CONSTITUTIONAL LAW 2023(1)

BASIC CONCEPTS

This is a consolidation and slight amplification of notes created by Mr David Hulme and Mrs Munirah Osman-
Hyder, which are used with her kind permission.

This is a focus on some basic ideas and concepts which explain the place of a constitution in
the government of a society. It will deal with the elements that comprise constitutional law.

There are three basic elements in an organised community:

• State
• Society
• Law

State

• The term “state” is a contentious concept

• Used in a variety of senses:

o International Law – refers to an independent, politically organised community living

in a defined territorial area – e.g. South Africa, Nigeria, Kenya or India.

o Political Science – refers to the institutions of government and organised political

power.

o Sociological definition – a human community that claims the monopoly of the

legitimate use of physical force within a given territory.

o Constitutional Law – organised authority of a particular political community which

manages the public affairs of that community, both internally and externally.

• The modern state has many branches and institutions exercising a wide variety of functions
in the name of the state, including the following:
o Creating law;
o Accumulating resources;
o Resolving disputes;
o Maintaining order;
o Regulating the economy;
o Planning for development;
o Engaging in commercial activity;
o Providing social services;
o Upholding individual rights.

• The most prominent agency of the state is the government (or executive)
o The state’s power is formally invested in government;
o Government speaks on behalf of the state;
o Often mistaken as being identical with the state;
 o The instrument of government is the administration – body of bureaucrats and
officials (civil servants) situated in government departments who run the state.

• Traditionally the state functions were to:

o Maintain law and order;

o Resolve disputes;
o Conduct foreign affairs;
o Organise the defence of the country.

• Over the years the concept “state” has developed and some changes have been made along
the way due to the changing political conditions and the needs of the communities.
• The functions of modern states go further than the above list and include regulation of
many aspects of social and economic life.
• Consider, for instance, the emergence of the “welfare” state or “administrative” state –
where the state plays an active and interventionist role in the economy – seeks to secure
social and economic welfare of its citizens.
• The state can be seen as very powerful and citizens sometimes seek to be protected from
the power of some of its agencies – police power.
• Civil society institutions – for instance, church, trade unions, political parties, the press –
have developed to act as buffer between the state and its citizens.

Society

• Refers to an organised community of persons within a defined territorial area.

• Traditional societies were regulated by a variety of institutions, e.g. religion and culture and
survived without a state system.
• Modern societies are more complex – the state is the most important instrument of social
order and control – through planning, regulation, economic distribution, etc.
• The state is concerned with public institutions – government and politics.
• Society is concerned with private institutions – culture, religion and the economy.
• The two are interconnected – there is no state without a society.
• The extent of the interference of the state in society is an area of political contestation.

Law

• Difficult to define law – law performs many functions in society:

o Advancing the welfare of the public.

o Resolving disputes.
o Regulating conduct and maintaining social control.
o Planning and development.
o Conferring and controlling power.
o Protection of rights.
o Regulation of politics and the economy.

• Law is also concerned with justice – the different functions account for different
understandings of law.
• Law can be seen as a system of rules and procedures which ensure that promises are kept
and losses are made good – normally enforced by courts – usually by means of the private
law.
• Also can be seen as a tool of the dominant group – which uses it to give effect to its social
policies – seen as the public law.
• Public Law – State vs the individual or another state body.
• Private Law – relationship between two or more non-state entities.
• Constitutional law is concerned with public law – has both positive and negative elements.
• Positive – public law confers power on state bodies (empowers them).
• Negative – public law controls these bodies – imposes structural and substantive rules on
them making them accountable for their actions.
• Three ways in which public law is relevant to the way in which states regulate society:
o Law legitimises the existence and power of the state;
o The state uses law as a means of regulating society;
o Law is used to control and limit state’s power.

o Law legitimises the existences and power of the state

§ The state’s power must come from an external, impersonal source and not
from the state itself.
§ This is primarily the law of the constitution in many modern states.
§ Law must also comply with minimum standards of morality and social
acceptability.

