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Constitutional law textbook
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Basic concepts of constitutional law2.1 Introduction
2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
2.2.2 Constitutionalism as a descriptive doctrine
2.2.3 Constitutionalism as a prescriptive doctrine
2.2.4 Models of constitutionalism
2.2.4.1 The Westminster constitutional model
2.2.4.2 The United States constitutional model
2.2.4.3 The German constitutional model
2.2.5 Constitutionalism in South Africa: a brief overview
2.2.5.1 The era of the dominance of the Westminster constitutional model
2.2.5.2 The era of constitutional supremacy
2.2.5.2.1 Constitutional supremacy
2.2.5.2.2 A value-based constitutional system
2.2.5.2.3 Co-operative federalism
2.3 Separation of powers
2.3.1 The purpose and principles of the doctrine of separation of powers
2.3.2 A brief history of the doctrine of separation of powers
2.3.3 Separation of powers: the South African experience
2.3.3.1 The legislature
2.3.3.2 The executive
2.3.3.3 The judiciary
2.3.4 The counter-majoritarian dilemma
2.4 The rule of law
2.4.1 A brief history of the rule of law
2.4.2 The rule of law under the 1996 Constitution
2.5 Democracy
2.5.1 Conceptions of democracy
2.5.2 Direct democracy
2.5.3 Representative democracy
2.5.4 Participatory democracy
2.5.5 Constitutional democracy
Summary
2.1 Introduction
To obtain a sound command of South Africa‘s constitutional law, it is important that we
consider certain fundamental concepts at the outset. This is necessary to establish some level
of common understanding of the principles, doctrines and concepts that lie at the heart of how
our Constitution operates, the context that gave rise to it as well as the context in which it
operates. These concepts lie at the heart of the South African Constitution and find
expression in many of the provisions of the Constitution. When studying specific aspects of
the Constitution, this needs to be done against the background of the concepts discussed
below.
,The principle aim of this chapter is therefore to introduce some of the more important
overarching ideas that are pivotal in both explaining and contextualising the development of
South African constitutional law. Although we focus on constitutional developments that
have taken place in the period after South Africa‘s transition to democracy, we also briefly
consider some important constitutional moments from bygone colonial and apartheid periods
for purposes of context. We will also attempt to locate these constitutional developments
within a broader historical and political context that recognises the influence of the
constitutional law and practices of other countries.
2.2 Constitutionalism
2.2.1 Understanding the nature of constitutionalism
Constitutionalism as an idea or a term is not easy to define. The term ‗constitutionalism‘ is
sometimes used to convey the idea of a government that is limited by a written constitution: it
describes a society in which elected politicians, judicial officers and government officials
must all act in accordance with the law which derives its legitimacy and power from the
constitution itself.1 Constitutionalism, in this sense, is thus concerned with the problem of
how to establish a government with sufficient power to realise a community‘s shared
purposes and to implement the programmes for which a specific government has been elected
by voters. At the same time, at issue is how to structure that government and control the
exercise of power by the various branches of that government (and other powerful role
players in society) in such a way that oppression and abuse of power is prevented.2 As such,
constitutionalism is closely related to the notions of democracy and theories of governance.
As a starting point, we can identify some characteristics of constitutionalism that will assist
us to understand its nature:
• First, constitutionalism is concerned with the formal and legal distribution of power
within a given political community in which a government is ordinarily established in
terms of a written constitution.3
• Second, constitutionalism provides for the establishment of the institutions of
governance, such as the legislature, the executive and the judiciary.
• Third, constitutionalism brings about the creation of binding rules or laws for the
regulation of the political community, its institutions of governance and the governed.
• Fourth, constitutionalism plays an important role in determining the nature and basis
of relations that exist between institutions of governance and those they govern.
• Last, and implicit in the previous points, constitutionalism prescribes limits on the
exercise of state power and provides mechanisms to ensure that the exercise of power
does not exceed the limits set by the constitution.
While this is by no means an attempt at a definition, in identifying these characteristics, we
attempt to expose the types of matters with which constitutionalism would ordinarily be
concerned. In the section that follows immediately below we elaborate further on what
constitutionalism is.
Accepting the characteristics of constitutionalism described above, we can conclude that, in
essence, constitutionalism is about the notion that a constitution must both structure and
constrain state power. On the one hand, a constitution must allocate power to various
,branches of government to allow for the effective governing of a state. On the other hand, it
must limit and/or disperse that power to ensure that it will not be abused.
