Mini examination book CSL2601 2026
Note that in this document I only written the principle of legality and democracy out of
other principle of democracy
Basic Principles of Constitutional Law
Take note that
A constitution establishes a state, setting rules for its existence and operation.
South Africa’s Constitution declares the country as “one, sovereign democratic state” (s
1, Constitution of the Republic of South Africa, 1996).
Constitutional law covers:
1. Separation of powers (rules assigning and limiting power among state organs).
2. Bill of Rights (Chapter 2, guarantees rights to persons).
Constitutionality can be tested in two ways:
o Rights-based: law violates the Bill of Rights.
o Power-based: law exceeds powers or duties of state organs.
Example: Doctors for Life International v Speaker of the National Assembly [2006] ZACC
11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) – Parliament failed its duty of public
participation, making the Choice on Termination of Pregnancy Amendment Act unconstitutional
(not because of rights, but due to process failure).
Basic Principles of Constitutional Law
(a) Constitutional Supremacy
Section 2: Constitution is supreme law; inconsistent law or conduct is invalid.
Implication: State power is established and constrained by the Constitution.
Counter-majoritarian dilemma: Judicial review may limit majority will in Parliament.
S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391
(CC) – Chaskalson P: Courts must uphold constitutional provisions even against majority
opinion.
Contrast with Parliamentary sovereignty (UK Westminster model, apartheid South
Africa).
� Reference: Pierre De Vos & Warren Freedman, South African Constitutional Law in Context
(2014) at 38, 72.
(b) Separation of Powers
Trias politica: Legislature (makes laws), Executive (enforces laws), Judiciary (interprets
laws).
Ensures checks and balances:
o Legislature can remove judges for misconduct.
o Judiciary can invalidate unconstitutional laws.
Separation differs by model:
o Westminster system (UK): Overlap between executive & legislature.
o US system: Stricter separation (e.g., presidential veto).
,(c) The Rule of Law
Based on A.V. Dicey (1885):
1. All public power must be exercised under law.
2. Everyone is equal before the law.
3. Courts enforce laws.
Section 1(c): South Africa is founded on the rule of law.
Case law development:
o Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council [1998] ZACC 17; 1999 (1) SA 374 (CC) – Principle of legality: power
must be authorised by law.
o President v SARFU [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (CC)
para 148 – Power must be exercised in good faith, not misconstrued.
o Pharmaceutical Manufacturers Association of SA v President [2000] ZACC 1;
2000 (2) SA 674 (CC) para 80 – All public power must be rational.
o Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010
(3) SA 293 (CC) para 50 – Rationality includes procedure.
o Democratic Alliance v President of SA [2012] ZACC 24; 2013 (1) SA 248 (CC)
para 37 – Rationality includes the process leading to decisions.
o NERSA v PG Group [2019] ZACC 28 para 49 – Confirmed procedural rationality.
(d) Democracy
Section 1 establishes South Africa as a democratic state.
Three models:
o Direct democracy – citizens vote directly (s 17: petition rights; s 84(2)(g):
referenda).
o Representative democracy – elected representatives decide (s 1(d); s 46(1); s
19).
o Participatory democracy – citizens engage beyond elections (s 59(1)(a); s
72(1)(a)).
Example: Doctors for Life – Parliament failed duty of public participation.
Example: My Vote Counts NPC v Minister of Justice [2018] ZACC 17 – Political rights
tied to transparency in funding.
(e) Transformative Constitutionalism
Constitution aims not to preserve status quo but to transform society into one based on
equality, dignity, and freedom.
Section 1: endorses substantive equality, affirmative action.
Justiciable socio-economic rights (e.g., housing, health).
S v Makwanyane [1995] ZACC 3 – Constitution is transformative, moving away from
apartheid.
Du Plessis v De Klerk 1996 (3) SA 850 (CC) – Constitution as instrument of
transformation.
Raduvha v Minister of Safety and Security [2016] ZACC 24 para 55 – Constitution
rejects history of denial of human rights.
