LU2: Basic concepts of C law

Theme 1: Constitutionalism
LO1: Define and explain the nature of Constitutionalism
LO2: Explain the difference between Constitutionalism as a
descriptive doctrine and as a prescriptive doctrine
LO3: Compare the various models of Constitutionalism with
reference to the concepts of “constitutional supremacy”,
“federalism”, “bill of rights” and “socio-economic rights”
LO4: Discuss the transition in South Africa from Parliamentary
Sovereignty to Constitutional Supremacy
 LO1: Define and explain the nature of Constitutionalism

• Is constitutionalism different from constitutional law?

• ‘Constitutionalism is the theory of constitutional law. … It prescribes
what a constitution, and constitutional law, should do.’
• It is concerned with the problem of how to establish a system of
governance.
• One of the alternative definitions would not have gone the
theory/philosophy route, but rather the practical/history route.
• It is closely related to the notions of democracy, and theories of
governance.
LO1: Define and explain the nature of Constitutionalism …

1. The formal and legal distribution of power.

2. The establishment of institutions of governance.
3. The creation of binding rules for the community it
governs.
4. The nature and basis of relations in existence.
5. It limits the exercise of state power.
6. It provides mechanisms to ensure such restriction.
LO1: Define and explain the nature of Constitutionalism …

• A Constitution prescribes that a constitution must

structure and constrain (i.e. limit) state power
• Limitation is the essence:
o It comes in two forms:
• Limiting the competence of the state, and
• Prescribing procedures for the state.
• Constitutions are not, however, self-executing documents
o Each is unique to its own purpose, as well as political and
historical context.
• Different models have developed over centuries.
 LO2: Explain the difference between Constitutionalism as a descriptive doctrine
and as a prescriptive doctrine

• As a descriptive doctrine, constitutionalism seeks to

provide a factual description of the institutions,
procedures and structures that make up the
constitutional system of a particular state
o A factual description of institutions, procedures and
structures.
o Not concerned with how the power is being used.
o Not concerned with democratic values or human rights.
• Focused on form, rather than substance.
 LO2: Explain the difference between Constitutionalism as a descriptive doctrine
and as a prescriptive doctrine

• As a prescriptive doctrine, constitutionalism seeks to

define in general terms the manner in which state
power is allocated and exercised:
o Tries to establish norms and principles of governance.
o Defines the manner in which power must be exercised.
o Has a perspective force.
o Is concerned with democratic values.
LO3: Compare the various models of Constitutionalism with reference to the concepts of “constitutional supremacy”, “federalism”, “bill of rights” and “socio-economic rights”

• The form and substance of a constitution is influenced by the peculiar

history of a country in which it which it was drafted
o It is a product of its location and time
• Also reflects the prevailing power relations between political and
economic actors in that society
• Also influencing the content of the constitution are the social, political,
legal and cultural traditions of a society
o And the shared norms (of the elites) who drafted the constitution
• As nation-states have become dominant form of government, there
has been a coalescence around the general framework and content of
constitutions and constitutionalism
 LO3: Compare the various models of Constitutionalism with reference to the concepts of “constitutional supremacy”, “federalism”, “bill of rights” and “socio-economic rights”

Westminster (UK) US German

(1600’s) (1780’s) (1948)
No, parliamentary supremacy - but what Yes, but also stringent separation of Yes – but also includes a value-based
of EU Court of HR’s? powers and well developed system of democratic order that attempts to secure
Overlapping separation of powers – checks and balances democratic and constitutional rule. C therefore
Constitutional especially between Parliament and ALSO imposes a normative system. Also
supremacy Executive imposes the Rechtsstaat idea (similar to Rule of
Law idea). And separation of powers.

Yes, product of its time and Yes (Länder), product of its time and
circumstances – federalism serves as circumstances – federalism serves as an
an important limitation on powerful important limitation on powerful central
Federalism No
central government government

No. But there is Magna Carta (1215) etc. Yes. But also a product of its time. Yes. Social state and entrenched human rights
Parliamentary laws may not be struck Has judicial review – Marbury v establishes effective balance between limiting
Bill of Rights down except if not conforming with Madison the power of the state and upholding rights as
procedure well as providing basic essentials of life as a
matter of course.

