CSL2601
MAY JUNE 2024
EXAM PORTFOLIO 2024
QUESTION 1
South African constitutional law represents the cornerstone of democracy in South Africa,
embodying the fundamental principles and legal standards that govern the country. This
branch of law, rooted deeply in the nation’s supreme Constitution, dictates not only the
legal structure of the state and the distribution of governmental powers but also
underscores the indelible rights and duties of its citizens. At its core, constitutional law in
South Africa aims to balance the exercise of authority with the preservation of individual
freedoms, ensuring that the specter of apartheid's injustices never again darkens its
horizons.
, The South African Constitution, heralded globally for its progressive stance on human
rights and social justice, establishes the legal framework within which constitutional law
operates. Section 1(c) of the Constitution enshrines the supremacy of the Constitution,
setting a foundational value that nothing within the republic’s legal system can override
the provisions of this supreme document. This clause is the bedrock upon which the
legitimacy of all laws and governmental actions rests. Further amplifying this principle,
Section 2 unequivocally asserts that the Constitution is the supreme law of the republic,
emphatically stating that any law or conduct inconsistent with it is invalid.
Section 172(1)(a) of the Constitution empowers the courts, particularly the Constitutional
Court, to declare any law or conduct that violates the Constitution as invalid. This
provision is crucial in shaping constitutional law, as it emphasizes the judiciary's role in
upholding constitutional values and protecting citizens' rights against potential abuses.
The courts, through their interpretative duties, also contribute to the evolving nature of
constitutional law, often clarifying and expanding on the understanding of rights and duties
prescribed within the Constitution.
A pivotal case that demonstrates the supremacy of the Constitution and the role of
constitutional law is the *Minister of Health v. Treatment Action Campaign (2002)*, where
the Constitutional Court ordered the South African government to make antiretroviral
drugs available to pregnant women to fight mother-to-child transmission of HIV. This
landmark ruling underscored not only the Constitution’s authority over government
policies but also illuminated its commitment to protecting individual rights—specifically,
the right to health care outlined in Section 27 of the Constitution.
In National Coalition for Gay and Lesbian Equality v Minister of Justice (1998) case,
which led to the decriminalization of sodomy. By aligning with Section 9 of the
Constitution, which prohibits discrimination based on sexual orientation, among other
grounds, this ruling further shone a light on the role of constitutional law in promoting
equality and protecting minority groups.
Moreover, the Constitution goes beyond merely setting out the legal framework; it
embodies the aspirations of a democratic South Africa, aiming for social justice, equality,
and human dignity for all its inhabitants. Sections 7 to 39, known as the Bill of Rights, are
