SOURCES OF CONSITUTIONAL LAW – DISCUSSION:
WHAT are the binding sources of Constitutional Law 1?
The Constitution 2 – is a body of rules, which govern the exercise of state authority,
as well as the relationships between citizens of the state and organs of state.
Legislation
Common Law 3 - Is the unwritten law of SA, in the sense that it isn’t
contained in legislation.
Case law – is the practical application of constitutional principles.
International law 4 - S39 (1) states that courts have to consider PIL
WHAT are the non-binding sources of Con Law?
Academic writings
Policy documents
Foreign law
HOW did South Africa 5 “get” the CON? 6
PRE1994: SA law was characterized by a culture of authority. Parliament commanded law
and there wasn’t room for individuals to challenge government action.
People were expected to obey what the government dictated.
Parliament was sovereign, so laws could be adopted even if they were
unfair or discriminatory and these laws couldn’t be challenged in court.
The only judicial review was to ensure that parliament followed the
correct procedure when adopting the law.
This apartheid regime led to the fact that SA became isolated internationally.
Multi party negotiations were held 7
DO we have contradictory provisions?
YES – TWO:
1
Herein after referred to as Con Law
2
Herein after referred to as The CON.
3
Herein after referred to as CL
4
Herein after referred to as PIL (Public International Law)
5
Herein after referred to as SA
6
Not for exam purposes
7
These looked at what should be included in the constitution and the way that it should be adopted.
, 1. Former liberation movements insisted that the new CON would only be legitimate if
8
it was adopted by a democratically elected body
2. Other groups were afraid that a constitution adopted by a democratically elected
representative wouldn’t address the fears of minority groups and might result in tyranny
of the majority.
IT is a two-stage process:
i) An interim government would govern the country while the final Con was being drafted
ii) The text would comply with guidelines determined beforehand by the negotiating
parties
To solve this, a democratic election was held to adopt a constitutional assembly, who
would adopt the final Con in accordance with the Con principles 9. They made a solemn
pact that the new text of the Con would comply with the CP. The Con then needed to be
10.
certified by the constitutional court
IN which respect does the interim 11 and final 12 CON represent a radical break from the
previous constitutional dispensations?
A constitutional democracy based on the supremacy of the Con protected
by an independent judiciary
A democractic system of government founded on openness, accountability and
equality, with universal adult suffrage and regular elections
A separation of powers between the legislature, executive and judiciary
The need for appropriate checks on governments power
The enjoyment of all universally accepted fundamental rights.
TEST YOURSELF:
1. Name and discuss the binding sources of SA Law
2. Name the non-binding sources of SA Law.
8
Majority
9
Herein after referred to as CP
10
Herein after referred to as the CC
11
The 1993 Con
12
The 1996 Con
, 3. Explain in your own words how “our” Constitution in SA was born.
CONCEPTS OF CONSTITUTIONAL LAW – DISCUSSION:
WHAT does the concepts of Con Law entail?
Let’s look at the definition of Con Law:
It is the sum total of binding rules relating to the distribution and exercise of state authority. The
rules of Con Law define the relationship between organs of state and between organs of state and
individuals.
13
WHICH part of law is Con Law a part of?
Answer – Public Law!
WHAT is Public Law?
That branch of law, which regulates the exercise of state authority in relationships of
inequality
WHAT is Private Law?
Is said to govern the relationships between people who are on equal footing
Lets look at the division between public and private law:
It is important to note that this relationship has become blurred – WHY do we say this? –
o The state has become involved in private relationships:
employer and employee, landlord and tenant and husband and wife.
o The Con states that private relationships are often unequel – the Bill of Rights
14
apply to private relationships.
o Public functions have become increasingly privatized – Telkom and Transnet.
HOW can we classifiy Constitutions in general?
Flexible Constitutions Inflexible Constitutions
Enjoys the same status as the other laws of the Enjoys superior status to the ordinary
country and requires no special procedure for laws of the land and require special
amendment – SA CON of 1961 amendment procedure.
Example – SA ’96 CON
S74:
13
Public or private
14
Herein after referred to as B.o.R
, 1. S1 may be amended by a bill passed by:
a) 75% of the National Assembly 15
b) 6 provinces in the National Council of Provinces 16
2. Chapter 2 may be amended by a bill passed by:
!
a) !of the NA, and
b) 6 provinces from the NCOP
3. Any other provision of the constitution can be amended by a bill
passed:
!
a) By of the NA and
!
b) 6 of the provinces of the NCOP, if the amendment:
(i) Relates to a matter that affects the council
(ii) Alters provincial boundaries, powers or
functions
(iii) Amends with a provision which deals with a
provincial matter
It is important to distinguish between a Con that is supreme and one that is not supreme!
Supreme Con: Con, which is not supreme:
15
Herein after referred to as NA
16
Herein after referred to as NCOP
Illovo Paralegal College of Education
These notes are compiled in line with the UNISA study guide and prescribed text books and are not for sale. These notes are
not sold to students and constitute hand-outs to registered IPCE students.
