CONSTITUTIONAL LAW

Lecture: Revision
Chapter 1: History of Constitutional law in South Africa

• 1990 – prohibitions for political organisations was lifted and the political leaders were
released and returned to SA.

• 1991 – multi-party negotiations were held known as CODESA (Convention for a

democratic South Africa) by the majority of political parties and organisations.
• They signed a declaration of intent and committed themselves to draw up a new
democratic Constitution for SA through negotiations.

Interim Constitution Act 200 of 1993

• Promulgated on 28 January 1994.

• Came into effect on 27 April 1994.
The Constitutional Assembly
• 1994-1996 – the constitutional assembly concentrated on the drafting of the new
Constitution.

• 08 May 1996 – a constitutional text was adopted.

• Sept 1996 - Constitutional Court held that not all the provisions of the constitutional text
complied with the constitutional principles and the court declined to certify.

• 11 October 1996 – the Constitutional Assembly approved the necessary amendments

and referred the text back to court for certification

• 04 December 1996 – the court certified the amended text and the Constitution of the
Republic of South Africa took effect on 04 February 1997.

• The Constitution created a democratic framework for South Africa.

Chapter 2: The South African Constitutional
Law Theory
• Law - consists of enforceable rules which prescribe the way in which people and
institutions should conduct themselves.
• Constitutional law - consists of legal rules relating to aspects of the state.

• The meaning of a state: (elements)

•Population

•Territory

•Juristic personality

•Government authority

•Sovereignty or independence

•A legal system
State and individual

• The state exists to serve the people.

• Most of the relationship between the state and individual are unequal relationships in
which the weaker party has to be protected against the stronger one.

• The state and individual comprising it are separate entities.

 Hold different views (best interests of a particular individual).

• Juristic person?
 Natural persons?
• Constitutional law deals with the composition, powers and functioning of government
bodies and also deals with the contribution made by these organisational provisions to
an equitable relationship between the state and its inhabitants.

• The laws of every state reflect the views on how the relationship between the state and
the individual must be regulated and on the values on which the views are based.

• Rules of law must be fair.

 The question of fairness extends further than the composition, powers and functioning
of government bodies.
 Constitutional law also deals with the substantive balancing of state and individual
interests by a particular rule of law.
• In addition to provisions in the constitution on the composition, powers and procedures
of government bodies, constitutional provisions for human rights – a bill of rights – are
the primary way in which principles concerning the relationship between the state and
the individual can be turned into positive law.

• Other doctrines:

 Trias politica
 Rule of law
 The German (Rechsstaat) concept of constitutional law
 Ubuntu (African concept)
 The BOR (bill of rights)
• Trias politica

• Refers to the doctrine of a separation of powers between the three government

branches [– the legislative (parliament), executive (cabinet) and judiciary (courts of
law)] each with interdependent powers and responsibilities.
• Also known as the system of checks and balances.
• Each branch has separate powers and can only exercise those powers.
• It is a key feature of democracy.

Aim?
 Ensures government remains fair and accountable.
 It is essential under the rule of law that the use of power is lawful, and can be
challenged.
• According to Dicey, the rule of law doctrine entails that: (3
principles)

1. Nobody may be deprived of rights and freedoms through the arbitrary exercise of wide
discretionary powers by the executive.
 It may only be done by ordinary courts deciding that a person has breached a legal
rule.

2. Nobody is above the law and everybody is subject to the jurisdiction of ordinary courts.
(equality).

3. The rights of individuals are protected by decisions of ordinary courts.

• Section 1 of the Const. – provides that the rule of law is one of the values on which
the Republic is founded. It is a value that underlies “an open and democratic society
based on human dignity, equality and freedom” and must be promoted when
interpreting the BOR.

• The rule of law is manifested in various rights and provisions of the Constitution.

• The Constitutional court has referred to the rule in respect of:

 The right not to be deprived of personal freedom arbitrarily and without just cause and
not to be detained without trial;
 The independence of the courts;
 Legislatures and executives may exercise no power beyond and perform no function
beyond that which is conferred upon them.

