CSL2601 EXAM PACK
CONSTITUTIONAL LAW
2022/2023
Constitutional law – Q & A
1 Explain what is meant by constitutional law?
We can define constitutional law as those rules that regulate the manner in which state authority is
exercised and shared. It also relates to those rules which regulate t...
,Constitutional law – Q & A
1 Explain what is meant by constitutional law?
We can define constitutional law as those rules that regulate the manner in which state authority is
exercised and shared. It also relates to those rules which regulate the relationship between organs of
state inter se, and between organs of state and individuals.
2 “The distinction between private and public law has become blurred in
modern times”. Discuss this statement with particular reference to the
reasons why this blurring has occurred.
The reason why the distinction between public and private law has become blurred is that the modern
state has become very involved in private law relationships, such as the relationship between employee
and employer. The new constitution expressly provides for relationships between private individuals in
the Bill of Rights. It also authorizes parliament to enact legislation to prohibit unfair discrimination by
private persons and companies. Finally traditional public functions such as public transport or
telecommunications are being privatized and being run by semipublic corporations or private
contractors.
3 Distinguish an inflexible constitution from a flexible one and mention an
example of each.
A flexible constitution has the same status as ordinary laws of the land and has no special procedures for
amendment. An example would be the 1961 constitution of South Africa. An inflexible constitution
usually enjoys a higher status to other laws and requires a special amendment procedure. An example is
the 1996 constitution of South Africa.
4. Does South Africa have a flexible or inflexible constitution?
South Africa has an inflexible constitution. Section 2 of the constitution states the constitution is the
supreme law of the land. Section 74(1) – (3) lays down the requirements for amendment to the
constitution.
5. Distinguish between a supreme constitution and one that is not supreme.
Give an example of each.
A supreme constitution ranks above all other laws of the state and is normally associated with an
inflexible constitution. An example of a supreme constitution is the 1996 constitution of South Africa.
On the other hand a constitution that is not supreme does not enjoy any special status to other laws in
the land and the government can declare laws which conflict with the basic principles of the
constitution. An example of a constitution that is not supreme is Britain.
, 6. Explain why South Africa has a supreme constitution.
The South African constitution is supreme. Section 1(c) lists the supremacy of the constitution as a
founding value. Section 2 states that the constitution is the supreme law of the republic. Section
172(1)(a) requires the courts to declare any law that is not consistent with the constitution invalid in
terms of its inconsistency.
7. Explain the difference between autochthonous and allochthonous
constitutions.
Autochthonous constitutions are said to be indigenous as opposed to borrowed. Reactive constitutions
which aim to resolve specific issues of the past are indigenous. There are also constitutions which
maintain continuity with established norms and tradition which are also indigenous. Finally there are
superimposed constitutions whose contents are largely unrelated to the history of the country; this is an
example of an allochthonous constitution. It is often difficult to find an example of a constitution that
fits distinctly into either category. For instance the 1996 constitution of South Africa is considered to be
an indigenous constitution as it was drafted in the light of South Africa’s history, but at the same time
borrowed on the experience of other countries and was influenced by international law.
8. Discuss the following concepts
1. State 5
2. Government 5
3. sovereignty 5
A state is defined by the following requirements:
• a specific geographically defined territory
• a community of people who live in that territory
• a legal order in which the community is subject
• an organized system of government which is able to uphold the legal order • a measure of separate
political identity
The government is a temporary bearer of state authority, whom represents the state at a particular
time. Initially government did not have a political connotation and was associated with the judicial
function. Gradually government became a general term covering all functions and organs of state. Today
government relates primarily to the executive function with particular bearing on the formation and
implementation of policy.
, A sovereign state defines a state which is autonomous and independent and therefore not subject to the
authority of any other state. It was historically used to refer to the monarch of a country, however in
recent times it has been associated with the sovereignty of the people to indicate that the power of
government rests in the hands of the people. This gave rise to the concept that parliament is sovereign,
which meant that legislative authority was vested in parliament and it could enact any law no matter
how reasonable or unjust and the courts could not challenge this decision.
9. Discuss the following constitutional principles:
a) constitutionalism 5
b) the rule of law 5
c) the rechtstaat principal 5
Constitutionalism refers to government in accordance with the constitution. Government derives it
powers from, is bound by and is limited by the constitution. Constitutionalism is normally associated
with a supreme constitution. It also describes a state in which law reigns supreme.
The doctrine of the rule of law was developed in England in 1885 by Dicey, according to Dicey the law
rests on the following three premises:
• The absence of arbitrary power. No person is above the law and no person is punished except
for a distinct breach of the law.
• Equality before the law. Every individual is subject to ordinary law and the jurisdiction of the
ordinary courts.
• A judge-made constitution. The rules of British law were the result of judicial decisions
confirming the common law.
In this doctrine the government is bound by common law. This requirement is not workable from a
South African perspective as the South African common law does not provide the individual with
adequate protection from human rights violations or have mechanisms to hold the state accountable.
The German Rechtstaat principal refers to the concept of government by law and not by force. The
rechtstaat can be split into a formal and material rechtstaat. A formal rechtstaat requires compliance
with formal criteria, such as due process and separation of powers. The material rechtstaat requires that
state authority is bound to higher legal principals and the exercise of state authority must result in a
materially just legal condition.
10. Explain whether South Africa is a constitutional state or a rechtstaat.
In a constitutional state government derives its powers from, is bound by and is limited by the
constitution. There are mechanisms in place to prevent the concentration of power in a single body.
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