UNIVERSITY OF THE WESTERN CAPE

PUBLIC LAW & JURISPRUDENCE: CONSTITUTIONAL LAW

(CON202)

COURSE OUTLINE – MODULE INFORMATION1

2023

Note: This Course Outline is subject to change

Dear Student,

Welcome to Constitutional (CON202). This is a year course offered at Level 2 of the LLB.

The information set out herein pertains only to the presentation of the module for first
semester of 2023, from 13 February – 19 May 2023.

All information relating to the module is set out herein must be read together with any
announcements placed on iKamva or made in lectures. All information posted on iKamva
and lectures will be taken as having been brought to the attention of all students. It is
incumbent on each and every student to keep abreast with any and all announcements placed
on iKamva and or made during online lectures.

General information

Constitutional Law is housed in the Department of Public Law & Jurisprudence.

The Head of the Department is Professor W le Roux (Room 201, Tel:021 959 3309, email:
wleroux@uwc.ac.za).
1
This document draws heavily on the Constitutional Law 202 Information Sheet 2022 – and the contents therein contained
- drafted by my colleague Dr Sarah Fick who kindly made same available to me as a template which I have amended (where
necessary) for purposes of the fist semester of 2023. .

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The administrative assistant is Mrs L Thomas (Room 204, Tel: 021 959 2171, email:
lthomas@uwc.ac.za).

Lecturers

Prof Radley Henrico

Email: rhenrico@uwc.ac.za

Ms Lisa Draga
Email: ldraga@uwc.ac.za

Ms Lumba Ndhlovu
Email: 3564020@myuwc.ac.za

Prof. Henrico is the course coordinator of Constitutional Law 202, for the first semester. All
and any queries or complaints relating to the course must be directed to him. Students are
able to consult with lecturers via e-mail. Emails raising queries concerning the entire class
will be answered via iKamva.

Email etiquette

Always start your e-mail with a greeting (salutation) to your lecturer or GLA, namely: Dear
Prof X (surname), or Dear Ms Y (surname). It is a matter of common decency that such
etiquette is observed. Please always use a respectful tone when engaging with your lecturer or
GLA. Even though you may be tired or frustrated about something, emails addressed as
“Hi”, “Hey”, or without any salutation will be ignored and deleted!

Stick to reasonable hours when emailing lecturers or GLAs, namely 8AM – 5PM weekdays,
and allow for a reasonable time for a response, namely at least one working day.

Adapted from: https://www.routledge.com/blog/article/5-tips-for-improving-your-digital-

etiquette

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Announcements

It is your duty to read carefully all announcements posted on iKamva. Any emails received
from students relating to queries that have already been addressed by way of announcements
on iKamva will be ignored.

Consultations

Consultations may take place online and in-person, and arrangements must be made with
your respective lecturer by way of email.

Nature and structure of the course

Constitutional Law is a year module taught on a hybrid basis, and also subject to the 70:30%
in-person online rule for both semesters. Accordingly, 70% of the course material will be
taught by way of in-person lectures, the remaining 30% by way of online. Depending on the
load shedding situation, the in-person online ratio could change. Note that all tutorials will be
facilitated in-person.

Teaching methodology

The course material to be covered in this semester will be facilitated by three lecturers.
unless otherwise advised. Each lecturer has her or his own method of teaching (pedagogy).
This means that each lecturer has their unique way in which they facilitate the transference
of knowledge and understanding of course material with reference to a combination of the
prescribed textbook, readings, lecturer notes (if any), presentation slides, study guides and/or
podcasts.

All work uploaded to Ikamva, regardless of the particular format, is examinable unless
otherwise indicated.

Tutorials will be taught in-person and on campus, unless otherwise indicated. Tutorial
attendance in-person is compulsory. See further detailed information in this regard under
heading Tutorials and tutors’ role below.

Each lecturer will choose the mode of delivery for their topics.

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Learning outcomes of the course

Constitutional law is a year module. On completion of this module students should be able to:

 Discuss and apply the values underlying the Constitution;

 Explain, examine and apply the basic constitutional principles;
 Describe the making of the Constitution and its role in decolonisation and
transformation;
 Explain and apply the interpretation of the Constitution with a specific focus on
transformative constitutionalism;
 Apply and evaluate the law regarding the structure of government and the relation
between the different organs of state as well as the different spheres of government
and their powers;
 Describe and apply the application and limitation of the rights in the Bill of Rights, as
well as the available constitutional remedies;
 Articulate the scope, content and application of selected rights in the Bill of Rights
and apply this knowledge in particular factual situations with reference to relevant
case law;
 Discuss and analyse case law;
 Prepare an argument based on collaborative research;
 Identify and discuss social justice and ethical issues arising out of human rights
matters;
 Describe and apply the constitutional rules regarding customary law;
 Describe the effect of globalisation and digitalisation on constitutional law and
litigation.

