FUR2601 LATEST EXAM
PACK 2025
QUESTIONS AND
ANSWERS
For assistance contact
Email:
, lOMoARcPSD|31863004
Study Unit 1: Introduction to the
Constitution and the Bill of Rights
1.2. Key Concepts
- Constitutionalism: government derives its powers from the Constitution and be limited in
terms of provisions of Constitution
- Democracy: government of people, based on consent of the governed and elected by them
to serve their interests
- Fundamental human rights: rights accrue to any human being to protect human dignity
- Rule of law: government should only act in terms of the law, enforced by impartial and
independent courts
- Separation of powers: state powers should be divided among several organs to prevent
authoritarian rule and to protect human rights
1.3 Issues
- number of basic principles underlie new constitutional order:
o democracy, supremacy of the Const and rule of law
o constitutionalism, separation of powers, and checks and balances
o fundamental rights
1.3.1 Constitutionalism
- idea that government should derive powers from a written const
- fundamental problem addressed by writing of const is to establish government with enough
power to govern but, at the same time, to structure and control that power so as to prevent
it being used oppressively
- powers limited to those set out in const
- countries , e.g. Britain, don’t have written const – doesn’t imply constitutionalism foreign to
system
- limitation of power central to idea
- limited in 2 ways:
o structural and procedural limitations on exercise of power
o substantive limitations imposed, principally through operation of Bill of Rights
- only certain institutions may exercise certain forms of power, and may only do so if specific
procedures are followed
, lOMoARcPSD|31863004
- limitations on state power won’t be effective without three associated principles of law:
constitutional supremacy, justiciability and entrenchment
- constitutional supremacy: const is supreme law of the land
- Sect 2 of Const gives expression to the principle of constitutional supremacy
- For a supreme const to beeffective, judiciary must have the power to enforce it
- Sec 172 provides that, provided it has jurisdiction to do so, any court must declare any law
or conduct inconsistent invalid
- judiciary head by Const Court empowered to declare invalid any law or conduct inconsistent
with Const
- Const provides for judicial review
- entrenchment: prevents Parliament from amending Const without following special
procedures and support of special majorities
- Sect 74 deals with amendment
1.3.2 The rule of law
- entrenched in Cont, s 1
- requires state institutions to act in accordance with the law
- various organs of state must obey the law
- state can’t exercise power over anyone unless the law permits it to do so
- means there must be a law authorising everything the state does
- nr of cases, Con Court made decisive direct use of principle, developing from it a general
requirement that all law and state conduct must be rationally related to a legitimate
government purpose
- definitive statement on this requirement found in Pharmaceutical Manufacturers decision
- rule of law has both procedural and substantive components
- procedural component forbids arbitrary decision-making
- substantive component dictates that government must respect the individual’s basic rights
1.3.3 Democracy and accountability
- S 1 of Const provides that RSA is a sovereign, democratic state...
-
- Const recognises 3 forms of democracy: representative, participatory and direct
- representative democracy: indirect democracy – power based on will of people expressed
through elected representatives
- participatory democracy: individuals or institutions representing people should participate in
politics
- direct democracy: serves as counterweight to importance of political parties in a
representative democracy – people pronounce directly on some critical political matters
through referendum
- S 84(2)(g) makes provision for the President to call a national referendum while s 127
provides for the calling of a provincial referendum
, lOMoARcPSD|31863004
- anchor of representative democracy found in political rights entrenched in Bill of Rights
- duty of accountability requires that government must explain its laws and actions if required
to do so
- some of the most important specific provisions flowing from the principle of accountability
found in Bill of Rights
- Most prominent are right to access to information in s 32 and right to just administrative
action in s 33, particularly the right to written reasons and to reasonable administrative
actions
- Members of Cabinet accountable collectively and individually to Parliament and members of
provincial executive councils are accountable to respective provincial legislatures
-
1.3.4 Separation of powers, and checks and balances
- no specific reference in const, both separation of powers and checks and balances have
been built into the text
- entails trias politica principle, separation of functions, separation of personnel, and checks
and balances
- trias politica principle: division of governmental power into 3 branches of activities –
executive, legislature and judiciary
- separation of functions: 3 arms of government vested with different functions
o function to make/enact laws: legislature
o function to execute laws or administer: executive
o function to administer justice: judiciary
- separation of personnel: aims to prevent excessive concentration of power or abuse of
power by single person or body – each arm should have own personnel
- separation of powers not absolute
- doctrine of separation of powers underlies principle of judicial independence
- purpose of checks and balances :
o ensure different branches of government control each other internally (checks)
o serves as counterweights to power possessed by other branches (balances)
- in most democracies, the most conspicuous example of a check is the power of the judiciary
to review executive conduct and laws for compliance with the Const and the Bill of Rights
- Another important check is the role played by the executive in the appointment of judges
- separation of functions recognised in the Const
- S 43 vests legislative authority of Republic in the national sphere in Parliament and in
provincial sphere in the provincial legislatures
- S 85 and 125 vest the executive authority of the Republic in the President and the executive
authority of the provinces in the premiers
- S 165 vests judicial authority in the courts
- At the local level, however, there is no clear separation
- Both executive and legislative authority vested in Municipal Council
- 3 different function also not always performed by different personnel
- most glaring overlap is that members of the executive are also members of the legislative
