Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I -
-CONSTITUTION
- LEGISLATION
- COMMON LAW
- CUSTOMARY LAW
- CASE LAW
- INTERNATIONAL LAW
- Constitution - refers to both written and unwritte
...
Authoritative sources of South Africa’s constitutional law C.L.C.C.C.I -
-CONSTITUTION
- LEGISLATION
- COMMON LAW
- CUSTOMARY LAW
- CASE LAW
- INTERNATIONAL LAW
- Constitution - refers to both written and unwritten rules governing the exercise and
distribution of state authority on one hand, and on the other, governing relationship
between organs of state inter se and, also between organs of state and legal subjects.
- Legislation - is written law enacted by an elected body authorized to do so by the
Constitution or other legislation. Contains National law e.g South African citizenship Act,
Electoral Act, Local Government Municipal Structures Act
- Common law - the unwritten law of SA, which in SA is Roman-Dutch Law. English law
in the Development of CC. Section 39 interpretation of the Bill of Rights
- Customary law - that system of law generally derived from custom, African indigenous
law
- Case law - practical application of constitutional principles by our courts, our courts
have full testing power making case law an authoritative source.
- International law - The Constitution provides that the courts must consider
international law when determining constitutional issues.
Persuasive sources of South Africa’s constitutional law F.A.R.P
- FOREIGN LAW
- ACADEMIC WRITINGS
- REPORTS BY INSTITUTIONS SUPPORTING CONSTITUTIONAL DEMOCRACY
- POLICY DOCUMENTS
Downloaded by Jayden Mbugguz (
[email protected])
lOMoARcPSD|8637614Discuss the history of the adoption of the Constitution of the Republic of South
- The Constitution of the Republic of South Africa 1996 was the product of a long
process of popular struggle, multiparty political negotiations and democratic deliberation
in which politicians, lawyers, representatives of civil society and ordinary people all
played a major role.
- Prior to 1994, there was Parliamentary Sovereignty. Parliament Supreme – any lawcouldn’t be challenged.
- Events that led to the negotiations: Apartheid. FW De Klerk release of Nelson
Mandela (2 February 1990), unbanning of liberation movement. Eventually multi-party
negotiations.
- The two-stage process: First, the interim Constitution was adopted at the multiparty
negotiations. Second, democratic elections for SA’s first fully representative Parliament
which double as the Constitutional Assembly.
- The Constitutional Principles (“pact” to stick to the principles, when the final
Constitution was drawn up), the First Certification Judgment and penultimately the final
Constitution, The Constitution of the Republic of South Africa, 1996. (Parliament
Sovereignty was replaced with Constitutional supremacy. Adopted by the CA (NA and
Senate) +2/3 majority before the new text came into operation. CC had to certify that it
complied with Constitutional Principles in Schedule 4 of the Interim Constitution.)
Classification of constitutions
Flexible and inflexible, supreme and not supreme, written and unwritten, autochthonous
and allochthonous constitutions.
Flexible constitutions and inflexible constitutions
- Flexible constitutions require no special procedures or majorities for amendment and
can be amended in the same manner as any other legislation. Eg. the interim
Constitution 1993
- Inflexible constitutions (Has superior status to other law) require special amendment
procedures and amendment majorities (contained in section 74 of the Constitution)
before they can be amended. Eg.The 1996 Constitution, and constitutions of Germany,
USA
