Typical Questions for CSL 2601
Study Unit 1
This study unit introduces a number of constitutional concepts. It is easier to understand the
constitution if you know what the constitutional concepts mean.
1 Explain what is meant by constitutional law? (3)
We can define constitutional law as those rules that regulate the manner in which state authority
is exercised and shared. It also relates to those rules which regulate the relationship between
organs of state inter se, and between organs of state and individuals.
2 Distinguish between public and private law, and state why constitutional law is
said to be part of public law (5)
Public law is the branch of law which regulates the exercise of state authority in relationships of
inequality. Private law, in contrast, governs the relationships between people who are on an equal
footing. Constitutional law forms part of public law as it regulates public interest which comes into
play in legal relationships of subordination, either between administrative authorities themselves
or between administrative authorities and private individuals.
3 “The distinction between private and public law has become blurred in modern
times”. Discuss this statement with particular reference to the reasons why this
blurring has occurred. (6)
The reason why the distinction between public and private law has become blurred is that the
modern state has become very involved in private law relationships, such as the relationship
between employee and employer. The new constitution expressly provides for relationships
between private individuals in the Bill of Rights. It also authorizes parliament to enact legislation
to prohibit unfair discrimination by private persons and companies. Finally traditional public
functions such as public transport or telecommunications are being privatized and being run by
semipublic corporations or private contractors.
4 Discuss the five sources of constitutional law. (10)
The five sources of constitutional law are:
The constitution, which means the entire body of rules governing the exercise of state
authority or a written document which contains some or most of the constitutional rules.
Other statutory sources, it is often left to legislation to flesh out the norms and values of
the constitution.
Common law. English common law played an important role in the history of South
African law and must therefore be taken into account.
Case law. Past judgments are binding and determine the meaning of constitutional
provisions.
Other sources are also taken into account such as academic writings, policy documents
and reports of various government bodies (such as the public protector).
5 Distinguish an inflexible constitution from a flexible one and mention an
example of each. (6)
A flexible constitution has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 constitution of South Africa. An
inflexible constitution usually enjoys a higher status to other laws and requires a special
amendment procedure. An example is the 1996 constitution of South Africa.
6 Does South Africa have a flexible or inflexible constitution? (3)
,South Africa has an inflexible constitution. Section 2 of the constitution states the constitution is
the supreme law of the land. Section 74(1) – (3) lays down the requirements for amendment to
the constitution.
7 Distinguish between a supreme constitution and one that is not supreme. Give an
example of each. (5)
A supreme constitution ranks above all other laws of the state and is normally associated with an
inflexible constitution. An example of a supreme constitution is the 1996 constitution of South
Africa. On the other hand a constitution that is not supreme does not enjoy any special status to
other laws in the land and the government can declare laws which conflict with the basic
principals of the constitution. An example of a constitution that is not supreme is Britain.
8 Explain why South Africa has a supreme constitution. (3)
The South African constitution is supreme. Section 1(c) lists the supremecy of the constitution as
a founding value. Section 2 states that the constitution is the supreme law of the republic. Section
172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid
in terms of its inconsistency.
9 Explain the difference between autochthonous and allochthonous constitutions. (5)
Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive
constitutions which aim to resolve specific issues of the past are indigenous. There are also
constitutions which maintain continuity with established norms and tradition which are also
indigenous. Finally there are superimposed constitutions whose contents are largely unrelated to
the history of the country; this is an example of an allochthonous constitution. It is often difficult to
find an example of a constitution that fits distinctly into either category. For instance the 1996
constitution of South Africa is considered to be an indigenous constitution as it was drafted in the
light of South Africa’s history, but at the same time borrowed on the experience of other countries
and was influenced by international law.
10 Discuss the following concepts:
a) state (5)
b) government (5)
c) sovereignty (5)
A state is defined by the following requirements:
a specific geographically defined territory
a community of people who live in that territory
a legal order in which the community is subject
an organized system of government which is able to uphold the legal order
a measure of separate political identity
The government is a temporary bearer of state authority, whom represents the state at a
particular time. Initially government did not have a political connotation and was associated with
the judicial function. Gradually government became a general term covering all functions and
organs of state. Today government relates primarily to the executive function with particular
bearing on the formation and implementation of policy.
A sovereign state defines a state which is autonomous and independent and therefore not subject
to the authority of any other state. It was historically used to refer to the monarch of a country,
however in recent times it has been associated with the sovereignty of the people to indicate that
the power of government rests in the hands of the people. This gave rise to the concept that
parliament is sovereign, which meant that legislative authority was vested in parliament and it
could enact any law no matter how reasonable or unjust and the courts could not challenge this
decision.
, Study Unit 2
This study deals with additional constitutional concepts as well as the trias politica doctrine. This
unit is important as following units are an elaboration of each branch of government.