The German constitutional state (Rechsstaat) concept?

Ubuntu?
The Bill of Rights?
Formal legality and substantive legality?
Chapter 6: separation of powers
1. Authority – power or right to order or prescribe and the power or right to enforce such
order.
 It may be described as power to act coercively.

2. Government body – refers to a person or body of persons, that exercise authority as

an official organ of state.
 In a state, authority can be exercised by people individually or by a group of persons
acting jointly.

3. Authorities or government – refers to all or any of the government bodies that

exercise authority in, or behalf of, a state.

4. Functional areas – refers to the matters iro which the government exercise authority.
The government exercises authority iro particular matters such as foreign affairs,
defence, education, hosing, law and order etc
5. Level of government – refers to the vertical distribution of government authority
among bodies that usually exercise the authority on a nationwide, regional or other sub-
national, or local basis.

6. Government authority – can be defined as the right or competence of government

bodies at various levels to act in a coercive capacity iro the functional areas allocated to
them.
Distribution of government authority

• The doctrine of separation of powers – entails that the freedom of the citizens of a state
can be ensured only if a concentration of power, which can lead to abuse, is
prevented by a division of government authority into legislative, executive and judicial
authority and its exercise by different government bodies (trias politica).
• This doctrine is the most common feature of all constitutional systems.

• Three organs of state?

• Legislative_____________________________?
• Executive ______________________________?
• Judicial ___________________________________?

• Is the separation absolute?

 What is Locke’s and Montesquieu’s version of separation of powers?

Chapter 3: Sources of constitutional law
• General: sources of constitutional law are –

• Legislation,
• common law,
• customary law,
• Case law

• Legislation

• The most important source of constitutional law.

• It refers to generally applicable rules of law made by government authorities.
• E.g. laws made by parliament, provincial laws and ordinances, municipal by-laws etc.
• Constitution

• The constitution is the most important source of constitutional law.

• A constitution is a law that contains the most important rules of law in connection with
the constitutional system of a country.
• It confers government authority on particular institutions and regulates and limits the
exercise of such authority.

• It contains the BOR which guarantees and regulates the rights and freedoms of the
individual.
• It is therefore a key component of the legal system of a state.

• In a democratic society, a constitution is regarded as an expression of the will of the

people and a reflection of prevailing values, or values to which the state aspires.
• A constitution is a symbol of statehood.
• The constitution as a statute

• The constitution as a single piece of legislation almost never contains all constitutional
provisions.

• There are two meanings to this, namely:

• 1. The constitution in the narrow sense

• Refers to the constitution as a law containing the main provisions with regards to the
state, the government institutions and their powers, and the relationship between the
state and its inhabitants; and

• 2. The constitution in the wider sense

• It includes all constitutional provisions, that is, all provisions contained in the
constitution as a single law and in other statutes, the common law and customary law.
• In as much as a constitution can hardly contain all constitutional provisions, studies of
constitutional law must also reckon with rules of law pertaining to the state not
contained in the constitution.
• Constitutions with higher status than other laws

• In most state, the constitution has a higher status than other laws and is regarded as
the supreme law of the state for various reasons.

• A constitution accorded supremacy stands in direct contrast to the concept of a

sovereign parliament, vested with the highest authority in the state and not subject to
limitations in the constitution.

• In order for a constitution to enjoy supremacy, it must be written and entrenched,

otherwise parliament can amend it with ordinary majorities.
• Furthermore, it must be possible to enforce observance of the provisions of the
constitution. The court usually perform this function.

• The supremacy of the constitution and the state being bound by the constitution are
always considered to be key elements of concepts such as “a constitutional state” and
“constitutionalism”.
• Supremacy of the RSA Constitution

• S2 of the Const. – provides for the supremacy of the Const.

• In addition, the Constitution id entrenched and the court have the power to test the
constitutional validity of any government action and declare it invalid if it is in conflict
with the Constitution.

• In this way, South Africa departed formally and substantially from the system of
parliamentary sovereignty which previously dominated our constitutional law.

