Table of Contents:
- Introduction to the Constitution
- The Bill of Rights
- Section 8,9,36,38 & 39 of the Bill of Rights
- Equality
- Human Rights
- Legislation
- Interpretation of Legislation
- Extracts from the constitution: Section 73-82 (legislative process)
- Summary of Cases for Block 2; semester 1
- Christian Education v Minister of Education 2004 (CC)
- Daniels v Campbell 2004 (CC)
- Larbi-Odam v MEC for Education 1998 (CC)
- Harken v Lane 1997 (CC)
- Prince v President and Prince v Minister of Justice 2002 (CC)
- Harris and other v Minister of the Interior and Others (1952)
,Introduction to the Constitution
THE CONSTITUTION
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
a. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
b. Non-racialism and non-sexism.
c. Supremacy of the constitution and the rule of law.
d. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of
democratic government, to ensure accountability, responsiveness and openness.
Philosophical Background
Based on Natural Law
Fundamental rights are a set of higher norms
Government should treat everyone with respect and concern, unlike previously.
‘all men are created equal, that they are endowed by the Creator with certain unalienable rights’
It aims to:
• Heal the divisions of the past and establish a society based on democratic values, social justice and
fundamental human rights;
• Lay the foundations for a democratic and open society in which government is based on the will of the
people and every citizen is equally protected by law;
• Improve the quality of life of all citizens and free the potential of each person; and
• Build a united and democratic South
Types of constitutions
Written or unwritten
Not all constitutions consist of one single piece of legislation. Constitutions may also consist of a
collection of conventions and customs.
Flexible or inflexible
Constitutions may further be divided according to the ease with which they can be amended. A flexible
constitution can be amended quite easily;
Unitary or federal
This concerns the levels of government. Most states have one level of government. In such a state there is
only one central government for the whole state. The powers of government are centralised.
Sovereign or subordinate
A constitution may be a document that merely sets out the structure of the state and the activities of the
different organs of state
The Constitution is the supreme law of the Republic; (is the highest law in the country (see Section 2 of the
constitution)) law or conduct inconsistent with it is invalid, and the obligations imposed by it must be
fulfilled.
Rule of law
, 1. Law is superior to all people and systems
2. Separation of powers to avoid abuse
3. Checks and balances
4. Law is supreme and government must comply
5. Law must be clear and everyone is equal before the law
6. Gov to respect fundamental rights of citizens
7. Independence of judiciary
8. Constitution gives form to the rule of law
Without the rule of law, the whole ides of separation of power will be redundant. Because what lies at the
heart of doctrine of separation of power is the fear of absolute power. It is based on the idea that dividing
power between three arms will prevent any one arm of government from wielding too much power and
becoming oppressive
NB: Parliamentary sovereignty vs constitutional supremacy
Organs Of Government
• Also referred to as: – Separation of Powers OR – Triaspolitika
- The principle of separation of powers, on the one hand, recognises the functional
independence of branches of government.
Branches Of Government: Legislature enacts > national legislation
Legislature & Executive & Judiciary Provincial Legislatures enacts > provincial
legislation
Levels Of National: Municipal Councils enacts > by laws
National & Provincial & Local Government
National legislature (parliament) is the
Levels Of Government: highest law making body in SA.
Distinctive: Parliament consists of TWO HOUSES
– meaning that each sphere has its own – National Assembly – 400 members
unique area of operation – National Council of Provinces – 90members
Interdependent: • Functions of parliament:
– meaning that the three spheres are required – Representative function
to cooperate and acknowledge each other's
area of jurisdiction JUDICIARY
Interrelated: • Court system
– meaning that there should be a system of • Levels of courts – Hierarchy Of The Court
cooperative governance and
intergovernmental relations among the three EXECUTIVE
spheres • Cabinet + Administration
, • Public Protector
STATE INSTITUTIONS UPHOLDING • Human Rights Commission
DEMOCRACY
• Commission for Gender Equality
• Auditor General
• Electoral Commission
• Commission for the Protection and
Protection of the Rights of Cultural,
Religious and Linguistic Communities
• Commission on the Restoration of Justice
The Constitution is transformative in its efforts to replace a race-based, sexist and authoritarian
constitutional dispensation with one in which the principles of non-racialism, non- sexism and
justification of power prevail. The transformative aim of the Constitution is reinforced by the rights
contained in the Bill of Rights, through its focus on the values of human dignity, equality and
freedom, and by the principle that rights may only be limited if it is reasonably justifiable in an open
and democratic society based on these values.
By transformative constitutionalism I mean a long term project of constitutional enactment,
interpretation, and enforcement committed (not in isolation, of course, but in a historical context of
conducive political developments) to transforming a country’s political and social institutions and
power relationships in a democratic, participatory, and egalitarian direction.
Transformative constitutionalism connotes an enterprise of inducing large scale social change through
nonviolent political processes grounded in law. I have in mind a transformation vast enough to be
inadequately captured by the phrase “reform”, but something short of or different from “revolution” in
any traditional sense of the word. In the background is an idea of a highly egalitarian, caring,
multicultural community, governed through participatory, democratic processes in both the polity
and large portions of what we now call the “private sphere”.
The Bill of Rights
An overview of the Bill of Rights
The Constitution consists of 243 sections, grouped into fourteen chapters. One of these, Chapter 2,
comprises a list of human rights, referred to as the ‘Bill of Rights’. Legislation and executive conduct
which unjustifiably interfere with these rights may be declared unconstitutional.
However, in accordance with the principle of ‘adjudicative subsidiarity’ (see Chapter 3 above), courts
should declare legislation and rules of the common law unconstitutional only if those laws cannot be
interpreted in line with the Constitution. This is so because section 39 requires courts to interpret all law
