PBL MODULE 3 – CONSTITUTIONAL RIGHTS
PBL MODULE 3: STUDY THEME 1 – INTRO AND DECOLONISATION
The place of the consti rights in the consti order:
• Constitutions = codes of rules which aspire to regulate the allocation of power, functions, and duties
among the various agencies and offices of gov and define the relationship between these and the public
• Macro arrangements of CL -> power arrangements (the allocation and exercising of power) by various
constitutionally recognized bodies or institutions (the consti defines the allocation of power and provides
for the separation of power between the legislature, the executive, and the judiciary)
• Micro arrangements -> regulating the relations between individuals (and juristic persons) ito the consti
rights of these persons and the corresponding duties of the state
The most important myths of the SA consti:
• CL is premised on a number of doctrines (e.g. RoL, trias politica, principle of legality etc.) These doctrines
are normative and not necessarily descriptive in nature. They define what (normatively) ought to be and
not what situations in real terms entail (empirically)
• Myth 1: the consti is salvation from evil
o The SA consti is based on this myth bc it is viewed as the solution to all problems. This, in reality,
isn’t true to a great extent. The SA consti, with all the benefits attached to it, fall short of
providing solutions for the kinds of problems SA faces (minorities, poor ppl etc.)
• Myth 2: the consti is the final consti
o The consti is often referred to as the ‘final’ consti to distinguish it from its predecessor (the
interim consti). However, the notion of ‘final consti’ has acquired autonomous meaning. It
suggests that the ‘final’ consti has brought SA’s consti development to a close. This is wrong bc
there are events that are so potent/overwhelming that they cause certain aspects of the written
consti to lapse and be rendered meaningless. The consti may informally change thru
lapsed/substituting/stillborn law (and formally changed thru formal amendments) and thus the
notion of the ‘final’ consti is not plausible
• Myth 3: the consti is supreme
o This myth implies that nothing in the consti can be changed. This isn’t true bc the consti may
lapse (be nullified) or replaced by new substituting CL. Although consti supremacy is a normative
doctrine, it does not provide a reliable description of the actual condition in the state. Thus the
notion of consti supremacy is implausible
• Myth 4: the separation of powers
o This is a myth bc the 3 powers (legislature, executive, judiciary) cannot be completely separated.
For example, the leading figures in the executive usually also occupy senior positions in the ruling
party and thus they control the fate of the political careers of the members of their own party
who are members of the legislature. Additionally, the courts do not possess the actual executive
power to ensure the enforcement of their orders – they thus need to depend on the executive.
Courts also do not have full power to exercise control over the other branches of power bc of the
nature of the procedure relating to how judges are appointed (appointment is influenced by
ideology of the ruling party).
• Myth 5: the independence and impartiality of the judiciary
o This is a myth bc the judiciary is inherently dependent on the other 2 branches of gov power. The
judiciary, together with the leading party in the legislature and the executive, is ordinarily part of
a single dominant elite within which there is separation in terms of institutions, personnel and
functions, yet they are informed/united by the same ideological assumptions and committed to
achieving the same goals.
• Myth 6: the SA consti is the best consti in the world
o This is a myth bc the creditability of this assertion is extremely difficult to determine. How does
one judge the quality of a consti (by its provisions or by its actual operation)?
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,Is a system of consti rights truly capable of safeguarding people’s interests:
• Misfortunes such as large scale corruption, misappropriation, squandering, theft of public funds, and
systemic malfunctioning of state administration -> undermines the ability to protect rights, and causes
system for the protection of consti rights to breakdown leaving only well-sounding formulations of rights
that are devoid of actual rights protection
• The rights in the BoR are not ideologically coherent as they often conflict with each other. They also
might be interpreted in different and conflicting ways
2 divergent constitutional models:
(1) Statist-individualist model/order (SIO)
o Only 2 entities are recognized: the state and individuals with rights
o Communities are not recognized (not protected by the BoR) -> bc they are viewed as a potent
centrifugal force that could break up the state
o The SA consti order as created under the 1996 consti is an example of the SIO. In close
evaluation of the various rights incorporated in the BoR, it is evident that each of these are
formulated w the sole purpose of protecting the interests of the individual and not of the
community
(2) Multi-communitarian model/order (MCO)
o Based on the view that society is made of individuals and a multitude of communities that are ---
- Permanent in nature
- Important and fundamental (without communities, individual existence, interests and
rights are impoverished and sometimes rendered almost impossible)
- Constitutionally protected
o 3 entities are recognized: the state, individuals, and various communities (rights & powers may
be vested in these 3 entities)
Status as opposed to nature of consti rights:
• BoR rights v ordinary rights -> BoR rights are set apart from other ordinary rights. They enjoy a higher,
entrenched status in that they are not readily susceptible for change or removal by the legislature. Rights
are not taken up in the BoR bc they are more important/fundamental than other rights, but they are
taken up as a result of political decision following from political, economic, ideological, and social
discourse and strife & conflict
• Terms used to refer to the rights in the BoR include: human rights / fundamental rights / constitutional
rights
• “Human rights”
o term is tautological and theoretically insignificant since no entities other than natural persons
(human beings) or juristic persons (entities made up of human beings) can be bearers of rights.
