MODULE :FUR2601
,FUR2601 Exam Preparation Pack
Contains:
• Exam Questions & Answers
• Exam Case Summaries
• Exam MCQ Questions & Answers
• Study Guide Questions & Answers
, CLS cc ©
Fundamental Rights Question Pack – 2020
1
FUNDAMENTAL RIGHTS QUESTION PACK:
GENERAL IDEAS IN THE CONSTITUTION
Question 1:
What is meant by justifiability and what role does it play in the
study of fundamental rights?
Constitutional supremacy would mean little if the provisions of the
constitution weren’t justiciable – for a supreme constitution to be
effective the judiciary must have the power to enforce it
S172: provided that it has jurisdiction to do so, a court must declare
any law or conduct inconsistent with the constitution invalid to the
extent of the inconsistence.
Court orders must be obeyed by other branches of the state
When the court uses its powers of judicial review to strike down acts
of parliament, it’s arguable that in doing so it thwarts the will of the
people – should the courts have the power to do so?
In the new constitution the legislature and executive are democratic –
why should courts and the unelected judges who staff them have the
power to strike down the decisions of a democratic legislature and a
democratic representative government
The fact that the provisions of the constitution are justiciable doesn’t
mean that the courts are the only way to enforce them = but they are
the most important check and balance with regard to governmental
power.
Question 2:
What is meant by constitutional supremacy and why is it
important for the protection of fundamental
rights?
The rules of the constitution are binding on all branches of
government and have priority over other rules made by the
government – any law or conduct that’s not in accordance with the
constitution either for procedural or substantive reasons will not have
the force of law.
The constitution is the supreme law of the republic; law or conduct
inconsistent with it is invalid.
S8: The Bill of Rights has supremacy over all forms of law and it binds
all branches of the state and private individuals.
Critical Law Studies cc ©
, CLS cc ©
Fundamental Rights Question Pack – 2020
2
Question 3:
What does the “rule of law” mean? Refer in your answer to the
Constitutional court’s reasoning in Fedsure life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council.
The purpose of the rule of law was to protect basic individual rights by
requiring the government to act in accordance with clear general rules
that are enforced by the courts in accordance with a fair procedure –
this amounts to two things:
1) the branches of state must obey the law
2) The state can’t exercise power over anyone unless the law permits it
to do so – if it acts without legal authority its acting lawlessly =
something which a constitutional democracy can’t permit.
The SA courts have provided little guidance on the meaning of the rule
of law.
Fedsure Life Assurance: the lawlessness of a substantial increase in
the property rates levied by the council was challenged – the court
held that the exercise of legislative powers by an elected local
government wasn’t administrative action.
This doesn’t mean that the local government was beyond
constitutional control.
The local government had to act within the powers lawfully given to it
– this is a fundamental principle of the rule of law.
Legal conduct must be lawfully authorized by the constitution and the
law. In this case the council had to act within the 4 corners of its
constitutional mandate and the specific law governing local
governments.
Legality means lawfulness in the sense that all exercises of state
power must be authorized by the constitution. Legality functional as a
foundational value stating: there must be lawful authority before you
exercise a public power.
Whether there has been lawful authority in a case will depend, as in
Fedsure, on the detailed prescriptions of the constitution and the law.
Critical Law Studies cc ©
,FUR2601 Exam Preparation Pack
Contains:
• Exam Questions & Answers
• Exam Case Summaries
• Exam MCQ Questions & Answers
• Study Guide Questions & Answers
, CLS cc ©
Fundamental Rights Question Pack – 2020
1
FUNDAMENTAL RIGHTS QUESTION PACK:
GENERAL IDEAS IN THE CONSTITUTION
Question 1:
What is meant by justifiability and what role does it play in the
study of fundamental rights?
Constitutional supremacy would mean little if the provisions of the
constitution weren’t justiciable – for a supreme constitution to be
effective the judiciary must have the power to enforce it
S172: provided that it has jurisdiction to do so, a court must declare
any law or conduct inconsistent with the constitution invalid to the
extent of the inconsistence.
Court orders must be obeyed by other branches of the state
When the court uses its powers of judicial review to strike down acts
of parliament, it’s arguable that in doing so it thwarts the will of the
people – should the courts have the power to do so?
In the new constitution the legislature and executive are democratic –
why should courts and the unelected judges who staff them have the
power to strike down the decisions of a democratic legislature and a
democratic representative government
The fact that the provisions of the constitution are justiciable doesn’t
mean that the courts are the only way to enforce them = but they are
the most important check and balance with regard to governmental
power.
Question 2:
What is meant by constitutional supremacy and why is it
important for the protection of fundamental
rights?
The rules of the constitution are binding on all branches of
government and have priority over other rules made by the
government – any law or conduct that’s not in accordance with the
constitution either for procedural or substantive reasons will not have
the force of law.
The constitution is the supreme law of the republic; law or conduct
inconsistent with it is invalid.
S8: The Bill of Rights has supremacy over all forms of law and it binds
all branches of the state and private individuals.
Critical Law Studies cc ©
, CLS cc ©
Fundamental Rights Question Pack – 2020
2
Question 3:
What does the “rule of law” mean? Refer in your answer to the
Constitutional court’s reasoning in Fedsure life Assurance Ltd v
Greater Johannesburg Transitional Metropolitan Council.
The purpose of the rule of law was to protect basic individual rights by
requiring the government to act in accordance with clear general rules
that are enforced by the courts in accordance with a fair procedure –
this amounts to two things:
1) the branches of state must obey the law
2) The state can’t exercise power over anyone unless the law permits it
to do so – if it acts without legal authority its acting lawlessly =
something which a constitutional democracy can’t permit.
The SA courts have provided little guidance on the meaning of the rule
of law.
Fedsure Life Assurance: the lawlessness of a substantial increase in
the property rates levied by the council was challenged – the court
held that the exercise of legislative powers by an elected local
government wasn’t administrative action.
This doesn’t mean that the local government was beyond
constitutional control.
The local government had to act within the powers lawfully given to it
– this is a fundamental principle of the rule of law.
Legal conduct must be lawfully authorized by the constitution and the
law. In this case the council had to act within the 4 corners of its
constitutional mandate and the specific law governing local
governments.
Legality means lawfulness in the sense that all exercises of state
power must be authorized by the constitution. Legality functional as a
foundational value stating: there must be lawful authority before you
exercise a public power.
Whether there has been lawful authority in a case will depend, as in
Fedsure, on the detailed prescriptions of the constitution and the law.
Critical Law Studies cc ©