While constitutionalism seeks to achieve what are clearly important, if not sometimes
conflicting, goals, we must acknowledge that constitutions are not self-executing documents
nor do they contain identical provisions. The development of a particular system of
constitutionalism and its relationship with other important constitutional law concepts, such
as the rule of law, the protection of human rights and democracy, therefore, will depend on
which constitution is under consideration, the relevant political and social history of the
society in which it is being established and the particular rules, principles and institutions it
establishes. Consequently, over the centuries during which the concept has evolved, different
understandings as well as different models of constitutionalism have developed. The
development of these models depended on how a particular constitution structured and
allocated power and which norms were emphasised as foundational to the system by the text
of the constitution and/or by the interpretation and application of that text by judges. We
consider some of these understandings and models below.
PAUSE FOR REFLECTION
The unique nature of South African constitutionalism
In S v Makwanyane and Another, Mahommed J made the following statement which,
arguably, captures the unique nature of South African constitutionalism:
All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared
aspirations of a nation; the values which bind its people, and which discipline its government
and its national institutions; the basic premises upon which judicial, legislative and executive
power is to be wielded; the constitutional limits and the conditions upon which that power is
to be exercised; the national ethos which defines and regulates that exercise; and the moral
and ethical direction which that nation has identified for its future. In some countries, the
Constitution only formalizes, in a legal instrument, a historical consensus of values and
aspirations evolved incrementally from a stable and unbroken past to accommodate the needs
of the future. The South African Constitution is different: it retains from the past only what is
defensible and represents a decisive break from, and a ringing rejection of, that part of the
past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous
identification of and commitment to a democratic, universalistic, caring and aspirationally
egalitarian ethos, expressly articulated in the Constitution. The contrast between the past
which it repudiates and the future to which it seeks to commit the nation is stark and
dramatic.4
This passage highlights the fact that South African constitutionalism must be understood as
relating to more than the mere technical legal regulation of the exercise of state power (and
the limits placed on the exercise of that power) by the various branches of government. South
African constitutionalism is thus not only a descriptive doctrine, factually describing what
institutions should exercise power in what particular manner. It is also a prescriptive doctrine
as it prescribes how state power should be exercised in a legitimate manner, which is related
to the democratic legitimacy of the exercise of that power, and it prohibits the exercise of
state power in certain ways. It is also normative as it sets out the values that must be adhered
to in the governing process. This limits the kinds of actions that any state institutions, and
, sometimes also private institutions, are permitted to perform. We explore these aspects
further below.
2.2.2 Constitutionalism as a descriptive doctrine
We can view constitutionalism as a descriptive doctrine or, put slightly differently, we can
understand it in a descriptive sense. Understood in this way, constitutionalism seeks to
provide a factual description of the institutions, procedures and structures that make up the
constitutional system of a particular state.5 This understanding of constitutionalism is
formalistic in nature: it focuses on explaining the distribution of power, the relations between
the branches of government and the limitations on power as provided for in a given
constitution. It does not concern itself with whether state power is being used in
contravention of democratic or human rights norms. In other words, it does not seek to make
value judgments as to whether the state in question adheres to or upholds its own
constitutional limits or rules or whether it provides for an essentially democratic system of
government.
Constitutionalism as a descriptive doctrine tends to represent a practice that has largely fallen
out of favour as it reduces constitutionalism to a mere explanation of a constitution‘s
structure and operational design. It was in this descriptive sense only that we could, prior to
the advent of democracy in South Africa, speak of South African constitutionalism. This was
similar to other colonial territories where there was a constitution but the constitution failed
to establish a truly democratic system of government, and concepts of equal rights or even
equal citizenship for both black and white inhabitants were absent. This form of
constitutionalism could at best be described as an empty form of constitutionalism as it
focused on form rather than on substance.
PAUSE FOR REFLECTION
Constitutionalism as a descriptive doctrine in practice
The purely descriptive form of constitutionalism discussed above can be illustrated with
reference to the facts and reasoning of the Appellate Division‘s decision in Harris and Others
v Minister of the Interior and Another,6 in which amendments to the Union Constitution then
in place were challenged on procedural grounds.7 The Union Constitution required that
constitutional amendments be passed by the two Houses of Parliament sitting together
(unicamerally) with a two-thirds majority. However, a constitutional amendment, removing
coloured people from the common voters roll, was passed bicamerally (both Houses of
Parliament sitting separately) with a simple majority.
The Court held that the failure on the part of Parliament to pass the constitutional amendment
in accordance with the procedure set out in the Union Constitution resulted in such legislation
not being recognised as an Act of Parliament and was therefore invalid. The Court could not
enquire into whether the removal of coloured people from the common voters role would
diminish the democratic aspects of the Union Constitution or whether the right to vote would
be infringed. It was empowered merely to determine, on procedural grounds, whether the
amendment was valid or not.
2.2.3 Constitutionalism as a prescriptive doctrine
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