LLB EXAMPACKS AND TUTORIALS
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell : 084 591 8661 Email:
Fax : 086 096 5452 www.llbexampacksandtutorials.co.za
__________________________________________________________________________________
CSL2601
CONSTITUTIONAL LAW
JANUARY/ FEBRUARY
2022
SUPPLEMENTARY
PORTFOLIO MEMO
26 PAGES
,QUESTION 1
1.1 Briefly explain, by way of examples and appropriate authority, the five forms
(or conceptions) of democracy in South Africa. (16)
There are several different conceptions or understandings of democracy that can be
identified, namely direct democracy, representative democracy, participatory
democracy and constitutional democracy. The presence of the varied conceptions of
democracy in the Constitution serves to demonstrate not only the varied
understandings of democracy, but also the centrality of democracy in defining the type
of society post-apartheid South Africa seeks to become.1
Direct democracy
Direct democracy means that all major political decisions are taken by the people
themselves. This form of democracy may work in a different, small political community
where people can get together on a regular basis (e.g. in a town hall) to discuss and
decide important matters of common interest. 2
Representative democracy
Representative democracy, on the other hand, is characterized by the fact that the
citizens of a state elect the representatives of their choice, and these representatives
then express the will of the people. Representative democracy is created via a process
of elections which should be held at regular intervals and reasonably frequently. Note
that although direct democracy is suitable for a small community, representative
democracy is suitable for a modern state which covers a wide geographic area.3
1
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
2
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
3
The Constitution of The Republic of South Africa, 1996 42-50.
,Participatory democracy
Participatory democracy is primarily concerned with ensuring that citizens are afforded
an opportunity to participate or otherwise be involved in decision making on matters
that affect their lives. Put differently, it adds a participatory element to representative
democracy, augments and enhances it, but does not replace it. As a conception of
democracy, it is in a sense a derivative of representative democracy as it seeks to
ensure that while citizens may confer a mandate on elected representatives, they are
not totally excluded from the decision making process in matters that concern them.
In essence, participatory democracy seeks to ensure that citizens are afforded real
opportunities to participate meaningfully in decision making that affects them. The
Constitution recognises participatory democracy as a vital element of South Africa‘s
democracy.4
Constitutional Democracy
The Constitution, recognises and embraces different conceptions of democracy while
simultaneously holding democracy up as a central organising principle. For example,
the importance attached to democracy in South Africa ‘s constitutional project is
discernible from its prominence in several provisions that can at best be said to be
tangentially related such as the following: the Preamble; the Bill of Rights; the limitation
clause; the interpretation clause; the principles of co-operative governance; and the
provisions regulating legislative bodies and their procedures. Democracy is in many
ways the central pillar around which our constitutional state is arranged, thus making
South Africa a constitutional democracy.5
A democracy is characterized by the following:
1 Free and regular elections
2 A multiparty system
4
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
5
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
, 3 Universal suffrage (i.e., all citizens above a certain age have the right to vote)
4 The protection of minorities
5 Mechanisms to ensure accountability to government.6
5.1 With reference to the relevant constitutional law authorities, succinctly
explain the difference between parliamentary sovereignty and constitutional
supremacy from a South African perspective, with particular emphasis on
the role of the judiciary in democratic South Africa. (18)
Section 1 of the Constitution provides that South Africa is a republic founded on the
value of constitutional supremacy. Section 2 of the Constitution provides that the
Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution
thus trump all other rules contained in statutes, common law and custom. Any rule
inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts
the constitution, including failing to fulfil an obligation imposed by the Constitution, is
similarly invalid.
The effect of section 2 is commonly referred to as constitutional supremacy, meaning
that no rule or conduct can be inconsistent with a constitutional rule. If such an
inconsistency arises, it is resolved by declaring the offending rule invalid to the extent
that it contradicts a constitutional rule. Conversely stated, to be valid, all law and
conduct must conform to the prescripts of the constitution. In this sense, the
constitution is the ultimate authority for law-making and lawful conduct.
6
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
PAST PAPERS & MEMOS, ASSIGNMENT MEMOS, NOTES, SUMMARIES & TUITONS.
