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- University Of South Africa (Unisa)
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Chapter 1: Sources of Law Where 2 find legal rules, principles and values that govern a particular branch of law1. Constitution Broad framework for the governance of a country – A Body of rules (written &
unwritten) that governs State Authority between citizens & the state - Horizontal
relationship
Written documents with constitutional rules
Rules binding the distribution & exercise & limits of State Authority
Section 2 of the Constitution: The CC is the supreme law of the Republic; law/conduct
inconsistent is invalid, +obligations imposed by it must be fulfilled.
2. Legislation Most NB - Authoritative and Binding
Du Plessis’ & Garber = CC can’t be repealed/amended must be capable of growth &
development over a period to meet changes in tech, social, political + economic
NB National Laws - SA Citizenship Act, Electoral Act, LG Municipal Structures Act
3. Case Law(Stare decisis) NB practical application of CC principles, rules, values + how it helps develops law
4. International Law
5. Common Law 96 CC – Common Law ceased to be NB
English Law NB in developing SA CC = Westminster System
93 & 96 Constitution broke away from Westminster System
Section 39 Interpretation of the Bill of Rights
(2) When interpreting any legislation, and developing common law/customary law, every
court, tribunal or forum to promote the spirit, purport +objects of Bill of Rights
These are persuasive in nature – can refer to them but don’t have to follow them
6. Other Sources Academic Writing
Policy Documents
Reports of State Institutions
Foreign Law
Chapter 2: Birth of the Constitution of the Republic of South Africa, 1996
B4 94
Parliamentary Sovereignty: - Parliament supreme - any law – couldn’t be challenged
White privilege, Blacks excluded - Denied freedom, quality and human dignity
Apartheid used forced = anarchy in townships, threatened ``white'' areas - South Africa becomes isolated.
FW de Klerk unbanned ``liberation movements'' released Nelson Mandela 2 February 1990
Political negotiations eventually produced the 1993 Constitution.
Interim Constitution Interim Constitution adopted the election of a CA, who will adopt a final CC
Bridge btwn deeply divided society of conflict, injustice to = opportunities for all irrespective of colour, race, class,
96 Constitutions
Parliamentary sovereignty replaced by constitutional supremacy
Adopted by CA (National Assembly and Senate) + 2/3 majority b4 new text came into operation, CC had to certify that it
complied with Constitutional Principles in Schedule 4 of the interim Constitution.
The constitutional principles
``solemn pact'' to stick to principles when the final Constitution was drawn up
8 May 96 submitted to CC for certification - text not compliant with the CC Principles - CA amended text, CC certified the
amendment as compliant with the Constitutional Principles =New Constitution came into operation on 4 February 1997
CC is not an Act of Parliament – made up by Constitutional Assembly (CA), a body separate from Parliament.
Constitutional Law – CSL 2601 – First Semester – 2011 Page 1
, Chapter 3: Concepts of Constitutional Law
Section Number & Title Content
1. Republic of South Africa Republic of SA is one, sovereign, democratic state founded on the following values:
(a) Human dignity, equality and human rights
(b) Non-racialism and non-sexism.
(c) Supremacy of the Constitution and the rule of law.
(d) National common voters roll, regular elections + multi-party system of democratic gov.
2. Supremacy of CC CC supreme law any; law or conduct inconsistent is invalid,+ obligations imposed to be
fulfilled
7. Rights (1) Bill of Rights =cornerstone of democracy in SA - values of human dignity, equality &
freedom.
(2) The state must respect, protect, promote and fulfil these rights.
(3) Bill of Rights is subject to the limitations contained in section 36, or elsewhere in the Bill.
8. Application 8(1) Bill of Rights applies to all law binds legislature, executive, judiciary and all organs of
state.
74. Bills amending the (1) Section 1 + sub-section may be amended by a Bill passed by
Constitution (a) NA, with a vote of at least 75 percent of its members; and
(b NCOP, with a vote of at least six provinces.
(2) Chapter 2 may be amended by a Bill passed by
(a) NA, vote of at least two thirds of its members; and
(b) NCOP, vote of at least six provinces.
(3) Any other provision of the Constitution may be amended by a Bill passed by:
(a) NA, vote of at least two-thirds of its members; and
(b) NCOPs,vote of at least six provinces, if amendment
(i) matter that affects the Council;
(ii) alters provincial boundaries, powers, functions or institutions; or
(iii) amends a provision that deals specifically with a provincial matter.
(4) bill amending the CC can’t have provisions other than CC amendments + matters
(5) 30 days b4 bill amending the CC is introduced, person introducing bill must:
(a) publish in GG
(b) submit to the Chairperson of the NCOP for tabling in the Council.
(7)Bill amending the CC can be put to the vote in the NA in 30 days of:
(a) if Assembly is sitting when the bill is introduced; or
(b) if Assembly is in recess when the bill is introduced.
