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CSL - Summary - Notes
Constitutional Law (University of South Africa)
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CONSTITUTIONAL LAW
UNIT 1 - SOURCES OF CONSTITUTIONAL LAW
1. Constitution
2. Legislation
3. Case law
4. International Law
5. Common Law
6. Other Sources
OUTOCOMES:
explain sources of law
classify & examine sources of Constit law
apply sources to a concrete situation
know where to search for various sources of Constit Law
1.1 Sources of Law – meaning
Refers to places you can find legal rules, principles and values that govern a particular branch of law. (in
this case Constit Law)
1.2 Sources of Constitutional law
1.2.1 The constitution
May refer to:-
- Entire body of rules which govern exercise of state authority in particular state &
relationships between citizens - & organs of state
- Written documents which contains some or most constitutional rules
1996 Constsit – example of written doc – contains most constit rules regulating relationship btwn state
organs inter se & state organs & individuals. As evidenced by Sec 2 of Const Law – implications of this
section are:-
Sets standard ito which bearers of state authority – required to exercise state authority
Prescribes limits that are imposed to exercise state authority – Sec 2 = any law or conduct which is
inconsistent with Constitution – declared invalid
In some instances – also prescribes consequences / penalties that may arise when state authority is
exercised improperly
1.2.2 Legislation / Statute
Binds sources of law – “binding source of law” – authoritative source of law
Passes original / subordinate legislation
Du Plessis & Corder 1994 :
Because its provisions cannot be repealed or amended it [a
constitution] must be capable of growth and development over a
period of time in order to meet new technological social political, and
economic realities often unimagined by its framers.
Some important national laws:-
South African Citizenship Act 88 of 1995
Electoral Act 73 of 1998
Local Government: Municipal Structures Act 117 of 1998
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1.2.3 Common Law
Unwritten Law of SA.
Since 1996 Constitution – not an important part of constitutional law.
However – English common law – important part of development of SA constitutional law (even if it was
under Westminster system of gov.)
1993 & 1996 Constitution – made break with Westminster system = Substituted constitutional
supremacy with parliamentary sovereignty.
Sec 39(2) – courts are required to develop common law & bring in line with constitutional precepts.
1.2.4 Case Law (stare decisis)
Illustrates practical application of constitutional principles, rules & values
How particular case contributes or alters to development of the law.
In past – very limited source of SA constitutional law – but position changes drastically
Increase caused by: Entrenched Constitution (sets out institution that bear state authority at highest
levels & contains justiciable bill of rights – constantly leads to numerous constitutional judgments.
1.2.5 International law
Has wealth of conventions and practices designed to protect & promote human rights
Sec 39(1) – Compulsory for court to consider international law in determination of constitutional issues
Is indispensable to development of SA constitutional jurisprudence (in analysis of Bill of Rights)
1.2.6 Other sources of constitutional law
Help interpret constitutional norms & give guidance on how to apply them in concrete settings.
Merely persuasive in nature – anyone who refers to them , not obliged to follow their interpretation.
But often influence legislative and judicial decision making & are therefore important.
Examples:-
Academic writing – courts refer to books & writings
Policy documents – Government policies expressed in green, white papers & other documents
issued by organs of state which help to shape the legislative agenda
Reports by “State institutions supporting constitutional democracy” – Intsitutions report on
conduct of ministers & other public officials & make recommendations
Foreign law - Sec 39(1)(c) – courts may consider the use of Foreign law – where there is
insufficient guidance from SA sources.