Using iKamva for free

To use the materials on iKavma (view content/videos) without incurring any costs, students
need to login via the University Open VPN first. To be able to login via the VPN, follow the
instructions on either one of these sites:
https://iamuwc.uwc.ac.za/

https://ikamva.uwc.ac.za/content/HelpMe/#faq

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For any question, please contact the service desk (servicedesk@uwc.ac.za).

Course material

Prescribed material

Textbooks

The prescribed textbook for this course is:

De Vos (Ed): South African Constitutional Law in Context, 2nd edition (2021)

ISBN: 9780190746162 [Print]
 
De Vos (Ed): South African Constitutional Law in Context, 2nd edition (2021)
ISBN: 9780190751104 [e-publication]

The textbook is available online via the library website. Use this link to access it:
https://web-s-ebscohost-com.ezproxy.uwc.ac.za/ehost/ebookviewer/ebook/
bmxlYmtfXzI3NTY3NThfX0FO0?sid=27c334ae-82c6-47c9-9440-
ef052d42a04a@redis&vid=0&format=EK&rid=1#

The books: Rautenbach-Malherbe Constitutional Law 6th ed LexisNexis (2012), and Motala
and Ramaphosa Constitutional Law: Analysis and Cases (2002) (Oxford SA) are
recommended and students are encouraged to read these and other suggested books in
relation to each section of the work covered.

Case law

The course relies heavily on case law and students are required to read a number of reported
cases. A solid understanding of the prescribed cases is necessary, without which a student
will have difficulty in passing this course. All Constitutional Court (CC) judgments are
available at: http://www.concourt.gov.za/ Judgments of Supreme Court of Appeal (SCA) are
available at: http://www.uovs.ac.za/law/supreme.htm or http://www.law.wits.ac.za/sca/

Most reported High Court, SCA, and CC judgments are also available at: http://www.saflii.org

Tests, Tutorials, Assignments and Examination

Tests

There will be three (3) COMPULSORY tests in this course. The two best marks will be
used to calculate the year mark.

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THERE WILL BE NO SICK TEST(S) FOR THIS COURSE. Where students miss a test,
the other two tests will automatically constitute the two marks used to calculate 40% of the
year mark. DO NOT SIMPLY MISS A TEST. THEY ARE ALL COMPULSORY. In the
event of you voluntarily missing a test, and if for some legitimate reason you are unable to
write one of the remaining two tests, you will still not qualify to receive a sick test.
THEREFORE, YOU NEED TO WRITE ALL THE TESTS!

Test dates are not-negotiable. Requests for the postponement of any test(s) will not be
entertained. All tests will take the form of sit down tests, unless otherwise indicated. Hence,
it is your responsibility to always ensure you are at all times fully abreast with all the topics
(as read with the relevant prescribed source material) in the eventuality of the test date(s) for
this module falling on the same day, but at a different time, allocated for the writing of the
CON202 test.

The format of the tests may consist of multiple choice questions, theory-based questions,
problem-based questions or theory and/or problem-based questions in respect of which
students will be required to answer TRUE and FALSE questions.

The format of the test(s) is at the discretion of each individual lecturer.

The dates of the aforementioned tests will be announced via IKAMVA as soon as the dates
become available.

Tutorials and Tutors’ Role

The tutorial mark makes up 10% of the year mark.

Tutorials will be facilitated in-person on campus, unless otherwise indicated, and all
tutorial attendance is compulsory. No student will be permitted to submit an answer to a
long question (discussed below) unless s(he) has attended a tutorial in-person. Any student
submitting a long answer who has failed to attend an in-person tutorial relevant to the
long question will receive 0%.

