SA constitutional Evolutionary development not

History of SA constitutional law development revolutionary development Revolutionary

development: Conflict of 17th Parliament after 1700
radical and mostly century
pre 1993- SA Con. Evolutionary development: violent action that
Intro
development based on development of law from existing brings about change
West- minster systerm foundations without radical - Struggle between King and
breakaway from previous provisions - Two schools of thought emerged parliament ends with adoption of Act
- Parliment sovereign (Sir Thomas Smith) of Settlement
allows for greater stability and most - Monarchy sovereign(Thomas Hobbes) - Doctrine of parliamentary
Commonwealth states evolved this way - Conflict was inevitable as the Commons, sovereignty gained popularity
Judges and people examined the powers of - The kings Magnum Concilium (kings
Development Concept of parliament parliament referred to official the king, Parliament and courts. royal council) later developed into
parliamentry system in as organ of state discussion - later referred to - Several clashes ensued Parliament
Early germanic English Con. law traced to British Con serious discussions and later - Case of prohibitions - Judge edward Coke - When the Concilium regis(splinter
foundations law. reffered to discussion between held that King(who was attempting to group of Norman kings advisors)
king and council. prevent spiritual courts from hearing other became too big to be efficient the
no knowledge of changing
matters) was bound by law and had no leading memebers formed
law and law could only be
power to make legal decisions. confidential commitee to take over
found.
Law seen as Period between - Case of proclamations - Judge Edward administrative function
individuals expected to take Anglo- saxon period Norman period
immutable and 1215- 17th Coke held that the king (who attempted to - These members swore oath of
law into own hands when (pre 10th cnt) (post- 10th century)
supreme. century alter law via proclomations) had no power secrecy and was known as privy
wronged.
to change/ create law council
- Germanic warlords - Case of Commendams - Judge Edward - When privy council became too
Government - began with william the - Parliament developed from Kings Coke questioned whether bishop entitled large charles 2 created smaller
authority unheard of with little direct
rules and customs led conquerer in 1066 Magnum Consilium (great council) to income granted by kings commendams. body called Cabinet council(close
except: contact to subjects.
to development of - introduction of feudel and eventually called National The king instructed Edward not to proceed advisors to king)
- In 941 - subjects
certain legal system Assembly with case and that judges should stop - Cabinet council - limited power and
swore oath of
relationships and - feudalism describes - Parliament had to consent to taxes cases if ordered to do so by the king. most decisons ratified by privy
paterfamilias(head of allegiance to king
ultimatly is basis of relationship between and new laws - Consent of the - All judges listened to king but not council.
family) had unrestricted - Kings wise men
parliamentry system. landlords and vassals. community of the realm (house of Edward who was subsequently dismissed - Reason for development of these
power. swore oath of
allegiance on behalf - vassals provide militiry commons) required as a judge but later became a lord. couuncils was that king was not held
of community assistance in return for - 1327- 1377 Parliament divided - Lord Coke initiated adoption of Petition of to ministrel responsibilities and the
Families banded - King entitled to staying on landlords into 2 houses (Commons + Lords) Right (bill) - refrenced old laws (magna cabinet needed this.
together to form tribes. subjects support property - Legislative powers exercised carta) and stopped king from exercising - Thus the doctrine of seals was
Customs include: and in return they - kings had wide powers but through petitions from Commons actions in conflict with these laws. developed which required official
1.Allegiance relationship recieved protection didnt assume autocratic to the King and his nobles - King charles tried to prevent this bill but documents be countersigned by a
2.Community relationship - King had no power - The Commons chose - as Parliament accepted it. member of the council and sealed
3. Principle of representation authority to change - Council of kings men representatives for people - the - 1628 king charles 1 dissolved parlament and with royal seal.
law but had to gradually replaced by Great new laws and petitioned to be ruled autocratically. - Only documents with the royal seal
provide legally council of the king (Curia approved by the king and nobles - King struggled to raise money through his recognised as genuine expresions
remedies when Regis) - House of commons had no method of extorting fines (special court) of royal will.
needed. - 1213 Curia Regis more adjudicative powers but were and exploiting ancient privelages such as - The affixing of the royal seal was
Allegiance Community relationship Principle of representative - King john essential part of legislature demanding money from ships. the responsibility of kings most
- Kings council of
relationship: representation summoned men from each - Only House of Lords could - 1642 was charles final blunder senior officals who were later
wise men were
appointed by the county + feudal lords to a adjudicate disputes and was thus - Entered House of Commons to arrest known as ministers
1. Communities 1. Developed by king and only they meeting. highest judicial body in England. members protesting his actions. - King could not be held responsible
1. developed from
conducted affairs english and unheard had the power to - king wanted to - 1414 - All legislation had to be - This led to civil war (7 years). Charles lost, and thus ministers were responsible
paterfamilias.
based on equality of to greeks and issue taxes or strengthen position approved by House of Commons was put on trial and executed for their specific departments and
romans. exercise power against barons who they - King could veto new laws and - 1660 - 1685 was Charles 2 could be impeached.
2. individuals swore
2. formed from - Kings council had fought with approval required for all - Impeachement of a minster led to - Prior to 1700 there was no sign of a
oath to serve family
individuals with 2. Continuous war wide powers that - Barons convinced king to legislation important development of ministerial party political system
and in return
common interests meant adult males were seldom sign Magna Carta - Custom developed that a bill responsibilities - Two main parties slowly developed
recieved protection.
banding together couldnt leave homes exercised. - Magna carta originally (not petition) was sent to king - 1688 saw Glorious Revolution which were the Whigs
for communal only protected Barons and lords to either be approved - Led to Act of Settlement(1701) (predecessor liberal party) and the
3. Could initially be
3. Concept of chosen meetings as they interests. or rejected and not tampered - This meant judges were appointed for as Tories (Predecessor of
terminated at any
law developed = had to protect with. long as thye behved properly & their ocnservative party)
time but later
members agree to assets - 1330 Act passed enforcing salary could not be reduced. - Prime minister position created as
became oath of life. - Magna Carta most famous english constitutional document
create rules that Parliament to sit at least once a - Judges only removed if both Houses of king didnt participate in cabinet and
- No new legal rules created - only confirmed existing rules.
bound all members 3. population further year + Freedom of speech Parliament requested it. a chairman was needed.
4. Forms basis of - foundation of later doctrine of rule of law
grew to state where accorded - Also led to King having to govern ito the - Reasons for crowns diminishing
feudel system and - famous for Due process provision (US Con. + independent
4. peace kept through impractical for all to judiciary - Legislative power subject to law and that people working in public power include existence of strong
later relationship
fine system which attend meetings parliament with executive service had to resign before being elected political figures, concrete political
between leader and - Not focused on individual rights but laid foundation for legal
developed into tax authority vested in king + into parliament. issues and political conciousness.
subjects developments relating to personal protection, protection of
system 4. Therefore delegated individuals against infringement by the state. advisors.
representative acted - S39 of Magna Carta - During 16th century constitutional
5. tax system used on behalf of - No free man shall be imprisoned, executed or outlawed supremacy acknowledged as well
as principle of representation Importance of the British Empire in the development of SA con
where members community unless by legal judgement of peers or law of the land
- Commons accepted as law
voluntarily paid for members - S40 of Magna Carta
communal benefit - justice for all representing the entire nation

