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Jurisprudence - Post-Apartheid Legal Order and the Constitution
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Understand and distinguish between the types of constitutions, understand and discuss the structures of government that the 1996 Constitution creates, understand and discuss the constitutional recognition of traditional leadership and of eleven official languages, be able to explain the transformat...

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  • January 14, 2022
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JURISPRUDENCE 110
Unit 6
Post-Apartheid Legal Order and the Constitution

Chapter 5 & 6 summary
Outcomes
- Understand and distinguish between the types of constitutions
- Understand and discuss the structures of government that the 1996 Constitution creates
- Understand and discuss the constitutional recognition of traditional leadership and of eleven official
languages
- Be able to explain the transformative nature of the Constitution
- Understand and be able to discuss transformative constitutionalism and substantive justice
- Explain what is understood as an African constitutional jurisprudence and an African decolonial jurisprudence
- Understand and explain the concepts of decolonisation and a post-liberal constitution and whether they are
applicable to our constitution
- Critically examine the legal transformation in South Africa and the transformative nature of the
Constitution…or not

Constitutions
Definition
- Document that sets out the rules according to which the country is governed, that regulates who fulfils the
functions of making, executing and interpreting the law and that regulates the relationship between the
citizens and the state. Most governments have three main functions
o to make the laws
o to execute the laws
o to resolve legal disputes
- Division of making, executing and interpreting the law and that regulates the law is called separation of
powers
o Protects citizens from the abuse of a centralised power
o To create ways to restrict government power and interreference in the lives of its citizens
- Constitution is a contract between the people who create a state to whom they are willing to transfer their
power and in turn to accept its authority

Types
Unwritten/ written
- Unwritten
o Contains all the legal provisions in one document
- Written
o Constitution that is made up of a variety of sources
Flexible/ inflexible
- Flexible
o Can be amended quite easily
- Inflexible
o Cannot be amended easily
Unitary/ federal
- Unitary
o One central government for the whole state
- Federal
o There and national (federal) and provincial (regional) levels of government that co-exist and receive
and executed their powers and competencies according to the constitutional directive
o South Africa
Sovereign/ subordinate
- Sovereign
o Constitution is the highest sources of authority and all statutes and executive functions have to
comply with it
- Subordinate
o When parliament can amend the constitution on its own

,Summary
Constitution
- Written
- Contained in a single codified source
- Inflexible because 75% majority in the National Assembly and 6 provinces in the National Council of Provinces
are required to change basic points of departure of Constitution
- Has federal features in that a system of co-operative government functions at 3 levels
- Replaced Parliament as source of sovereign authority
- Regarded as being transformative
o Aims to serve as a bridge between the authoritarian past and the current political culture where there
should ideally be no abuses of power without serious consequences

Brief overview of our Constitutional history
Before 1910
- Autonomous communities had their own way of life and governance
During 1652 the Dutch arrived and by 1806 the Cape was colonized by the English
After the Great Trek
o we see the establishment of the Boer Republics and the operation of British-based constitutional
systems in the British colonies.

1910: Unification
- After the two Anglo-Boer wars
o the Boere Republics also became British colonies
- The 1910 Constitution resembled the British or Westminster system of government
o except that only a part of the South African population could vote
- By 1909 only whites could vote except for a coloured vote of 15% in the Cape Colony at the time
- The most important characteristics
o A centralized state
o A candidate voting system
▪ meaning that the candidate who won the most votes were elected to be the representative
of that constituency
o Parliament consisted of two houses
▪ the house of assembly and the senate and legislation had to be passed by both
- Parliament was sovereign
o No interference by any government organs were allowed
- When the National Party came into government during 1948
o Systematic program of segregation or social reconstruction known as Apartheid
▪ launched through the creation and implementation of discriminatory legislation.
o Despite being tested in the court of the day
▪ legislation removing the coloured vote from the voters roll was eventually accepted.
▪ Courts during this time, were
• subservient
• subordinate to the sovereignty of Parliament
• merely tested the manner and form in which legislation was promulgated or the
formal requirements of it
• Did not get involved in the content or substance of legislation and whether it violated
certain rights of certain people

, 1961: the Republic
- In 1960
o 52% of the white voters supported the idea of South Africa as a republic, independent from Britain –
- May 31 1961
o South Africa became a republic.
o The 1961 Constitution did not differ that much from the 1910 one
▪ that the first South African State President now substituted the monarchy as source of
authority

The 1983 Constitution
- Despite a split between the National Party and the Conservative party at the time
o the majority of white voters supported the principles of the 1983 Constitution that included:
▪ An extended vote to Indians and coloureds and the creation of three legislative assemblies
• the house of assembly for whites
• house of representatives for coloureds
• the house of delegates of Indians
o This was called the tricameral parliament
▪ Black people were still excluded from this dispensation and were supposed to only participate
in the governance of the black homelands.


1993: interim Constitution

- In February of 1990
o the PAC and ANC were unbanned
o Nelson Mandela was released
o Referendum in 1992 indicated that it was time for a new negotiated settlement
▪ one that converted SA from a non-democratic state to a full democracy.
o Approximately 26 parties were involved in multi-party negotiations at the World Trade centre
▪ as a result, the interim or 1993 constitution was adopted
- On 27 April 1994
o the first truly democratic election was held and the interim constitution came into effect.
o This constitution was a definite break from previous constitutions in many ways for example:
▪ It was the first democratic constitution
▪ Parliamentary sovereignty was replaced with constitutional sovereignty
▪ The Constitutional court was created
▪ The voting system changed from a candidate system to a party system wherein voters no
longer voted for a specific candidate but for a political party.
▪ Legislative and executive competencies were divided between national, provincial and local
levels (still the same in the 1996 Constitution)
▪ The executive authority functioned as a government of national unity (not in 1996
Constitution)
- The post-amble of the interim constitution provides for ‘a historic bridge between the past of a deeply divided
society characterized by strife, conflict, untold suffering and injustice and a future founded on the recognition
of human rights, democracy and peaceful co-existence and development opportunities for all South Africans
irrespective of colour, race, class, belief or sex. ‘
- Already in the interim constitution, there seems to be shift towards transformation and towards establishing
and building a new society through moving from: -
o Parliamentary sovereignty to constitutional sovereignty.
▪ Parliament’s powers are now restricted by the rule of law or the supreme Constitution.
o The abuse of power to the responsible exercising of power
▪ Parliament now needs to use their power in a responsible and justifiable manner and not
through might and fear
o A culture of authority to a culture of justification wherein the exercise of power becomes defensible
and reasonable
▪ Based on participatory and democratic processes and not through fear and forceful command

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