(8) bill referred to in (3)(b), specific province/s, NCOP can’t pass until approved by
legislature/s
(9) A bill amending the Constitution that has been passed by the National Assembly and,
where applicable, by the National Council of Provinces, must be referred to the President for
assent.
172. Powers of courts in 172 (1) (a) When deciding a constitutional matter within its power, a court
constitutional matters must declare that any law or conduct that is inconsistent with the Constitution is invalid to
the extent of its inconsistency.
Constitutional law Definition:
binding rules relating to the distribution and exercise of State authority (power & limitations)
Rules of CC law define the relationship between organs of State and individuals and organs of state inter se
Organ of State Definition: Section 239 – functional or institution that exercises a public power/function.
Constitutional Law – CSL 2601 – First Semester – 2011 Page 2
,Constitutional Law is part of - relationship of Organs of State
Public Law:
exercising of State Authority in relationships of inequality
State, State and Individuals, under State Authority
E.g. Accuses stands trail for criminal offence
Private Law:
Relationship between people on equal footing - No State Authority
E.g. Marriage, can be unequal with parent and child as parent has authority, but there is not State Authority
State involved in private law relationships – ER and EE via labour laws and Landlord and Tenant
State in private law is unequal – Bill of Rights are for Private persons
Administrative Law:
Body of legal rules, governing the admin + powers, functions of admin authorities like government departments.
Part of public law - regulates public interest either btwn authorities or btwn admin authorities& private individuals
Focus on why State is governed
Types of Constitutions: -
1. Flexible and Inflexible -Deals with the Status of the Constitutions and how easy it is to amend it
Flexible – same status as other laws, no special procedure to amend
Inflexible –Superior status to other laws, special procedure to amend (2/3 majority vote of NA)
Amended too easily the majority will try abolish some of these protections
‘61 = flexible / ‘83 = less flexible / ’96 = inflexible
E.g. Germany, Namibia & USA are all inflexible
2. Supreme Constitution and not supreme Constitution Supreme:
Above any other laws, any law inconsistent is invalid
Usually inflexible
Courts have testing power – CC to test the validity of any law that is inconsistent to the Constitution
USA, Canda, Germany and SA
Not Supreme:
Not above any other laws, any laws that are inconsistent can be passed
Usually flexible – called brut law = Parliament is supreme, Constitution is not supreme
Legislature can pass any law even if unreasonable/discriminatory as long as it complies to the procedures for passing
laws
Britain and 83 SA Con
3. Written and unwritten
Britain unwritten but has Statutory Constitutional Sources
Written Laws normally have other Constitutional enactments to supplement it
Sources of CC law – Constitution, Legislation, Case Law, International Law, Common Law & other
4. Indigenous (Autochthonous) or borrowed (Allochthonous) = Van de Vyver: 3 types of Constitutions
1. Reactive Constitution – a result of a specific problem in the past, try to solve = INDIGENOUS LAW = Germany & SA
2. Constitution intended to maintain continuity of norms in society –INDIGENOUS LAW = Netherland
3. Superimposed Constitutions – unrelated to history of country – ZIM- imposed by the British
Aautochthonous – SA CC (home grown)
Allochthonous – ZIM (forced)
Constitutional Law – CSL 2601 – First Semester – 2011 Page 3
, State & Government: -
State (SA)
Specific, geographically defined territory
a community of people who live in territory
Organised system of government
legal order that a community is subjected to
Certain measure, - separate political identity or sovereign political status
State is the permanent legal entity consisting of a territory, community, legal order, organised government and a
measure of political identity
Government of a state :( ANC)
Government is the temporary bearer of state authority – represent the state at a particular time.
Gov - executive function, having a bearing on the formation and implementation of policy.
Baxter, government is ``the tangible machinery of the State”
Sovereignty:
Sec 1 CC - Republic of South Africa is a sovereign state.
used in international law - states which are autonomous and independent, the state is not subject to the authority of
any other state, sole right to own & control its own territory E.g. SA not 2 used airspace of another country without
consent
Britain parliament is still sovereign or supreme power +83 Constitution = Parliament was sovereign - highest legislative
authority was vested in Parliament where parliament could enact any legislation, no matter how unreasonable or
unjust, as long as the procedures were adhered courts had not power to question that legislation
Parliament not sovereign any more cause the Constitution is now the supreme law
Parliament exercise legislative authority subject to the Constitution
Summary:
inflexible is usually a supreme constitution/flexible constitution is usually not supreme
flexibility/inflexibility relates to the ease or difficulty of amending a constitution
supremacy/non-supremacy is the status of a constitution verses other laws of a particular state
supreme higher status than other laws / not supreme ranks equal with other laws
Can have a flexible, supreme constitution/ inflexible constitution which is not supreme
inflexibility of 96 CC - procedure for the adoption of Bills (Acts) amending the Constitution
Supremacy of 96 Constitution - judicial review and CC to test Acts that could conflict the Constitution.
Constitutional Law – CSL 2601 – First Semester – 2011 Page 4
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