0
CSL2601 EXAM PREPARATION NOTES
QUESTIONS AND ANSWERS (2021)
CLS2601 - CONSTITUTIONAL LAW
0784683517
,CLS2601 - CONSTITUTIONAL LAW
Study Unit 1
SOURCES OF CONSTITUTIONAL LAW, CLASSIFICATION OF CONSTITUTIONS
AND THE CONCEPTS “STATE” AND “GOVERNMENT”
Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I
- CONSTITUTION
- LEGISLATION
- COMMON LAW
- CUSTOMARY LAW
- CASE LAW
- INTERNATIONAL LAW
- Constitution - refers to both written and unwritten rules governing the exercise and distribution of
state authority on one hand, and on the other, governing relationship between organs of state
inter se and also between organs of state and legal subjects.
- Legislation - is written law enacted by an elected body authorized to do so by the Constitution or
other legislation.
- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law
- Customary law - that system of law generally derived from custom, African indigenous law
- Case law - practical application of constitutional principles by our courts, our courts have full
testing power making case law an authoritative source.
- International law - The Constitution provides that the courts must consider international law
when determining constitutional issues.
,Persuasive sources of South Africa’s constitutional law F.A.R.P
- FOREIGN LAW
- ACADEMIC WRITINGS
- REPORTS BY INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
- POLICY DOCUMENTS
Discuss the history of the adoption of the Constitution of the Republic of South
-
-
-
-
-
-
-
-
- The Constitution of the Republic of South Africa 1996 was the product of a long process of
popular struggle, multiparty political negotiations and democratic deliberation in which
politicians, lawyers, representatives of civil society and ordinary people all played a major role.
- Prior to 1994, there was Parliamentary Sovereignty.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson Mandela,
unbanning of liberation movement. Eventually multi-party negotiations.
- The two stage process: First, the interim Constitution was adopted at the multiparty
negotiations. Second, democratic elections for SA’s first fully representative Parliament which
double as the Constitutional Assembly.
- The Constitutional Principles, the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996.
Classification of constitutions
- Flexible and inflexible, supreme and not supreme, written and unwritten, autochthonous and
allochthonous constitutions.
, - Flexible constitutions and inflexible constitutions
- Flexible constitutions require no special procedures or majorities for amendment and can be
amended in the same manner as any other legislation. Eg. the interim Constitution 1993 -
Inflexible constitutions require special amendment procedures and amendment majorities
(contained in section 74 of the Constitution) before they can be amended. Eg.The 1996
Constitution, and constitutions of Germany, USA
- A constitution is supposed to be the embodiment of the values and principles to which a nation
has committed itself, and contains rights and procedures which must protect individuals and
minorities against unfair treatment by the government. If it can be amended too easily, the
majority party in parliament will be tempted to abolish (or at least water down) some of these
protections if it is politically convenient to do so, as can be evidenced from South Africa’s
predemocratic constitutions.
Written constitutions and unwritten constitutions
- Very few countries do not have written constitutions. For example, Great Britain, which is often
used as an example of a country without a written constitution, has a number of important
statutory constitutional sources. On the other hand, even in countries where there is a single
document called “the Constitution”, there are always other constitutional enactments which
supplement it. No single document can ever contain all the rules governing constitutional issues.
Autochthonous (homegrown) constitutions and allochthonous (foreign) constitutions
- It is very difficult to find a constitution which can be said to be totally indigenous. Most of the
“modern” constitutions in the world today are based on the government systems of the former
colonial powers.
- Reactive constitutions originate as a result of specific problems in the past. Eg, Germany and
RSA. Regarded as indigenous. - Constitutions intended to maintain continuity of norms in the
legal tradition of that society. Eg. Netherlands. Regarded as indigenous. - Superimposed
constitutions are largely unrelated to the history of the country concerned. Eg.
Imposed on the colonies of Britain, by Britain.
Explain what is meant by “government”, “state” and “sovereignty”
- Government: The government represents the state at a particular time and is the temporary
bearer of state authority. In other words, “government” relates primarily to the executive function
and having a particular bearing on the formation and implementation of policy.