PACK 2025
QUESTIONS AND
ANSWERS
For assistance contact
Email:
, lOMoARcPSD|31863004
Study Unit 1: Introduction to the
Constitution and the Bill of Rights
1.2. Key Concepts
- Constitutionalism: government derives its powers from the Constitution and be limited in
terms of provisions of Constitution
- Democracy: government of people, based on consent of the governed and elected by them
to serve their interests
- Fundamental human rights: rights accrue to any human being to protect human dignity
- Rule of law: government should only act in terms of the law, enforced by impartial and
independent courts
- Separation of powers: state powers should be divided among several organs to prevent
authoritarian rule and to protect human rights
1.3 Issues
- number of basic principles underlie new constitutional order:
o democracy, supremacy of the Const and rule of law
o constitutionalism, separation of powers, and checks and balances
o fundamental rights
1.3.1 Constitutionalism
- idea that government should derive powers from a written const
- fundamental problem addressed by writing of const is to establish government with enough
power to govern but, at the same time, to structure and control that power so as to prevent
it being used oppressively
- powers limited to those set out in const
- countries , e.g. Britain, don’t have written const – doesn’t imply constitutionalism foreign to
system
- limitation of power central to idea
- limited in 2 ways:
o structural and procedural limitations on exercise of power
o substantive limitations imposed, principally through operation of Bill of Rights
- only certain institutions may exercise certain forms of power, and may only do so if specific
procedures are followed
, lOMoARcPSD|31863004
- limitations on state power won’t be effective without three associated principles of law:
constitutional supremacy, justiciability and entrenchment
- constitutional supremacy: const is supreme law of the land
- Sect 2 of Const gives expression to the principle of constitutional supremacy
- For a supreme const to beeffective, judiciary must have the power to enforce it
- Sec 172 provides that, provided it has jurisdiction to do so, any court must declare any law
or conduct inconsistent invalid
- judiciary head by Const Court empowered to declare invalid any law or conduct inconsistent
with Const
- Const provides for judicial review
- entrenchment: prevents Parliament from amending Const without following special
procedures and support of special majorities
- Sect 74 deals with amendment
1.3.2 The rule of law
- entrenched in Cont, s 1
- requires state institutions to act in accordance with the law
- various organs of state must obey the law
- state can’t exercise power over anyone unless the law permits it to do so
- means there must be a law authorising everything the state does
- nr of cases, Con Court made decisive direct use of principle, developing from it a general
requirement that all law and state conduct must be rationally related to a legitimate
government purpose
- definitive statement on this requirement found in Pharmaceutical Manufacturers decision
- rule of law has both procedural and substantive components
- procedural component forbids arbitrary decision-making
- substantive component dictates that government must respect the individual’s basic rights
1.3.3 Democracy and accountability
- S 1 of Const provides that RSA is a sovereign, democratic state...
-
- Const recognises 3 forms of democracy: representative, participatory and direct
- representative democracy: indirect democracy – power based on will of people expressed
through elected representatives
- participatory democracy: individuals or institutions representing people should participate in
politics
- direct democracy: serves as counterweight to importance of political parties in a
representative democracy – people pronounce directly on some critical political matters
through referendum
- S 84(2)(g) makes provision for the President to call a national referendum while s 127
provides for the calling of a provincial referendum
, lOMoARcPSD|31863004
- anchor of representative democracy found in political rights entrenched in Bill of Rights
- duty of accountability requires that government must explain its laws and actions if required
to do so
- some of the most important specific provisions flowing from the principle of accountability
found in Bill of Rights
- Most prominent are right to access to information in s 32 and right to just administrative
action in s 33, particularly the right to written reasons and to reasonable administrative
actions
- Members of Cabinet accountable collectively and individually to Parliament and members of
provincial executive councils are accountable to respective provincial legislatures
-
1.3.4 Separation of powers, and checks and balances
- no specific reference in const, both separation of powers and checks and balances have
been built into the text
- entails trias politica principle, separation of functions, separation of personnel, and checks
and balances
- trias politica principle: division of governmental power into 3 branches of activities –
executive, legislature and judiciary
- separation of functions: 3 arms of government vested with different functions
o function to make/enact laws: legislature
o function to execute laws or administer: executive
o function to administer justice: judiciary
- separation of personnel: aims to prevent excessive concentration of power or abuse of
power by single person or body – each arm should have own personnel
- separation of powers not absolute
- doctrine of separation of powers underlies principle of judicial independence
- purpose of checks and balances :
o ensure different branches of government control each other internally (checks)
o serves as counterweights to power possessed by other branches (balances)
- in most democracies, the most conspicuous example of a check is the power of the judiciary
to review executive conduct and laws for compliance with the Const and the Bill of Rights
- Another important check is the role played by the executive in the appointment of judges
- separation of functions recognised in the Const
- S 43 vests legislative authority of Republic in the national sphere in Parliament and in
provincial sphere in the provincial legislatures
- S 85 and 125 vest the executive authority of the Republic in the President and the executive
authority of the provinces in the premiers
- S 165 vests judicial authority in the courts
- At the local level, however, there is no clear separation
- Both executive and legislative authority vested in Municipal Council
- 3 different function also not always performed by different personnel
- most glaring overlap is that members of the executive are also members of the legislative
