CONSTITUTIONAL LAW
PBL2003W
University of Cape Town
2023
By Kaya Borkowski & Jamie-Lou Ross
Description:
Semester 1 & 2 Content.
Summaries of all prescribed cases, organised under topic headings.
Case summaries include the facts, issue, outcome & the significance where relevant.
Summaries of all prescribed articles etc.
Notes from the textbook.
Relevant information from lecture slides.
Table of contents before each semester notes & again before cases
Easy to follow.
For each semester, the notes are first, followed by the cases.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021.
SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION.
OXFORD: OXFORD UNIV PRESS UK.
1
,SEMESTER 1: NOTES
PART 1: AN INTRODUCTION TO DEMOCRACY, CONSTITUTIONALISM AND THE SOUTH AFRICAN CONSTITUTION
Introduction to Constitutional
Law………………………………………………….……………………………………………….……………
PART 2: THE NATIONAL LEGISLATURE, THE EXECUTIVE, THE JUDICIARY AND THE ADMINISTRATION OF
JUSTICE
The
Legislature………………………………………………….……………………………………………….…………………………………..
The National
Executive………………………………………….……………………………………………….…………………………………..
The
Judiciary………………………………………….……………………………………………….……………………………………………..
Chapter 9 institutions and other independent
bodies………………………………………….……………………………………………………
Multi-level
government………………………………………….……………………………………………….…………………………………..
PART 1: AN INTRODUCTION TO DEMOCRACY, CONSTITUTIONALISM AND THE SOUTH AFRICAN CONSTITUTION
Introduction to Constitutional Law
Constitutional History
● Constitutional history before 1994 in South Africa was characterised by extreme racial segregation & discrimination.
● Apartheid system created bifurcated state with separate structures & rules for white settlers & indigenous peoples.
● This racial division was reflected in legal system, with common law initially applying to whites & customary law applying to black
South Africans.
● Even today, both common law & customary law still apply to different people in different contexts.
● In 1910, Union of South Africa formalised this division by establishing Westminster system of government primarily for white
population.
● Traditional governance structures for indigenous South Africans, centred around chiefs, continued to exist but were controlled by
white government.
● Westminster system established parliamentary sovereignty, where Parliament had supreme authority to make any law following
correct procedure.
● This system changed in 1994 with transition to democracy, marking significant shift in South Africa's constitutional history.
● The transition to democracy occurred in two stages: the first transitional stage was guided by an interim Constitution which
● allowed for power sharing between the major political parties for a period of five years and also contained 34 Constitutional
Principles which would bind the drafters of the final Constitution. The interim Constitution also prescribed the manner in which the
final Constitution had to be adopted.
The final Constitution was drafted by the Constitutional Assembly, comprising the democratically elected National Assembly and
the indirectly elected Senate, but this body was bound by the 34 Principles. The
2
, ● CC had to certify that the final Constitution complied with these principles, which it eventually did after first referring the
Constitution back to the Constitutional Assembly because it had not complied in all aspects with these Principles.
● The final Constitution is said to be a transformative Constitution. This means it responds to the social and economic history of our
country.
● It aims to facilitate the transformation of our society away from an unequal and uncaring society in which racial discrimination and
the marginalisation of women and other vulnerable groups was the order of the day and vast inequalities remained towards a fairer
and more equal society in which the human dignity of all is respected and protected.
● This Constitution often contains vague provisions that judges must interpret. Judges use a purposive method of interpretation and
often refer to South Africa’s history to guide them in their interpretative task.
Constitutionalism
● Constitutionalism is a multifaceted term and is concerned with the distribution and allocation of powers in an organised way within
a given political community in which a government is established.
● It provides for the establishment of the institutions of governance, such as the legislature, the executive and the courts, as well as
the allocation of powers, duties and functions to the various institutions of government which legitimise the exercise of power –
within the limits set by the Constitution – of each of these institutions.
● Constitutionalism also plays an important role in determining the nature and basis of relations as they exist between institutions of
government and those they govern.
