FEATURES OF SA CONSTITUTION
Briefly distinguish between supreme constitutions and constitution which are not
supreme
Supreme constitution
a. Ranks above all other laws in a state
b. Any law which is inconsistent with it will be declared invalid
c. It’s usually also inflexible (not always)
E.g. SA 1996 constitution
Constitution, which isn’t supreme:
a. Doesn’t enjoy any special status when compared to other laws
b. The legislature can pass laws, which are inconsistent with the constitution. The
courts can’t question the validity of such laws, provided the correct procedure
has been complied with
c. It’s usually flexible
E.g. Britain
When a constitution isn’t supreme, parliament is supreme.
Briefly assess whether the 1996 constitution is an example of a flexible or an
inflexible constitution?
Inflexible constitution: enjoys superior status to the ordinary laws of the land and require
a special amendment procedure.
E.g. SA 1996 constitution
S74:
1. S1 may be amended by a bill passed by:
a. 75% of the NA
b. 6 provinces in the NCOP
2. Chapter 2 may be amended by a bill passed by:
a. 2/3 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 2/3 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
Discuss the difference between direct democracy and representative democracy
and indicate which is a better form of democracy for a modern state
(4)
Direct democracy: means that all the major political decisions are made by the people
themselves – may work in a small community where the people can meet on a regular
basis and decide matters.
Representative democracy: he citizens of the state elect a representative of their choice
and then the representative exercises the wishes of the people. It demands all the
inhabitants of the state should via direct representation, have a say in which the state is
governed – usually be being represented in the legislature. It’s created by elections,
which need to be held at regular intervals.
Assess whether SA adheres to the Rechstaat principle. (4)
Refers to a government by law and not by force.
Formal Rechstaat: requires compliance with:
1. Due process
2. Separation of powers
3. Legal certainty
Material Rechstaat: the state authority is bound by higher legal values, which are
embodied in the constitution.
With the adoption of the 96 constitutions SA in addition to being a formal rechstaat also
became a material one.
Discuss the following constitutional concepts:
a. State
b. Sovereignty
c. Autochthonous and allochthonous constitutions
a. State: features
a. Geographically defines territory
b. Community of people who live on the territory
c. A legal order
d. An organised system of government to uphold legal order
, e. Separate political identity
b. Sovereignty
Sovereign state in international law refers to states, which are independent – the
state isn’t subject to the authority of another state.
c. Autochthonous
Are said to be indigenous and allochthonous are borrowed constitution.
Van der Vyver said there are 3 kinds of constitutions:
1. Reactive constitution: which was the result of specific problems in the past
and which seeks to resolve those problems = indigenous
2. There are constitutions which are intended to maintain the continuity with
established norms in legal tradition of the society concerned – indigenous
3. Superimposed constitutions: the contents of the constitution are unrelated to
the history of the country concerned
SA constitution is generally described as indigenous in the sense that it was a
product of negotiations between representatives of political parties. BUT the
drafters of the constitution drew upon the constitutional experience of a number
of countries and were also influenced by international law.
Does the basic structure doctrine apply in SA?
This doctrine originated in India, where the Supreme Court held that there are certain
implied limitations on the power of parliament to amend the constitution.
The substance of the doctrine is that parliament is limited in its power, in that it can’t
amend the basic structure of the constitution. SA hasn’t adopted the basic structure
doctrine. A reason why this doctrine can’t be adopted is that S74 contemplates an
amendment of S1 – which sets out the founding values of SA.
If the founding values are amendable by a 75% majority in the NA and support of 6
provinces in the NCOP.
Briefly discuss the term “constitutionalism”
Constitutionalism: refers to a government in accordance with the constitution. The
government derives its powers from and is bound by the constitution. The government’s
powers are limited by the constitution.
Briefly explain whether the Rechstaat principle is synonymous with the ideals of a
constitutional state
, The Rechstaat principle
Refers to a government by law and not by force.
Formal Rechstaat: requires compliance with:
1. Due process
2. Separation of powers
3. Legal certainty
Material Rechstaat: the state authority is bound by higher legal values, which are
embodied in the constitution.
With the adoption of the 96 constitutions SA in addition to being a formal rechstaat also
became a material one.
What is meant by the term democracy?
S1 of the constitution proclaims that SA is a democratic state.
Democracy is derived from ancient Greek words demos (the people) and Kratos
(strength) – this implies that a democracy is a government by the people. In a
democracy the right to govern doesn’t vest in a single person but in the people as a
whole. Democracy includes free political discussion, the toleration of differences
between people and the right of all citizens to participate in political decision-making.
Forms of democracy:
Direct democracy: means that all the major political decisions are made by the people
themselves – may work in a small community where the people can meet on a regular
basis and decide matters.
Representative democracy: the citizens of the state elect a representative of their
choice and then the representative exercises the wishes of the people. It demands all
the inhabitants of the state should via direct representation, have a say in which the
state is governed – usually be being represented in the legislature. It’s created by
elections, which need to be held at regular intervals.
