cls2601_summary_constitutional_law BEST FOR EXAM.

CLS2601 - CONSTITUTIONAL LAW Study Unit 1 SOURCES OF CONSTITUTIONAL LAW, CLASSIFICATION OF CONSTITUTIONS AND THE CONCEPTS “STATE” AND “GOVERNMENT” Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I - CONSTITUTION - LEGISLATION - COMMON LAW - CUSTOMARY LAW - CASE LAW - INTERNATIONAL LAW - Constitution - refers to both written and unwritten rules governing the exercise and distribution of state authority on one hand, and on the other, governing relationship between organs of state inter se and also between organs of state and legal subjects. - Legislation - is written law enacted by an elected body authorized to do so by the Constitution or other legislation. - Common law - the unwritten law of SA, which in SA is Roman-Dutch Law - Customary law - that system of law generally derived from custom, African indigenous law - Case law - practical application of constitutional principles by our courts, our courts have full testing power making case law an authoritative source. - International law - The Constitution provides that the courts must consider international law when determining constitutional issues. Persuasive sources of South Africa’s constitutional law F.A.R.P - FOREIGN LAW - ACADEMIC WRITINGS - REPORTS BY INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY - POLICY DOCUMENTS Discuss the history of the adoption of the Constitution of the Republic of South - - - - - - - - - The Constitution of the Republic of South Africa 1996 was the product of a long process of popular struggle, multiparty political negotiations and democratic deliberation in which politicians, lawyers, representatives of civil society and ordinary people all played a major role. - Prior to 1994, there was Parliamentary Sovereignty. - Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson Mandela, unbanning of liberation movement. Eventually multi-party negotiations. - The two stage process: First, the interim Constitution was adopted at the multiparty negotiations. Second, democratic elections for SA’s first fully representative Parliament which double as the Constitutional Assembly. - The Constitutional Principles, the First Certification Judgment and penultimately the final Constitution, The Constitution of the Republic of South Africa, 1996. Classification of constitutions - Flexible and inflexible, supreme and not supreme, written and unwritten, autochthonous and allochthonous constitutions. - Flexible constitutions and inflexible constitutions - Flexible constitutions require no special procedures or majorities for amendment and can be amended in the same manner as any other legislation. Eg. the interim Constitution 1993 - Inflexible constitutions require special amendment procedures and amendment majorities (contained in section 74 of the Constitution) before they can be amended. Eg.The 1996 Constitution, and constitutions of Germany, USA - A constitution is supposed to be the embodiment of the values and principles to which a nation has committed itself, and contains rights and procedures which must protect individuals and