• The idea that parliament is the highest authority in the state, subject to no other, is no
longer applicable and laws of parliament like the actions of any other government body
, may be declared invalided if found to in conflict with the Constitution.

• All executive authority is subject to the Constitution.

• Entrenchment and justiciability are the key instruments to give practical effect to the
supremacy of a constitution.

• Mere declarations in constitutions that they are supreme cannot secure their
supremacy.

• When constitutions are not entrenched, they may be amended or abolished like any
other law, and when action and laws that are inconsistent with the constitution cannot
be invalidate by court of law, their supremacy could mean very little.
• The adoption of constitutions

• There are 3 categories of special arrangements for the adoption of a constitution.

• 1. Adoption of a constitution by a special constituent assembly.

• Such an assembly must be representative of the citizens and must preferably be

directly elected.
• The process presupposes consensus, at least on the necessity for a new constitution,
the rules of the game, and the method by which the constitution should be adopted.

• 2. Adoption of a constitution by existing parliament or legislative institution.

• This implies that the normal legislative process if followed. The South African Interim
Constitution was adopted in this way.
• 3. Adoption of a constitution by popular or other forms of ratification.

• This is preceded by a parliamentary or special constitutional process. Ratification refers

to approval by institutions or persons outside parliament, without which a constitution
approved by parliament will be of no force and effect.
• It may be undertaken by e.g the voters in a mandatory referendum, provinces or the
constituent states of a federation, or by the courts, as was the case in South Africa.

• These methods may also be combined.

• The commencement of a constitution?

• Chapter 4: Citizenship?
• Chapter 9 institutions in the Constitution, their function, and purpose?
Chapter 9: national executive authority
• Executive authority – the power to execute rules of law.

• National executive authority is exercised in the whole territory of the state on matters
that do not fall within the functional areas of other levels of government.

• In all states, certain executive bodies are competent to create rules of law through
subordinate legislation.

• Executive organs of state plan, co-ordinate and manage activities.

• They fulfil a key role in planning policy and the content of rules of law that legislative
bodies approve.
• Section 85(2) of the Const. the national executive authority us exercise by:

• a) Implementing national legislation except where the Constitution or an act of

parliament provides otherwise,

• b) Developing and implementing national policy,

• c) coordinating the functions of state departments and administrations,

• d) preparing and initiating legislation; and

• e) performing any other executive function provided for in the Constitution or in national
legislation
• Executive bodies

• National executive authority is exercised by various government bodies.

• E.g heads of state, (president)
• Heads of government,
• Ministers (e.g., minister of health, justice) and
• Public servants.

• All legal rules are executed within different administrations (usually state departments)
each of which is normally headed by a political functionary, normally a minister.

• S85 of the Const. – the national executive authority is exercised by the President, the
ministers and any other functionary to whom it is assigned by the Constitution or
national legislation.

What are some of the matters not regulated by s85?

• Individual responsibility (s92(2))

• it entails:

• A duty to explain –

 To parliament how the powers and duties under his/her control have been exercised or
performed.
 The Const. requires members of the cabinet to provide parliament with regular report of
matters under their control.

• A duty to acknowledge –
 That a mistake has been made and to promise to rectify the matter.

• A duty to resign –
 If personal responsibility has been accepted.
Heads of state and heads of government

• The south African president is also the head of government.

• SA presidents are elected by parliament,
• Their term of office are linked to the duration of parliament,
• Ministers are usually members of parliament, and
• The president and cabinet can by motions of no-confidence be forced to resign.

Appointment

• The president is elected by the National Assembly.

• The Chief Justice determines the time and date of the election and presides over the
election.

• The president is elected by a majority of the votes.

• Qualification

• In SA, only a member of the National Assembly may be elected as President.

• A person elected president ceases to be a member of the National Assembly and

• May not undertake any other paid work
• A serving president may be elected for only one more term.

• Oath of office and remuneration

• In SA,
• the president assumes office by swearing or affirming faithfulness to the Republic and
obedience to the Constitution before the Chief Justice.