o The state uses law as a means of regulating society

§ Laws sanction and validate the policies and actions of the state.
§ Other means can also be used to pursue the government’s agendas – e.g.
economic measures and propaganda.
§ However, law has the advantage of providing legitimacy for the actions of
the state.
§ This is because law is perceived as a neutral social institution – not
influenced by special interests in society.
§ Therefore people tend to accept, follow and obey the law.

o Law is used to control and limit the state’s power

§ Law can also be used against state bodies – meaning that the law connotes
a limitation on state power.
§ Where the state tries to circumvent standards, they can still be upheld to
some extent because public law and the institutions that enforce it, such as
the courts, have a certain measure of independence from other state
institutions.
§ Hence most modern liberal (in the traditional sense) democratic states find it
necessary to subject themselves to the law. (Law has a diminished role in a
totalitarian state and regulates the conduct of ordinary citizens rather than
that of the state itself).
Basic Concepts - Constitutions

1. What is a constitution?

• The word constitution is used in two different contexts:

o In an abstract context it refers to “the system of laws, customs and conventions
which define the composition and powers of organs of the state, and regulate the
relations of the various state organs to one another and to the private citizen”.
o In a concrete context it refers to “a document which sets out the distribution of
powers between, and the principle functions of, a state’s organs of government”.
(Where such a single constitutional document exists).
• (Note that all countries have a constitution, whether set down formally in a single document or not. The
formal method of drafting a written constitution in a single document has become the most common. However,
the United Kingdom, which has one of the oldest constitutions, does not have this constitution contained in a
single document. Instead the provisions of the UK constitution are contained in a collection of conventions,
documents and ordinary legislation.)

• Modern Constitutions perform several functions:

o Provide a legal framework for the operation of government;

o Define the ultimate sources of legal authority;
o Provide the foundations of the public law system – it is the “law behind the law”;
o Serve as a source of legitimacy for the state and its activities;
o Indicate the political and legal parameters of the individual’s interaction with the
state;
o Operate as a manifesto – a “confession of faith” setting out a society’s aspirations;
o Establish the government, the administration and other organs of state;
o Confer power;
o Indicate which bodies should resolve conflicts;
o Provide procedures and standards for dispute resolution.

2. What is Constitutional law?

• It is the body of normative rules that determine and regulate the structure of the principal
organs of government, their relationship to one another, their essential functions and the
relationship between the individual citizen and the state.
• It is the cornerstone of any legal system because the rules identify the law making authorities
themselves (executive and legislature), the courts and various administrative authorities.

3. What do constitutions contain?

• The contents of Constitutions differ as a result of the different political and historical
circumstances which prevail when they come into being.
• Some of the more general contents can be listed as follows:

o Preamble;
o “Chart” of the state system;
o Amending provision;
 o Bill of Rights;
o Financial provisions.

Preamble

• Serves as an introduction to a constitution;

• Symbolic and ideological purposes;
• No legal significance;
• Espouses values and principles – for instance, democracy, human rights, justice and
equality.

“Chart” of the state system

• Akin to an organisational chart;

• Includes matters of both substance and procedure;
• Describes the legislature, executive and the judiciary.

Amending provision

• The difficulty of amending can vary. With a “rigid” constitution – difficult to amend;
• Where more difficult to amend, it allows the present generation to modify the rules it
inherited, whilst avoiding amendment based on political “fads” with short-term aims and
potentially destructive long-term consequences;
• Different ways in which amendments can occur (sometimes two methods for amending any
provision in one constitution, e.g. US Constitution);
• Sometimes different amending procedures for different provisions e.g. SA Constitution –
some provisions more difficult to change than others;
• In some countries certain fundamental provisions are deemed to be unchangeable (for
instance, India - basic structure theory);
• Informal amendment – a court’s interpretation of a provision can have the effect of
changing the meaning of the provision and therefore “amending” the constitution without
the formal amending process taking place.

Bill of Rights

• Normally the limit to public power as regards private individuals is set out in the Bill of
Rights;
• BOR – list of fundamental rights of members of society which the state cannot or should
not violate;
• Wide variety in the contents of BOR;
• Civil and political rights including the traditional “freedoms”;
• Socio-Economic Rights;
• New rights.

