CSL2601 EXAM NOTES
2022/2023
, Constitutional Law Exam Notes
Study Unit 1
Overview of Unit
1.1 Sources of Constitutional Law
CONCEPT KEYPOINTS
Definition Sources of law refer to the places where you can find legal principles,
and values and govern a particular branch of law.
Meaning, limits, On one hand it could refer to an entire body of rules, both written and
consequences. unwritten which govern the exercise of state authority. On the other
hand it may refer to a written document which contains some or most
of the constitutional rules. It also prescribes the limits that are imposed
on the exercise of state authority. In some instances, the constitution
also prescribes the consequences that may arise in the event of state
authority being improperly exercised.* It cannot be repealed or
amended but it must leave room for growth.(That’s why it only sets out
the framework, the principles, and lets the changeable legislation spell
out the rest.
Legislation/statute It constitutes the second source in the hierarchy of binding sources. The
constitution does not contain all the rules that are needed to deal with
the interaction of state authority. It only sets out the broad language
and sets for the provision of the legislation to then fill in.
Common law It is the unwritten law of South Africa, it is not contained in any
statutes. Since the inception of the constitution, common law has
ceased to be an important source of SA law, it still existed and is
applicable though. English common law somewhat enforced
parliamentary sovereignty, when constitutional supremacy came up, it
became substituted. Refer to section 39(2) of constitution.
Customary law It is a system of law generally derived from custom, long established
practices that have acquired the force of law by common adoption
acquiescence. It is empowered in section 39(2) and 211(2) of the
constitution. Note Pharmaceutical Manufacturers Association of SA
case. By recognizing customary law, the constitution has put it at par
with common law. Indigenous African law, previously seen under
common law lens, now has its own formal standing and should be seen
through the constitution now. However because of the multi-cultural
diversity of SA, it is difficult to determine pure indigenous law. It is
accepted that custom law comes in three forms (a) that practiced by a
community, (b) that which is stipulated by legislation and case law (c)
academic indigenous law used for teaching purposes.
Case law It illustrates the practical application of the constitutional principles,
rules and principles. In the past its application was limited but this has
, changed now. The constitution and its written provisions for how state
authority is exercised and the justifiable bill of rights has led to an
increase in case law
Other sources International law: section 39(1) makes it compulsory for a court to
consider international law in the determination of constitutional issues.
With its conventions and practices, they help protect and promote the
Bill of rights. Academic writings: writings in books and journals. Policy
documents: Current gvt policy expressed in green papers. White papers
and other documents issued by the organs of state. These are often
translated to legal norms. Reports by state institutions: chapter 9
institutions reports and recommendations. Foreign law: section 39 1 ©,
discretionary, the courts MAY choose to use it.
LEGISLATION DESCRIPTION APPLICATION CASE LAW
Section 39(2) “When Interpreting any This shows how
legislation, and when common law, even after
developing the common the constitution still
law or customary law, exists in SA. It is the
every court, tribunal or empowering provision
forum must promote to the development and
the spirit, purport and use of the constitution
objects of the Bill of in today’s legal
Rights” framework. It also
empowers the use and
development of
common law in our
courts.
Section 211(3) “The courts must apply An empowering
customary law when provision to the
that law is applicable, constitutional right of
subject to the the application of
constitution and any customary law. Note, it
legislation that governs and applicable
specifically deals with mostly in the
customary law” framework of
traditional leaders.
Section 39(1) (b) and (c) “When interpreting the Provision for the use of
bill of rights, a court, international law to
tribunal or forum (b) interpret the bill of
must consider rights, also provides for
international law (c) the OPTIONAL use of
may consider foreign foreign law.
law”
, STUDY UNIT 3
Summary of Case
Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of the Constitution of the
Republic of South Africa 1996(10) BCLR 1253 (CC); 1996 (4) SA 744 (CC)
The formal purpose of this judgment is to pronounce whether or not the Court Certifies that all the
provisions of South Africa’s proposed new constitution comply with certain principles contained in the
countries current constitution (IC). Acknowledged the deadlocks in the negotiations that included
whether it was necessary to formulate a new constitution, the fact that those who were drafting the IC
were not elected individuals therefore giving rise to the IC just being temporary and providing for the 1st
democratic election in SA and the compilation of the final constitution there after. The other problem
was the fear by other constituencies (whites) that the process might not take into congnisance their
fears and anxieties and bulldoze them by majority and thereby rendering the negotiation process
redundant. The gvt was willing to hand over power as long as they had a hand in the formulating the
new constitution, the opposition being the ANC were adamant and claimed no one had the right to limit
the power of the majority for any reason and that should be the only mode used in formulating the new
law. A compromise was reached, this is were the two-stage transition came up, the IC and the
constitutional assembly, and the elections that would be held fairly, there after forming a representative
NA, the new constitution would be drafted.
The CA adopted the new constitution after an 86percent of it majority and handed it in t the CC for
deliberation and certification. The court then gave numerous stakeholders and civil society a chance to
contest or support the new constitution by handing in written submissions and right of audience. The CC
had a judicial and not a political mandate as spelt out by the IC but only to see if the choices made by
the different parties in the Constitutional draft complied with the CP’s. The court could not certify the
New Text as It stood because there were several respects in which there had been non-compliance with
the CP’s
The court went on to outline the approach that should be used to interpret the CP’s:
Measuring NT vs CP’s, must be applied purposeful to give expression to the new order of fundamental
rights and any interpretation that does not impede that realization should be avoided, they must not be
interpreted with technical rigidity, they must be read holistically, no CP should be interpreted in a
manner that is in conflict with another, NT provisions should be given a meaning to give it construction.
The courts Objection’s:
The Labour relations Act of 1965 and the Promotion of National unity and Reconciliation Act 34 of 1995
immunity from constitutional scrutiny, goes against CP’s provision of constitutional supremacy and
fundamental rights protection and promotion. The amendment of the constitution, the NT provides for
special majorities but not special procedure. The Courts feel it is necessary to provide for the latter,