Briefly distinguish between supreme constitutions and constitution which are not
supreme
Supreme constitution
a. Ranks above all other laws in a state
b. Any law which is inconsistent with it will be declared invalid
c. It’s usually also inflexible (not always)
E.g. SA 1996 constitution
Constitution, which isn’t supreme:
a. Doesn’t enjoy any special status when compared to other laws
b. The legislature can pass laws, which are inconsistent with the constitution. The
courts can’t question the validity of such laws, provided the correct procedure
has been complied with
c. It’s usually flexible
E.g. Britain
When a constitution isn’t supreme, parliament is supreme.
Briefly assess whether the 1996 constitution is an example of a flexible or an
inflexible constitution?
Inflexible constitution: enjoys superior status to the ordinary laws of the land and require
a special amendment procedure.
E.g. SA 1996 constitution
S74:
1. S1 may be amended by a bill passed by:
a. 75% of the NA
b. 6 provinces in the NCOP
2. Chapter 2 may be amended by a bill passed by:
a. 2/3 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 2/3 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
Discuss the difference between direct democracy and representative democracy
and indicate which is a better form of democracy for a modern state
(4)
Direct democracy: means that all the major political decisions are made by the people
themselves – may work in a small community where the people can meet on a regular
basis and decide matters.
Representative democracy: he citizens of the state elect a representative of their choice
and then the representative exercises the wishes of the people. It demands all the
inhabitants of the state should via direct representation, have a say in which the state is
governed – usually be being represented in the legislature. It’s created by elections,
which need to be held at regular intervals.
Assess whether SA adheres to the Rechstaat principle. (4)
Refers to a government by law and not by force.
Formal Rechstaat: requires compliance with:
1. Due process
2. Separation of powers
3. Legal certainty
Material Rechstaat: the state authority is bound by higher legal values, which are
embodied in the constitution.
With the adoption of the 96 constitutions SA in addition to being a formal rechstaat also
became a material one.
Discuss the following constitutional concepts:
a. State
b. Sovereignty
c. Autochthonous and allochthonous constitutions
a. State: features
a. Geographically defines territory
b. Community of people who live on the territory
c. A legal order
d. An organised system of government to uphold legal order
, e. Separate political identity
b. Sovereignty
Sovereign state in international law refers to states, which are independent – the
state isn’t subject to the authority of another state.
c. Autochthonous
Are said to be indigenous and allochthonous are borrowed constitution.
Van der Vyver said there are 3 kinds of constitutions:
1. Reactive constitution: which was the result of specific problems in the past
and which seeks to resolve those problems = indigenous
2. There are constitutions which are intended to maintain the continuity with
established norms in legal tradition of the society concerned – indigenous
3. Superimposed constitutions: the contents of the constitution are unrelated to
the history of the country concerned
SA constitution is generally described as indigenous in the sense that it was a
product of negotiations between representatives of political parties. BUT the
drafters of the constitution drew upon the constitutional experience of a number
of countries and were also influenced by international law.
Does the basic structure doctrine apply in SA?
This doctrine originated in India, where the Supreme Court held that there are certain
implied limitations on the power of parliament to amend the constitution.
The substance of the doctrine is that parliament is limited in its power, in that it can’t
amend the basic structure of the constitution. SA hasn’t adopted the basic structure
doctrine. A reason why this doctrine can’t be adopted is that S74 contemplates an
amendment of S1 – which sets out the founding values of SA.
If the founding values are amendable by a 75% majority in the NA and support of 6
provinces in the NCOP.
Briefly discuss the term “constitutionalism”
Constitutionalism: refers to a government in accordance with the constitution. The
government derives its powers from and is bound by the constitution. The government’s
powers are limited by the constitution.
Briefly explain whether the Rechstaat principle is synonymous with the ideals of a
constitutional state
, The Rechstaat principle
Refers to a government by law and not by force.
Formal Rechstaat: requires compliance with:
1. Due process
2. Separation of powers
3. Legal certainty
Material Rechstaat: the state authority is bound by higher legal values, which are
embodied in the constitution.
With the adoption of the 96 constitutions SA in addition to being a formal rechstaat also
became a material one.
What is meant by the term democracy?
S1 of the constitution proclaims that SA is a democratic state.
Democracy is derived from ancient Greek words demos (the people) and Kratos
(strength) – this implies that a democracy is a government by the people. In a
democracy the right to govern doesn’t vest in a single person but in the people as a
whole. Democracy includes free political discussion, the toleration of differences
between people and the right of all citizens to participate in political decision-making.
Forms of democracy:
Direct democracy: means that all the major political decisions are made by the people
themselves – may work in a small community where the people can meet on a regular
basis and decide matters.
Representative democracy: the citizens of the state elect a representative of their
choice and then the representative exercises the wishes of the people. It demands all
the inhabitants of the state should via direct representation, have a say in which the
state is governed – usually be being represented in the legislature. It’s created by
elections, which need to be held at regular intervals.
