CONSTITUTIONAL LAW 271
FIRST SEMESTER - 2022
Role players in a const democracy :
- National assembly
o = legislative branch – creates and promulgate legislation
o Elected by public + s.42 of Const (aim = to represent public)
o Elect president thus need to hold president accountable
- State president (head of state)
o And president as head of executive branch (2 roles + 2
functions)
- Courts (esp. CC)
o Judicial branch
o Appointed by G
o ? invalidates conduct inconsistent with constitution
o * CC = exclusive jurisdictional power iro certain cases –
especially iro to president / par duties and responsibilities
- PP (NB for EFF 1)
o Ch.9 > s.182 > afford PP authority to investigate any conduct
in state affairs + to take binding remedial action
o Ensure accountability
Consider the following Qs:
- Contemporary challenges iro holding the judiciary accountable :
o Corruption
o Nepotism
o Politics and the law – ground your answer in the law
- Democracy
o Both social and political factors = NB
o Not merely ability to vote but ability to actively partake in
system
- Accountability
o Need to ensure that G can be held accountable
- Judicial review – always compare to limits imposed on it during
Apartheid era
Constitutional crisis of the 1950s and the exclusion of judicial review :
Changes effected by the interim const of 1993:
- Political inequality > Political equality
- Parliamentary monopoly >> legislative and executive powers on
national + provincial level
- First-pass-the-post system >> proportional representation
- PS (parliamentary supremacy) > CS (constitutional supremacy)
Constitutionalism pre-1994 :
- Union const of 1910 , republic const of 1961 and tricameral const of
1983
, - PS > no court of law = competent to enquire or pronounce upon the
validity of any law passed by parliament
- No substantive constraints
- Par = monopoly of power
Formation of the SA union :
- 4 colonies – cape, natal, free-state and transvaal
- After brittan won war > plan to unify colonies under SA Act of 1909
– union parliament formed
- National convention –
o Agreed to racially exclusive const based on Westminster
system – based on PS
o Bifurcated stated of colonial rule – racially exclusive
- UC – 2 houses > house of assembly and the senate BUT colonial
validity act still applicable in some ways >>>
External constraints : (NB)
- EC on parliament iro Colonial Validity Act 1865
o 1) Union par couldn’t legislate extraterritorially
o 2) or in a manner contrary to the British law
o 2) all bills had to be sent to the governor-general for assent
(applicable ?)
- Statute of Westminster – repealed Colonial law validity act
- >> removal of external constraints by Statute of Westminster in
1931
Internal constraints (NB)
- Union par = free to amend the const by ordinary procedures except
for entrenched provisions :
- Entrenched provisions
o 1) s.35 > protected the non-racial franchise in the cape and
natal
o 2) s.137 > protected the equality of the 2 official languages
- Could be amended by a special procedure > s.152
o Only be valid if bill was passed by both houses sitting together
o And agreed to by a 2/3 majority
Firm establishment of PS in SA ?=
- 1950s cons crisis – Collins = definite win for PS
- Harris 1 and 2
Exclusion of judicial review in entirety
(these cases regarding the crisis will be asked atleast once !)
