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Constitutional Law summary
- Course
- Constituional Law 271
- Institution
- Stellenbosch University (SUN)
Summary of 23 pages for the course Constituional Law 271 at SUN
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Constitutional Law 271A2 Prep
Theory
Currie and de Waal Volume 1 (2001) page 40 – 57
Changes the - Political equality
interim - Legislative and executive power is divided among national and
Constitution provincial spheres of government.
brought - System of proportional representation
- End of the reign of Parliamentary supremacy.
Historical - J – Jan van Riebeeck – Dutch East-India Company VOC - 1652
Timeline - B – British came into power – 1806.
- A – Anglo-Boer War – 1899 -1902
- U – Union Constitution (House of Assembly and a Senate)– 1909
- W – Statute of Westminster – 1931
- S – Separate Representation of Voters Bill – 1951
- H – Harris II – 1952
- S – South African Amendment Act – 1956
- S – S59 of Republic Constitution – 1961.
- P – PAC, SACP, SAIC, UDF, Black Consciousness Movement,
trade unions – 1912
- D – Defiance Campaign – Passive resistance – 1952.
- F – Freedom Charter drafted and adopted by the ANC – 1955.
- S – Sharpeville Massacre – 1960
- S – Soweto Uprising – 1976
- R – Resistance against Apartheid system grew stronger and the
repression of the opposition on the part of the NP led government
intensified – 1976.
- R – Revolution and the tricameral constitution (1983) – 1980
- C – CODESA convened – 1991.
- A – ANC walked out of CODESA as a protest against slow
progress – 1992.
- I – Interim Constitution implemented – 1993.
- E – Election – 1994.
- C – Constitution certified and signed by Mandela – 1996.
- A – Adopted the Constitution – 1997.
Westminster - Legislative authority was given to a bicameral Parliament.
Constitution - The union Constitution was unitary and not federal.
features - Parliamentary supremacy
External - The supremacy of the Parliament was limited by the Union’s status
constraints on via-a-vis its colonial principal.
Parliament - South Africa was not a sovereign independent state.
- All Parliamentary Bills had to be sent to the Governor-General.
- South Africa was also subject to the Colonial Laws Validity Act.
Internal - Union Parliament was free to amend the Constitution by ordinary
,constraints on procedures, except for a small number of measure which required a
Parliament special procedure.
- Entrenched sections
- S152 would only be valid if the Bill was passed by both Houses of
Parliament sitting together and agreed to at the third reading of the
Bill by not less than two-thirds of the total number of members of
both houses.
Parliamentary - Defining feature of Westminster constitutionalism
supremacy - Union Constitution created a divided state.
- Vast majority of the population were characterised as existing
outside of civilised society and were subject to a system of tribal
authority.
- White minority were politically empowered to manipulate the legal
system to perpetuate their dominance over South African society.
- Exclusion of judicial review.
Constitution A constitution is the founding document of a nation which sets up the
structures of government and regulates the exercise of power by the
organs of state. It sets the ground rules according to which a state is
governed. The Constitution is not static.
De Vos and Freedman (2014) Page 5 – 15
Difficult not to - Pre-colonial history was never written down.
revert back to - There is insufficient clarity about the multitude of governing
colonial structures through which pre-colonial indigenous populations of SA
imposed governed themselves.
markers when - SA with its current borders came into existence only in 1910.
discussing
history
Chiefdoms - Chief
- Headmen
- Together the chief and headmen were the council.
- Family or kraal heads
- Zulu kingdom – Dingiswayo, Chief of the Mthethwa – King Shaka
- Glen Grey Act (1894) – Cape colony – excluded the vast majority of
Africans from the Cape Parliament.
- Langden Commission (1903) – Vision of SA based on the territorial
segregation of black and white as a permanent mandatory feature
of life.
De Vos and Freedman (2014) Page 15 – 23
Freedom - The people shall govern.
Charter - The people shall share in the country’s wealth.
- The land shall be shared among those who work it.
- All shall be equal before the law.
- All shall enjoy equal human rights.
, - There shall be houses, security and comfort.
Rivonia Trial of - 10members of the ANC were tried for sabotage.
1963 and 1964 - Nelson Mandela, Walter Sisulu, Govan Mbeki, Rusty Bernstein
- PAC leader Robert Sobukwe led the march to the local police
station which led to the Sharpeville Massacre.
- The new General Law Amendment Act was passed – imprisonment
could be renewed – Sobukwe Clause.
- Black Consciousness Movement – Steve Biko – Soweto Uprising –
Died at the hands of the police.
Two-stage constitution making process:
Interim Constitution Final Constitution
Negotiated before the first Negotiated after the first
democratic election by the democratic election by the
unelected MPNF elected Constitutional Assembly
Contains power-sharing Does not provide for any formal
agreement allowing the ANC and power-sharing agreement – after
the NP to share power for 5 the 1999 election the winner of
years and provides for 2 Deputy the election governs the country
Presidents on its own
Contains 34 Constitutional Certified by the Constitutional
Principles and provisions to Court as complying with the 34
regulate the adoption of a final Constitutional Principles after it
constitution, including provisions was first rejected by the Court
for the certification of the and sent back to the
Constitution by a newly created Constitutional Assembly
Constitutional Court
Contains a Bill of rights Contains an extensive Bill of
protecting all basic human rights Rights protecting both civil and
political and social and economic
rights
Currie and de Waal Volume 1 (2001) page 63 – 71
Establishing The resolution of this conflict involved an elaborate compromise in which
the CC the cabinet appointed various members of the CC for a non-renewable
period of 7 years following 3 distinct processes:
- The President appointed a President of the CC in consultation with
the Cabinet and Chief Justice.
- 4 members of the court were appointed from among the existing
judges of the supreme court after consultation between the
President, Cabinet and the Chief Justice.
- The President, in consultation with the Cabinet and the President of
the CC, appointed 6 members from a list submitted by a Judicial
Service Commission, which was dominated two-to-one by
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