● The principle of the separation of powers deals with the division of governmental power across the three branches, namely the
legislative branch (parliament), the executive branch (president/prime minister and cabinet) and the judicial branch (the courts).
● These branches ordinarily have separate functions and are staffed by different personnel.
● This allows the various branches to check the exercise of power of the other branches and thus ensures accountability.
● There are, however, several models of separation of powers and it is important to study these models and to understand the specific
model adopted by SA Constitution as well as the practical and legal consequences that flow from the adoption of this model.
● The counter-majoritarian dilemma arises in a constitutional democracy (like that established in SA) in which the constitution rather
than parliament is supreme and in which the judiciary is independent and empowered to review and set aside the actions of the
other two branches of government.
● This is because the system affords the power of judicial review to courts. It thus permits an unelected and seemingly unaccountable
judiciary to declare unconstitutional and invalid laws made and actions taken by democratically elected and accountable members
of the legislature and executive. This can appear to be anti-democratic.
● It is important to engage with the arguments justifying the legitimacy of this system and attempting to resolve the
counter-majoritarian difficulty.
● The rule of law is a founding value of the Constitution and is based on the notion that the law is supreme.
● Hence, public power can only be exercised in terms of the authority conferred by law and in a non-arbitrary manner.
● Inherent in this concept is also the principle that everyone is equal before the law, the law must be applied equally to all persons
irrespective of their status and all must be subject to the jurisdiction of the ordinary courts. The rule of law can be conceptualised in
formalistic terms or it can entail a more substantive notion.
● The core idea at the heart of democracy is that decisions affecting the members of a political community should be taken by the
members themselves or at least by elected representatives whose power to make decisions ultimately derives from the members.
● Different, and sometimes overlapping, forms of democracy can exist within a state: direct democracy; representative democracy;
participatory democracy and constitutional democracy.
● NB to distinguish the various forms of democracy and to understand how these forms of democracy relate to one another.
Constitutionalism & social change
3
PBL2003W
University of Cape Town
2023
By Kaya Borkowski & Jamie-Lou Ross
Description:
Semester 1 & 2 Content.
Summaries of all prescribed cases, organised under topic headings.
Case summaries include the facts, issue, outcome & the significance where relevant.
Summaries of all prescribed articles etc.
Notes from the textbook.
Relevant information from lecture slides.
Table of contents before each semester notes & again before cases
Easy to follow.
For each semester, the notes are first, followed by the cases.
DISTRIBUTION OF THIS DOCUMENT IS ILLEGAL
PIERRE DE VOS; WARREN FREEDMAN; ZSA-ZSA BOGGENPOEL. 2021.
SOUTH AFRICAN CONSTITUTIONAL LAW IN CONTEXT SECOND EDITION.
OXFORD: OXFORD UNIV PRESS UK.
1
,SEMESTER 1: NOTES
PART 1: AN INTRODUCTION TO DEMOCRACY, CONSTITUTIONALISM AND THE SOUTH AFRICAN CONSTITUTION
Introduction to Constitutional
Law………………………………………………….……………………………………………….……………
PART 2: THE NATIONAL LEGISLATURE, THE EXECUTIVE, THE JUDICIARY AND THE ADMINISTRATION OF
JUSTICE
The
Legislature………………………………………………….……………………………………………….…………………………………..
The National
Executive………………………………………….……………………………………………….…………………………………..
The
Judiciary………………………………………….……………………………………………….……………………………………………..
Chapter 9 institutions and other independent
bodies………………………………………….……………………………………………………
Multi-level
government………………………………………….……………………………………………….…………………………………..
PART 1: AN INTRODUCTION TO DEMOCRACY, CONSTITUTIONALISM AND THE SOUTH AFRICAN CONSTITUTION
Introduction to Constitutional Law
Constitutional History
● Constitutional history before 1994 in South Africa was characterised by extreme racial segregation & discrimination.
● Apartheid system created bifurcated state with separate structures & rules for white settlers & indigenous peoples.
● This racial division was reflected in legal system, with common law initially applying to whites & customary law applying to black
South Africans.