1 Discuss the following constitutional principals:
a) constitutionalism (5)
b) the rule of law (5)
c) the rechtstaat principal (5)
Constitutionalism refers to government in accordance with the constitution. Government derives it
powers from, is bound by and is limited by the constitution. Constitutionalism is normally
associated with a supreme constitution. It also describes a state in which law reigns supreme.
The doctrine of the rule of law was developed in England in 1885 by Dicey, according to Dicey
the law rests on the following three premises:
The absence of arbitrary power. No person is above the law and no person is punished
except for a distinct breach of the law.
Equality before the law. Every individual is subject to ordinary law and the jurisdiction of
the ordinary courts.
A judge-made constitution. The rules of British law were the result of judicial decisions
confirming the common law.
In this doctrine the government is bound by common law. This requirement is not workable from a
South African perspective as the South African common law does not provide the individual with
adequate protection from human rights violations or have mechanisms to hold the state
accountable.
The German Rechtstaat principal refers to the concept of government by law and not by force.
The rechtstaat can be split into a formal and material rechtstaat. A formal rechtstaat requires
compliance with formal criteria, such as due process and separation of powers. The material
rechtstaat requires that state authority is bound to higher legal principals and the exercise of state
authority must result in a materially just legal condition.
2 Explain whether South Africa is a constitutional state or a rechtstaat. (10)
In a constitutional state government derives its powers from, is bound by and is limited by the
constitution. There are mechanisms in place to prevent the concentration of power in a single
body. Constitutionalism also includes features such as protection of fundamental rights,
separation of powers and an independent judiciary.
The German Rechtstaat refers to government by law and not by force. The formal rechtstaat
outlines the requirement for separation of powers and legal certainty. The material rechtstaat
expands on the formal by requiring state authority to aspire to higher legal values such as the
implementation of human rights.
In terms of the following two definitions a constitutional state and a rechtstaat are essentially the
same things. South Africa has a constitution that includes a bill of rights, implements the
separation of powers doctrine and strives for an independent judiciary. Therefore it can be said
that South Africa is both a constitutional state and a formal and material rechtstaat.
3 Explain what is meant by the term democracy. (5)
Democracy refers to government by the people. The word democracy derives from the Greek
words Demos meaning the people and Kratos meaning power. Democracy comes in two forms
direct democracy and representative democracy. Direct democracy means that all decisions are
made by the people themselves. Representative democracy is when citizens of the state elect
representatives who express the will of the people. A democracy is characterized by the
following:
Free and regular elections
Study Unit 1
This study unit introduces a number of constitutional concepts. It is easier to understand the
constitution if you know what the constitutional concepts mean.
1 Explain what is meant by constitutional law? (3)
We can define constitutional law as those rules that regulate the manner in which state authority
is exercised and shared. It also relates to those rules which regulate the relationship between
organs of state inter se, and between organs of state and individuals.
2 Distinguish between public and private law, and state why constitutional law is
said to be part of public law (5)
Public law is the branch of law which regulates the exercise of state authority in relationships of
inequality. Private law, in contrast, governs the relationships between people who are on an equal
footing. Constitutional law forms part of public law as it regulates public interest which comes into
play in legal relationships of subordination, either between administrative authorities themselves
or between administrative authorities and private individuals.
3 “The distinction between private and public law has become blurred in modern
times”. Discuss this statement with particular reference to the reasons why this
blurring has occurred. (6)
The reason why the distinction between public and private law has become blurred is that the
modern state has become very involved in private law relationships, such as the relationship
between employee and employer. The new constitution expressly provides for relationships
between private individuals in the Bill of Rights. It also authorizes parliament to enact legislation
to prohibit unfair discrimination by private persons and companies. Finally traditional public
functions such as public transport or telecommunications are being privatized and being run by
semipublic corporations or private contractors.
4 Discuss the five sources of constitutional law. (10)
The five sources of constitutional law are:
The constitution, which means the entire body of rules governing the exercise of state
authority or a written document which contains some or most of the constitutional rules.
Other statutory sources, it is often left to legislation to flesh out the norms and values of
the constitution.
Common law. English common law played an important role in the history of South
African law and must therefore be taken into account.
Case law. Past judgments are binding and determine the meaning of constitutional
provisions.
Other sources are also taken into account such as academic writings, policy documents
and reports of various government bodies (such as the public protector).
5 Distinguish an inflexible constitution from a flexible one and mention an
example of each. (6)
A flexible constitution has the same status as ordinary laws of the land and has no special
procedures for amendment. An example would be the 1961 constitution of South Africa. An
inflexible constitution usually enjoys a higher status to other laws and requires a special
amendment procedure. An example is the 1996 constitution of South Africa.
6 Does South Africa have a flexible or inflexible constitution? (3)
,South Africa has an inflexible constitution. Section 2 of the constitution states the constitution is
the supreme law of the land. Section 74(1) – (3) lays down the requirements for amendment to
the constitution.