No Not much. More focused on Rechtsstaat idea also established Germany as a

individual liberties and freedoms. social state – basic needs are taken care of
Socio-economic (required for realisation of dignity). But does
rights not expressly include any socio-economic
rights.
• The South African Constitution reacts against Westminster constitutionalism.
LO4: Discuss the transition in South Africa from Parliamentary Sovereignty to Constitutional Supremacy

o It is based on the notion of constitutional supremacy

o Justiciable Bill of Rights
o It is also a product of its time and place
• Why?
• Constitutional supremacy arguably lies in:
• VALUES - a values-based system captured in S1 (human dignity, rule of law, non-sexism, non-
racialism etc.; and
• RULE captured in S2 of the C.
• Constitutional supremacy in SA: Pharmaceutical Manufacturers-case:
o All law, including the common law, in SA stems from, derives its force from, flows from the C.
o No aspect of SA law is immune from values of dignity, HR freedoms, non-racialism and sexism +
accountable, representative-democratic system
o Development trajectory of SA law now fundamentally altered
o The rules of the Constitution are binding on all branches of the state AND all law.
o Chapter 2 has an additional binding section.
• S 8 covers private persons too
o The C. has horizontal effect in certain circumstances
• The significance of constitutional supremacy (renders the
LO4: Discuss the transition in South Africa from Parliamentary Sovereignty to Constitutional Supremacy … more

entire Constitution justiciable).

• Important powers are vested in the judiciary
o C. and Bill of Rights are justiciable
• Parliament could STILL subvert C with 75% majority [Discusss]
• Co-operative federalism
o Quasi-federalist division of power across three levels of
government
o National, provincial and local government
• Difficulties associated with this?
• Separation of powers
(Study pages 52-60 of TB to fill out above brief outline)
 LU2: Basic concepts of C law
Theme 2: The principle of separation of powers
LO1: Describe the purpose and the principles of the doctrine of separation of
powers
LO2: Discuss the history of the doctrine of separation of powers
LO3: Identify the relevant sections in the Constitution and describe the manner
in which the doctrine of separation of powers is incorporated into the South
African Constitution
LO4: With reference to decided cases, apply the doctrine of separation of
powers to a set of facts
LO5: With reference to decided cases, explain the “counter-majoritarian
dilemma” and the role of the judiciary
Constitutional restrictions on the exercise of public power can be both procedural and substantive in nature …
LO1: Describe the purpose and principles of the doctrine of separation of powers

The idea of the separation of powers

• There is no universal model of the separation of powers
• Cannot trust only in the benevolence of leaders
• Its purpose: To limit the concentration of power of each branch of government
• Power is not to be concentrated in one body or individual
• It distributes power to different branches of government
• It safeguards human rights and political liberty against abuse of political power
• Also allows specialisation of services & functions provided

Conceptual principles of the separation of powers

1. Division of governmental power
2. Separation of functions
3. Separation of personnel
4. Checks and balances
See text page 62 on brief history of the doctrine
 LO2: Discuss the history of the doctrine of separation of powers

• Origins in the political philosophy of the Enlightenment in 17th century Europe

o But also found pre-colonial southern African societies where, for example, traditional leaders
were obliged to take decisions in consultation with an advisory body of elders
• Modern concept evolved out of developments in English constitutional history
• John Locke – concerned that absolute monarchic power should not be replaced by
absolute parliamentary power
o Absolute rule by divine right not replaced by rule by an over-accumulation of power in
parliament
• But Locke never envisaged separation between executive and judiciary
• de Montesquieu did
o Devised the modern concept of separation of powers
• The trias politica
LO3: Identify the relevant sections in the Constitution and describe the manner in which the doctrine of separation of powers is incorporated into the South African Constitution

