1.

1 STUDY UNIT 2: BASIC CONCEPTS OF CONSTITUTIONAL LAW

ACTIVITY 2.1

1. Are the following statements true or false? Give reasons for your answers.
a) “South African constitutionalism is only descriptive and normative in nature.” (5)
False, Written constitutions are said to be “normative” when all their binding principles are
observed, more or less, in the actual operations of the political system. South African
Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it
refers chiefly to the historical struggle for constitutional recognition of the people's rights to
human dignity, the achievement of equality and the advancement of human rights and
freedoms. Used prescriptively it refers to government in accordance with the Constitution.
This implies that the government derives its powers from, and is bound by, the Constitution.
b) “‘Constitutionalism’ refers to a system of government in which the will of a single person
prevails.” (5)
False, Constitutionalism, refers to government in accordance with the Constitution. This
implies that the government derives its powers from, and is bound by, the Constitution. The
government’s powers are thus limited by the Constitution. South Africa has incorporated all
of the features of constitutionalism in its constitutional system, and the principles of the
constitutional-state concept are clearly evident in decisions of the Constitutional Court. The
features of constitutionalism are as follows:
 constitutional supremacy
 the rule of law
 a Bill of Rights
 democracy
 accountability, responsiveness and openness
 separation of powers (and checks and balances)
 an independent judiciary
 cooperative government and devolution of power
c) “A supreme constitution is not a prerequisite for constitutionalism.” (5)
False, Constitutionalism is normally also associated with a supreme constitution, which binds
all branches of government, including the legislature. South African Constitution of 1996 is a
supreme constitution. The Constitution makes it clear that it is the supreme law of the
country and that the Constitutional Court (and the high Courts) has the power to declare
legislation unconstitutional when the legislature acts in violation of the Bill of Rights.
 Section 1(c) states that the Republic is founded on the value of constitutional supremacy,
section 2 states that the Constitution is the supreme law of the Republic and that laws that
are inconsistent with the Constitution are invalid, section 8(1) states that the Bill of Rights
binds the legislature, and section 172(1) provides that Courts must declare laws that are
inconsistent with the Constitution, invalid.
d) Solly, a Grade 8 learner must make an oral presentation at his school on the 1996
Constitution, and specifically the values on which the Constitution is based. He asks you
for advice. (5)

The 1996 Constitution of South Africa is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed by it must be fulfilled. According
to section 1 of the constitution, the constitution is based on the following values:

a) Human dignity, the achievement of equality and the advancement of human rights
and freedoms.
b) Non-racialism and non-sexism.
c) Supremacy of the constitution and the rule of law.
d) Universal adult suffrage, a national common voters roll, regular elections and a
multi-party system of democratic government, to ensure accountability,
responsiveness and openness.

Furthermore, the constitution recognise the injustices of our past; Honour those who
suffered for justice and freedom in our land; Respect those who have worked to build and
develop our country; and Believe that South Africa belongs to all who live in it, united in our
diversity

