STUDY UNIT 1: THE SOURCES OF CONSTITUTIONAL LAW:
1.1 INTRODUCTION:
- Constitutional law: Refers to the institutional organisation of state power.
- Sources of law: The places where you can find legal rules governing a branch of law.
.
Constitution
Legislation
Case Law
International Law
Authoritative Sources: Binding.
Common Law
Other Sources
Persuasive Source.
1.2 THE SOURCES OF CONSTITUTIONAL LAW:
The Constitution:
- The entire body of rules (written & unwritten) governing: 1. The exercise of state authority.
2. Relationship citizens - organs of state.
or,
- Written document (general language) containing some / most of the constitutional rules governing as above.
- Constitutional document can never contain all the rules needed to deal with the interaction of state & individuals. → Fram
,Common Law:
- Unwritten.
- Since 1996 → the common law ceased to play NB role in development of constitutional law.
- The interim & final Constitution made a decisive break from the Westminster system of government allowing constitution
sovereignty.
- S 39 (2) → The courts are required to develop the common law in line with constitutional principles.
Case Law:
- Stare decisis.
- An illustration of the practical application of constitutional principles.
- Cases alter & develop the law.
- In the past case law was a limited source of constitutional law → today, with a justiciable Bill of Rights there is an increas
International Law:
- S 39 (1) → A court must consider international law when determining constitutional issues.
- Analysis of the Bill of Rights in particular → international human rights issues.
Other Sources:
- Persuasive, not binding but may influence decisions.
1. Academic writings.
2. Policy documents: Issued by organs of state helping shape legislative agenda → legal norms.
→ Green papers: consultative document → key players invited to comment.
→ White papers: final document → the blue print of government’s policy. (GEAR Policy).
3. Reports by state institutions supporting constitutional democracy. (HRC, Public Protector).
→ Report on the conduct of ministers making recommendations to legislature concerning rectifying any a
4. Foreign law → S 39 (1) (c) → The courts may consider foreign law. (Discretionary power).
WHERE TO FIND THE SOURCES OF CONSTITUTIONAL LAW:
Legislation: Government gazettes, Butterworths publishes, www.polity.org.za, www.acts.co.za
Case Law: SALR (Juta), BCLR, Constitutional court website, www.law.wits.ac.za
Academic: Chaskalson, Constitutional law of South Africa.
Articles: South African journals specialising in constitutional & human rights issues:
South African Public Law
South African Journal on Human Rights.
, the Minister, the respondents were not afforded a hearing by the
President prior his decision to appoint a commission and the
President failed to apply his mind to the matter when exercising
his powers. – The Minister of Sport, the President and the
Director General appealed to the CC.
Issues to be determined:
1. Was the appointment of a commission by the President
administrative action in terms of s 33 of the Constitution and
therefore invalid.
2. Was the exercise of the Presidents powers in conferring the
powers of the Commissions Act on the commission invalid.
Finding:
The Presidents exercise of power in terms of 84(2)(f) of the
Constitution are valid. The exercise of power was not
administrative action but constitutional powers conferred on the
President by s 84.
Reasoning:
There was no abdication of powers to the Minister by the
President. The nature of the Presidents power to appoint a
commission does not constitute administrative action therefore the
procedural fairness requirement (s 33) for a fair hearing is not
necessary. The commission was appointed in accordance with the
Constitution in terms of the Presidents constitutional powers. The
argument that the President did not apply his mind to the matter is
rejected – in line with the separation of powers doctrine requiring
branches to respect the dignity of the offices of other organs and
functionaries.
S 84(f) confers the powers to appoint commission of inquiry on
the President alone. The Act confers the power to declare its
provisions on the President alone. – By the President uttering
words of abdication in the press does not constitute abdication of
his responsibilities. Even though the initiation of the appointment
of inquiry came from the Minister, the President discussed the
matter and made up his mind that there was good cause for the
appointment.
==========================================================================
AIMS OF THE STUDY UNIT:
1) Explain what you understand by the phrase “sources of law”
Sources of law are the places to find legal rules governing a particular branch of law.
2) Classify and examine the sources of constitutional law.
Authoritative sources:
Constitution,
Legislation,
Case law,
, ==========================================================================
ACTIVITY 2 pg xv: How to summarise a court case:
- Facts of the Case (background / historical context).
Premier of the Western Cape v the President of the Republic of South Africa:
Co-operative Government:
Facts of the Case:
Parliament amended the Public Services Act which was challenged on the basis of its constitutionality as it gave the same b
departments as that of the heads of national departments. This means they would no longer fall under the administrative con
responsibility for the administration of the office of the Premier, intergovernmental relationships and co-operation between
Western Cape government objected that the power of the province to structure its own administration is part of its executive
to impose of the provinces provincial power.
Issues for determination by the court:
The Province of the Western Cape challenged the constitutionality of the amendment on the basis that this new scheme viol
three important respects:
1) It assigned function to the provincial DG and head of department in an unacceptable manner;
2) It restricted the Premier’s executive powers to establish / abolish departments of government;
1.1 INTRODUCTION:
- Constitutional law: Refers to the institutional organisation of state power.
