CSL2601 Constitutional law – Q & A. 100% Correct Ans.

Constitutional law – Q & A 1 Explain what is meant by constitutional law? We can define constitutional law as those rules that regulate the manner in which state authority is exercised and shared. It also relates to those rules which regulate the relationship between organs of state inter se, and between organs of state and individuals. 2 “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. 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 semipublic corporations or private contractors. 3 Distinguish an inflexible constitution from a flexible one and mention an example of each. 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 higher status to other laws and requires a special amendment procedure. An example is the 1996 constitution of South Africa. 4. Does South Africa have a flexible or inflexible constitution? South Africa has an inflexible constitution. Section 2 of the constitution states the constitution is the supreme law of the land. Section 74(1) – (3) lays down the requirements for amendment to the constitution. 5. Distinguish between a supreme constitution and one that is not supreme. Give an example of each. A supreme constitution ranks above all other laws of the state and is normally associated with an inflexible constitution. An example of a supreme constitution is the 1996 constitution of South Africa. On the other hand a constitution that is not supreme does not enjoy any special status to other laws in the land and the government can declare laws which conflict with the basic principles of the constitution. An example of a constitution that is not supreme is Britain. 6. Explain why South Africa has a supreme constitution. The South African constitution is supreme. Section 1(c) lists the supremacy of the constitution as a founding value. Section 2 states that the constitution is the supreme law of the republic. Section 172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid in terms of its inconsistency. 7. Explain the difference between autochthonous and allochthonous constitutions. Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive constitutions which aim to resolve specific issues of the past are indigenous. There are also constitutions which maintain continuity with established norms and tradition which are also indigenous. Finally there are superimposed constitutions whose contents are largely unrelated to the history of the country; this is an example of an allochthonous constitution. It is often difficult to find an example of a constitution that fits distinctly into either category. For instance the 1996 constitution of South Africa is considered to be an indigenous constitution as it was drafted in the light of South Africa’s history, but at the same time borrowed on the experience of other countries and was influenced by international law. 8. Discuss the following concepts 1. State 5 2. Government 5 3. sovereignty 5 A state is defined by the following requirements: • a specific geographically defined territory • a community of people who live in that territory • a legal order in which the community is subject • an organized system of government which is able to uphold the legal order • a measure of separate political identity The government is a temporary bearer of state authority, whom represents the state at a particular time. Initially government did not have a political connotation and was associated with the judicial function. Gradually government became a general term covering all functions and organs of state. Today government relates primarily to the executive function with particular bearing on the formation and implementation of policy.