● Even today, both common law & customary law still apply to different people in different contexts.
● In 1910, Union of South Africa formalised this division by establishing Westminster system of government primarily for white
population.
● Traditional governance structures for indigenous South Africans, centred around chiefs, continued to exist but were controlled by
white government.
● Westminster system established parliamentary sovereignty, where Parliament had supreme authority to make any law following
correct procedure.
● This system changed in 1994 with transition to democracy, marking significant shift in South Africa's constitutional history.
● The transition to democracy occurred in two stages: the first transitional stage was guided by an interim Constitution which
● allowed for power sharing between the major political parties for a period of five years and also contained 34 Constitutional
Principles which would bind the drafters of the final Constitution. The interim Constitution also prescribed the manner in which the
final Constitution had to be adopted.
The final Constitution was drafted by the Constitutional Assembly, comprising the democratically elected National Assembly and
the indirectly elected Senate, but this body was bound by the 34 Principles. The
2
, ● CC had to certify that the final Constitution complied with these principles, which it eventually did after first referring the
Constitution back to the Constitutional Assembly because it had not complied in all aspects with these Principles.
● The final Constitution is said to be a transformative Constitution. This means it responds to the social and economic history of our
country.
● It aims to facilitate the transformation of our society away from an unequal and uncaring society in which racial discrimination and
the marginalisation of women and other vulnerable groups was the order of the day and vast inequalities remained towards a fairer
and more equal society in which the human dignity of all is respected and protected.
● This Constitution often contains vague provisions that judges must interpret. Judges use a purposive method of interpretation and
often refer to South Africa’s history to guide them in their interpretative task.
Constitutionalism
● Constitutionalism is a multifaceted term and is concerned with the distribution and allocation of powers in an organised way within
a given political community in which a government is established.
● It provides for the establishment of the institutions of governance, such as the legislature, the executive and the courts, as well as
the allocation of powers, duties and functions to the various institutions of government which legitimise the exercise of power –
within the limits set by the Constitution – of each of these institutions.
● Constitutionalism also plays an important role in determining the nature and basis of relations as they exist between institutions of
government and those they govern.
● The principle of the separation of powers deals with the division of governmental power across the three branches, namely the
legislative branch (parliament), the executive branch (president/prime minister and cabinet) and the judicial branch (the courts).
● These branches ordinarily have separate functions and are staffed by different personnel.
● This allows the various branches to check the exercise of power of the other branches and thus ensures accountability.
● There are, however, several models of separation of powers and it is important to study these models and to understand the specific
model adopted by SA Constitution as well as the practical and legal consequences that flow from the adoption of this model.
● The counter-majoritarian dilemma arises in a constitutional democracy (like that established in SA) in which the constitution rather
than parliament is supreme and in which the judiciary is independent and empowered to review and set aside the actions of the
other two branches of government.
● This is because the system affords the power of judicial review to courts. It thus permits an unelected and seemingly unaccountable
judiciary to declare unconstitutional and invalid laws made and actions taken by democratically elected and accountable members
of the legislature and executive. This can appear to be anti-democratic.
● It is important to engage with the arguments justifying the legitimacy of this system and attempting to resolve the
counter-majoritarian difficulty.
● The rule of law is a founding value of the Constitution and is based on the notion that the law is supreme.
● Hence, public power can only be exercised in terms of the authority conferred by law and in a non-arbitrary manner.
● Inherent in this concept is also the principle that everyone is equal before the law, the law must be applied equally to all persons
irrespective of their status and all must be subject to the jurisdiction of the ordinary courts. The rule of law can be conceptualised in
formalistic terms or it can entail a more substantive notion.
● The core idea at the heart of democracy is that decisions affecting the members of a political community should be taken by the
members themselves or at least by elected representatives whose power to make decisions ultimately derives from the members.
● Different, and sometimes overlapping, forms of democracy can exist within a state: direct democracy; representative democracy;
participatory democracy and constitutional democracy.
● NB to distinguish the various forms of democracy and to understand how these forms of democracy relate to one another.
Constitutionalism & social change
3