All rights are human rights
o every single right in the SA legal dispensation clings either to a human or an entity made up of
humans. (animals are property of humans and you cannot damage another person’s property or
the states property)
• “fundamental rights”
o this term can be used since it suggests that it is their enhanced status and not their nature (i.e.
clinging to a human) that is their distinctive feature. However, this term can also be misleading
bc it suggests high status for reasons other than constitutional entrenchment (reasons such as
these rights are natural, inalienable, and inherent to all human beings – which is not true)
• “constitutional rights”
o this term is the most appropriate bc it best indicates that the rights in the BoR distinguish
themselves by their status and not by their nature. They have enhanced status bc they are
entrenched in chap 2, they belong to all people, and it is very difficult to amend them
Colonization and decolonization:
• colonization involves 2 parties: the colonizing party and the colonized party
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, • difference in value: the colonizing party is regarded as wielding more domination over the colonized
party. The colonizer either IS in a stronger position than the colonized (and is thus capable of
colonization) or the colonizer is PERCEIVED by the colonized to be superior and vested w greater value in
one or more material respects (militarily, demographically, politically, technologically, economically,
linguistically, religiously etc.)(and thus allow themselves to be colonized)
• colonization involves the active cooperation of the colonized party. Sometimes they contribute to their
own colonization and sometimes they resist it (resistance is understandable bc the colonizer often
exploits the colonized for its own benefit and to the detriment of the colonized)
• there are 4 essential aspects of colonization: the territorial sate / the colonizers’ language / colonizing
religions / written and oral culture
The territorial state: (territorial colonization)
• Q1: to what extent can the territorial state be dismantled and replaced by structures and cultural assets
that transcend the heritage left by colonization?
• If one is really serious about the question of decolonization within in the African context then the borders
of African states will have to be revisited
• African nations exist only in a geographical sense and not in a cultural or linguistic sense. The African
state borders are almost invariably the product of the activities of the colonial powers in Africa during the
nineteenth and early twentieth centuries. These borders were drawn arbitrarily in conformity with the
needs of and power relations existing among the former colonial masters, without any consideration for
the wishes of the inhabitants of Africa who were to be affected most intimately by the determination of
these borders. The African state borders were fought out among the European powers or agreed upon in
Western capital cities through agreements between colonial powers – Africa had nothing to do with it. As
a result, a variety of different communities lacking the necessary commonality of nationhood are
arbitrarily grouped together
• This also applies to SA -> pg 15 and pg 18 of class notes
The colonizers’ language: (linguistic colonization)
• Q2: to what extent can the colonizers’ language be dismantled and replaced by structures and cultural
assets that transcend the heritage left by colonization?
• If one simply sticks to the erstwhile European colonizing languages (such as English, French, Portuguese
etc.) then one cannot be said to be serious about the question of decolonization within the African
context
• Small extent. Argument against the above position: English provided the political vocabulary for resisting
colonial domination and for paving the way to political independence. The African languages were not
regarded as capable of doing that. They kept Africans divided in a multitude of ethnic groups and
prevented Africans from becoming conscious of their common colonially created state of subjugation and
from developing an understanding, in community with the other inhabitants in those states of their
common colonised condition. The European languages, and English in particular, acted as the redeemer
for the colonially subjugated Africans – the means that could liberate them from colonial control and lead
them to political independence.
Colonizing religions: (religious colonization)
• Q3: to what extent can the colonizers’ religion be dismantled and replaced by structures and cultural
assets that transcend the heritage left by colonization?
• The most prominent religions in Africa is Christianity and Islam. These are both colonizing religions that
did not originate in Africa.
• When one deals with the question of decolonization in Africa, one must ask what is to be done about
these 2 colonizing religions from a decolonization perspective. Must we accept these colonizing religions
the same way they were initially preached to us by the colonizers? Or should they be changed or
replaced?
Written and oral culture:
• Q4: to what extent can the colonizers’ written culture be dismantled and replaced by structures and
cultural assets that transcend the heritage left by colonization?
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, • A distinct characteristic of African culture is that it is oral and not written. This is different from what was
inherited from the colonizers. Western European cultures (including Christianity and Islam and legal
cultures etc.) are written cultures.
• E.g. African law is not reflected in written code, but it is reflected in the practiced customs of traditional
communities. As such, there is a lack of certainty in oral legal systems that aren’t plausible in a
modernized culture
• What is to be done about the written cultures we have inherited from Christianity and Islam from a
decolonization perspective?
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