1.3 Where to find these sources
Legislation
Government gazettes
Butterworth’s publishers (loose leaf legislation book & annual collection of statutes)
www.polity.org.za/legislation OR www.acts.co.za
Case Law
SA law reports published monthly by Juta
Butterworth’s Constitutional Law Reports (BCLR)
Decisions in Constitutional Court & Supreme Court of appeal – found on website of Univ of
Witwatersrand – www.law.wits.ac.za
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Textbooks
Chaskalson et al Constitutional law of South Africa Juta (1996)
Rautenbach, I & Malherbe, CFJ Constitutional law 3ed Butterworths 2003
Devenish A commentary on the South African Constitution Butterworths 1998
Articles published in journals
South African Public Law (SAPR/PL), which is published by the VerLoren van Themaat Centre,
Unisa
South African Journal on Human Rights (SAJHR), which is published by Juta
Policy documents & reports on the governments website
www.polity.org.za
UNIT 2: BIRTH OF THE CONSTITUTION OF THE RSA, 1996
Not compulsory / for examination– read through it to understand
UNIT 3: CONCEPTS OF CONSTITUTIONAL LAW
Know Sections:-
1 (a) – (d)
2
7 (1) – (3)
8 (1)
74 (1) – (9)
172 (1)(a)
Definition of Constitutional Law
The Aggregate (sum total) of binding rules relating to the distribution & exercise of state authority.
Rules of Const Law define the relationship between organs of state & inter se & between organs of state
& individuals.
3.1 Where does constitutional law fit into the legal system?
Said to be part of Public Law.
Public Law: Branch of law that regulates the exercise of state authority in relationships of inequality –
the individual is always subordinate to the government organ, which is vested with state authority.
Eg. Where an accused stands trial for a criminal offence.
Private Law: governs relationships between people that are on an equal footing.
Eg. Where two individuals enter into a contract or marriage relationship.
The state sometimes acts in a non-authoritive capacity, same way as a private person / company. Eg.
When the state purchases supplies / hires a lawyer.
However, the dividing line between public & private law has become blurred in recent times. There are a
number of reasons why:-
The modern state has become extremely involved in “private law” relationships.
The Constitution itself states that “private” relationships are often unequal.
Over the past few years, public functions have increasingly been privatised.
(Read & Do activity on page 24)
Downloaded by Tinomuda Nhongo ()
CSL - Summary - Notes
Constitutional Law (University of South Africa)
StuDocu is not sponsored or endorsed by any college or university
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
CONSTITUTIONAL LAW
UNIT 1 - SOURCES OF CONSTITUTIONAL LAW
1. Constitution
2. Legislation
3. Case law
4. International Law
5. Common Law
6. Other Sources
OUTOCOMES:
explain sources of law
classify & examine sources of Constit law
apply sources to a concrete situation
know where to search for various sources of Constit Law
1.1 Sources of Law – meaning
Refers to places you can find legal rules, principles and values that govern a particular branch of law. (in
this case Constit Law)
1.2 Sources of Constitutional law
1.2.1 The constitution
May refer to:-
- Entire body of rules which govern exercise of state authority in particular state &
relationships between citizens - & organs of state
- Written documents which contains some or most constitutional rules
1996 Constsit – example of written doc – contains most constit rules regulating relationship btwn state
organs inter se & state organs & individuals. As evidenced by Sec 2 of Const Law – implications of this
section are:-
Sets standard ito which bearers of state authority – required to exercise state authority
Prescribes limits that are imposed to exercise state authority – Sec 2 = any law or conduct which is
inconsistent with Constitution – declared invalid
In some instances – also prescribes consequences / penalties that may arise when state authority is
exercised improperly
1.2.2 Legislation / Statute
Binds sources of law – “binding source of law” – authoritative source of law
Passes original / subordinate legislation
Du Plessis & Corder 1994 :
Because its provisions cannot be repealed or amended it [a
constitution] must be capable of growth and development over a
period of time in order to meet new technological social political, and
economic realities often unimagined by its framers.
Some important national laws:-
South African Citizenship Act 88 of 1995
Electoral Act 73 of 1998
Local Government: Municipal Structures Act 117 of 1998
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
1.2.3 Common Law
Unwritten Law of SA.
Since 1996 Constitution – not an important part of constitutional law.
However – English common law – important part of development of SA constitutional law (even if it was
under Westminster system of gov.)