� Pius Langa (2006) “Transformative Constitutionalism”, Karl Klare (1998) SAJHR, Dikgang
Moseneke (2002), Sandile Ngcobo (2011).
,Principle of legality and rule of law
Section 1 of the Constitution establishes South Africa as “one, sovereign, democratic state,”
founded on, among other values, the “supremacy of the Constitution and the rule of law” (s
1(c)). In addition, it recognises the importance of a “multi-party system of democratic
government to ensure accountability, responsiveness and openness” (s 1(d)). In United
Democratic Movement v President of the Republic of South Africa 2003 (1) SA 495 (CC),
the Constitutional Court emphasised that these values serve two crucial purposes: first, they
shape the interpretation of both constitutional provisions and ordinary legal rules; and second,
they establish normative standards that legislation and conduct must satisfy to remain valid. As
a result, any law or conduct that contravenes the foundational values in section 1 may be
declared invalid and struck down (United Democratic Movement v President of the Republic
of South Africa 2003 (1) SA 495 (CC) para 19).
The Court’s interpretation of the rule of law principle originated in Fedsure Life Insurance v
Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). Since then,
the Court has repeatedly applied the principle of legality, confirming that it places limits on
legislative authority. These limitations include, firstly, that Parliament may not enact laws that
operate retrospectively or that single out specific individuals or groups (President of the
Republic of South Africa v Hugo 1997 (4) SA 1 (CC)). Secondly, legislation must not be
arbitrary, capricious, or irrational (New National Party v Government of the Republic of
South Africa 1999 (3) SA 191 (CC); Merafong Demarcation Forum v President of the
Republic of South Africa 2008 (5) SA 171 (CC)). Thirdly, statutes may not be drafted with
such vagueness or uncertainty that those subject to them cannot reasonably determine what is
required of them (Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)
para 108; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 102)
The rule of law
English constitutional law scholar Professor Albert Venn Dicey (1835-1922), who used it
his book An Introduction to the Study of the Law of the Constitution (1885). AV Dicey An
Introduction to the Study of the Law of the Constitution 9ed (1945).
Dicey described the rule of law in three dimensions. First, he explained that no individual may
be punished or lawfully deprived of liberty or property unless it is for a clear breach of the law,
determined in accordance with ordinary legal procedures before the ordinary courts (AV Dicey
An Introduction to the Study of the Law of the Constitution 9ed (1945) at 188). Second, he
stated that the rule of law requires that no one is above the law, and that every person,
regardless of rank or status, is subject to the same laws and accountable to the same courts
(AV Dicey An Introduction to the Study of the Law of the Constitution 9ed (1945) at 193). Third,
Dicey pointed out that the constitution is permeated by the rule of law in the sense that
fundamental rights, such as personal liberty and the right to public meetings, are safeguarded
through judicial decisions in particular cases, rather than being guaranteed solely by abstract
constitutional principles as is often the case in other countries (AV Dicey An Introduction to the
Study of the Law of the Constitution 9ed (1945) at 195).
In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), the
facts were as follows: In 2007, former President Mbeki announced a “special dispensation”
allowing certain political prisoners to apply for pardons under section 84(2)(j) of the Constitution,
, which grants the President authority to “pardon or reprieve offenders.” This dispensation was
limited to individuals convicted of political crimes committed before 16 June 1999 who had
chosen not to participate in the Truth and Reconciliation Commission’s (TRC’s) amnesty
process. The stated aims of the dispensation were to promote nation-building, reconciliation,
and cohesion, and to move beyond past conflicts. President Mbeki further indicated that he
would be guided by constitutional values, particularly those underpinning nation-building,
reconciliation, and the spirit of the TRC’s amnesty process (Albutt v Centre for the Study of
Violence and Reconciliation 2010 (3) SA 293 (CC) at para 6).