In each tutorial week five (5) MCQ questions will be uploaded to IKAMVA. Students are
required to complete these questions by 16h00 on the final day (Friday) of that tutorial week.
Students will also be required to complete a long question by the start of the tutorial week.
The long question will be uploaded on the Assignment tab by 09h00 of the Thursday, before

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the commencement of the tutorial week and the answer thereto must be submitted by students
by 12h00 (NOON) on the Sunday preceding the tutorial week). Late submissions will not be
entertained. Tutors will provide students with general feedback in respect of their answers to
the long question. The best 4 out of the 5 tutorials will count for marks.

Assignment (applicable in second semester)

There will be one compulsory research assignment in the second semester. It will be made
available on iKamva. Students must complete the assignment in groups of two or three
students. The marks for the assignment will count towards the year mark.

There will be no opportunities for sick assignments and any student who fails to hand in an
assignment will be awarded 0%.

Assignments submitted on the submission date but after the submission time will forfeit 3%.
Assignments submitted the day after the due date will forfeit 5%. Thereafter, 5% will be
subtracted for every day the assignment is late. Submission of assignments will not be
accepted more than one (1) week after the due date, in which event 0% will be awarded.

The assignment due date is non-negotiable. Requests for the postponement of the due date
will not be entertained.

All assignments will go through Turnitin to check for plagiarism. Students are WARNED
not to copy from each other or to use any source material (without acknowledging same),
and passing off or representing in any way or manner that such material is their own idea or
thought(s)! Students found guilty of plagiarism or cheating will be dealt with according to
University policies and rules.

Examination

Constitutional Law 202 is a year course and no examination will be written in June. One
examination will be written at the end of the second semester in November 2023. The format
of the examination (and whether same will be sit down or online) will be determined and
announced before the commencement of the second semester. The examination counts 50%
and the year mark 50% of the final mark.

Calculation of marks

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Calculation of year mark

1 assignment 20%
2 best tests 70% (35% each)
Tutorials 10%
Total 100%

Calculation of final mark

Year mark + examination mark ÷ 2 = Final mark. This calculation is used in both final
examinations and supplementary examinations.

Lecturing Schedule First Semester (2023)

(13 February – 19 May 2023)

Week 1 (13 February) Topic 1: Introduction

Basic constitutional
principles

Ms Lisa Draga

Week 2 (20 February) Topic 1: Introduction

Basic constitutional
principles

Ms Lisa Draga

Week 3 (27 February) Topic 2: Transformative Tutorial 1

constitutionalism

Prof Henrico

Week 4 (6 March) Topic 2: Transformative

constitutionalism

Prof Henrico

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Week 5 (13 March) Topic 2: Transformative Tutorial 2
constitutionalism

Prof Henrico

Week 6 (20 March – HRD) Topic 3: Legislative 22 March: Test 1

Authority (Wednesday)

Ms Lisa Draga

Week 7 (27 March) Topic 3: Legislative Tutorial 3

Authority

Ms Lisa Draga

Break (01 April)

Week 8 (11 April) Topic 3: Legislative

Authority

Ms Lisa Draga

Week 9 (17 April) Topic 4: Executive Tutorial 4

Authority

Ms Lumba Ndhlovu

Week 10 (24 April) Topic 4: Executive

Authority

Ms Lumba Ndhlovu

Week 11 (2 May) Topic 5: Judicial Authority 3 May: Test 2 (Wednesday)

Ms Lumba Ndhlovu Tutorial 5

Week 12 (8 May) Topic 5: Judicial Authority

Ms Lumba Ndhlovu

Week 13 (15 May) Topic 5: Judicial Authority Tutorial 6

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 Ms Lumba Ndhlovu

COURSE OUTLINE (2023)

TOPIC 1: INTRODUCTION (MS DRAGA)

Week 1 (13 February)

1.1 Basic constitutional principles

Prescribed reading

 De Vos et al pp 42-95

 In re Certification of the Constitution of the RSA 1996 (10) BCLR 1253 (CC) paras
27-30; 106-113 (First Certification Case)

Additional reading

 Currie & De Waal The New Constitutional and Administrative Law (2001) pp 24-37

Week 2 (20 February)

1.2 The making of the Constitution

Prescribed reading

 De Vos et al pp 3-25

 In re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC); 1996 (10)
BCLR 1253 (CC) (First Certification Case) paras 1-3; 5-21; 26-43
Additional reading

 C Murray “A Constitutional Beginning: Making South Africa’s Final Constitution”

(2001) 23 UALR Law Review 809

 A Sachs “The creation of South Africa’s Constitution” [comments] (1996) New York
Law School Law Review Vol 41(2) pp 669-702