ACTIVITY 2.2

1. Briefly explain what you understand by the “separation-of-powers principle”. (3)

Separation of powers or “trias politica” separates state authority into legislative, executive and
judicial authority. The reason for this is there can be no political freedom if one person or body
makes the laws, implements them and acts as arbitrator when they are contravened, therefore
preventing an abuse of power in one organ. Legislative authority is the power to create, amend
and repeal laws. Executive authority is the power to execute and enforce legal rules. Judicial
authority is the power to interpret legal rules and apply them to concrete situations.
2. Study section 2.3.3 and then answer the following question: Briefly discuss the model of
separation of powers that the Constitutional Court advanced in the De Lange case. (5)
 In De Lange v Smuts, the Court held that the Constitution provides for a system of separation of
powers among the three co-equal branches of government. The Constitutional Court advanced a
distinctively South African model of separation of powers, one that fits the particular system of
government provided for in the Constitution and that reflects a delicate balance informed both
by South Africa’s history and its new dispensation, between the need, on the one hand, to
control government by separating powers and enforcing checks and balances, and on the other
to avoid diffusing power so completely that government is unable to take timely measures in the
public interest.”
3. Are the following statements true or false? Give reasons for your answers.
a) “There is a universal model of separation of powers.” (5)
False, In re Certification of the Constitution of the Republic of South Africa, 1996, the Court
held that, there is, however, no universal model of separation of powers and in a democratic
system of government in which checks and balances result in the imposition of restraints by
one branch of government upon another, there is no separation that is absolute. The
principle of separation of powers, on the one hand, recognises the functional independence
of branches of government. On the other hand, the principle of checks and balances focuses
on the desirability of ensuring that the constitutional order, as a totality, prevents the
branches of government from usurping power from one another. In this sense it anticipates
the unnecessary or unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation of powers: the scheme is always
one of partial separation.
b) “In the case of In re Certification of the Constitution of the Republic of South Africa, 1996,
the Constitutional Court was satisfied that the separation of powers was firmly established
in the South African Constitution.” (5)
True, in arriving at this conclusion, the Court held that, there is, however, no universal model
of separation of powers and in a democratic system of government in which checks and
balances result in the imposition of restraints by one branch of government upon another,
there is no separation that is absolute. In this sense it anticipates the unnecessary or
unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can
reflect a complete separation of powers: the scheme is always one of partial separation.
c) “South Africa has an absolute separation of powers.” (5)
False, in re Certification of the Constitution of the Republic of South Africa, 1996, the Court
held that, no constitutional scheme can reflect a complete separation of powers: the scheme
is always one of partial separation. The Courts have, on numerous occasions, recognised that
 the separation of- powers principle cannot be adopted in its ‘‘pure’’ form, as an absolute
distinction between the three organs of state would lead to inefficiency and inflexibility.
South Africa has carved its own distinct design of separation of powers. It has adopted a
hybrid between a parliamentary and presidential system of separation of powers. Our
Constitution has opted for a model which encourages a relationship between the legislative
and the executive branches of government.
d) Parliament passes a law in terms of which President Zuma is authorised to amend and
repeal the provisions of certain parliamentary legislation as well as presidential
proclamations pursuant to such legislation. Critically evaluate whether this law is
constitutionally valid in the context of the separation of powers principle. (10)
Separation of powers or “trias politica” separates state authority into legislative, executive
and judicial authority. Legislative authority is the power to create, amend and repeal laws.
Executive authority is the power to execute and enforce legal rules. Judicial authority is the
power to interpret legal rules and apply them to concrete situations. The doctrine of
separation of powers may imply:
a) a formal division of state authority into legislative, executive and judicial
b) a separation of personal so that one person may not be involved in more than one
branch
c) a separation of function so that one branch of government may not usurp the
powers of another
d) checks and balances with each branch given special powers to restrain the others.
The South African constitution embraces the separation of powers by expressly defining the
roles of the legislative, executive and judicial authority. In Executive Council of the Western
Cape v President of the republic of South Africa 1995, the constitutional court invalidated a
provision in an Act of Parliament which authorized the president to amend or repeal
provisions of certain parliamentary legislation (i.e. the usurpation of the parliament’s
legislative authority by the executive). The constitution implements the doctrine of checks
and balances most importantly through judicial review, which allows legislative or
administrative action to be challenged in a court of law. The judiciary acts as a watchdog
over the legislative and executive bodies and must ensure government acts in compliance
with the procedural and substantive requirements of the constitution.
ACTIVITY 2.3