1950s const crisis commenced with the passing of ?=
Separate Representation of Voters Bill > Harris I and 2 + Collins
(HC of Parliament + SAAA)
Exclusion of Judicial review :
- Sachs v Minister of Justice :
, o Par may make any encroachment it chooses upon life, liberty
and property of any indiv subject to its sway … and it’s the
function of the court to enforce its will > know this quote
- This judicial perspective = justified by the doctrine of PS – and gave
the apartheid legislature free right to attack the basic principles of
equality and human dignity
- Didn’t enquire into substance merely procedure
- PS >
o “no court of law = competent to enquire into or pronounce
upon the validity of any law passed by parliament” – no
substantive ability
o S.39 – courts couldn’t challenge nor change legislature
- CS >
o This enquiry must crucially rest on the const of SA , it is
supreme not the par
o No parliament, president or official – can make any law that
cant be justified within the const
o This is expressly provided for in s.2 of the const
Constitutional revolution – negotiations and final constitution
Interim constitution:
- Purpose = to provide a historic bridge between a past that is
deeply divided and characterized by strife conflicts, until i suffering
and injustice
- AZAPO case app here –
o Truce and recon act
o Granting of amnesty = central
On the verge of revolution :
- Various groups `(AZAPO, CASATU, PAC, ANC etc) > resisting
apartheid
- 1952 – passive measures > resting especially pass laws and
immorality act
- 1955 – drafting freedom charter > said to basis for BoR
- 1960 – sharpville massacre
- 1963 – Rivonia trial
- 1976 – Soweto Uprising
- 1967 onwards > RESISTANCE INTENSIVES
- 1980s > heading towards disaster > tried to appease intern
pressure ?= Tripodal const
o 3 houses of parliament (whites, colored , Indians) , 4:2:1
proportion – white still has power – black majority still
excluded
Run up to 2-stage transition :
- CODESA = tasked with drafting interim const – June 1992 –
negotiations stall , ANC walks out
- Declaration of intent 1991 – common view for const
, - MPNF created to draft interim const > provided for a system of
power-sharing
Main differences betw ANC and NP :
- ANC > wanted const drafted by democratically elected parliament +
majority G created
- NP < unelected MNPF to draft , long transition G with power sharing
+ veto powers
- [did ask]
[will ask the 2 stage transition in some form]
Q – who can draft the final const ?=
- No one = elected to represent universal adult suffrage – no credible
body
- Need for a democratically elected body (citizen involvement)
- MPNF = not elected body – so couldn’t be credible either
- THUS to address concern and to accommodate conflicted ideas betw
political parties > 2 stage transition – interim then final const
2 stage transition:
1) Interim const
- Drafter by the MPNF in 1993
- Provided specifically for power sharing
- 34 const principles in schedule 4 = NB
o Regulate the adoption and certification of the const text
- Provides for a BoR
- Created CC
2) Final const
- Negotiated after the democratic election by the elected CA (1994)
- To be certified by new CC (if compliant with 34prin)
- Includes extensive BoR
*1 certification judgment = applicable here > NB case [FCJ]
st
Interim Final
- Negotiated but unelected - Negotiated by elected CA
FIRST SEMESTER - 2022
Role players in a const democracy :
- National assembly
o = legislative branch – creates and promulgate legislation
o Elected by public + s.42 of Const (aim = to represent public)
o Elect president thus need to hold president accountable
- State president (head of state)
o And president as head of executive branch (2 roles + 2
functions)
- Courts (esp. CC)
o Judicial branch
o Appointed by G
o ? invalidates conduct inconsistent with constitution
o * CC = exclusive jurisdictional power iro certain cases –
especially iro to president / par duties and responsibilities
- PP (NB for EFF 1)
o Ch.9 > s.182 > afford PP authority to investigate any conduct
in state affairs + to take binding remedial action
o Ensure accountability
Consider the following Qs:
- Contemporary challenges iro holding the judiciary accountable :
o Corruption
o Nepotism
o Politics and the law – ground your answer in the law
- Democracy
o Both social and political factors = NB
o Not merely ability to vote but ability to actively partake in
system
- Accountability
o Need to ensure that G can be held accountable
- Judicial review – always compare to limits imposed on it during
Apartheid era
Constitutional crisis of the 1950s and the exclusion of judicial review :
Changes effected by the interim const of 1993:
- Political inequality > Political equality
- Parliamentary monopoly >> legislative and executive powers on
national + provincial level
- First-pass-the-post system >> proportional representation
- PS (parliamentary supremacy) > CS (constitutional supremacy)
Constitutionalism pre-1994 :
- Union const of 1910 , republic const of 1961 and tricameral const of
1983
, - PS > no court of law = competent to enquire or pronounce upon the
validity of any law passed by parliament
- No substantive constraints
- Par = monopoly of power
Formation of the SA union :
- 4 colonies – cape, natal, free-state and transvaal
- After brittan won war > plan to unify colonies under SA Act of 1909
– union parliament formed
- National convention –
o Agreed to racially exclusive const based on Westminster
system – based on PS
o Bifurcated stated of colonial rule – racially exclusive
- UC – 2 houses > house of assembly and the senate BUT colonial
validity act still applicable in some ways >>>
External constraints : (NB)
- EC on parliament iro Colonial Validity Act 1865
o 1) Union par couldn’t legislate extraterritorially
o 2) or in a manner contrary to the British law
o 2) all bills had to be sent to the governor-general for assent
(applicable ?)