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TOPIC 2: TRANSFORMATIVE CONSTITUTIONALISM (PROF HENRICO)

Weeks 3-5 (27 February -13 March)

Prescribed reading

 Study Notes for topic 2 to be uploaded onto iKamva

 De Vos et al pp 26-31; 233-234; 426-428; and 516-517

 Sections 1(a)-(d); 8(1) & (2); 9(1) & (2); 39(1)-(3); 165(1) & (2); and 211 & 212 of
the Constitution

 Mureinik E “A bridge to where – introducing the Interim Bill of Rights?” (1994)

South African Journal of Human Rights 31-48 (Only in so far as same is referred to in
the Study Notes for topic 2)

 Klare K “Legal Culture and Transformative Constitutionalism” (1998) South African

Journal on Human Rights pp 146-172 (Only in so far as same is referred to in the
Study Notes for topic 2)

 Langa P “Transformative Constitutionalism” (2006) Stellenbosch Law Review 351-

360 (Only in so far as same is referred to in the Study Notes for topic 2)

 Henrico R “Educating South African legal practitioners: Combining transformative

legal education with ubuntu” (2016) US-China Law Review 817-839 (Only in so far
as same is referred to in the Study Notes for topic 2)

TOPIC 3: LEGISLATIVE AUTHORITY (MS DRAGA)

Weeks 6-8 (20 March – 11 April)

Prescribed for entire Topic 3: Lesson 3 on iKamva

3.1 Introduction

Prescribed reading

 Section 42 of the Constitution

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  De Vos et al pp 106-113

3.2 General rules regarding the operation of Parliament

Prescribed reading

 Sections 45, 56-59, 69, 70-72, 118 of the Constitution

 De Vos et al pp 113-127

 Primedia Broadcasting (a division of Primedia (Pty) Ltd) and others v Speaker of the
National Assembly and others [2016] 4 All SA 793 (SCA); 2017 (1) SA 572 (SCA)
(only in so far as discussed in lessons and the textbook)

 Democratic Alliance v Speaker of the National Assembly and others 2016 (3) SA 487
(CC) (only in so far as discussed in lessons and the textbook)

 Merafong Demarcation Forum & Others v President RSA & Others 2008 (10) BCLR
968 (CC) para's 50 & 51 as well as 295 and 296

 Moutse Demarcation Forum v President RSA & Others 2011(11) BCLR 1158 (CC)
paras  57-67 

 Doctors for Life International v Speaker of the National Assembly and Others (12)
BCLR1399 (CC)

o The nature of our constitutional democracy – paras 110 to 117

o The meaning and scope of the duty to facilitate public involvement – paras
118 to 146
o Did the NCOP and the provinces comply with the public participation duties?
paras 148 to 164
o Constitutional Court applies the test to determine whether duty to facilitate
public participation has been complied with paras 167 to 196 

3.3 The National Assembly

Prescribed reading

 Sections 19, 46-57, 74, 86 of the Constitution

 De Vos et al pp 127-145

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  New Nation Movement NPC and Others v President of the Republic of South Africa
and Others 2020 (8) BCLR 950 (CC); 2020 (6) SA 257 (CC)

3.4 The National Council of Provinces

Prescribed reading

 Sections 60-70, 75, 104 of the Constitution

 De Vos et al pp 145-154

3.5 Functions of Parliament

Prescribed reading

 Sections 42, 44, 55-56, 69, 73-80, 89, 92, 102 of the Constitution

 De Vos et al pp 154-180

TOPIC 4: EXECUTIVE AUTHORITY (MS L NDHLOVU)

Week 9-10 (18 April)

Prescribed reading for entire Topic 4: Lesson 4 on iKamva

4.1 Composition of the executive authority

Prescribed reading

 De Vos et al pp 181-183

4.2 The President: appointment, removal and functions

Prescribed reading

 Sections 83-91, 102 of the Constitution

 De Vos et al pp 183-197

 Economic Freedom Fighters and others v Speaker of the National Assembly and
another (EFF II) 2018 (2) SA 571 (CC) (only in so far as discussed in lesson and the
textbook)

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  United Democratic Movement v Speaker of the National Assembly and others 2017
(5) SA 300 (CC) (only so far as discussed in lessons and the textbook)