• The salary, allowances and benefits of the president are determined by the national
executive within a framework established in an act of parliament
• Term of office and removal from office

• S88(1) of the Const. – the president’s term of office begins on assuming office and
ends upon a vacancy occurring or when the person next elected president assumes
office.

• The term of office of the president is the same as that of the parliament which elected
the president.

• After an election, NA elects a president at its first sitting.

• Term of NA is 5 years but can be dissolved before the expiry of its term.

• President’s term of office also ends if:

 a vacancy occurs where president resigns,
 Dies, or
 Is removed from office (motion of no confidence)

• In SA, on what grounds may the president may be removed from office?
Chapter 10: Judicial authority
• Judicial authority – the power to resolve disputes that can be resolved by the
application of the law by determining what the law is and how to apply it to a particular
instance.

• It is exercised by organs of state that are not parties to the disputes, namely the courts.

• Adjudication comprises actions by means of which rules of law are interpreted and
applied.

• It is generally accepted that the courts also make law.

• Through interpretation and application, the rules of statutory law, common law and
traditional law may be adapted, supplemented and developed.
• It is a more limited function than that of the legislatures, whose primary function is to
continuously review and, whenever necessary, adapt or replace law.
• Executive actions also entail that executive organs interpret and apply legal rules to
concrete situations

• E.g. a police officer making an arrest for theft must know the elements constituting the
crime of theft and must decide whether the actions of the suspect amount to theft.

• An official who issues licenses must know the legal requirements for such and must
decide whether an applicant has complied with them.
• The interpretation of the law by the courts and by executive or admin organs
differ in two respects:

• 1. Executive bodies usually apply rules of law that apply to themselves as well as (the
suspicion which a police officer must have that a crime has been committed is a
condition for the exercise of the power to arrest).

• They are themselves parties to the relationships to which legal rules are applied.
• In contrast, court are independent parties who interpret and apply rules of law to
relationships in which they are not involved.

• 2. The interpretation and application of law by executive bodies is, in principle, always
reviewed by the courts.
• In contrast, a decision by the court is final in the sense that the decision may be
reviewed only by a higher court and, in principle, not by any other government body.
• Independence and impartiality

• General: the independence of the courts is an incidence of the separation of powers

and constitutions often contain provisions in this regard.

• E.g., administration of courts; judges’ terms of office; salaries; pensions; disciplinary

actions; appointment and dismissals.

• The South African Const. contains a general provision that the judicial authority is
independent, impartial and subject only to the Const. and other law.

• No person or organ of state may interfere with the functioning of the courts and all
organs of state must through legislative and other measures assist and protect the
courts to ensure their independence and impartiality.
• A distinction is made between personal and functional independence of the courts.

• 1. Personal independence

• This means that other government organs cannot control the appointment, terms of
office, and conditions of service of judicial officers.

• This may be protected against executive authority in ordinary legislation and against
the legislature in entrenched and justiciable constitutions.
• Why is this important?

• There are often different procedures for the appointment of members of higher and
lower courts.
• Appointment of judges:

• RSA: the Judicial Service Commission plays an important role in the appointment and
dismissal of judges.

• The President and Deputy President of the Supreme Court of Appeal are appointed by
the President, together with the other members of the cabinet, after consulting the
Judicial Service Commission.

• All other judges are appointed ito an act of parliament. E.g. Magistrate’s Court Act.

• All judicial officers must be appropriately qualified and must be fit and proper persons.
• When judicial officers are being appointed, the need for the judiciary to reflect broadly
the racial and gender composition of South Africa must be considered.
• The terms of office of judges are usually limited by age.
 In RSA: may serve until the age of 75 yrs

• When may the president remove a judge from office?

• Remuneration

• RSA Const. provides that the salaries, allowances and benefits of judges may not be
reduced.
• This is regulated by the Judges’ Remuneration and Conditions of Employment Act.
• 2. Functional independence of the courts?

• Means that the courts, in the exercise of their powers, they are subject only to the law

• Impartiality of the courts?