1993 & 1996 Constitution – made break with Westminster system = Substituted constitutional
supremacy with parliamentary sovereignty.
Sec 39(2) – courts are required to develop common law & bring in line with constitutional precepts.
1.2.4 Case Law (stare decisis)
Illustrates practical application of constitutional principles, rules & values
How particular case contributes or alters to development of the law.
In past – very limited source of SA constitutional law – but position changes drastically
Increase caused by: Entrenched Constitution (sets out institution that bear state authority at highest
levels & contains justiciable bill of rights – constantly leads to numerous constitutional judgments.
1.2.5 International law
Has wealth of conventions and practices designed to protect & promote human rights
Sec 39(1) – Compulsory for court to consider international law in determination of constitutional issues
Is indispensable to development of SA constitutional jurisprudence (in analysis of Bill of Rights)
1.2.6 Other sources of constitutional law
Help interpret constitutional norms & give guidance on how to apply them in concrete settings.
Merely persuasive in nature – anyone who refers to them , not obliged to follow their interpretation.
But often influence legislative and judicial decision making & are therefore important.
Examples:-
Academic writing – courts refer to books & writings
Policy documents – Government policies expressed in green, white papers & other documents
issued by organs of state which help to shape the legislative agenda
Reports by “State institutions supporting constitutional democracy” – Intsitutions report on
conduct of ministers & other public officials & make recommendations
Foreign law - Sec 39(1)(c) – courts may consider the use of Foreign law – where there is
insufficient guidance from SA sources.
1.3 Where to find these sources
Legislation
Government gazettes
Butterworth’s publishers (loose leaf legislation book & annual collection of statutes)
www.polity.org.za/legislation OR www.acts.co.za
Case Law
SA law reports published monthly by Juta
Butterworth’s Constitutional Law Reports (BCLR)
Decisions in Constitutional Court & Supreme Court of appeal – found on website of Univ of
Witwatersrand – www.law.wits.ac.za
Downloaded by Tinomuda Nhongo ()
, lOMoARcPSD|7394947
Textbooks
Chaskalson et al Constitutional law of South Africa Juta (1996)
Rautenbach, I & Malherbe, CFJ Constitutional law 3ed Butterworths 2003
Devenish A commentary on the South African Constitution Butterworths 1998
Articles published in journals
South African Public Law (SAPR/PL), which is published by the VerLoren van Themaat Centre,
Unisa
South African Journal on Human Rights (SAJHR), which is published by Juta
Policy documents & reports on the governments website
www.polity.org.za
UNIT 2: BIRTH OF THE CONSTITUTION OF THE RSA, 1996
Not compulsory / for examination– read through it to understand
UNIT 3: CONCEPTS OF CONSTITUTIONAL LAW
Know Sections:-
1 (a) – (d)
2
7 (1) – (3)
8 (1)
74 (1) – (9)
172 (1)(a)
Definition of Constitutional Law
The Aggregate (sum total) of binding rules relating to the distribution & exercise of state authority.
Rules of Const Law define the relationship between organs of state & inter se & between organs of state
& individuals.
3.1 Where does constitutional law fit into the legal system?
Said to be part of Public Law.
Public Law: Branch of law that regulates the exercise of state authority in relationships of inequality –
the individual is always subordinate to the government organ, which is vested with state authority.
Eg. Where an accused stands trial for a criminal offence.
Private Law: governs relationships between people that are on an equal footing.
Eg. Where two individuals enter into a contract or marriage relationship.
The state sometimes acts in a non-authoritive capacity, same way as a private person / company. Eg.
When the state purchases supplies / hires a lawyer.
However, the dividing line between public & private law has become blurred in recent times. There are a
number of reasons why:-
The modern state has become extremely involved in “private law” relationships.
The Constitution itself states that “private” relationships are often unequal.
Over the past few years, public functions have increasingly been privatised.
(Read & Do activity on page 24)
Downloaded by Tinomuda Nhongo ()