7 Distinguish between a supreme constitution and one that is not supreme. Give an
example of each. (5)
A supreme constitution ranks above all other laws of the state and is normally associated with an
inflexible constitution. An example of a supreme constitution is the 1996 constitution of South
Africa. On the other hand a constitution that is not supreme does not enjoy any special status to
other laws in the land and the government can declare laws which conflict with the basic
principals of the constitution. An example of a constitution that is not supreme is Britain.
8 Explain why South Africa has a supreme constitution. (3)
The South African constitution is supreme. Section 1(c) lists the supremecy of the constitution as
a founding value. Section 2 states that the constitution is the supreme law of the republic. Section
172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid
in terms of its inconsistency.
9 Explain the difference between autochthonous and allochthonous constitutions. (5)
Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive
constitutions which aim to resolve specific issues of the past are indigenous. There are also
constitutions which maintain continuity with established norms and tradition which are also
indigenous. Finally there are superimposed constitutions whose contents are largely unrelated to
the history of the country; this is an example of an allochthonous constitution. It is often difficult to
find an example of a constitution that fits distinctly into either category. For instance the 1996
constitution of South Africa is considered to be an indigenous constitution as it was drafted in the
light of South Africa’s history, but at the same time borrowed on the experience of other countries
and was influenced by international law.
10 Discuss the following concepts:
a) state (5)
b) government (5)
c) sovereignty (5)
A state is defined by the following requirements:
a specific geographically defined territory
a community of people who live in that territory
a legal order in which the community is subject
an organized system of government which is able to uphold the legal order
a measure of separate political identity
The government is a temporary bearer of state authority, whom represents the state at a
particular time. Initially government did not have a political connotation and was associated with
the judicial function. Gradually government became a general term covering all functions and
organs of state. Today government relates primarily to the executive function with particular
bearing on the formation and implementation of policy.
A sovereign state defines a state which is autonomous and independent and therefore not subject
to the authority of any other state. It was historically used to refer to the monarch of a country,
however in recent times it has been associated with the sovereignty of the people to indicate that
the power of government rests in the hands of the people. This gave rise to the concept that
parliament is sovereign, which meant that legislative authority was vested in parliament and it
could enact any law no matter how reasonable or unjust and the courts could not challenge this
decision.
, Study Unit 2
This study deals with additional constitutional concepts as well as the trias politica doctrine. This
unit is important as following units are an elaboration of each branch of government.
1 Discuss the following constitutional principals:
a) constitutionalism (5)
b) the rule of law (5)
c) the rechtstaat principal (5)
Constitutionalism refers to government in accordance with the constitution. Government derives it
powers from, is bound by and is limited by the constitution. Constitutionalism is normally
associated with a supreme constitution. It also describes a state in which law reigns supreme.
The doctrine of the rule of law was developed in England in 1885 by Dicey, according to Dicey
the law rests on the following three premises:
The absence of arbitrary power. No person is above the law and no person is punished
except for a distinct breach of the law.
Equality before the law. Every individual is subject to ordinary law and the jurisdiction of
the ordinary courts.
A judge-made constitution. The rules of British law were the result of judicial decisions
confirming the common law.
In this doctrine the government is bound by common law. This requirement is not workable from a
South African perspective as the South African common law does not provide the individual with
adequate protection from human rights violations or have mechanisms to hold the state
accountable.
The German Rechtstaat principal refers to the concept of government by law and not by force.
The rechtstaat can be split into a formal and material rechtstaat. A formal rechtstaat requires
compliance with formal criteria, such as due process and separation of powers. The material
rechtstaat requires that state authority is bound to higher legal principals and the exercise of state
authority must result in a materially just legal condition.
2 Explain whether South Africa is a constitutional state or a rechtstaat. (10)
In a constitutional state government derives its powers from, is bound by and is limited by the
constitution. There are mechanisms in place to prevent the concentration of power in a single
body. Constitutionalism also includes features such as protection of fundamental rights,
separation of powers and an independent judiciary.
The German Rechtstaat refers to government by law and not by force. The formal rechtstaat
outlines the requirement for separation of powers and legal certainty. The material rechtstaat
expands on the formal by requiring state authority to aspire to higher legal values such as the
implementation of human rights.
In terms of the following two definitions a constitutional state and a rechtstaat are essentially the
same things. South Africa has a constitution that includes a bill of rights, implements the
separation of powers doctrine and strives for an independent judiciary. Therefore it can be said
that South Africa is both a constitutional state and a formal and material rechtstaat.
3 Explain what is meant by the term democracy. (5)
Democracy refers to government by the people. The word democracy derives from the Greek
words Demos meaning the people and Kratos meaning power. Democracy comes in two forms
direct democracy and representative democracy. Direct democracy means that all decisions are
made by the people themselves. Representative democracy is when citizens of the state elect
representatives who express the will of the people. A democracy is characterized by the
following:
Free and regular elections