(011) 268-6854 I E-mail:
WHAT are the binding sources of Constitutional Law 1?
The Constitution 2 – is a body of rules, which govern the exercise of state authority,
as well as the relationships between citizens of the state and organs of state.
Legislation
Common Law 3 - Is the unwritten law of SA, in the sense that it isn’t
contained in legislation.
Case law – is the practical application of constitutional principles.
International law 4 - S39 (1) states that courts have to consider PIL
WHAT are the non-binding sources of Con Law?
Academic writings
Policy documents
Foreign law
HOW did South Africa 5 “get” the CON? 6
PRE1994: SA law was characterized by a culture of authority. Parliament commanded law
and there wasn’t room for individuals to challenge government action.
People were expected to obey what the government dictated.
Parliament was sovereign, so laws could be adopted even if they were
unfair or discriminatory and these laws couldn’t be challenged in court.
The only judicial review was to ensure that parliament followed the
correct procedure when adopting the law.
This apartheid regime led to the fact that SA became isolated internationally.
Multi party negotiations were held 7
DO we have contradictory provisions?
YES – TWO:
1
Herein after referred to as Con Law
2
Herein after referred to as The CON.
3
Herein after referred to as CL
4
Herein after referred to as PIL (Public International Law)
5
Herein after referred to as SA
6
Not for exam purposes
7
These looked at what should be included in the constitution and the way that it should be adopted.
, 1. Former liberation movements insisted that the new CON would only be legitimate if
8
it was adopted by a democratically elected body
2. Other groups were afraid that a constitution adopted by a democratically elected
representative wouldn’t address the fears of minority groups and might result in tyranny
of the majority.
IT is a two-stage process:
i) An interim government would govern the country while the final Con was being drafted
ii) The text would comply with guidelines determined beforehand by the negotiating
parties
To solve this, a democratic election was held to adopt a constitutional assembly, who
would adopt the final Con in accordance with the Con principles 9. They made a solemn
pact that the new text of the Con would comply with the CP. The Con then needed to be
10.
certified by the constitutional court
IN which respect does the interim 11 and final 12 CON represent a radical break from the
previous constitutional dispensations?
A constitutional democracy based on the supremacy of the Con protected
by an independent judiciary
A democractic system of government founded on openness, accountability and
equality, with universal adult suffrage and regular elections
A separation of powers between the legislature, executive and judiciary
The need for appropriate checks on governments power
The enjoyment of all universally accepted fundamental rights.
TEST YOURSELF:
1. Name and discuss the binding sources of SA Law
2. Name the non-binding sources of SA Law.
8
Majority
9
Herein after referred to as CP
10
Herein after referred to as the CC
11
The 1993 Con
12
The 1996 Con
, 3. Explain in your own words how “our” Constitution in SA was born.
CONCEPTS OF CONSTITUTIONAL LAW – DISCUSSION:
WHAT does the concepts of Con Law entail?
Let’s look at the definition of Con Law:
It is the sum total of binding rules relating to the distribution and exercise of state authority. The
rules of Con Law define the relationship between organs of state and between organs of state and
individuals.
13
WHICH part of law is Con Law a part of?
Answer – Public Law!
WHAT is Public Law?
That branch of law, which regulates the exercise of state authority in relationships of
inequality
WHAT is Private Law?
Is said to govern the relationships between people who are on equal footing
Lets look at the division between public and private law:
It is important to note that this relationship has become blurred – WHY do we say this? –
o The state has become involved in private relationships:
employer and employee, landlord and tenant and husband and wife.
o The Con states that private relationships are often unequel – the Bill of Rights
14
apply to private relationships.
o Public functions have become increasingly privatized – Telkom and Transnet.
HOW can we classifiy Constitutions in general?
Flexible Constitutions Inflexible Constitutions
Enjoys the same status as the other laws of the Enjoys superior status to the ordinary
country and requires no special procedure for laws of the land and require special
amendment – SA CON of 1961 amendment procedure.
Example – SA ’96 CON
S74:
13
Public or private
14
Herein after referred to as B.o.R
, 1. S1 may be amended by a bill passed by:
a) 75% of the National Assembly 15
b) 6 provinces in the National Council of Provinces 16
2. Chapter 2 may be amended by a bill passed by:
!
a) !of the NA, and
b) 6 provinces from the NCOP
3. Any other provision of the constitution can be amended by a bill
passed:
!
a) By of the NA and
!
b) 6 of the provinces of the NCOP, if the amendment:
(i) Relates to a matter that affects the council
(ii) Alters provincial boundaries, powers or
functions
(iii) Amends with a provision which deals with a
provincial matter
It is important to distinguish between a Con that is supreme and one that is not supreme!
Supreme Con: Con, which is not supreme:
15
Herein after referred to as NA
16
Herein after referred to as NCOP
Illovo Paralegal College of Education
These notes are compiled in line with the UNISA study guide and prescribed text books and are not for sale. These notes are
not sold to students and constitute hand-outs to registered IPCE students.
(011) 268-6854 I E-mail:
