Summary
Summary - Constitutional law
- Course
- Constitutional law (PBL210)
- Institution
- University Of South Africa (Unisa)
Summary Notes of Constitutional law notes
[Show more]
Seller
Follow
Content preview
PBL 210 NOTESThe preamble of the Constitution can be defined as the summary of the purpose
of the Constitution and the history and circumstances in which the Constitution
was adopted upon. The four main objective of the Constitution are:
1. To heal the division of the past
2. To lay foundation for a democratic and open society
3. To improve the quality of life for all citizens
4. To establish a united democratic SA
In Colonial Treasure case, the court held that the preamble of the constitution
should be consulted if the wording of an Act creates doubt about its objects.
In Union and Rook Insurance v Carmichaels’ case the court held that the
preamble of the constitution is the key to the minds of the makers of an Act
and the aspects of which that Act will address. But the preamble of the
constitution must only be consulted if the wording of the Act is ambiguous and
not clear.
It is the argued that the Preamble of the Constitution > statute preamble.
In S v Makwanyane case, the court held that the preamble should not be
dismissed as a mere throat clearing exercise for little interpretative value. It
helps to establish the basic design of the Constitution and its fundamental
purposes.
FOUNDING PROVISIONS
The founding provisions can be found on Chapter 1 of the Constitution. Ubuntu is
one of the African values and although not directly incorporated in the
Constitution it is given recognition in section 1. There aspects of the SA state
are: Republic is one state, it is sovereign and recognised as an independent
democratic institution.
In August v Electoral Commission case, the court held that section 1(d) of the
Constitution holds one of the fundamental values and principle of the
Constitution and that any limitation or suffrage entrenched had to be done so in
terms of law of general application and other requirements of section 36 of the
Constitution.
In Minister of Health v New Clicks, court held that accountability,
responsiveness and openness are fundamental values of the constitution, section
1(d).
, In the First Certification Judgement, court held that the Constitution as
stated in terms of section 2, is the supreme law of the republic. All laws are
subject to the Constitution, and no one is beyond the law.
THEME 9: CO-OPERATIVE GOVERNMENT
Before 1994 during negotiations, there were dogmatic viewpoints.
- Centralists held that provincial and local government should be
subordinate to national government with limited powers.
- Federalists held that each sphere of government should be allocated
specific powers and functions and that the limitation of such power
should be invalidated in terms of the Constitution.
Post 1994, the dogmatic viewpoint was replaced by pragmatism which introduced
a system of co-operative government where principles are unique and new.
The aim of co-operative government
1. To facilitate inter-governmental relations
2. To foster co-operation and co-ordination
3. Prevent non-competitive political conduct.
The Constitution gives effect to co-operative government in chapter 3 (section
40 and 41)
Development of concept of co-operative government
There are two models (systems) of federalism:
1. Divided model: there is a clear and distinct division between powers of
national and regional government.
- Provincial/ regional interest are not represented at national sphere.
- There is no mechanism of co-operation between spheres.
2. Integrated model: aims at integrating and co-ordinating spheres.
- Proper division of State revenue
- Provincial/regional interest are represented in national sphere.
- There are procedures so that levels of government can co-operate with
one another.
WHY SA MOVED TO INTERGRATED MODEL OF FEDERALISM
- The constitution protects co-operative government in chapter 3
- The constitution refers to sphere not levels.
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through EFT, credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying this summary from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller itumelengramatsoele. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy this summary for R90,00. You're not tied to anything after your purchase.
Can Stuvia be trusted?
4.6 stars on Google & Trustpilot (+1000 reviews)
75323 documents were sold in the last 30 days
Founded in 2010, the go-to place to buy summaries for 14 years now