Summary PBL 210 - Chapter 3 Notes

CHAPTER 3 - IMPORTANT CONSTITUTIONAL PRINCIPLES
Tuesday, 27 April 2021 09:55

INTRODUCTION
- Within the ambit, many principles, concepts and phrases are mentioned
- Basic principles that underlie the entire constitutional system
- Some are expressly entrenched and others are implicit
- Principles are blueprint of the new constitutional order in SA

PRINCIPLE OF CONSTITUTIONALISM
- The Constitution is supreme (s2)
- Under the Constitution, the government has strong powers
○ However, powers are subject to limits and procedures
- Rights/duties/powers of government must be exercised with the letter and spirit of the constitution/law
- Existance of a constitution does not pre-suppose system of constitutionalism
○ While all states have a constitution (written or unwritten) it does ensure compliance with constitutionalism
- Constitutionalism is a dynamic concept

- Elements of constitutionalism:
a. The state is founded on law
b. Government/state derives its power from law
c. Law is founded on written constitution
d. Government powers are limited/constrained by those provisions set out in law/constitution


- In SA, only one system of law
○ Customary and common law must comply with Constitutional law
 In the case of Pharmaceutical Manufacturers of South Africa: In re ex parte President of the Republic
of South Africa 2000 (2) SA 674 (CC)
□ Held that common law and the Constitution were not 2 distinct systems of law
□ Only one system of law and all law, including the common law, derived its force from the
Constitution and was subject to constitutional control
- Constitutionalism is not without its challenges
○ James Madison (footnote 3, page 76)
○ A balance must be sought between government with sufficient powers to govern and the appropriate
balance/control of government/public powers
- Constitution limits powers of government/state in 2 ways:
i. It sets structural + procedural requirements/limitations
ii. It sets substantive limits in the Bill of Rights

DEMOCRACY, ACCOUNTABILITY & SECULARISM

1. DEMOCRACY
- Democracy is one of the most common + recognisable concepts of constitutional law
- Although there is no consensus on how to define democracy, general agreement seems to suggest the concept
includes the principles of equality, political freedom and compliance with the rule of law
- Originated and first recognised during the period of classical antiquity (2400 years ago) in the city-states of
Greece
○ Founded on 2 words:
 Demos (people)
 Kratos (power/strength)
○ i.e. Democracy = the power/strength of the people

, - In a democratic system, the power to govern is not vested in one person (e.g. A monarch) or in a small group of
persons (e.g. An aristocracy) but in the people of the state
- Democracy presupposes free political expression, the right to take part in political decision-making and the
protection of minority interests
- The relationship between government and citizens is based on consent, not on power
- It requires government by explanation rather than by force
- Government is only legitimate if it has consent of the majority
- Traditional view: democracy is a government of people, by the people and for the people
- Modern view: democracy is not majority decision-making only
○ Basic rights must be protected
○ Some basic rights may not be taken away, even by majority
- Democracy is protected in many places in the SA Constitution
- Democracy is the cornerstone of the Bill of Rights
- Democracy is mostly a vertical application
- In SA, 3 forms of democracy: (representative, participatory and direct)

a. Representative
- Indirect form of democracy directed at the political representation of the citizens
- Mainly found in the various political rights protected in the C.
- Advantages:
 Practical form of governance
 Relieves ordinary citizens of the burden of decision-making
 It puts government in the hands of the people with special knowledge/skills
 It can create stability since ordinary citizens are removed from politics and final decisions which can
accommodate for political compromise
- In the case of De Lille and Another v Speaker of the National Assembly 1998 (3) SA 430 (CPD)
 The court held that the principles of representative democracy lay at the heart of the Constitution

b. Participatory
- Refers to the participation of individuals or institutions in governmental processes that have an effect on
them
- Participation within executive and judicial decision-making is less developed (e.g. Voting)
- In the case of Doctors for Life International v Speaker of the National Assembly 2006 (6) SA 416 (CC)
 Court emphasised that democratic government was partly representative and participatory '
 Facilitated public participation and public involvement and allows for public involvement in the
legislative processes and procedures

c. Direct
- Refers to the direct involvement of the citizens
- Provided through the rights to assemble, demonstrate, picket or present petitions as well as through
referendums
- Referendums can be a useful tool when parties are divided
 can be dangerous
- Best option is for judicial interpretation
- Advantages:
 Increases control of citizens over their own destinies
 Creates a better informed and more politically sophisticated citizens
 Allows for people to express their own view without politically motivated intermediaries
 Increases legitimacy since political decisions are made personally
- Characteristics of modern day democracy:
○ Principle of majority rule within a framework of minimum protection
○ Free, fair and regular elections
○ Active participation in public and civic life