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Tutorial Notes on Study Unit 3 (1)

The document provides an overview of the Constitution, emphasizing its supreme status in South Africa and its role as the ultimate source of law. It discusses different types of constitutions, including written vs. unwritten and federal vs. unitary, and introduces concepts such as parliamentary sovereignty and transformative constitutionalism. Additionally, it highlights the importance of the separation of powers in preventing abuse of authority within the government.

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7 views4 pages

Tutorial Notes on Study Unit 3 (1)

The document provides an overview of the Constitution, emphasizing its supreme status in South Africa and its role as the ultimate source of law. It discusses different types of constitutions, including written vs. unwritten and federal vs. unitary, and introduces concepts such as parliamentary sovereignty and transformative constitutionalism. Additionally, it highlights the importance of the separation of powers in preventing abuse of authority within the government.

Uploaded by

Lorraine
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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TUTORIAL ON STUDY UNIT 3.

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TUTOR: MASEGO DIALE
What is the Constitution?
Constitution is a fundamental law that sets out the power of the state. It is the
source of all authority in the state, and is thus the ultimate source of law.
The status of the Constitution in South Africa / in South African Law
In South Africa, the Constitution is supreme. Constitutional supremacy means that
any law or conduct that is inconsistent with the Constitution is invalid (refer to
Section 2 of the Constitution and the preamble). The Constitution contains the
values that guide the governing of the country. It also outlines government’s
structures and powers.
Types of Constitutions
A. Written and unwritten.
B. Flexible and inflexible.
C. Federal and unitary.
D. Sovereign and subordinate.
A. Written and Unwritten
Written constitution
• When its most important governing principles are specifically enacted.
• Law of those states can be found in written form in certain statutes, law report and
parliamentary standing orders.
• Provide enhanced certainty as to what the law is.
• However, it may contain unwritten elements, such as conventions.
Unwritten constitution
• There is no one document called "the Constitution".
• For example, Great Britain has no written constitution. The British constitution is a
collection of legal rules from various Acts, Declarations, Conventions and Court
Decisions.
B. Flexible and Inflexible
Here we focus on the method by which Constitutions may be amended;
Flexible constitution
• Can be amended easily are called flexible Constitutions.

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Inflexible constitutions
• Require a special process and special majorities to be complied with.
• Inflexible constitutions often enjoy a higher status.
C. FEDERAL and UNITARY
Federal Constitution
• The powers of government are divided between a government of the whole
country and governments for parts of the country in such a way that each
government is legally independent within its own sphere.
• The legislature of the whole country has limited powers, and the legislature of the
states or provinces have limited powers.
Unitary Constitution
• The legislature of the whole country is the supreme law-making body in the
country.
D. SOVEREIGN and SUBORDINATE
Subordinate Constitution
• The legislature can amend the constitution (or legislation) and promulgate any
new statute on its own.
• This means that parliament is supreme/sovereign.
Sovereign Constitution
• Constitution may be the highest source of authority and thus sovereign.
• This is the case if all statutes and executive actions have to comply with the
constitution
What is meant by Parliamentary Sovereignty?
The supreme controlling power to make and enforce decisions in the form of
legislation is exclusively vested in an elected parliament.
[In South Africa, this does not apply because parliament has to exercise legislative
authority subject to the Constitution = Constitutional Sovereignty – Section 44(4) of
the Constitution].
Transformative Constitutionalism
 A large scale social transformation through non-violent political processes
grounded in law.
 A historic bridge between the past of a deeply divided society characterised
by strife, conflict, untold suffering and injustice and a future founded on the
recognition of human rights, democracy and peaceful co-existence and

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development opportunities for all South Africans, irrespective of colour, race,
class, belief or sex.
 Recognising the injustices of our past.
 Adopting the Constitution as the supreme law of the country so as to heal the
divisions of the past and establish a society based on democratic values,
social justice, and fundamental human rights.
 The Constitution also sets itself the task of addressing the social and
economic injustices of the past.
 South Africa has a transformative Constitution, because the constitution is the
primary vehicle through which transformation is to be achieved and because
transformation crucially requires a reckoning with a past characterised by vast
inequalities, the Constitution cannot be simply liberal.
 The creation of a climate of reconciliation depends on the beneficiaries of
apartheid taking responsibility for reconciliation by contributing to measures
aimed at social justice and the levelling of the socio-economic playing field of
South Africa.
 The true challenge for transformation lies in never to stop dreaming,
imagining and planning that things could be different, could be better.
Liberal Democracy
It’s still a democracy but the powers of the majority are constrained…by the
Constitution.
Counter majoritarian dilemma
Where judges have the power to declare unconstitutional decisions of a
democratically elected government.
Separation of Powers
Doctrine of separation of powers (trias politica): The freedom of the citizens of a
state can be ensured only if a concentration of power, which can lead to abuse,
is prevented by a division of government authority into legislative, executive and
judicial authority, and its exercise by different government bodies.
The sovereignty of the ruling party is divided into 3 “categories” in which they
ensure individuals protection against abuse of state power.
(a) Legislature- Make and repeal laws where necessary
(b) Executive- Exercise powers within its authority in which they apply and
execute laws.
(c) Judiciary- Interpret and apply the law

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