enact law + hold
executive accountable.
Personnel = members of
parliament
Executive:
Function = make policy +
implement and administer law +
make crucial appointments.
Personnel = members of
parliament Judiciary:
Function = interpret and
adjudicate legal disputes +
declare invalid law or acts
contravening the constitution
Personnel = judges and
magistrates
- Separation of powers is an attempt to remedy the abuse of power that results from an
overconcentration of power in one person or organ.
- Separates state organs into different branches
- Legislature + executive personnel are drawn from each other = massive overlap
- Little separation of personnel.
- Our Electoral system weakens legislature vs the executive.
- The electoral system weakens the accountability of the executive to the legislature
- In our electoral system, the president appoints his cabinet from among members of the
legislature, this links the executive and the legislature’s personnel.
- This creates an opportunity for the president to appoint members of his party who will not
hold him and the executive accountable. (Party loyalty)
, Judiciary:
- Is absolutely separate
- No one can be both part of the judiciary and be a member of the other two branches.
- Judges are not supposed to do any other paid work at all.
- Judiciary must be careful to not go too far by doing functions/tasks that are meant for the
legislature and the executive.
Who regulates the Judiciary?
- The Judicial Services Commission. The JSC ensures that although the judiciary is
independent, it is also accountable.
Our electoral system is parliamentary. The president is drawn from parliament, unlike the
United States where the president is elected by the public.
Rule of Law:
- Rule of law appears exclusively in the constitution, Separation of Powers does not.
- The Rule of Law is one of the founding values of the republic of SA. Listed in Section 1 of
Constitution.
- Law must make sense. Be understandable so that people can arrange their lives around it
- Understandable law = gives people a stable basis for planning their own conduct.
- Stable law = people more willing to comply with it.
- Rule of law is what makes law ‘work.’
- Laws need to satisfy/fulfil the ‘laundry list’(8 points) in order to meet the requirements of
the rule of law.
Main concepts of rule of law:
- Must be understandable
- The law that is laid down must be the law that is applied to those who are subject to it
- Law must be publicised, consistent and not impossible to comply with
- law must be prospective, reasonably stable, and faithfully enforced.
Week 2 was EFF2: tutorial saved
Week 3:
How to answer a Constitutional law question:
Template will be found in the lecture.
To find the answer first state your gut feeling on the constitutional question, then work
from right to left of that template.
To write an answer, state gut feeling then write from left to right of that diagram.
, The Legislature:
Legislature = parliament.
Legislature consists of two bodies
1. National assembly
- Set up by section 44(3) of the Constitution.
2. National Council of Provinces.
- Set up by section 44(4) of the Constitution.
The National assembly is the dominant body.
- It has the power and duty of oversight, and
- It appoints the President.
SA inherited this bicameral (two-house) system from the Westminister system of the UK.
Advantages of having a two-house system.
A law that has been made gets ‘battered’ between the two houses.
The two houses check on one another
- If the NA passes a law, and the law gets to the NCOP, then the NCOP will then also check
with the provinces what they think of that law and put that input into the text.
N.B. BOTH BODIES CAN INTRODUCE LEGISLATION.
The National Assembly:
Has 400 MP’s
Closed PR electoral system. The public votes for a party, the party votes internally for its
MP’s
The public cannot vote for specific members of the party to be its MP’s
There is no scrutiny over the setting up of a party’s PR lists. Nobody checks how they do
it. They could just put their favourites at the top of their lists
NB. Proportional system = if 50% of votes for party then 200 seats (half) in parliament.
What does the NATIONAL ASSEMBLY do?
Chooses the President
Provides a national forum for debate (it has to!)
Passes legislation
Oversees executive (cabinet, including deputy ministers) and administration (the
departments which perform the running of the country)
- Each department ideally should have a corresponding parliamentary committee >> which is
meant to have a day-to-day check on how that department is being run. E.g., department of
transport/ department of health.
