Tuesday 31 March test
Assignment due on 21 April 25%
7 Feb
Concepts
Constitutional law
Constitution
Constitutionalism
Westminster model
US model
SA model
What is Constitutionalism law
Body of law which regulates the main organs of state their relationship and the relationship
between various organs of state and individual members of society.
A constitution sets out how all the elements of government are organised and how power is
carved up among different political units. It contains rules about what power is wielded, who
wields it and over whom it is wielded in the governing of a country.
State
Society
Everyone within SA
Government
Judiciary
Not an organ of state – supposed to be independent
The Constitution of SA, 1996. (Do not refer to Act.)
Terms used in two senses
Generally it is a system of governance in a country
In a narrow sense refers to a legal document that defines structures, powers and capacities
of government as well as the relationship between state and citizens.
It has also acquired a normative sense
Refers to the organic and fundamental law of a particular state and implies commitment to a
particular vision of a good society.
C is the supreme law of the country. Any other subordinate to the Constitution.
Constitution performs several functions
• Provides legal framework for the operation of government
• Defines the ultimate sources of legal authority
• Source of legitimacy for the state and its activities
• Establishes various organs and institutions of state and confers powers
,• The law behind laws
How do Constitutions emerge
Usually emerge from a critical historical conjuncture in the political development of a state.
SA history
1910 – Union
1961 – Republic
1983 – tri parliament
1993 – Codesa transitional constitutional, interim
1996 – final constitution (has been amended 18 times)
The drafting of a new constitution depends on the political situation of a state
What should constitutions include
1. Preamble
• Introduction
• Symbolic and ideological purposes
• Written in grand and rhetorical style and glorifies the state’s history, its struggles and
its champions
• Does not have any legal significance
2. A chart of the state system
Concerned with the way in which public authority is distributed, exercise and controlled, and
with the accession to and succession in public office.
It includes both substance and procedure.
Organized according to principle of constitutional tripartisan: legislature, executive, judiciary.
Three main organs of state (fourth is
chapter 9)
3. An amending provision
Allows the modification of the provisions of the constitution without rejection the whole
system
Two ways to amend: flexible approach or rigid approach
Many constitutions provide different amending procedures for different sections of the
constitution e.g. SA constitution s 74
4. Bill of Rights
List of fundamental rights of members of a society which the gov cannot or should not
violate
Traditional Bill of Rights contain civil and political rights. Known as negative rights: equality,
liberties, free speech, assembly, property and association
Modern constitutions include positive rights, cultural rights and environmental rights
These rights limit public power
, 5. Financial provisions
Two kinds of financial measures:
To generate revenue for the state
To allow money already collected to be spent
Constitution makes provision for the supervision of the national budget
National budget – annual exercise s77
What should the constitution tell us
1. ultimate authority
In the UK Westminster system
We have constitutional authority
2. the role of the judiciary
Should identify
3. the hierarchy of legal norms
Should indicate how conflicts among different laws are to be resolved
Parliament supremacy?
Constitutional supremacy?
How conflicts of law should be resolved between spheres of government
Must indicate the legal relationship between national constitution and provincial
constitutions
4. emergency powers
Should indicate the position concerning its own suspension or concerning deviation from
some of its provisions e.g. s37
Constitutionalism
Theory of constitutional law
Descriptive and prescriptive
Descriptive: provides a factual description of the institutions, procedures and structures that
make up the constitutional system e.g. Harris case
Prescriptive: prescribes in general terms the manner in which state power is allocated and
exercised. It demands that a particular constitutional system adhere to certain norms and
principles e.g. rule of law, democracy, SOP (separation of powers), independence of the
judiciary
It is about the limitation of the exercise of the state power
It allocates power to various organs of state, but at the same time prescribe how that state
power ought to be exercised
De Vos: it is concerned with the formal and legal distribution of power
Summary of constitution
Provides for the establishment of the institutions of gov
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