CSL2601-exam Pack-2021

Exam Questions - CSL 2601 Study Unit 1 – 3 1 Explain what is meant by constitutional law? (3) Constitutional law is the aggregate (sum total) of binding rules relating to the distribution and exercise of state authority. The rules of constitutional law define the relationship between the organs of state inter se (between themselves), and between the organs of state and individuals 2 Distinguish between public and private law, and state why constitutional law is said to be part of public law (5) Public law is the branch of law which regulates the exercise of state authority in relationships of inequality. Private law, in contrast, governs the relationships between people who are on an equal footing. Constitutional law forms part of public law as it regulates public interest which comes into play in legal relationships of subordination, either between administrative authorities themselves or between administrative authorities and private individuals. 3 “The distinction between private and public law has become blurred in modern times”. Discuss this statement with particular reference to the reasons why this blurring has occurred. (6) The reason why the distinction between public and private law has become blurred is that the modern state has become very involved in private law relationships, such as the relationship between employee and employer. The new constitution expressly provides for relationships between private individuals in the Bill of Rights. It also authorizes parliament to enact legislation to prohibit unfair discrimination by private persons and companies. Finally traditional public functions such as public transport or telecommunications are being privatized and being run by semi-public corporations or private contractors. 4 Discuss the sources of constitutional law. (10) The five sources of constitutional law are:  The constitution, which means the entire body of rules governing the exercise of state authority in a particular state as well as the relationship between the citizens of the state and the organs of the state. May also refer to a written document which contains some or most of the constitutional rules.  Legislation or Statute. It is expressly left to legislator to add the flesh to the basic framework of the constitution.  Common law. English common law played an important role in the history of South African law and must therefore be taken into account. S39(2) of the Constitution requires that the courts develop the common law to bring it in line with the constitutional precepts. 2  Case law(stare decisis). Past judgments are binding and Illustrates the practical application of the constitutional principles, rules and values and tells you how a particular case alters or contributes to the development of the law.  International law. Section 39(1) of the Constitution makes it compulsory for a court to consider international law in the determination of constitutional issues.  Other sources of constitutional law a. Academic writings-Courts refer to academic opinions expressed in books and articles in journals. b. policy documents - Current government policies expressed in green papers, white papers and other documents issued by the organs of state help to shape the legislative agenda; these are often translated into legal norms. c. reports by state institution supporting constitutional democracy eg. public protector, Auditor General) d. foreign Law - 39(1)(c) of the Constitution provides that the courts may consider foreign law, that is, especially case law from other. A discretionary power to consider the laws of other countries where there is insufficient guidance available from South African sources. Is a supreme constitution and an inflexible constitution the same thing? Give reasons for your answer. (5) 5 Distinguish an inflexible constitution from a flexible one and mention an example of each. (6) A flexible constitution has the same status as ordinary laws of the land and has no special procedures for amendment. An example would be the 1961 constitution of South Africa. An inflexible constitution usually enjoys a superior status to ordinary laws of the land and requires a special amendment procedure. Eg. two-thirds majority vote. An example is the 1996 constitution of South Africa. 6 Does South Africa have a flexible or inflexible constitution? Why? (3) South Africa has an inflexible constitution as it enjoys superior status to the ordinary laws of the land and its amendment provided for in s74(1) – (3) requires special procedures and special majorities. S1(c) states that one of the values South Africa is founded upon is the ‘supremacy of the constitution and the rule of law’. (a) Are the following statements true or false? Give reasons for your answer. (i) An inflexible constitution enjoys the same status as the other laws of the country and does not require any special procedures for its amendment. (5) False. 1. It enjoys a higher status than the ordinary laws of the land. 2. It requires special procedures and majorities for amendment. 3. This makes it harder for the majority to effect amendments to the Constitution for self serving purposes. 4. Example: the South African Constitution of 1996.