a) Critically discuss, with reference to relevant case law, whether the legitimacy of judicial
review is jeopardised by its counter-majoritarian features. (10)
It terms of the 1996 constitution, laws that are inconsistent with the constitution can be
declared invalid by the judiciary. It may seem undemocratic that judges who have not been
elected by the electorate can declare the laws of the people chosen representatives invalid.
In Executive Council of the Western Cape Legislature v President of the Republic of SA 1995
(4) SA 877 (CC), the Constitutional Court invalidated the President’s proclamation and
Parliament’s amendment of the Local Government Transition Act. It is accepted that the
epitome of constitutional democracy in action is judicial review, despite the fact that it is
perceived as being undemocratic. The following points explain why even though the
constitution allows for judicial review, it can still be considered democratic.
a) The South African constitution was compiled by the people’s representatives. There
had to be a 2/3 majority of the constitutional assembly. This was a product of
lengthy negotiations and democratic deliberation.
b) Democracy allows citizens to state their views and challenge widely accepted beliefs
without fear of reprisal. Judicial review contributes to this by protecting people’s
political rights and freedom of expression.
c) When judges declare a law invalid they are not able to put their own view in its
place. The invalidated law is returned to the legislature who has the discretionary
power to amend the law provided it does not conflict with the constitution.
b) Discuss what is meant by the phrase “counter-majoritarian dilemma” and indicate
whether or not it is undemocratic for the courts in South Africa to review action taken by
the legislature. (10)
In addition to being a representative democracy, South Africa is also a constitutional
democracy. This means that the people’s representatives in Parliament, in the provincial
legislatures and in municipal councils are not free to make whatever laws they wish, but are
bound to observe the norms and values embodied in the Constitution. Laws that are
inconsistent with the Constitution will be declared invalid by a court. This then raises the
question of whether judicial review is undemocratic. It is sometimes argued that such review
is undemocratic in that the judiciary which is not an elected body has the power to declare
legislation enacted by Parliament which is an elected body invalid.
This dilemma is referred to as the “counter-majoritarian problem”, as judicial review is
seemingly in conflict with the wishes of the legislative majority. However, on the other hand,
 it is suggested that constitutionalism and democracy may complement each other, and that
the existence of a supreme, justiciable Constitution is not necessarily incompatible with
democracy. The following arguments can be made to defend judicial review against the
charge that it is undemocratic:
a) The South African constitution was compiled by the people’s representatives. There
had to be a 2/3 majority of the constitutional assembly. This was a product of
lengthy negotiations and democratic deliberation.
b) Democracy allows citizens to state their views and challenge widely accepted beliefs
without fear of reprisal. Judicial review contributes to this by protecting people’s
political rights and freedom of expression.
c) When judges declare a law invalid they are not able to put their own view in its
place. The invalidated law is returned to the legislature who has the discretionary
power to amend the law provided it does not conflict with the constitution.

ACTIVITY 2.4

a) Are the following statements true or false? Give reasons for your answers.
a) “The rule of law is enshrined as a founding value in the Constitution.” (3)
True, the rule of law: is a founding value of the SA Constitution and is based on the
notion that the law is supreme. Hence, public power can only be exercised in terms
of the authority conferred by law and in a non-arbitrary manner. Inherent in this
concept is the principle that everyone is equal before the law, the law must be
applied equally to all persons irrespective of their status and all must be subject to
the jurisdiction of the ordinary courts.

b) “In Fedsure Life Assurance Ltd and Others, the Court held that the principle of
legality as an incidence of the rule of law is not what determines whether public
bodies act lawfully or not.” (6)
False, the Court held that the principle of legality as an incidence of the rule of law is
what determines whether public bodies act lawfully or not. According to the Court,
the nature and effect of the principle of legality imply that a local government may
only act within the powers lawfully conferred upon it. There is nothing startling in
this proposition - it is a fundamental principle of the rule of law, recognised widely,
that the exercise of public power is only legitimate where lawful. The rule of law - to
the extent at least that it expresses this principle of legality - is generally understood
 to be a fundamental principle of constitutional law. This has been recognised in
other jurisdictions.
b) Explain the relationship between constitutionalism and the rule of law. (10)

Constitutionalism: refers to government in accordance with the constitution. This implies

that the government derives its powers from, and is bound by, the constitution. The
government’s powers are thus limited by the constitution.

The Rechsstaat principle: a defining feature of the German constitutional model. The
concept establishes the constitution as the higher law with which all other laws and state
conduct must comply, however, it demands more than mere formal constitutional
compliance or procedural safeguards to prohibit arbitrary exercise of power. It demands
that the law and state actors must ‘strive to protect freedom, justice and legal certainty’.

The rule of law: is a founding value of the SA Constitution and is based on the notion that
the law is supreme. Hence, public power can only be exercised in terms of the authority
conferred by law and in a non-arbitrary manner. Inherent in this concept is the principle that
everyone is equal before the law, the law must be applied equally to all persons irrespective
of their status and all must be subject to the jurisdiction of the ordinary courts

In the light of the above discussion, it is perhaps a bit curious that the 1996 Constitution
refers only to the concept ‘‘rule of law’’, and not, like the 1993 Constitution, to the ideal of a
‘‘constitutional state’’ (or regstaat, in the Afrikaans version). However, it is clear that the
framers of the Constitution had in mind a much broader concept of the rule of law. The fact
that the Constitution is supreme, contains a justiciable Bill of Rights, spells out the
requirements for valid administrative action, and requires judges to have regard to
constitutional values indicates that the reference to the rule of law is meant to be
understood in the broadest sense, that is, as a system of government in which the law reigns
supreme. In fact, it would appear that the Constitution aims to establish a constitutional
state.