Cell : 084 591 8661 Email:
Fax : 086 096 5452 www.llbexampacksandtutorials.co.za
__________________________________________________________________________________
CSL2601
CONSTITUTIONAL LAW
JANUARY/ FEBRUARY
2022
SUPPLEMENTARY
PORTFOLIO MEMO
26 PAGES
,QUESTION 1
1.1 Briefly explain, by way of examples and appropriate authority, the five forms
(or conceptions) of democracy in South Africa. (16)
There are several different conceptions or understandings of democracy that can be
identified, namely direct democracy, representative democracy, participatory
democracy and constitutional democracy. The presence of the varied conceptions of
democracy in the Constitution serves to demonstrate not only the varied
understandings of democracy, but also the centrality of democracy in defining the type
of society post-apartheid South Africa seeks to become.1
Direct democracy
Direct democracy means that all major political decisions are taken by the people
themselves. This form of democracy may work in a different, small political community
where people can get together on a regular basis (e.g. in a town hall) to discuss and
decide important matters of common interest. 2
Representative democracy
Representative democracy, on the other hand, is characterized by the fact that the
citizens of a state elect the representatives of their choice, and these representatives
then express the will of the people. Representative democracy is created via a process
of elections which should be held at regular intervals and reasonably frequently. Note
that although direct democracy is suitable for a small community, representative
democracy is suitable for a modern state which covers a wide geographic area.3
1
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
2
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
3
The Constitution of The Republic of South Africa, 1996 42-50.
,Participatory democracy
Participatory democracy is primarily concerned with ensuring that citizens are afforded
an opportunity to participate or otherwise be involved in decision making on matters
that affect their lives. Put differently, it adds a participatory element to representative
democracy, augments and enhances it, but does not replace it. As a conception of
democracy, it is in a sense a derivative of representative democracy as it seeks to
ensure that while citizens may confer a mandate on elected representatives, they are
not totally excluded from the decision making process in matters that concern them.
In essence, participatory democracy seeks to ensure that citizens are afforded real
opportunities to participate meaningfully in decision making that affects them. The
Constitution recognises participatory democracy as a vital element of South Africa‘s
democracy.4
Constitutional Democracy
The Constitution, recognises and embraces different conceptions of democracy while
simultaneously holding democracy up as a central organising principle. For example,
the importance attached to democracy in South Africa ‘s constitutional project is
discernible from its prominence in several provisions that can at best be said to be
tangentially related such as the following: the Preamble; the Bill of Rights; the limitation
clause; the interpretation clause; the principles of co-operative governance; and the
provisions regulating legislative bodies and their procedures. Democracy is in many
ways the central pillar around which our constitutional state is arranged, thus making
South Africa a constitutional democracy.5
A democracy is characterized by the following:
1 Free and regular elections
2 A multiparty system
4
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
5
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
, 3 Universal suffrage (i.e., all citizens above a certain age have the right to vote)
4 The protection of minorities
5 Mechanisms to ensure accountability to government.6
5.1 With reference to the relevant constitutional law authorities, succinctly
explain the difference between parliamentary sovereignty and constitutional
supremacy from a South African perspective, with particular emphasis on
the role of the judiciary in democratic South Africa. (18)
Section 1 of the Constitution provides that South Africa is a republic founded on the
value of constitutional supremacy. Section 2 of the Constitution provides that the
Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution
thus trump all other rules contained in statutes, common law and custom. Any rule
inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts
the constitution, including failing to fulfil an obligation imposed by the Constitution, is
similarly invalid.
The effect of section 2 is commonly referred to as constitutional supremacy, meaning
that no rule or conduct can be inconsistent with a constitutional rule. If such an
inconsistency arises, it is resolved by declaring the offending rule invalid to the extent
that it contradicts a constitutional rule. Conversely stated, to be valid, all law and
conduct must conform to the prescripts of the constitution. In this sense, the
constitution is the ultimate authority for law-making and lawful conduct.
6
Pierre De Vos and Warren Freedman (2014) South African Constitutional Law in Context 42-50.