- British empire, colonialism and impact of British con law traced back to latter 15th century
- British constitutional law influneced former colonies such as USA/ canada/ australia and SA
- British parliament was not always accepted in colonies
- Prime example includes US War of Independence (1775- 1783)
- Tax issue sparked war
- Parliament felt American colonies should contribute to war effort since they would also benefit from
French removal.
- Eventually taxes were imposed
- Retention of import duty on tea led to Boston Tea Party where Massachusetts citizens dumped all tea
on board of a ship into the harbour
- British goverment held that under the supremacy of parliament - the colonists were under its control
and command.
- American colonies not part of British parliament thus not represented and thus no taxation.
- Campbell v Hall - Law of conquered territory remained in force until altered by Britain.

In SA
- Cape colony granted limited
self- governance(1853)
- Was granted representation &
responsible governance (1872)
- Accepted that colonial laws
conflicting with British law
were invalid (British law
prevailed)
- The Colonial Laws Validity Act
enacted which provided clarity
on certain legal issues
- ITO Act - Colonial legislation
would be invalid with regard
to British law only if it was
clear that Parliament had
intended the law to apply in
that colony.
- Colonial legislatures stronger in
relation to local matters but
had restrictions
- Colonial Bill had to be approved
by the King
- No extra- territorial
legislation could be adopted