Separation of powers: The South African experience

• Principle VI in the interim Constitution: Purpose to safeguard important democratic
values and norms such as ‘accountability, responsiveness and openness
• There is no express mention of the separation of powers in the Constitution
• No model separation of powers is absolute, or perfect
• It is unique to an historical and political context – ours is to be interpreted in this
context
o Cf Ackermann J in De Lange v Smuts
• It is to be developed and strengthened over time
• SoP implicit in SA constitution
• Powers are divided into three branches viz. legislature, executive and judiciary
 LO3: Identify the relevant sections in the Constitution and describe the manner in which the doctrine of separation of powers is incorporated into the South African Constitution …

(a) The legislature

• Composition: National Assembly (NA) and National Council of Provinces (NCOP)
• Members of both houses regulate their own processes
o They also have parliamentary privilege
• Function: to enact laws and to hold the executive accountable
• However, the Constitution provides for involvement of the executive in legislative functions
• For example, the Executive has power to develop & implement policy and prepare & initiate legislation
• There is also an overlap of personnel between legislature and executive
• All members of the Executive (barring President and max two other cabinet ministers) are required to
member of the NA also
o Cf. Westminster module discussed above
• BUT arguably also does promote efficiency and accountability between legislature and the cabinet
(Executive)
• However, see finding of the CC in Executive Council of the Western Cape-case
o There must be limits to the nature or extent of the power to be delegated by Parliament to the executive.
LO3: Identify the relevant sections in the Constitution and describe the manner in which the doctrine of separation of powers is incorporated into the South African Constitution …

(b) The executive

• Authority vests in the President, the Head of State (HOS) and the Head of National
Executive (HONE)
• There are different functions between the Head of State and the Head of National
Executive
• Function: to make policy, implement and administer law, as well as appoint certain
personnel.
• Cabinet: President, Deputy President and Ministers
• All but two ministers MUST come from NA
• Executive is under scrutiny of Parliament
o Members are accountable individually and collectively to Parliament
• NA has power to remove or recall the deputy president and / or cabinet (vote of no
confidence)
• Also recall the President by two-thirds majority (= impeachment)
(c ) The judiciary
LO3: Identify the relevant sections in the Constitution and describe the manner in which the doctrine of separation of powers is incorporated into the South African Constitution …

• Absolute separation in personnel

o And powers?
• Function of the judiciary or courts: To interpret and adjudicate legal disputes, to declare the laws which are
inconsistent with the Constitution are invalid
o CC is apex court in constitutional matters
• An important function is therefore judicial review (JR)
o Power to declare unconstitutional legislation or executive or administrative conduct
• Constitution regulates appointment of judges
o Judicial Services Commission (JSC)
o Involves all three branches of government
o Ensures independence of the judiciary
• Courts to apply law and interpret C without fear, favour or prejudice
o Other branches of government are prohibited from interfering with the courts
o Courts must be SEEN to be independent
o Cf. South African Association of Personal Injury Lawyers v Heath
• Finally, security of tenure of judges
• NA must adopt 2/3 majority resolution to effect removal of a judge
o After investigation by JSC
Study the following discussions in the textbook:
LO4: With reference to decided cases, apply the doctrine of separation of powers to a set of facts

• De Lange v Smuts NO and Others – TB page 63

• Certification of the Constitution of the RSA, 1996 – TB
64 and 105
• Executive Council of the Western Cape Legislature and
Others – TB 67
• South African Association of Personal Injury Lawyers v
Heath & Others – TB 70
• Doctors for Life – TB 103
 LO5: With reference to decided cases, explain the “counter-m ajoritarian dilemma” and the role of the judiciary

The counter-majoritarian dilemma

• Constitution unquestionably provides for judicial review
• Questions about the principles of democracy
o Does judicial review curtail the voice of the majority?
• Is judicial review a legitimate practice in a constitutional democracy?
• Why does judicial review allow for the invalidation of laws supported by the majority?
• Why should unelected judges have more power that elected officials?
• Is the democratic will not being replaced by unaccountable judges?
• Are judges influenced by their own political, religious, moral or cultural points of view?
o Cf. S v Makwanyane (page 74-75 of TB)
o It is not public opinion that is measure, but whether or not the death penalty is in fact constitutionally tenable
o The court ‘cannot allow itself to be diverted from its duty to act as an independent arbiter of the Constitution’
• South Africa did, by and large, accept the CC’s decision as legitimate
o But that still does not help us justify this power of the CC’s judges
• See textbook pages 75-76 for arguments in favour of judicial review
LO5: With reference to decided cases, explain the “counter-m ajoritarian dilemma” and the role of the judiciary …

