lOMoARcPSD|3013804
CONSTITUTIONAL LAW STUDY
NOTES
Constitutional Law (University of South Africa)
, lOMoARcPSD|3013804
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. Contains National law e.g South African citizenship Act,
Electoral Act, Local Government Municipal Structures Act
- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law. English law
in the Development of CC. Section 39 interpretation of the Bill of Rights
- 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
, lOMoARcPSD|3013804
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. Parliament Supreme – any law-
couldn’t be challenged.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson
Mandela (2 February 1990), 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 (“pact” to stick to the principles, when the final
Constitution was drawn up), the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996. (Parliament
Sovereignty was replaced with Constitutional supremacy. Adopted by the CA (NA and
Senate) +2/3 majority before the new text came into operation. CC had to certify that it
complied with Constitutional Principles in Schedule 4 of the Interim Constitution.)
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 (Has superior status to other law) 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 minorities against unfair treatment by the government. If it can be
amended too easily, the majority party in parliament will be tempted to abolish (or at
least water down) some of these protections if it is politically convenient to do so, as can
be evidenced from South Africa’s predemocratic constitutions.
, lOMoARcPSD|3013804
Supreme Constitutions and Not supreme constitutions
-Supreme constitutions – Ranks above all other laws in a state. Any law which is
inconsistent with it will be declared invalid (referred to as the Grundnorm, against which
all other legislation is tested for validity.) Is usually but not always inflexible. Courts have
testing powers. Examples of supreme constitutions are those of the USA, Canada,
Germany and South Africa.
-Not Supreme – Does not enjoy any special status when compared with other laws. The
Legislature can pass laws which are inconsistent with the constitution. The courts
cannot question the legality (or validity) of such laws, provided that the required
procedure has been complied with. Is usually Flexible. Examples are Great Britain.
Written constitutions and unwritten constitutions
- Very few countries do not have written constitutions. For example, Great Britain, which
is often used as an example of a country without a written constitution, has a number of
important statutory constitutional sources. On the other hand, even in countries where
there is a single document called “the Constitution”, there are always other
constitutional enactments which supplement it. No single document can ever contain all
the rules governing constitutional issues. (sources of CC Law- constitution, Legislation,
case law, international law, common law and other.)
Autochthonous (homegrown) constitutions and allochthonous (foreign)
constitutions (forced- eg Zim)
- It is very difficult to find a constitution which can be said to be totally indigenous.
Most of the “modern” constitutions in the world today are based on the government
systems of the former colonial powers.
- Reactive constitutions originate because of specific problems in the past. Eg, Germany
and RSA. Regarded as indigenous.
- Constitutions intended to maintain continuity of norms in the legal tradition of that
society. Eg. Netherlands. Regarded as indigenous.
- Superimposed constitutions are largely unrelated to the history of the country
concerned. Eg. Imposed on the colonies of Britain, by Britain. - zim
Explain what is meant by “government”, “state” and “sovereignty”
- Government: The government represents the state at a particular time and is the
temporary bearer of state authority. In other words, “government” relates primarily to the
executive function and having a particular bearing on the formation and implementation
of policy.
CONSTITUTIONAL LAW STUDY
NOTES
Constitutional Law (University of South Africa)
, lOMoARcPSD|3013804
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. Contains National law e.g South African citizenship Act,
Electoral Act, Local Government Municipal Structures Act
- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law. English law
in the Development of CC. Section 39 interpretation of the Bill of Rights
- 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
, lOMoARcPSD|3013804
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. Parliament Supreme – any law-
couldn’t be challenged.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson
Mandela (2 February 1990), 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 (“pact” to stick to the principles, when the final
Constitution was drawn up), the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996. (Parliament
Sovereignty was replaced with Constitutional supremacy. Adopted by the CA (NA and
Senate) +2/3 majority before the new text came into operation. CC had to certify that it
complied with Constitutional Principles in Schedule 4 of the Interim Constitution.)
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 (Has superior status to other law) 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 minorities against unfair treatment by the government. If it can be
amended too easily, the majority party in parliament will be tempted to abolish (or at
least water down) some of these protections if it is politically convenient to do so, as can
be evidenced from South Africa’s predemocratic constitutions.
, lOMoARcPSD|3013804
Supreme Constitutions and Not supreme constitutions
-Supreme constitutions – Ranks above all other laws in a state. Any law which is
inconsistent with it will be declared invalid (referred to as the Grundnorm, against which
all other legislation is tested for validity.) Is usually but not always inflexible. Courts have
testing powers. Examples of supreme constitutions are those of the USA, Canada,
Germany and South Africa.
-Not Supreme – Does not enjoy any special status when compared with other laws. The
Legislature can pass laws which are inconsistent with the constitution. The courts
cannot question the legality (or validity) of such laws, provided that the required
procedure has been complied with. Is usually Flexible. Examples are Great Britain.
Written constitutions and unwritten constitutions
- Very few countries do not have written constitutions. For example, Great Britain, which
is often used as an example of a country without a written constitution, has a number of
important statutory constitutional sources. On the other hand, even in countries where
there is a single document called “the Constitution”, there are always other
constitutional enactments which supplement it. No single document can ever contain all
the rules governing constitutional issues. (sources of CC Law- constitution, Legislation,
case law, international law, common law and other.)
Autochthonous (homegrown) constitutions and allochthonous (foreign)
constitutions (forced- eg Zim)
- It is very difficult to find a constitution which can be said to be totally indigenous.
Most of the “modern” constitutions in the world today are based on the government
systems of the former colonial powers.
- Reactive constitutions originate because of specific problems in the past. Eg, Germany
and RSA. Regarded as indigenous.
- Constitutions intended to maintain continuity of norms in the legal tradition of that
society. Eg. Netherlands. Regarded as indigenous.
- Superimposed constitutions are largely unrelated to the history of the country
concerned. Eg. Imposed on the colonies of Britain, by Britain. - zim
Explain what is meant by “government”, “state” and “sovereignty”
- Government: The government represents the state at a particular time and is the
temporary bearer of state authority. In other words, “government” relates primarily to the
executive function and having a particular bearing on the formation and implementation
of policy.