The Constitutional Court dismissed the appeal and held that, regardless of whether the granting
of pardons is classified as an administrative or executive act, the exercise of all state power
must comply with the principle of legality, which is a core element of the rule of law. At a
minimum, this requires that the exercise of power be rational (Albutt v Centre for the Study of
Violence and Reconciliation 2010 (3) SA 293 (CC) at para 49). While the Court stressed that
its decision was confined to the facts before it, the judgment contributed to the broader
development of rationality review. Hoexter has argued that the rationality of any decision is
enhanced by affording affected parties an opportunity to be heard. This view was later
confirmed when the Supreme Court of Appeal held that a failure to consult with interested
parties renders decisions irrational and contrary to the principle of legality, as seen in Minister
of Home Affairs v Scalabrini Centre 2013 (6) SA 421 (SCA) and eTV (Pty) Ltd v Minister of
Communications [2016] ZASCA 85.
In SARFU (President of the Republic of South Africa and Others v South African Rugby
Football Union and Others [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (SARFU)
para 148), the Constitutional Court expanded on the principle of legality, holding that public
officials must exercise power in good faith and within the bounds of their authority. This principle
was developed further in Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC
1; 2000 (2) SA 674; 2000 (3) BCLR 241 (Pharmaceuticals) para 80), where the Court held
that all exercises of public power must also meet the standard of rationality. In Albutt v Centre
for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), the Court recognised
that rationality has a procedural dimension. This view was reinforced in Democratic Alliance v
President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1)
SA 248 (CC) para 37, where the Court explained that the rationality of government action
extends not only to its purpose but also to the process by which it is taken. More recently, in
National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and
Others [2019] ZACC 28 (NERSA) para 49, the Court confirmed this approach. Thus, for
instance, if the rationality of a decision requires a hearing, but no hearing is provided, that
decision will be irrational. While legality review is commonly associated with administrative law,
the rule of law remains a central principle in constitutional interpretation, making its proper
understanding essential in the South African context.
Note that in this document I only written the principle of legality and democracy out of
other principle of democracy
Basic Principles of Constitutional Law
Take note that
A constitution establishes a state, setting rules for its existence and operation.
South Africa’s Constitution declares the country as “one, sovereign democratic state” (s
1, Constitution of the Republic of South Africa, 1996).
Constitutional law covers:
1. Separation of powers (rules assigning and limiting power among state organs).
2. Bill of Rights (Chapter 2, guarantees rights to persons).
Constitutionality can be tested in two ways:
o Rights-based: law violates the Bill of Rights.
o Power-based: law exceeds powers or duties of state organs.
Example: Doctors for Life International v Speaker of the National Assembly [2006] ZACC
11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) – Parliament failed its duty of public
participation, making the Choice on Termination of Pregnancy Amendment Act unconstitutional
(not because of rights, but due to process failure).
Basic Principles of Constitutional Law
(a) Constitutional Supremacy
Section 2: Constitution is supreme law; inconsistent law or conduct is invalid.
Implication: State power is established and constrained by the Constitution.
Counter-majoritarian dilemma: Judicial review may limit majority will in Parliament.
S v Makwanyane and Another [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391
(CC) – Chaskalson P: Courts must uphold constitutional provisions even against majority
opinion.
Contrast with Parliamentary sovereignty (UK Westminster model, apartheid South
Africa).
� Reference: Pierre De Vos & Warren Freedman, South African Constitutional Law in Context
(2014) at 38, 72.
(b) Separation of Powers
Trias politica: Legislature (makes laws), Executive (enforces laws), Judiciary (interprets
laws).
Ensures checks and balances:
o Legislature can remove judges for misconduct.
o Judiciary can invalidate unconstitutional laws.
Separation differs by model:
o Westminster system (UK): Overlap between executive & legislature.
o US system: Stricter separation (e.g., presidential veto).
,(c) The Rule of Law
Based on A.V. Dicey (1885):
1. All public power must be exercised under law.
2. Everyone is equal before the law.
3. Courts enforce laws.
Section 1(c): South Africa is founded on the rule of law.