4.3 The Cabinet: appointment, removal and powers

Prescribed reading

 Sections 90-99, 102 of the Constitution

 De Vos et al pp 210-217

4.4 Review of the President’s and Cabinet’s actions

Prescribed reading

 Section 101 of the Constitution

 De Vos et al pp 197-210, 216

 President of the Republic of South Africa v Hugo 1997 (6) BCLR 708 (CC) para 1-29

 President of the RSA v South African Rugby Football Union 1999 (10) BCLR 1059
(CC) par 1-18; par 37-57 (SARFU case)

 Democratic Alliance v President of South Africa and Others 2013 (1) SA 248 (CC)
(only in so far as discussed in class)

 De Beer & Others v Minister of CoGTA (21542/2020) [2020] ZAGPPHC 184 pars 6
&7

 Fair-Trade Independent Tobacco Association v President of the Republic of South

Africa & Another (21688/2020) [2020] ZAGPPHC 246 (only in so far as discussed in
lessons and the Van Staden article)

 Van Staden M “Constitutional rights and their limitations: A critical appraisal of the
COVID-19 lockdown in South Africa” African Human Rights Journal 484-511

Additional reading

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  Corder H & Hoexter C ‘lawfare in South Africa and is Effects on the Judiciary’
(2017) 10 African Journal of Legal Studies pp 105-126

 Kawadza H ‘Attacks on the Judiciary: Understandings of a political versus Legal

Constitutionalism Dilemma?’ (2018) 21 PER 1-23

 The Minister of Justice and Constitutional Development v The Southern African

Litigation Centre (867/15) [2016] ZASCA 17 (15 March 2016)

 The Prosecutor v Omar Hassan Ahmad Al-Bashir ICC-02/05-01/09 (2017) 1-53

TOPIC 5: JUDICIAL AUTHORITY AND CHAPTER 9 INSTITUTIONS (MS

NDHLOVU)

Weeks 11-13 (2 May – 15 May)

1 The judiciary and South Africa’s history

Prescribed reading

 De Vos et al pp 219-243 and 267-271

2 The independence of the judiciary

Prescribed reading

 Chapter 8 of the Constitution

 De Vos et al pp 244-266

 In re Certification of the Constitution of the RSA (First Certification Case) 1996 (10)
BCLR 1253 (CC) paras 118-139

 Van Rooyen and others v S and others 2002 (8) BCLR 810 (CC) paras 1-35, 75-86

 Justice Alliance of South Africa v President of Republic of South Africa and Others,
Freedom Under Law v President of Republic of South Africa and Others, Centre for

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 Applied Legal Studies and Another v President of Republic of South Africa and
Others 2011 (10) BCLR 1017 (CC) (29 July 2011) paras 1-11, 20, 41, 50-52, 62-63,
60-68, 73, 116

Additional reading

 L Maqutu “When the judiciary flouts separation of powers: Attenuating the credibility
of the National Prosecuting Authority” PELJ 2015 (18) 7

3 The Constitutional Court’s checks and balances, promotion of accountability and the
guardianship of the Constitution

Prescribed reading

 EFF v Speaker of the National Assembly [2017] ZACC 47; 2018 (2) SA 571 (CC);
2018 (3) BCLR 259 (CC) (Impeachment judgment) - minority paras 1-13, 35, 39, 43,
46, 51-52, 66, 87, 89, 92-93. Majority paras 176-182, 188-196, 199-208.

 Corruption Watch NPC and Others v President of the Republic of South Africa and
Others [2018] ZACC 23; 2018 (2) SACR 442 (CC)

 Secretary of the Judicial Commission of Inquiry into Allegations of State Capture,

Corruption and Fraud in the Public Sector including Organs of State v Jacob
Gedleyihlekisa Zuma [2021] ZACC 2 paras 1-52; 58-66; 80; 89-95; 101-104; 115

4 Chapter 9 institutions supporting constitutional democracy

Prescribed reading

 De Vos et al pp 283-299

 EFF v Speaker of the National Assembly 2016 (3) SA 580 (CC); 2016 (5) BCLR 618
(CC) (Nkandla judgment) paras 2-13, 23, 35-36, 64-78

 Public Protector v Commissioner of the South African Revenue Services [2020]

ZACC 28; 2021 (5) BCLR 522 (CC)

Additional reading

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 Woolman and Bishop ‘Public Protector’ in Stuart Woolman and Michael Bishop (eds)
Constitutional Law of South Africa 2nd ed (Cape Town: Juta, 2014) chapter 24A pp 1-
18

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