- Sources of law: The places where you can find legal rules governing a branch of law.
.
Constitution
Legislation
Case Law
International Law
Authoritative Sources: Binding.
Common Law
Other Sources
Persuasive Source.
1.2 THE SOURCES OF CONSTITUTIONAL LAW:
The Constitution:
- The entire body of rules (written & unwritten) governing: 1. The exercise of state authority.
2. Relationship citizens - organs of state.
or,
- Written document (general language) containing some / most of the constitutional rules governing as above.
- Constitutional document can never contain all the rules needed to deal with the interaction of state & individuals. → Fram
,Common Law:
- Unwritten.
- Since 1996 → the common law ceased to play NB role in development of constitutional law.
- The interim & final Constitution made a decisive break from the Westminster system of government allowing constitution
sovereignty.
- S 39 (2) → The courts are required to develop the common law in line with constitutional principles.
Case Law:
- Stare decisis.
- An illustration of the practical application of constitutional principles.
- Cases alter & develop the law.
- In the past case law was a limited source of constitutional law → today, with a justiciable Bill of Rights there is an increas
International Law:
- S 39 (1) → A court must consider international law when determining constitutional issues.
- Analysis of the Bill of Rights in particular → international human rights issues.
Other Sources:
- Persuasive, not binding but may influence decisions.
1. Academic writings.
2. Policy documents: Issued by organs of state helping shape legislative agenda → legal norms.
→ Green papers: consultative document → key players invited to comment.
→ White papers: final document → the blue print of government’s policy. (GEAR Policy).
3. Reports by state institutions supporting constitutional democracy. (HRC, Public Protector).
→ Report on the conduct of ministers making recommendations to legislature concerning rectifying any a
4. Foreign law → S 39 (1) (c) → The courts may consider foreign law. (Discretionary power).
WHERE TO FIND THE SOURCES OF CONSTITUTIONAL LAW:
Legislation: Government gazettes, Butterworths publishes, www.polity.org.za, www.acts.co.za
Case Law: SALR (Juta), BCLR, Constitutional court website, www.law.wits.ac.za
Academic: Chaskalson, Constitutional law of South Africa.
Articles: South African journals specialising in constitutional & human rights issues:
South African Public Law
South African Journal on Human Rights.
, the Minister, the respondents were not afforded a hearing by the
President prior his decision to appoint a commission and the
President failed to apply his mind to the matter when exercising
his powers. – The Minister of Sport, the President and the
Director General appealed to the CC.
Issues to be determined:
1. Was the appointment of a commission by the President
administrative action in terms of s 33 of the Constitution and
therefore invalid.
2. Was the exercise of the Presidents powers in conferring the
powers of the Commissions Act on the commission invalid.
Finding:
The Presidents exercise of power in terms of 84(2)(f) of the
Constitution are valid. The exercise of power was not
administrative action but constitutional powers conferred on the
President by s 84.
Reasoning:
There was no abdication of powers to the Minister by the
President. The nature of the Presidents power to appoint a
commission does not constitute administrative action therefore the
procedural fairness requirement (s 33) for a fair hearing is not
necessary. The commission was appointed in accordance with the
Constitution in terms of the Presidents constitutional powers. The
argument that the President did not apply his mind to the matter is
rejected – in line with the separation of powers doctrine requiring
branches to respect the dignity of the offices of other organs and
functionaries.
S 84(f) confers the powers to appoint commission of inquiry on
the President alone. The Act confers the power to declare its
provisions on the President alone. – By the President uttering
words of abdication in the press does not constitute abdication of
his responsibilities. Even though the initiation of the appointment
of inquiry came from the Minister, the President discussed the
matter and made up his mind that there was good cause for the
appointment.
==========================================================================
AIMS OF THE STUDY UNIT:
1) Explain what you understand by the phrase “sources of law”
Sources of law are the places to find legal rules governing a particular branch of law.
2) Classify and examine the sources of constitutional law.
Authoritative sources:
Constitution,
Legislation,
Case law,
, ==========================================================================
ACTIVITY 2 pg xv: How to summarise a court case:
- Facts of the Case (background / historical context).
Premier of the Western Cape v the President of the Republic of South Africa:
Co-operative Government:
Facts of the Case:
Parliament amended the Public Services Act which was challenged on the basis of its constitutionality as it gave the same b
departments as that of the heads of national departments. This means they would no longer fall under the administrative con
responsibility for the administration of the office of the Premier, intergovernmental relationships and co-operation between
Western Cape government objected that the power of the province to structure its own administration is part of its executive
to impose of the provinces provincial power.
Issues for determination by the court:
The Province of the Western Cape challenged the constitutionality of the amendment on the basis that this new scheme viol
three important respects:
1) It assigned function to the provincial DG and head of department in an unacceptable manner;
2) It restricted the Premier’s executive powers to establish / abolish departments of government;