The counter-majoritarian dilemma … a few justifications

1. While political majority does get to govern, that should arguably not give them a
blank cheque to govern as they desire (= tyranny of the majority?)
o Should therefore be mechanisms in place that limit the exercise of power
2. Judiciary is ideally positioned (perhaps due to training & experience) to serve as
the most neutral and qualified arbiters on matters of constitutional principle
o They also don’t have to pander to the demands made on the other two branches of
government
3. The courts can be seen as forums that enhance an alternative form of democracy
viz. DELIBERATIVE democracy

The views above are open to challenge … so challenge them

 LU2: Basic concepts of C law
Theme 3: The principle of the ‘Rule of Law’

LO1: Discuss the principle of the Rule of Law

LO2: Describe the history of the principle of the Rule of Law
and its development in the SA constitutional era
LO3: With reference to decided cases apply the principle of
the rule of law to a set of facts
Development of the ROL in the
Constitutional era
Questions
• How does section 1 of the Constitution of the Republic of South
Africa, 1996 entrench the principle of the rule of law?
• How has the rule of law been developed in the constitutional era of
South Africa?
• Which three main principles underlie the principle of the rule of law
according to Dicey?
• How has the rule of law, as a constitutional principle, been applied by
the courts?
LO1: Discuss the principle of the ‘R ule of Law ’

Section 1(c) of the Constitution: The RSA is one sovereign state founded on
the following values … supremacy of the Constitution and the rule of law
• Often equated with the German concept of the Rechtsstaat, the Diceyan
conception of the rule of law (RoL) is arguably a more limited concept
• Should we view our C as related to the German constitution?
• Disagreement among C-law scholars as to exact content of the RoL
principle
• Apart from being a value, the RoL is also an enforceable principle on
which the exercise of public power and legislative acts can be challenged
LO1: Discuss the principle of the ‘R ule of Law ’ … (2)

Historical traditions:
• Dicey’s three principles:
oLaw supreme to arbitrary power – legislators are authorised by C and act rationally
oEquality for all before the law; and
oThe courts enforce the ordinary law of the land and in terms of the C.
• Formalistic rule of law: Apartheid positivism
o Discrimination was rooted in legal authority, thus lawful
• Apartheid and other experiences show that respect for the RoL on its own is not sufficient to
protect the basic rights of individuals in a society
oApartheid government respected the rule of law – adhered to Parliamentary procedures etc.
oAdmittedly it did flout its own laws by extra-judicial killings etc.
oRacist and violent laws were crafted by Parliament
• Equation of ‘rule of law’ with the ‘rule by law’ = a formalistic understanding of law as instrument
of governance, rather than substantive understanding that also considers the content of laws
LO1: Discuss the principle of the ‘R ule of Law ’ … (3)

• Modern philosophical underpinnings: The principle

of legality, legal authority plus generality,
prospectivity, clarity, and stability, as well as
enforcement by independent courts/tribunals
LO2: Describe the h istory of the p rinciple of the Rule of Law an d its develop ment in the SA constitutional era

• RoL has assumed a pre-eminent role in the current constitutional

dispensation
• Enshrined as a founding value in section 1 (c)
• Is this really necessary? (C. is supreme and there is an enforceable Bill of
Rights)
• Is the manner in which the rule of law is captured in our C. more in
keeping with the Rechtsstaat idea or closer to Dicey’s conception?
• For answers we need to look at CC cases
LO 3: W it h re fe re nc e t o dec ided c ases apply t he pr inc iple of t he r ule of law to a se t of fac t s

