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Summary PBL220 THEME 1 - 14
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PBL220 THEME 1 & 2 JUDICIAL AUTHORITYConstitutional Supremacy
● Section 1(c) of the Constitution = SA is a republic founded on the value of
constitutional supremacy.
● Section 2 of the Constitution (BoR) = the Constitution is ‘supreme law in the
Republic; law or conduct inconsistent with it is invalid, and the obligations
imposed by it must be fulfilled’.
○ Any conduct that contradicts the constitution, including failing to fulfill an
obligation imposed by the Constitution, is similarly invalid.
● The rules in the Constitution thus trump all other rules contained in statutes,
common law and custom.
● Constitutional supremacy has various implications for a state, state actors, and
persons within a state’s jurisdiction, primarily that the rules in a Constitution both
establish and constrain the exercise of state power.
● A state can only act in terms of its Constitution.
Parliamentary supremacy
● Parliamentary sovereignty (or supremacy) = is where the legislature has
supreme law-making power.
● There is no rule that parliament cannot make or repeal.
● The Westminster model, under which the UK operates, adopts parliamentary
sovereignty.
● Under apartheid (prior 1994), SA also functioned under parliamentary
sovereignty.
● Core difference between PS & CS:
○ is where the ultimate authority for law-making lies.
○ In parliamentary sovereignty, it is the legislature;
○ In constitutional supremacy, it is the constitution of a state.
● Pharmaceutical Manufacturers Association of SA; In re: Ex parte Application of
the President of the Republic of South Africa
○ The rejection of the principle of PS & RoL are some key features that have
emerged since the coming into existence of SA Constitution:
■ 1. rejection of the principle of parliamentary sovereignty;
■ 2. rule of law
■ 3. control of public power
■ 4. judicial review of legislation & testing of conduct against the
Constitution
,Separation of powers
● Separation of powers is known as the trias politica
○ Definition = establishes three independent arms of state: the executive,
the legislature, and the judiciary.
● Significant powers and duties are then distributed to each of these arms:
○ legislature is empowered to make laws,
○ judiciary is empowered to interpret laws,
○ executive is empowered to enforce the law.
● Each arm of state has distinct personnel who work exclusively within that arm;
○ members of parliament make up the legislature,
○ judges work within the judiciary,
○ executive comprises cabinet members or ministers.
● Furthermore, each arm in some way holds the other arms accountable through
checks and balances.
● For example, the South African legislature can remove judges who are guilty of
gross misconduct. Conversely, the judiciary can prevent the legislature from
passing laws that are contrary to the Constitution.
● Throughout history, power was/is often concentrated in a single ruler.
○ Monarchs, for example, had the power to make, interpret, and enforce
laws.
● The concentration of power meant that rulers could not be held accountable for
decisions they made. Whatever they decided was the law and only they would be
allowed to resolve disputes about what the law meant, and they would decide to
enforce laws against their subjects. People residing in the jurisdiction of the
monarch were subject to the whim of that monarch, with no avenues for
challenging a monarch’s decision.
● In contrast, separating powers between independent arms of state ensures that
major decisions taken by those in power can be checked by and held to account
by another arm of state.
● For example, a decision by the President to do something may require
parliamentary approval or could be subject to review by a court :. power is kept in
check.
Transformative Constitutionalism
● A key feature of the Constitution is that it seeks to transform SA from its deeply
divided, unequal past into a society founded on equality, dignity, and freedom.
● The Constitution = is an ambitious legal document that aims to change the
material conditions of SA society.
, ● ‘transformative constitutionalism’ = the transformative goals of the SA
Constitution & the means by which the Constitution seeks to achieve
transformation.
● Transformative constitutionalism often includes an endorsement of justiciable
socio-economic rights and substantive equality.
● It also endorses a form of legal reasoning that is conscious of the interplay
between morality and law.
● Transformative constitutionalism demands that lawyers:
○ aware of how the law does and can play a role in affecting power
relations, access to resources, and human dignity.
○ understand that legal reasoning is heavily influenced by a lawyer’s political
and moral convictions, especially when the law is ambiguous or vague.
Transformative Constitutionalism & the judiciary - Kibet and Fombad
● Focuses on substantive equality & substantive justice & an interplay between
morality, the law and SA’s historical context.
○ TC = is a form of activism in the adjudication of rights
● Comprises of a deliberate effort to empower previously excluded segments of the
society through devices such as the protection of socio economic rights;
● It requires less emphasis on technicalities and procedure so as to maximize the
realization of substantive rights;
● Transformative constitutionalism places a lot of faith in the law as an instrument
for social and political change
● The proportionality test entails that limitations of fundamental rights should only
be limited where:
○ The limitation is reasonable & justifiable
● Criticism = is that it obscures law and politics
● Judgments reflective of transformative constitutionalism:
○ National Coalition for Gay and Lesbian Equality
○ S v Makwanyane
Mechanical Interpretation & Application of the Law
● Historically where the judiciary operated under the system of parliamentary
supremacy:
○ It upheld blatant discriminatory and unjust legislation
○ functioned as part of the apartheid order
○ contributed to legitimizing and sustaining it.
● Judges
○ regarded as mere mechanical interpreters of the law
, ○ function was seen to merely ascertain the intention of the apartheid
legislature through the text of the legislation & give effect to that intention
○ believed that they could employ only limited interpretational aids in the
event of the ambiguity or inconsistency / if adherence to the ordinary
meaning of the text would result in absurdity
○ adhered to the notion that any modifications, corrections or additions to
the text should be left to the legislature (government branch responsible
for making law)
■ Such judges were thus constrained under the system of
parliamentary supremacy
Judicial Transformation
● Section 174 (2) of the Constitution Act 108 of 1996 = “the need for the judiciary to
reflect broadly the racial and gender composition of SA must be considered when
judicial officers are appointed”
● In the pre-democratic era, the judiciary was composed almost entirely of white
males drawn from the elitist and privileged ranks of the ruling minority
● Judicial appointees were drawn primarily from the ranks of senior counsel
practicing as advocates at the various bars in SA
Decolonization & the Judiciary
● The colonial encounter fundamentally changed the way in which customary law
(CL) was applied and developed in apartheid SA
● CL was preserved, upgraded and frozen out of relevance to the flux of the
traditional community’s life
○ Bhe v Khayelitsha Magistrate
○ Shilubana v Nwamitwa
○ Both cases focused on the development of CL through the lens of either
the common law/Constitution
Judicial Authority - Section 165 of the Constitution
● The judiciary = is in charge of legal adjudication which entails that in their
functioning they find the law,interpret & apply the law.
● Judicial authority
○ is exercised by courts (judicial bodies)
○ entails the power to resolve disputes through determining how the
applicable law should be applied to a specific dispute
○ the process of adjudication the judiciary makes law in the secondary
sense….
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