Case law development:
o Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council [1998] ZACC 17; 1999 (1) SA 374 (CC) – Principle of legality: power
must be authorised by law.
o President v SARFU [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (CC)
para 148 – Power must be exercised in good faith, not misconstrued.
o Pharmaceutical Manufacturers Association of SA v President [2000] ZACC 1;
2000 (2) SA 674 (CC) para 80 – All public power must be rational.
o Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010
(3) SA 293 (CC) para 50 – Rationality includes procedure.
o Democratic Alliance v President of SA [2012] ZACC 24; 2013 (1) SA 248 (CC)
para 37 – Rationality includes the process leading to decisions.
o NERSA v PG Group [2019] ZACC 28 para 49 – Confirmed procedural rationality.
(d) Democracy
Section 1 establishes South Africa as a democratic state.
Three models:
o Direct democracy – citizens vote directly (s 17: petition rights; s 84(2)(g):
referenda).
o Representative democracy – elected representatives decide (s 1(d); s 46(1); s
19).
o Participatory democracy – citizens engage beyond elections (s 59(1)(a); s
72(1)(a)).
Example: Doctors for Life – Parliament failed duty of public participation.
Example: My Vote Counts NPC v Minister of Justice [2018] ZACC 17 – Political rights
tied to transparency in funding.
(e) Transformative Constitutionalism
Constitution aims not to preserve status quo but to transform society into one based on
equality, dignity, and freedom.
Section 1: endorses substantive equality, affirmative action.
Justiciable socio-economic rights (e.g., housing, health).
S v Makwanyane [1995] ZACC 3 – Constitution is transformative, moving away from
apartheid.
Du Plessis v De Klerk 1996 (3) SA 850 (CC) – Constitution as instrument of
transformation.
Raduvha v Minister of Safety and Security [2016] ZACC 24 para 55 – Constitution
rejects history of denial of human rights.
� Pius Langa (2006) “Transformative Constitutionalism”, Karl Klare (1998) SAJHR, Dikgang
Moseneke (2002), Sandile Ngcobo (2011).
,Principle of legality and rule of law
Section 1 of the Constitution establishes South Africa as “one, sovereign, democratic state,”
founded on, among other values, the “supremacy of the Constitution and the rule of law” (s
1(c)). In addition, it recognises the importance of a “multi-party system of democratic
government to ensure accountability, responsiveness and openness” (s 1(d)). In United
Democratic Movement v President of the Republic of South Africa 2003 (1) SA 495 (CC),
the Constitutional Court emphasised that these values serve two crucial purposes: first, they
shape the interpretation of both constitutional provisions and ordinary legal rules; and second,
they establish normative standards that legislation and conduct must satisfy to remain valid. As
a result, any law or conduct that contravenes the foundational values in section 1 may be
declared invalid and struck down (United Democratic Movement v President of the Republic
of South Africa 2003 (1) SA 495 (CC) para 19).
The Court’s interpretation of the rule of law principle originated in Fedsure Life Insurance v
Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC). Since then,
the Court has repeatedly applied the principle of legality, confirming that it places limits on
legislative authority. These limitations include, firstly, that Parliament may not enact laws that
operate retrospectively or that single out specific individuals or groups (President of the
Republic of South Africa v Hugo 1997 (4) SA 1 (CC)). Secondly, legislation must not be
arbitrary, capricious, or irrational (New National Party v Government of the Republic of
South Africa 1999 (3) SA 191 (CC); Merafong Demarcation Forum v President of the
Republic of South Africa 2008 (5) SA 171 (CC)). Thirdly, statutes may not be drafted with
such vagueness or uncertainty that those subject to them cannot reasonably determine what is
required of them (Affordable Medicines Trust v Minister of Health 2006 (3) SA 247 (CC)
para 108; Dawood v Minister of Home Affairs 2000 (3) SA 936 (CC) para 102)
The rule of law
English constitutional law scholar Professor Albert Venn Dicey (1835-1922), who used it
his book An Introduction to the Study of the Law of the Constitution (1885). AV Dicey An
Introduction to the Study of the Law of the Constitution 9ed (1945).
