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Topic 1 - Sources of SA law - Unit 2/3 - The Constitution as a source of…
Topic 1 - Sources of SA law - Unit 2/3 - The Constitution as a source of law
The constitution
The Constitution is the supreme law of the country - section 1 and 2 of the Constitution
The supremacy of the Constitution serves as a standard against which all other laws, as well as conduct arising from such laws are evaluated
In law - rules according to which a country is governed
If any law or conduct doesn't meet this standard = unconstitutional
A body of principles according to which a state or organisation is governed
Seen as the direct source of law:
It is the source of constitutional values
It is the source of fundamental rights
It is the source of the organisation, operation and power of government
Human rights violations during Apartheid
Role of the Law:
Achieved the policies of Apartheid
=> Population Registration Act 30 of 1950
=> Immorality Amendment Act 21 of 1950
=> Group Areas Act 41 of 1950
=> Riotous Assemblies Act 17 of 1956
=> General Law Amendment Act 37 of 1963
-Minister of justice could extend prison stay by 90 days at a time even after the sentence has been served
Law becomes unjust
Role of the courts:
Enforce laws
Sometimes judges found loopholes and manoeuvres around the law
Courts were powerless
1996 Constitution - Structure
Chapter 4 (ss 42 - 82) => Parliament
Chapter 5 (ss 83 - 102) => President and National Executive
Chapter 3 (ss 40 - 41) => Co-operative government
Chapter 6 (ss 103 -150) => Provinces
Chapter 2 (ss 7 -39) => Bill of rights
Chapter 7 (ss 151 - 164) => Local government
Chapter 1 (ss1-6) => Founding provisions
Chapter 8 (ss 165 - 180) => Courts and the administration of justice
Preamble
Chapter 9 (ss 181 - 194) => State institutions supporting constitutional democracy
Principle of subsidiarity
S 9 (4) - No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 3. National legislation must be enacted to prevent or prohibit unfair discrimination
Grounds in s 9 (3) - Race, gender, sex, ethnic or social origin, colour, age, disability, religion
Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) 4 of 2000
Use PEPUDA as source of law 0 ordinary law - legislation
Subsidiarity - Ordinary law - Legislation, common law, customary law - before Constitutional provisions
Prevents the constitution from being over-used and to give effect to democratic process
Constitution works as a direct source in the background
Only use constitution if ordinary law is insufficient
History of the South African Constitution prior to 1994
Pre 1994 Constitutions:
1910 Union constitution
=> Union of SA under British rule
1961 Constitution
=> Converting of Union into the Republic
1983 Constitution
=> Address some of the tensions in the country at the time
=> Tensions against the Apartheid government, to address this Parliament promulgated the Constitution which allowed for the formation of the tricameral parliament
They did not have supreme status and Parliament was free to amend them by means of ordinary procedures and simple majority votes
The three South African Constitutions which preceded the 1993 Constitution did not differ much from ordinary acts of parliament
They contained very few entrenched sections, which required a special procedure to amend
According to this doctrine, Parliament is sovereign - it is the supreme authority in the state and all other government institutions are subject to it:
Legislative authority had the supreme power and was not subject or another person or institution
Parliament could make any law it wished and no person or institution (including the courts) could challenge these laws
In the Westminister tradition of parliamentary sovereignty, the constitution has no higher amendment of the constitution according to the normal procedures for enacting ordinary laws
Pre 1994 the constitution was structured according to the Westminister system, inherited from Britain and which was based on a doctrine of parliamentary sovereignty
Parliamentary Sovereignty
S59 (2) of RSA Constitution 1961
No court of law shall be competent to enquire into or pronounce upon the validity of any Act passed by Parliament
Parliamentary supremacy + Apartheid ideologies = gross human rights violations
Parliament may make any encroachment upon the life, liberty or property subject to its sway and it is the function of the courts of law to enforce its will
Sachs v Minister of Justice
Parliament did not take into account the multi-ethic, multi-lingual and multi-cultural nature of SA. Only catered for a minority
No one has the right to override or set aside legislation of Parliament
Central policies that was made possible because of parliamentary supremacy:
Land dispossession, linguistic and cultural marginalization, gross human rights violations and denial of access to amenities and opportunities
Apartheid system was based on racial segregation exploitation
Common principle of the 1910, 1961, 1983 Constitution from the British
Therefore it was necessary to change the constitutional landscape
Parliamentary sovereignty - parliament was the highest authority and the courts have no capacity to test legislation against the standard of equality, reasonableness and fairness - this could lead to the legislation being void. The courts could only test legislation when parliament did not follow the correct procedure. The procedural grounds of the Union Constitution were especially tested in the Harris v Minister of the Interior case when parliament's attempt to remove the Coloured vote was null and void as they did not follow the correct procedures
Adoption of the 1996 Constitution
1996 Constitution had to comply with the 34 constitutional principles - Constitutional Court to decide
Certified - Ex Parte Chairperson of the Constitutional Assembly - In Re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC)
Constitutional Assembly drafted the Final Constitution
Negotiating a peaceful transition
End result - Adoption of Interim Constitution 1993
1993 Interim Constitution breaks away from the past:
First democratic constitution
Proportional voting system
Parliamentary supremacy abolished
Nine provinces
Constitutional Court
Legislative authority - Parliament, Provincial legislature and municipal courts
Executive authority - Government of national unity
34 Constitutional principles
Up to 26 political parties part of negotiation process
Chapter 16