- Statute of Westminster – repealed Colonial law validity act
- >> removal of external constraints by Statute of Westminster in
1931
Internal constraints (NB)
- Union par = free to amend the const by ordinary procedures except
for entrenched provisions :
- Entrenched provisions
o 1) s.35 > protected the non-racial franchise in the cape and
natal
o 2) s.137 > protected the equality of the 2 official languages
- Could be amended by a special procedure > s.152
o Only be valid if bill was passed by both houses sitting together
o And agreed to by a 2/3 majority
Firm establishment of PS in SA ?=
- 1950s cons crisis – Collins = definite win for PS
- Harris 1 and 2
Exclusion of judicial review in entirety
(these cases regarding the crisis will be asked atleast once !)
1950s const crisis commenced with the passing of ?=
Separate Representation of Voters Bill > Harris I and 2 + Collins
(HC of Parliament + SAAA)
Exclusion of Judicial review :
- Sachs v Minister of Justice :
, o Par may make any encroachment it chooses upon life, liberty
and property of any indiv subject to its sway … and it’s the
function of the court to enforce its will > know this quote
- This judicial perspective = justified by the doctrine of PS – and gave
the apartheid legislature free right to attack the basic principles of
equality and human dignity
- Didn’t enquire into substance merely procedure
- PS >
o “no court of law = competent to enquire into or pronounce
upon the validity of any law passed by parliament” – no
substantive ability
o S.39 – courts couldn’t challenge nor change legislature
- CS >
o This enquiry must crucially rest on the const of SA , it is
supreme not the par
o No parliament, president or official – can make any law that
cant be justified within the const
o This is expressly provided for in s.2 of the const
Constitutional revolution – negotiations and final constitution
Interim constitution:
- Purpose = to provide a historic bridge between a past that is
deeply divided and characterized by strife conflicts, until i suffering
and injustice
- AZAPO case app here –
o Truce and recon act
o Granting of amnesty = central
On the verge of revolution :
- Various groups `(AZAPO, CASATU, PAC, ANC etc) > resisting
apartheid
- 1952 – passive measures > resting especially pass laws and
immorality act
- 1955 – drafting freedom charter > said to basis for BoR
- 1960 – sharpville massacre
- 1963 – Rivonia trial
- 1976 – Soweto Uprising
- 1967 onwards > RESISTANCE INTENSIVES
- 1980s > heading towards disaster > tried to appease intern
pressure ?= Tripodal const
o 3 houses of parliament (whites, colored , Indians) , 4:2:1
proportion – white still has power – black majority still
excluded
Run up to 2-stage transition :
- CODESA = tasked with drafting interim const – June 1992 –
negotiations stall , ANC walks out
- Declaration of intent 1991 – common view for const
, - MPNF created to draft interim const > provided for a system of
power-sharing
Main differences betw ANC and NP :
- ANC > wanted const drafted by democratically elected parliament +
majority G created
- NP < unelected MNPF to draft , long transition G with power sharing
+ veto powers
- [did ask]
[will ask the 2 stage transition in some form]
Q – who can draft the final const ?=
- No one = elected to represent universal adult suffrage – no credible
body
- Need for a democratically elected body (citizen involvement)
- MPNF = not elected body – so couldn’t be credible either
- THUS to address concern and to accommodate conflicted ideas betw
political parties > 2 stage transition – interim then final const
2 stage transition:
1) Interim const
- Drafter by the MPNF in 1993
- Provided specifically for power sharing
- 34 const principles in schedule 4 = NB
o Regulate the adoption and certification of the const text
- Provides for a BoR
- Created CC
2) Final const
- Negotiated after the democratic election by the elected CA (1994)
- To be certified by new CC (if compliant with 34prin)
- Includes extensive BoR
*1 certification judgment = applicable here > NB case [FCJ]
st
Interim Final
- Negotiated but unelected - Negotiated by elected CA