Financial Provisions

• Refers to the supervision of the national budget;

• Generating revenue – laws imposing customs, tax, sales tax, etc;
• Determining the distribution - how the money will be spent (seldom –this is usually an
executive prerogative);

Constitutions also need to provide other information

• For politicians it must:

o Describe procedures and processes which must be followed for officials to be elected
to office;
o Provide for their actions while in office to be regarded as legal.

• For citizens it should describe:

o their rights;
o the conditions of political participation in various institutions;
o the remedies for redress of human rights.

• For the Constitutional Lawyer it should reveal the juridical basis of the constitutional legal
system.

4. How do constitutions emerge?

• Usually emerge from a critical historical point in the development of a country:

o Colonisation;
o Revolution;
o Independence;
o Unification of separate territories;
o Dissolution of a political entity;
o Slow evolution (Britain, for instance, although the evolution was characterised by
occasional dramatic events.)

• Break from the institutions of the past.

• Political leaders initiate a fresh start by drawing up a constitution which establishes a new
system of government – prescribes how it should operate in the future – SA history e.g.

o Drafting and implementation are vital to the success/failure of a constitution.

o Could be imposed by a dominant group through force and coercion.
o Some are drafted after consultation – varying degrees.
• Shift from the past – Kings were sovereign – ruling through power obtained by God.
• Modern democratic thinking – popular sovereignty / social contract – power vests in the
people and exercised through elected representatives.
• Hence constitutions should not be imposed – “government for the people by the people”.
• They have to be adopted by the people.
• A body who represents people drafts the document – variety of names:
o National convention;
o Constituent assembly;
o Constitutional assembly (SA).
• Political and social history determines to what extent the constitutional norms from the past
are adopted, or an attempt is made to form a wholly new form of government in reaction
to the past.

5. CLASSIFICATION OF CONSTITUTIONS

• Codified and uncodified

o The following states are considered to have an uncodified constitution: Canada,
Israel, New Zealand and the UK. Britain has a (largely) unwritten constitution based
on convention – although some aspects are regulated by legislation (‘Convention’ in
the constitutional sense means a custom which is so strongly held it has the appearance of law,
without being enforceable in a court).

• Flexible and inflexible

o Inflexible – rigid – difficult to change/amend (e.g. current SA Constitution);
o Sometimes only certain aspects are inflexible, whilst others can be amended in the
same way as ordinary legislation (eg the original Union Constitution of SA).
o Sometimes any and all provisions can be amended by ordinary legislation (e.g.
British Constitution).

• Single and multi-document

o The majority of modern constitutions are contained in one document;
o However, even single-document constitutions tend to be supported by other laws
created to enforce constitutional provisions.

• Autochtonous and alloctonous

o Autochtonous – home-grown;
o Alloctonous – foreign.

• Technical and Ideological

o Technical – absence of values or ideology;
o Ideological – pursues certain values and principles.

6. SOURCES OF CONSTITUTIONS

• Constitutions have the same sources as any other branch of law:

o Legislation;
o Common law (Custom / Convention);
o Customary law;
o Case law.

Legislation
• Regarded as the most important source of constitutional law;
• Legislation refers to generally applicable rules of law made by legislative authorities;
• A constitution itself is the most important statutory source of constitutional law;
• It is an internationally accepted norm for a state to have a constitution – constitutions are
seen to be a symbols of statehood.
Common Law/Custom
• Custom (or convention) is of a far lesser scope and significance than statutory law;
• Custom still applicable in South Africa is British in origin – South African constitutional
law was based on British common law and convention;
• Current constitution – only a few elements of British origin are left:
o Majority government;
o Separation of Powers;
o Other minor conventions exist – e.g. the parliamentary Standing Committee on
Public Accounts (SCOPA) is always chaired by a member of the opposition.
• Parliamentary sovereignty and any other remaining British conventions have been
abandoned.

Customary Law
• We see a unique concept featuring in South African Constitutional jurisprudence – ubuntu
- emanates from the customary laws of the land – note, however, that although this was
expressed in the Interim Constitution of 1993, it now remains only in court jurisprudence
(cases).
• Ubuntu - recognising a person’s status as a human being, entitled to unconditional respect,
dignity, value and acceptance from the members of the community.
• Conversely the person has a duty to give the same respect, dignity, value and acceptance to
each member of the community.