c) Briefly discuss the importance of the judiciary within a constitutional state premised on
the rule of law. (6)

Judicial review may contribute to a democracy where citizens feel free to state their views
and challenge widely accepted beliefs: by protecting people’s political rights, or freedom of
expression, judges may help to ensure a free and uninhibited public debate. Judges may
inquire into the constitutionality of legislation, but this does not mean that they can simply
 substitute their own views for those of the legislature. When a judge strikes down a law as
unconstitutional, he or she does not make a new law or tell the legislature what a new law
should look like. The discretion to amend a law that has been struck down belongs to the
legislature – the only condition is that the amended law must be constitutional.

ACTIVITY 2.5

The Republic of Matata has split as a result of years of violence between the major ethnic tribes. The
Makali tribe in the south of the Matata Republic has declared itself an independent country called
the Republic of No-Nonsense, with a population of 1 000 000 inhabitants. This republic is currently
ruled by a military commander, General Talk at Your Own Risk. The inhabitants of the Republic of
No-Nonsense are pleased with the governance of General Talk at Your Own Risk and hope he rules
forever. The country has a serious water shortage and depends on the surrounding countries for
water, and on food subsidies from the neighbouring countries.

a) Do you think that the No-Nonsense Republic is a democratic republic? (10)

(Explain the concept of “democracy” and the types of democracy discussed in this chapter

As a concept, democracy has proven immensely difficult to define in a singular and uncontested
manner. The core idea of democracy is that, decisions affecting the members of a political
community should be taken by the members themselves, or at least by elected representatives
whose power to make those decisions ultimately derives from the members. This idea of
democracy is therefore linked to the notion that the will of the people should prevail and that
people should have a say in how they are governed. Constitution clearly embodies several
different conceptions of democracy.

A study of the constitutional text will reveal that there are several different conceptions or
understandings of democracy that can be identified, namely direct democracy, representative
democracy (such as a multiparty democracy), participatory democracy and constitutional
democracy.

1) DIRECT DEMOCRACY

Direct democracy means a system of governance that entails direct participation on the part
of the citizenry, rather than elected representatives, in the rule and decision making of their
political community. Direct democracy would, in practice, demand a vote on every piece of
legislation by every eligible member of society. Instead, prevailing democratic systems of
governance usually comprise elected legislatures whose rule is premised on a mandate from
the citizenry who periodically confer the power to decide on their behalf to selected political
organisations, such as political parties, or individuals. As a result of this, it seems widely
accepted that direct democracy, where it does exist, exists in a limited sense in modern
democracies.

2) REPRESENTATIVE DEMOCRACY

Representative democracy as a conception of democracy entails a system of governance in

which the members of a political community participate indirectly through elected
representatives in the governance of their community. In other words, at its heart, this form
of democracy presupposes that citizens elect representatives who govern on their behalf for
a limited period of time until the next election. Political parties are often central to this form
of democracy because electoral systems require voters to vote for political parties as
opposed to individual representatives. Also, political parties influence the choices of voters
and often lead people to elect representatives partly because of their party political
affiliations.

3) PARTICIPATORY DEMOCRACY

Participatory democracy is primarily concerned with ensuring that citizens are afforded an
opportunity to participate or otherwise be involved in decision making on matters that affect
their lives. Put differently, it adds a participatory element to representative democracy,
augments and enhances it, but does not replace it. As a conception of democracy, it is in a
sense a derivative of representative democracy as it seeks to ensure that while citizens may
confer a mandate on elected representatives, they are not totally excluded from the
decision-making process in matters that concern them.

4) CONSTITUTIONAL DEMOCRACY

The Constitution, as previously pointed out, recognises and embraces different conceptions
of democracy while simultaneously holding democracy up as a central organising principle.
The term constitutional democracy has no technical meaning nor does it have an underlying
theory attached to it; it is said fundamentally to be a descriptive term. As a descriptive term,
constitutional democracy is used to describe a political system in which a particular political
community‘s decisions are made in terms of a constitution. This constitution prescribes the
terms and conditions under which such decisions may be made.
 Democracy is one of the core values on which the new constitutional order is based. In a
democracy, the right to govern does not vest in a single person (president, PM or monarch) or
class of persons (e.g. an aristocracy), but in the people as a whole. The core idea at the heart of
democracy is that decisions affecting the members of a political community should be taken by
the members themselves or at least by elected representatives whose power to make decisions
ultimately derives from the members. Different, and sometimes overlapping, forms of
democracy can exist within a state: direct democracy; representative democracy; participatory
democracy and constitutional democracy.

