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Summary Intro to Con law 178 A2 notes
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- Intro to con law 178
- Institution
- Stellenbosch University (SUN)
In depth notes for the Con law A2 exam
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INTRODUCTION TOCONSTITUTIONAL LAW 178 S1
Term 1: Prescribed materials:
Prescribed reading:
• Kleyn et al Beginner’s Guide for Law Students (5th ed 2018) pages 1-4; 156-159//51-52; 159-164
• Woolman S & Swanepoel K ‘Constitutional History’ in Woolman S & Bishop M (eds) Constitutional
Law of South Africa o Para (h) on pages 17-19 of Pdf file on SUNLearn o Para (iv) on pages 23-24 of
Pdf file on SUNLearn o Para 2.3 on pages 26-36 on Pdf file on SUNLearn
• ‘50 Years on Remembering Rivonia’ The People’s Law Journal (Issue 3 2014) pages 13-17; 43-53
[available on SUNLearn]
Summary Key and Guidelines
• Summary utilises the specific pages listed under prescribed materials to find the outcomes
mentioned in the guidelines.
• Pages information was found is specified.
• Notes are in the order they were found in the textbook and not the order of the study
outcomes/outlines. All the outcomes can be found within this summary.
• If there are brackets like this: {} that’s information I wanted to include/my own personal
note/point.
Whats not included in the notes:
• Pages 15-17; 26-39; De Vos and Freedman (15 pages)
• 165-167; 180 of Kleyn et al. (4 pages)
19 pages worth of Textbook (aka one weeks’ worth of reading on a good day)
• 20 pages: Sarkin J ‘The drafting of South Africa’s Final Constitution from a Human
Rights Perspective’ (1999) 47 American Journal of Comparative Law
• Article: Constitutional Guidelines for a Democratic South Africa: 129-132. (4 pages):
24 pages worth of articles.
, -
NOTES: KLEYN VILJOEN 1-4; 51-52; 156-159; 159-164
PAGES 1-4:
• Law is a body of rules and principles that exist to facilitate and regulate
how we interact.
• {Constitutional Law fits in by regulating the law; Notes on Constitution
located mainly under Pages156-159}
• Constitution separates the state into three branches:
-Legislative authority: creates laws. (Government, parliament, president,
etc)
-Judicial authority: apply laws and legal principles and interpret the law.
(Lawyers, judges, etc)
-Executive authority: responsible for enforcing the law as a whole. (Police,
military, etc)
According to the constitution, the three branches must function separately to
prevent the abuse of absolute power.
CONSTITUTIONALISM means that the Constitution, not Parliament, is
sovereign.
PAGES 51-52:
• ANC:
- passive resistance through ‘Defiance Campaign of 1951-1952; involved
strikes, protests and other forms of civil disobedience.
- Drafted ‘FREEDOM CHARTER’(committed ANC to non-racialism and
human rights)
- MK (militant organisation formed in response to the banning of the ANC
by 1960)
• PAC (PAN AFRICANIST CONGRESS): formed in 1959~
- break away from ANC passive resistance, commitment to non-violence
and belief in nonracialism.
- Militant organisation
- APLA (militant organisation) Azanian People’s Liberation Army,
intensified after banning by 1960
• Both ANC and PAC banned by apartheid government due to heavy
resistance stemming from both organisations
• Successfully pressured apartheid government (their internal resistance
coupled with external resistance through sanctions) into letting go of their
powers systematically, by the 1980’s.
ADDITIONAL INFO NOT NECESSARILY MENTIONED IN OUTLINE:
• Liberation movements unbanned in 1990 and Nelson Mandela released
from prison.
• Thereafter, apartheid legislation was abolished, and multi-party
negotiations commenced; various parties negotiated in the drafting of the
, 1993 Interim Constitution, which included a Bill Of Rights. 1993 Interim
Constitution was followed by 1996 ‘final’ Constitution.
• Both constitutions aimed to address the injustices of apartheid.
