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FUR2601 Updated Exam Pack (2024) Oct/Nov [A+ Guaranteed] - Fundamental Rights
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2023 VERSIONFUR2601
Fundamental Rights
Latest Exam Answers - 2023
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, FUNDAMENTAL RIGHTS (FUR2601)
STUDY UNIT 1
Introduction to the Constitution and the Bill
of Rights
Answer the following questions when you have completed this study
unit:
(1) Discuss the view that the interim Constitution brought about a
constitutional revolution that was completed when the final Constitution
was passed in 1996. (15)
See pages 2 to 3 of the textbook.
(2) What is the relationship between the Constitution and the Bill of Rights?
(5)
The Bill of Rights (ch 2) is part and parcel of the Constitution. It can only be properly understood
in the context of the Constitution. Like the Constitution itself, it is entrenched, enforceable and
justiciable.
(3) What was the importance of the Constitutional Principles entrenched in
the interim Constitution for the drafting and adoption of the final
Constitution? (10)
See pages 6 to 7 of the textbook.
The 34 Constitutional Principles in schedule 4 of the interim Constitution governed the process of
drafting and adopting the final Constitution.
The 1996 Constitution became the final Constitution of the Republic only after the Constitutional
Court had certified that its provisions were consistent with the Constitutional Principles. Refer to
the First Certification and Second Certification cases.
(4) Does constitutionalism mean the same thing as the mere fact of having a
constitution? (5)
Although a written and supreme constitution is critical for constitutionalism, the latter does not
simply amount to the fact of having a constitution. Britain does not have a written and supreme
constitution, yet constitutionalism is respected in Britain. What is essential is that there should be
either procedural or substantive limitations on the power of government.
(5) 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 and representative government? (15)
See pages 9 to 10 of the textbook.
1
, This is in line with the principles of constitutionalism and democracy.
Constitutionalism dictates that the power (executive, legislative or judicial power) should be
limited. On the other hand, democracy isalways the rule of the people according to certain
prearranged procedures or norms. Refer to the Executive Council of the Western Cape
Legislature case.
(6) What has been the contribution of the Constitutional Court to the
development of the principle of the rule of law? (10)
See pages 11 to 12 of the textbook.
The Constitutional Court has made decisive, direct use of the principle of the rule of law,
developing from it a general requirement that all law and state conduct must be rationally related
to a legitimate government purpose. Refer to case law, including the Pharmaceutical
Manufacturers case.
(7) Explain the procedural and substantive components of the rule of law.
(10)
See pages 12 to 13 of the textbook.
The procedural component of the rule of law forbids arbitrary decision making, while the
substantive component dictates that the government should respect individual basic rights.
(8) What are the three forms of democracy recognised by the Constitution?
(10)
See pages 13 to 18 of the textbook.
The three forms of democracy recognised by the Constitution are representative democracy,
participatory democracy and direct democracy.
(9) Explain the scope of the separation of powers and checks and balances
based on the jurisprudence of the Constitutional Court.(10)
See pages 18 to 23 of the textbook.
The separation of powers entails trias politica, separation of functions, separation of personnel,
and checks and balances. The separation of powers is not absolute. In a number of cases, the
Constitutional Court held that judicial review did not imply that it could go as far as violating the
Constitution and making decisions that should be made by other branches of government. Refer
to case law, including the South African Association of Personal Injury Lawyers, the
Executive
Council of the Western Cape Legislature, the Soobramoney and the Treatment Action
Campaign.
(10) Would the following amendments to the Constitution be valid?
(a) Act 109 of 2005 amends section 11 (Right to life) of the Constitution
by authorising Parliament to reinstate the death penalty outlawed in the
Makwanyane case. The Act is adopted by one-third of the members of the
National Assembly and the National Council of Provinces. (5)
2
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