The No-Nonsense Republic is not a democratic republic as it is not aligned to any of the forms of
democracy that can exist within a state namely: direct democracy; representative democracy;
participatory democracy and constitutional democracy.

b) Your friend Vitumbuwa argues that the people of the No-Nonsense Republic are pleased with
the way the government is run by General Talk at Your Own Risk. Vitumbuwa further argues
that, since democracy focuses on the interests of the people, the No-Nonsense Republic
qualifies as a democratic state. Advise Vitumbuwa on the principles that are indispensable to a
democratic country. (5)

The core idea at the heart of democracy is that decisions affecting the members of a political
community should be taken by the members themselves or at least by elected
representatives whose power to make decisions ultimately derives from the members. It
does not seek to convey any idealised form of democracy. Instead, it seeks to convey the
foundational reason for democracy, namely that of enabling members of a political community
to act together in matters that affect them and to take decisions collectively with respect to such
matters. Different, and sometimes overlapping, forms of democracy can exist within a state:
direct democracy; representative democracy; participatory democracy and constitutional
democracy

c) Distinguish between direct and representative democracy. (4)

1) DIRECT DEMOCRACY

Direct democracy means a system of governance that entails direct participation on the part
of the citizenry, rather than elected representatives, in the rule and decision making of their
political community. Direct democracy would, in practice, demand a vote on every piece of
legislation by every eligible member of society. Instead, prevailing democratic systems of
governance usually comprise elected legislatures whose rule is premised on a mandate from
 the citizenry who periodically confer the power to decide on their behalf to selected political
organisations, such as political parties, or individuals. As a result of this, it seems widely
accepted that direct democracy, where it does exist, exists in a limited sense in modern
democracies.

2) REPRESENTATIVE DEMOCRACY

Representative democracy as a conception of democracy entails a system of governance in

which the members of a political community participate indirectly through elected
representatives in the governance of their community. In other words, at its heart, this form
of democracy presupposes that citizens elect representatives who govern on their behalf for
a limited period of time until the next election. Political parties are often central to this form
of democracy because electoral systems require voters to vote for political parties as
opposed to individual representatives. Also, political parties influence the choices of voters
and often lead people to elect representatives partly because of their party political
affiliations.

d) Does the newly formed Republic of No-Nonsense qualify as a state? (To answer this question,
you must list the characteristics of a state.) (5)

The following are normally regarded as requirements of ‘‘statehood’’:

1. a specific, geographically defined territory

2. a community of people who live within that territory
3. a legal order to which the community is subject
4. an organised system of government which is able to uphold the legal order
5. a certain measure, at least, of separate political identity, if not sovereign political
status (the individual states which form the USA, for example, would not qualify as
‘‘states’’ in this sense)

ACTIVITY 2.6

a) Distinguish between presidential and parliamentary systems of government. (6)

The relationship between the legislature and executive determines whether a country
has a parliamentary or presidential system of government. At the risk of
oversimplification, the following differences between parliamentary and presidential
systems of government can be identified:
 PRESIDENTIAL SYSTEM PARLIAMENTARY SYSTEM
The head of government is also the head of The head of state and the head of government are
state. This is the case in the United States of two different persons. For instance, in the
America (USA), for instance. Westminster system, which is the archetypal
model of a parliamentary system, there is a
symbolic head of state (monarch), with the real
power of government vesting in the prime
minister.
The head of government is not a member of the The head of government and his or her Cabinet
legislature, and is not responsible to it. For are members of the legislature, and are
instance, the American president is not a responsible to it. One can therefore conclude that
member of Congress, and neither are the there is often a more complete separation of
members of his or her Cabinet. powers (in the sense of a separation of personnel)
in a presidential system than in a parliamentary
system.
The head of government (president) is often The head of government is the leader of the party
elected directly by the people. In the USA, for with a clear majority in Parliament.
instance, the president is popularly elected
and his or her election is independent from the
election of the legislature.