PAGES 156-159:
• A Constitution regulates the structure and functioning of an
organisation/country/legal system. It sets out rules according to which the
country is governed and restricts governmental power.
• Characteristics:
• Transformative; bring change and reform; rectify wrongs of the past, repair
society; long term plan to bridge the gap between a society of deep
division and one that recognises human rights.
• Core aim is to achieve equality
• Government must justify their actions and their leadership is dependent
on the reasoning for their actions and not fear of their command.
• Bridge between abuse of power and power that is responsibly exercised.
• A PREAMBLE is a “solemn declaration” that states the “basic purpose of
the Constitution”. It serves as a guide to help interpret the constitution.
The preamble to the Constitution of the Republic of South Africa 1996 is on
p157 of Kleyn Viljoen. It states, in brief terms: that “we the people”
recognise past injustices and honour and respect those who helped fight
against them; that the aim of the Constitution is to rectify these wrongs
and achieve equality, improve quality of life for all and build a united and
democratic SA.
TYPES OF CONSTITUTIONS (JUST IN CASE):
• Written or unwritten
• Flexible or inflexible
• Unitary or federal
• Sovereign or subordinate
THE INJUSTICES OF THE PAST IN BRIEF TERMS: Colonisation and Apartheid
heavily oppressive on people of colour, especially to black South Africans.
PAGES: 159-164
1910 Union Constitution: To unite SA’s 4 colonies (of the British and
Afrikaans), which were granted self-governance by the British. Create a
Constitution for the whole of SA.
• Based on British ‘Westminster System’, members of Parliament had to be
of ‘European’ descent. +- 15% coloureds in the Cape could vote.
, -
Characteristics of 1910 Union Constitution:
1. Unitary System
2. Single constituency system (‘first past the post’), meaning country is
divided into constituencies, and single constituency with the most
votes gets to represent in government. E.g., Stellenbosch constituency,
Bellville Constituency
3. Prime minister as executive head of state. EXECUTIVE POWER
4. Symbolic head of state (monarchy), King/ Queen. PURELY SYMBOLIC
CANNOT INTERFERE WITH PRIME MINISTERS DECISIONS. Cyril cannot
make decisions that the Prime Minister
makes, overrule her decisions etc, but he can fire her. He appoints a
minister to make certain decisions for him. This probably also helps
decentralise his power.
5. Two houses of Parliament. House of Assembly + Senate. Two houses
must agree on a legislation before it can become law. who has the right
to make these decisions alone? Specified by the Constitution. The
Senate serves legislation purposes
6. Parliamentary Supremacy
7. two thirds majority at joint sitting of the National Assembly and Senate.
- Two thirds majority at joint sitting of the National Assembly and Senate to
amend provisions/legislation
- Granted scant rights, limited franchise
- Entrenched provisions: language and limited voting rights of coloured
people;
Parliamentary Supremacy: Parliament may repeal or change any previous
legislation and is not constrained by the Constitution in what legislation can
pass. Parliament has supreme authority and makes all final decisions.
The 1961 Constitution: enacted following SA’s establishment as a Republic,
independent from Britain, which allowed the acceptance of a new Constitution.
Did not differ from the substance of the 1910 Union Constitution, biggest
difference being the removal of the monarchy as a source of authority, and its
replacement by a State President.
The 1983 Constitution: Created to absorb opposition to apartheid and broaden
democratic basis of government.
EXTRA INFO: caused NP to split into NP and CONSERVATIVE PARTY (CP) in 1982.
Majority of white voters supported 1983 Constitution. Key changes listed on
P164: vote extended to all Indians and coloureds and three legislative
assemblies created to rep each group, together forming Parliament;
competencies of government divided into OWN (handled by each separate
house) and GENERAL AFFAIRS (handled by Parliament as a whole); black people
excluded, constitutional future still reliant on black homelands; State president
abolished as symbolic head of state and replaced by executive State President,
executive authority rested with Cabinet and Head of State.
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