This Constitution provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex
Negotiations since 1990 to convert SA from non-democratic state to full democracy
Chapter 4
This Constitution shall be the supreme law of the Republic and any law or act inconsistent with its provisions shall be of no force and effect to the extent of the inconsistency
1996 Constitution - Founding values
S 1 - SA is one, sovereign, democratic state founded on the following values
1 (a) => Human dignity, equality and advancement of human rights and freedoms
1 (b) => Non-racialism and non-sexism
1(c) => Supremacy of the Constitution and the rule of law
1(d) =. Universal adult suffrage, common voters roll, regular elections, multi-party system
Constitution as supreme law
Three sections that show that the Constitution is the supreme law:
Section 1 (c) => The Republic of South Africa is one, sovereign, democratic state founded on the following values - Supremacy of the Constitution and the rule of law
Section 1 => This Constitution is the supreme law of the Republic, law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled
Section 172 (1) (a) => When deciding a constitutional matter within its power, a court must declare any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency
Transformative constitutionalism
South African Constitution represents a bridge from the Apartheid era to the post-Apartheid era
Furthermore, we shift from a culture of authority (as illustrated in parliamentary sovereignty) to the culture of justification (where every decision has to be justified according to the values of the Constitution)
Constitution committed to social, political, legal and economic transformation
Transformative constitutionalism is not meant to be seen as a short-term project, but as a long-term one and needs to permeate all spheres of life in South Africa
Constitution written as response to social, economic and political history of SA
How transformative constitutionalism should be realized:
Recognition of the injustices of the past, and forgoing the foundations for an open and democratic society in South Africa. With this foundation, there is a stark contrast with the Apartheid era and therefore a conscious effort has to be made to transform the country. This impels us to build a nation that is based on the values of the constitution
Looking at socio-economic rights, the state is bound by such provisions to realize these rights. Since equality has not been afforded to all South Africans
Cannot view Constitution only through a formalistic lens
Transformative Constitutionalism has the intention of transforming South Africa through the Constitution - long-term project must be continued until we reach the point where all the values of the Constitution are realized in our context
What is our role in ensuring that we have a never again society?
Holding the 3 branches of state accountable
=> Ensure accountability through voting - direct democracy
=> Assembly and demonstrating - protesting
Rule of law
Characteristics of the rule of law
Laws must be expressed in general terms, general in scope and application
Laws must be publicly promulgated
Laws must be prospective in effect - no retrospectivity
Laws must be consistent - no contradictions
Laws should be relatively stable
Official conduct must be in accordance with the laws
Principle of legality means that state must act according to the law
Rule of law (principle of legality) inextricably linked to the constitutional supremacy
S 1 (c) Constitution - Value = Supremacy of the Constitution and the Rule of Law
Rule of law is important in a system that is committed to the protection and advancement of human rights
The same law is applicable to everyone, including the state
Judicial review - Constitution is the supreme law => Constitutional court may test all legislation against the standards of the Constitution. If it is found that the legislation is in conflict with the Constitution, then the legislation will be invalid and unconstitutional
Constitution as a source of law
Direct source of law:
-Constitutes the state and the manner in which a state should function
Power of the sate as set out in the Constitution is divided among three branches
=> Legislative authority (Chapter 4)
-National Assembly and National Council of Provinces
-Constitution stipulates their functions and the limit of their power
=> Executive authority (chapter 5)
-President, Deputy President and Cabinet
=> Judicial authority (chapter 8
-Constitution Court, Supreme Court of Appeal, High Court
=> Constitution creates binding rules by setting up these institutions and regulates them
=> Three branches of state are known as trias politica - separation of powers between branches
=> National lwvel
-Legislature responsible for executing laws
-Judiciary can test legislation against the Constitution and if the Executive acts within the bounds of legislation in protecting the purpose of the legislation
Values of which society is based (S1)
=> Human dignity, equality and freedom
=> Non-sexism and non-racialism
=> Supremacy of the constitution and the rule of law
=> Universal adulty suffrage, national common-voters's role, regular elections and a multi-party system of democratic government to ensure accountability, responsiveness and openess
=> Difficult to amend founding values
-75% in National Assembly and 6 of 9 provinces
=> BoR amendment is 2/3 majority and 6 of 9 provinces
=> Founding values serve in the background
Fundamental rights in Chapter 2
Indirect source of law:
Supremacy of the Constitution => Universal standard to test law or conduct against
Does not create specific or binding rules, but creates a measure to test the law against
Does the law comply with the Constitution? If not, it can be invalidated
All laws pre-1994 can be tested against the Constitution - Attempts to dismantle the Apartheid system
Implications of constitutional supremacy
Pharmaceutical Manufactures of RSA 2000 (2) SA 674 (CC)
Q - Whether a court has the power to review and set aside a decision by the president to bring an act of parliament into force => on what basis do you review the action of the president?
Court - One system of law. Shaped by the Constitution as supreme law. All law derives its force from the Constitution
Constitutional review is the evaluation of the constitutionality of the laws. It's supposed to be a system of preventing violation of the rights granted by the Constitution, assuring its efficacy, their stability and preservation