• Refers to the attitude of a court in relation to the issues and parties in a particular case;
the courts must apply the law without favour or prejudice.
• Judicial authority over constitutional matters

• General: disputes may occur between a person and a government body, because the
person is of the opinion that the government body has not exercised its authority in
accordance with the Constitution.

• Or even between government bodies regarding the distribution and exercise of

government authority in the Constitution.

• Judicial control over compliance with the provisions of a constitution implies that :
• The courts may invalidate actions if they are inconsistent with the provisions of the
Constitution.

• This is evident from section 2 of the Const.

• RSA: special CC was created for this purpose.
• S165(1) of the Const. – the judicial authority of the Republic is vested in the courts.

The South African court structure

1. Constitutional Court
• Highest court in RSA

2. Supreme Court of Appeal

• Decides appeals from HC or courts with similar status

3. Hight Court
4. Magistrates’ Courts
5. Other Courts (labour courts; family courts; small claims courts)
• The Constitutional Court (CC)

• In RSA: The highest court in all matters, not only constitutional matters (s167(1)).

• Composition

 Chief Justice (CJ),

 Deputy Chief Justice (DCJ), and
 9 other judges

• A matters before the court must be heard by at least 8 judges.

• Term

• A judge is appointed for one term – 12 years, but must retire at age 70
• The Judges’ Remuneration and Employment Act – extended the term to 15 years or
the age of 75 (section 4(1) and (2)).
• The judges must be properly qualified and must be fit and proper South African
citizens.

• At all times, at least 4 members must be persons who were judges at the time of their
appointment to the CC.

• The President, together with the members of the cabinet, appoints judges after
consulting the leaders of the parties in the NA and:

• The CJ and DCJ also after consulting the JSC; and

• The other judges are also appointed after consulting the CJ and from a list of names
submitted by the JSC.
Constitutional Court (CC)
• Highest court in all matters.
• In certain matters, the CC has exclusive jurisdiction

• Constitutional matter – a matter that can only be dealt with in a dispute before the
court by the application of provisions of the Const.
• It includes all issues involving the interpretation, protection and enforcement of the
Const.

The CC’s exclusive jurisdiction

• 1. Disputes between national and provincial organs of state about status, powers and
functions. However,

• Disputes concerning other matters between these organs and disputes between one of
these organs and any other person or institution may be decide by other courts
• 2. the constitutionality of any parliamentary or provincial bill and the CC may do so only
when the President or a premier refers the bill to the Court.

• 3.the constitutional validity of a parliamentary or provincial act after referral by one third
of the NA or one fifth of the provincial legislature, within 30 days after the President or
premier assented to the act.

• 4.the constitutionality of any amendment to the Const.

• 5.whether parliament or the President has failed to fulfil a constitutional obligation.

• 6. the certification of a provincial constitution or an amendment to a provincial

constitution.
• Jurisdiction in constitutional matters

• Prior control - means that a bill is reviewed before its commencement to determine
whether it is consistent with the constitution.

• Ex post facto control – means that control is exercised only after the adoption and
commencement of a law.

• RSA Const. provides for prior control over:

 Bills of parliament and provincial legislatures;

 Texts of provincial constitutions and bills amending provincial constitutions.

• Abstract control – means that the legal rule is considered by a court without that rule
being applied in an actual case.
• Abstract control

• Makes it possible to obtain finality over the validity of rules of law before they are
applied with possible serious consequences.
• It usually occurs at the request of certain government bodies, and time limits are set for
filing request for abstract control.

• These are the only instances in which the court may consider the constitutionality of a
bill.
• See section 79(5) and section 121 of the Const.

• When may the Constitutional Court exercise abstract control?

• Glenister v President of the RSA – the court said the evidence of demonstrable and
irreversible harm that could be remedies once the legislation has been enacted, could
be a course for judicial intervention with the power of the executive to initiate legislation
and the power of the legislature to enact it.

• Although a bill becomes an act when the President or premier assents to, and signs, it
takes effect when published, the CC may postpone its application until the Court has
decided the matter, if required by justice and if the application has a reasonable
prospect of success.