Dicey described the rule of law in three dimensions. First, he explained that no individual may
be punished or lawfully deprived of liberty or property unless it is for a clear breach of the law,
determined in accordance with ordinary legal procedures before the ordinary courts (AV Dicey
An Introduction to the Study of the Law of the Constitution 9ed (1945) at 188). Second, he
stated that the rule of law requires that no one is above the law, and that every person,
regardless of rank or status, is subject to the same laws and accountable to the same courts
(AV Dicey An Introduction to the Study of the Law of the Constitution 9ed (1945) at 193). Third,
Dicey pointed out that the constitution is permeated by the rule of law in the sense that
fundamental rights, such as personal liberty and the right to public meetings, are safeguarded
through judicial decisions in particular cases, rather than being guaranteed solely by abstract
constitutional principles as is often the case in other countries (AV Dicey An Introduction to the
Study of the Law of the Constitution 9ed (1945) at 195).
In Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), the
facts were as follows: In 2007, former President Mbeki announced a “special dispensation”
allowing certain political prisoners to apply for pardons under section 84(2)(j) of the Constitution,
, which grants the President authority to “pardon or reprieve offenders.” This dispensation was
limited to individuals convicted of political crimes committed before 16 June 1999 who had
chosen not to participate in the Truth and Reconciliation Commission’s (TRC’s) amnesty
process. The stated aims of the dispensation were to promote nation-building, reconciliation,
and cohesion, and to move beyond past conflicts. President Mbeki further indicated that he
would be guided by constitutional values, particularly those underpinning nation-building,
reconciliation, and the spirit of the TRC’s amnesty process (Albutt v Centre for the Study of
Violence and Reconciliation 2010 (3) SA 293 (CC) at para 6).
The Constitutional Court dismissed the appeal and held that, regardless of whether the granting
of pardons is classified as an administrative or executive act, the exercise of all state power
must comply with the principle of legality, which is a core element of the rule of law. At a
minimum, this requires that the exercise of power be rational (Albutt v Centre for the Study of
Violence and Reconciliation 2010 (3) SA 293 (CC) at para 49). While the Court stressed that
its decision was confined to the facts before it, the judgment contributed to the broader
development of rationality review. Hoexter has argued that the rationality of any decision is
enhanced by affording affected parties an opportunity to be heard. This view was later
confirmed when the Supreme Court of Appeal held that a failure to consult with interested
parties renders decisions irrational and contrary to the principle of legality, as seen in Minister
of Home Affairs v Scalabrini Centre 2013 (6) SA 421 (SCA) and eTV (Pty) Ltd v Minister of
Communications [2016] ZASCA 85.
In SARFU (President of the Republic of South Africa and Others v South African Rugby
Football Union and Others [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 (SARFU)
para 148), the Constitutional Court expanded on the principle of legality, holding that public
officials must exercise power in good faith and within the bounds of their authority. This principle
was developed further in Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa and Others [2000] ZACC
1; 2000 (2) SA 674; 2000 (3) BCLR 241 (Pharmaceuticals) para 80), where the Court held
that all exercises of public power must also meet the standard of rationality. In Albutt v Centre
for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC), the Court recognised
that rationality has a procedural dimension. This view was reinforced in Democratic Alliance v
President of South Africa and Others [2012] ZACC 24; 2012 (12) BCLR 1297 (CC); 2013 (1)
SA 248 (CC) para 37, where the Court explained that the rationality of government action
extends not only to its purpose but also to the process by which it is taken. More recently, in
National Energy Regulator of South Africa and Another v PG Group (Pty) Limited and
Others [2019] ZACC 28 (NERSA) para 49, the Court confirmed this approach. Thus, for
instance, if the rationality of a decision requires a hearing, but no hearing is provided, that
decision will be irrational. While legality review is commonly associated with administrative law,
the rule of law remains a central principle in constitutional interpretation, making its proper
understanding essential in the South African context.