RoL evidenced by the manner in which the courts have invoked the RoL as a mechanism primed to limit, regulate as
well as give more precise meaning to how governmental power is exercised
• Founding values entrenched in section 1
o Supremacy of the C.
o Rule of Law
• What about LEGALITY? Is the RoL based on the principle of legality?
• In Fedsure, the Constitutional Court stated that the exercise of public power is legitimate only where exercised in a
lawful manner
o The principle of legality was implicit in the Constitution – perhaps most important and oft-evoked principle of the rule of law
o Acts are binding only in as far they are authorised by law
o No authority by law, no binding force of an Act
• See dictum by Ngcobo J in Affordable Medicines Trust – case
o ‘The exercise of public power must therefore comply with the C, which is the supreme law, and the doctrine of legality, which is part of
that law’

• In addition, the RoL requires that public officials not act arbitrarily, but exercise public functions in a rational manner
related to the purpose for which the power was given …
Case Law
• What was the Constitutional Court’s decision regarding the rule of
law in the case of Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional Me
tropolitan Council and Others
 1999 (1) SA 374?
• What does the ‘principle of legality’ entail?
• How was the principle of legality called upon in the case of Pharmaceutical
Manufacturers Association of South Africa and Another: In re Ex Parte President of
the Republic of South Africa and Others (2000 (2) SA 674?
• In which instances has the rule of law been invoked as a principle in deciding cases
by the Constitutional Court?
• What is the difference between a formal and a substantive conception of the rule of
law?
Activity 2.3.1
 Discuss the legal principles relating to the
rule of law with reference to case law.
• “The rule of law is [a] principle of the greatest
importance. It acts as a constraint upon the exercise of
all power. The scope of the rule of law is broad. It has
managed to justify —albeit not always explicitly— a
great deal of the specific content of judicial review, such
as the requirements that laws as enacted by Parliament
be faithfully executed by officials; that orders
of court should be obeyed; that individuals wishing to
enforce the law should have reasonable access to the
courts; that no person should be condemned unheard,
and that power should not be arbitrarily exercised”
Case Law
1.Refer to the case of 
Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex Parte
President of the Republic of South Africa and Others (2000 (2) SA 674, and in a new
thread:
1.Briefly discuss the facts of the case;
2.Discuss the court’s finding regarding the influence of the rule of law on the exercise of public
power; 
3.Discuss how the court applied the principle of legality in this instance; and
4.Discuss the court’s finding in this matter. 
2.Read the case of 
Affordable Medicines Trust and Others v Minister of Health and Another
 (CCT27/04) [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529 (CC).
3.Respond to the post of at least one other student in the group and, expanding on
their answers, discuss how the case above (especially at paragraph 49) captures
the generality of the principle of legality in the constitutional law of South Africa
LO 3: W it h re fe re nc e t o dec ided c ases apply t he pr inc iple of t he r ule of law to a se t of fac t s … (2)

Procedural element of the rule of law = principle against arbitrary decision-making:

• Pharm Manufacturers case: It is arbitrary for the President to bring into effect regulations when the
necessary framework is not in place … what the C. requires is that public power vested in the executive and
other functionaries be exercised in an objectively rational manner (i.e. bona fides of the President is not
sufficient, his conduct must be objectively rational etc.)
• Lesapo case: Self-help is inimical to a society in which the rule of law prevails … taking law into one’s own
hands is thus inconsistent with the fundamental principles of our law
• But, can this really mean that the courts must authorize all constraints on person or property?
o Discuss
• Other examples of RoL in court decisions:
o Rules must be conveyed in clear and accessible manner
o Legislation must not be vague and uncertain where legislation provided for broad and discretionary exercise of powers by
Minister
o Judicial independence and impartiality are implicit in our understanding of the rule of law as a constitutional principal
LO 3: W it h re fe re nc e t o dec ided c ases apply t he pr inc iple of t he r ule of law to a se t of fac t s … (3)

