CHAPTER 8 + 9 - FOUNDING PROVISIONS, BASIC LEGAL ORDER &
SYMBOLS + BILL OF RIGHTS
Saturday, 12 June 2021 11:03
INTRODUCTION
- The 1996 RSA Constitution was drafted by the Constitutional Assembly in accordance with
the provisions set out in Chapter 5 of the IC (Act 200 of 1993)
LEGAL SYSTEM OF RSA
- Legal system: all the legal rules applicable in a state
○ Not a formal or direct element of a state
○ Does not depend on the quality of those legal rules
- The extent, existence and content of a legal system + subsystem are usually regulated by a
national constitution (if there is one)
○ SA has sub-legal systems
- Bill of Rights (BoR): defines the particular rights of the individual in a state and also sets the
limits of and restrictions on those rights for government + private parties
○ Chapter 2
THE PREAMBLE
- Introduction to the C
- 4 main objectives of the C are set in the Preamble:
i. To heal the divisions of the past and establish a society based on democratic values,
social justice and fundamental rights
ii. To lay foundations for a democratic and open society with a government based on the
will of the people, where the law equally protects every citizen
iii. To improve quality of life of all citizens and to free the potential of each person
iv. To build a united democratic South Africa
- A Preamble usually contains the historical background and the circumstances for which it
was adopted
- The Preamble is not totally religiously neutral
○ Reference to God or a deity
○ However, RSA is referred to as a secular state (pg. 233-234)
- S v Mhlungu 1995 (7) BCLR 793 (CC) (pg. 235-236)
THE STATE AS A JUSRISTIC ENTITY
- He state is regarded as a juristic or legal entity which can enter into agreements and can
summon others or be summoned itself
- Why it is useful to regard the state as a juristic person:
i. State is comprised of people (citizens) with the necessary competencies to take part in
the exercise of authority of the juristic person
ii. A state has its own characteristics (like other juristic persons) that distinguish it from
other states (e.g. a name, symbols, coat of arms)
iii. The law also binds the state (section 8)
iv. The state may institute legal proceedings or such proceedings may be instituted
against it
v. The assets of a JP are separate from the assets of the natural persons comprising the
SYMBOLS + BILL OF RIGHTS
Saturday, 12 June 2021 11:03
INTRODUCTION
- The 1996 RSA Constitution was drafted by the Constitutional Assembly in accordance with
the provisions set out in Chapter 5 of the IC (Act 200 of 1993)
LEGAL SYSTEM OF RSA
- Legal system: all the legal rules applicable in a state
○ Not a formal or direct element of a state
○ Does not depend on the quality of those legal rules
- The extent, existence and content of a legal system + subsystem are usually regulated by a
national constitution (if there is one)
○ SA has sub-legal systems
- Bill of Rights (BoR): defines the particular rights of the individual in a state and also sets the
limits of and restrictions on those rights for government + private parties
○ Chapter 2
THE PREAMBLE
- Introduction to the C
- 4 main objectives of the C are set in the Preamble:
i. To heal the divisions of the past and establish a society based on democratic values,
social justice and fundamental rights
ii. To lay foundations for a democratic and open society with a government based on the
will of the people, where the law equally protects every citizen
iii. To improve quality of life of all citizens and to free the potential of each person
iv. To build a united democratic South Africa
- A Preamble usually contains the historical background and the circumstances for which it
was adopted
- The Preamble is not totally religiously neutral
○ Reference to God or a deity
○ However, RSA is referred to as a secular state (pg. 233-234)
- S v Mhlungu 1995 (7) BCLR 793 (CC) (pg. 235-236)
THE STATE AS A JUSRISTIC ENTITY
- He state is regarded as a juristic or legal entity which can enter into agreements and can
summon others or be summoned itself
- Why it is useful to regard the state as a juristic person:
i. State is comprised of people (citizens) with the necessary competencies to take part in
the exercise of authority of the juristic person
ii. A state has its own characteristics (like other juristic persons) that distinguish it from
other states (e.g. a name, symbols, coat of arms)
iii. The law also binds the state (section 8)
iv. The state may institute legal proceedings or such proceedings may be instituted
against it
v. The assets of a JP are separate from the assets of the natural persons comprising the