CSL2601 EXAM PREPARATION NOTES
QUESTIONS AND ANSWERS (2021)
CLS2601 - CONSTITUTIONAL LAW
0784683517
,CLS2601 - CONSTITUTIONAL LAW
Study Unit 1
SOURCES OF CONSTITUTIONAL LAW, CLASSIFICATION OF CONSTITUTIONS
AND THE CONCEPTS “STATE” AND “GOVERNMENT”
Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I
- CONSTITUTION
- LEGISLATION
- COMMON LAW
- CUSTOMARY LAW
- CASE LAW
- INTERNATIONAL LAW
- Constitution - refers to both written and unwritten rules governing the exercise and distribution of
state authority on one hand, and on the other, governing relationship between organs of state
inter se and also between organs of state and legal subjects.
- Legislation - is written law enacted by an elected body authorized to do so by the Constitution or
other legislation.
- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law
- Customary law - that system of law generally derived from custom, African indigenous law
- Case law - practical application of constitutional principles by our courts, our courts have full
testing power making case law an authoritative source.
- International law - The Constitution provides that the courts must consider international law
when determining constitutional issues.
,Persuasive sources of South Africa’s constitutional law F.A.R.P
- FOREIGN LAW
- ACADEMIC WRITINGS
- REPORTS BY INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
- POLICY DOCUMENTS
Discuss the history of the adoption of the Constitution of the Republic of South
-
-
-
-
-
-
-
-
- The Constitution of the Republic of South Africa 1996 was the product of a long process of
popular struggle, multiparty political negotiations and democratic deliberation in which
politicians, lawyers, representatives of civil society and ordinary people all played a major role.
- Prior to 1994, there was Parliamentary Sovereignty.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson Mandela,
unbanning of liberation movement. Eventually multi-party negotiations.
- The two stage process: First, the interim Constitution was adopted at the multiparty
negotiations. Second, democratic elections for SA’s first fully representative Parliament which
double as the Constitutional Assembly.
- The Constitutional Principles, the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996.
Classification of constitutions
- Flexible and inflexible, supreme and not supreme, written and unwritten, autochthonous and
allochthonous constitutions.
, - Flexible constitutions and inflexible constitutions
- Flexible constitutions require no special procedures or majorities for amendment and can be
amended in the same manner as any other legislation. Eg. the interim Constitution 1993 -
Inflexible constitutions require special amendment procedures and amendment majorities
(contained in section 74 of the Constitution) before they can be amended. Eg.The 1996
Constitution, and constitutions of Germany, USA
- A constitution is supposed to be the embodiment of the values and principles to which a nation
has committed itself, and contains rights and procedures which must protect individuals and
minorities against unfair treatment by the government. If it can be amended too easily, the
majority party in parliament will be tempted to abolish (or at least water down) some of these
protections if it is politically convenient to do so, as can be evidenced from South Africa’s
predemocratic constitutions.
Written constitutions and unwritten constitutions
- Very few countries do not have written constitutions. For example, Great Britain, which is often
used as an example of a country without a written constitution, has a number of important
statutory constitutional sources. On the other hand, even in countries where there is a single
document called “the Constitution”, there are always other constitutional enactments which
supplement it. No single document can ever contain all the rules governing constitutional issues.
Autochthonous (homegrown) constitutions and allochthonous (foreign) constitutions
- It is very difficult to find a constitution which can be said to be totally indigenous. Most of the
“modern” constitutions in the world today are based on the government systems of the former
colonial powers.
- Reactive constitutions originate as a result of specific problems in the past. Eg, Germany and
RSA. Regarded as indigenous. - Constitutions intended to maintain continuity of norms in the
legal tradition of that society. Eg. Netherlands. Regarded as indigenous. - Superimposed
constitutions are largely unrelated to the history of the country concerned. Eg.
Imposed on the colonies of Britain, by Britain.
Explain what is meant by “government”, “state” and “sovereignty”
- Government: The government represents the state at a particular time and is the temporary
bearer of state authority. In other words, “government” relates primarily to the executive function
and having a particular bearing on the formation and implementation of policy.