Summary: Rule of Law arguably occupies pride of place in C. law

alongside Constitutional Supremacy … simultaneously operates as an
independent and enforceable principle in conjunction with an equally
important derivative, the Principle of Legality.
The current RoL therefore extends beyond the formal Diceyan
understanding – we are now also concerned with the impact of laws on
those affected, the substantive content of laws as well as how public
officials and bodies exercise their powers
 LU2: Basic concepts of C law
Theme 4: Democracy

LO1: Define democracy

LO2: Discuss the core idea behind the concept of
democracy
LO3: Discuss the four different forms of
democracy with reference to decided cases
LO 1: De f ine de moc r acy

• ‘Democracy’ is also referred to in section 1

o It is difficult to define
o It is generally linked to the idea that the will of the people should prevail
• Section 1 (d) builds on section 1 (c) by detailing practical aspects of
‘democracy’
o Read it
• Courts have found section 1 justiciable:
o Certificate of Constitution of Western Cape: Two unelected members in provincial
cabinet is not inconsistent with the principle of democracy.
o De Lille v Speaker (C): Suspension of a Member of Parliament is inconsistent with
representative democracy
LO 2: Disc uss the c ore ide a be hind the c once pt of dem oc rac y

• That decisions affecting the members of a political community should be taken by the members
themselves, or at least by elected representatives whose power to make those decisions
ultimately derives from the members – is more or less settled
o The Will of People should prevail

• Enabling members of community to act together in matters that affect them and to take
decisions collectively with respect to such matters

• C embodies different kinds of democracy:

1. Direct
2. Representative
3. Participatory
4. Constitutional
LO 3: Disc uss the f our diff e re nt for ms of de moc r ac y w it h re f e re nc e to de c ide d c ases

Direct democracy: Direct participation by electorate/citizenry in the decision making

• Assembly, petition, demonstration and picket

• Participation in legislation-making activities
• National referendums (s 84(2)(g))
• Provincial referendums (s 127(f)
• Merafong Demarcation Forum case
o Constitutional amendment relocating Merafong to North-West province from Gauteng
was upheld by majority of CC despite the vociferous and public opposition of the
majority of the community
• Discuss
LO 3: Disc uss the f our diff e re nt for ms of de moc r ac y w it h re f e re nc e to de c ide d c ases … ( 2)

Representative democracy: Democracy through duly elected representatives

• Section 19: Citizens’ right to political choices, free and fair elections, and the right to vote
• Independent Electoral Commission (IEC) (Chapter 9, s 181)
• Public access (e.g. s 118)
• There are few provisions dealing with political parties (but see s 236 (funding))
• See the De Lille case on representative democracy
o Powers of NA to self-regulate did not extend to suspending a member for being in contempt of
Parliament
o Would be inconsistent with the requirements for representative democracy
o Would punish not only her, but also her constituency
LO 3: Disc uss the f our diff e re nt for ms of de moc r ac y w it h re f e re nc e to de c ide d c ases … ( 3)

Participatory democracy: An opportunity to take part in decision-making that affects

the person

Ngcobo J in Doctors for Life International v Speaker of the National Assembly and
Others:

‘The participation by the public on a continuous basis provides vitality to the functioning of
representative democracy. It encourages citizens of the country to be actively involved in public
affairs, identify themselves with the institutions of government and become familiar with laws as
they are made. It enhances the civic dignity of those who participate be enabling their voices to be
heard and taken a account of …’
LO 3: Disc uss the f our diff e re nt for ms of de moc r ac y w it h re f e re nc e to de c ide d c ases … ( 4)

Constitutional democracy: SA’s conception of democracy is multifaceted

• Constitutional democracy seeks to emphasise the purpose or role played by

democracy in our constitutional system rather than in its component parts
o In other words, the sum of the various kinds of democracy is greater than its individual parts
• The C. sets the goal of achieving a certain kind of society. The C does this by
promoting the important elements of this society – viz. supreme and justiciable C.,
culture of HR’s, and a commitment to a broad range of democratic ideals, non-
racialism, multiculturalism and multilingualism
• Idea of democracy is PURPOSIVE – not only an end in itself but a means to achieve
and end