Case Law
• Case law was an extremely limited source of constitutional law in the past.
• Situation has changed drastically.
• Current constitution has a justiciable Bill of Rights – many cases before the Constitutional
Court;
• Furthermore, the Rule of Law and constitutional supremacy provisions have led to a
dramatic increase in Rule of Law litigation, challenging the decisions of the executive in a
fashion not previously available in Administrative Law.
• Hence a dramatic increase in case law as a source of law

GENERAL FEATURES OF (democratic) CONSTITUTIONS

• 1. Sovereignty
• 2. Separation of Powers
• 3. Rule of Law
• 4. Democracy
• 5. Representative and Responsible government
• 6. Independence of Judiciary

SOVEREIGNTY

WHAT IS SOVEREIGNTY?

• Dictionary proffers the following meanings:

o Dominion;
 o Power;
o Control;
o Independence;
o Autonomy;
o Self-government;
o Supreme power and right to exercise it;
o Subjugation – society subjecting themselves to the power and control of the
state/government.
• In the context of modern states sovereignty is vested in the governing structures or the state.
• There are different types of sovereignty.
• Two are considered:
o Parliamentary sovereignty;
o Constitutional supremacy.

PARLIAMENTARY SOVEREIGNTY

• “Parliament” is the name given to the legislature in certain countries where Britain has had
an influence. More loosely, as a reference to legislatures generally it can refer to an
assembly, congress, legislature, legislative body, senate, upper house, house, lower house,
house of representatives, etc. (For instance, although ‘Congress’ is the name of the US
legislature, reference can still be made to ‘parliamentary procedure’ within the US context.)
• The term “parliamentary sovereignty” developed in the British context and it means that
Parliament as representative of the British people is the ultimate source of legitimate power
in Britain.

Constitutional Monarchy

• Before expounding on the term “parliamentary sovereignty” we will first look at the concept
“Constitutional monarchy”;
• The monarchy has been a constant feature in the constitutional history of Britain.
• Monarchy has developed over time;
• Initially it held a monopoly over government power – absolutism;
• Currently it is described as a constitutional monarchy – meaning that the monarch’s powers
are no longer absolute but are limited by the British Constitution;
• The king is said to have the trappings of political authority – in reality he has a very limited
role;
• Beginning in 1215, but with a radical shift in the late 17th century, the monarch has become
subject to the authority of Parliament and common law;
• Monarch has no legislative powers;
• No right to veto Parliamentary legislation;
• The monarchy’s executive power has been limited by law and convention;
• Judicial power has been transferred to the courts;
• Today the king occupies the position of non-partisan head of state – symbol of national
identity;
• Conducts mainly ceremonial duties.
Parliamentary supremacy

• Clearly a historical mapping of UK history indicates that the Parliament was the institution
which rivalled and came to surpass the British monarchy;
• Since the 18th century it is the dominant organ of the British state;
• This dominance is expressed in the doctrine of “parliamentary supremacy” or
“parliamentary sovereignty” ;
• Classic formulation of this theory is proposed by Albert Venn Dicey (1835 – 1922);
• Dicey states that the doctrine has two essential components:
o Parliamentary omnicompetence – that Parliament has the right to make or
unmake any law;
o Parliamentary monopoly of power – that no person or body may override or
set aside legislation made by parliament;
• There is no other constitutional authority whose powers can prevail over those of
parliament;
• All other legislative bodies and organs of state are subordinate to parliament;
• Hence, parliament is the supreme law making authority in the state.

• What prevents Parliament from being a tyrant? Dicey explains that Parliament is a
representative of the electorate, of the people who elect it to power – therefore parliament
cannot legislate against the wishes of the people.
• In terms of parliamentary supremacy there are no substantive constraints on power –
meaning that there are no mechanisms which can review the contents of law being made
by Parliament.
• There is however procedural constraint – parliament must follow the procedures laid down
in the Constitution when passing laws.
• Courts have some say in determining whether the correct procedures were followed or not.

Influencing the South African Constitution

• The British parliamentary system has had a great influence on the system in South Africa.
• Therefore parliamentary supremacy played a big role in the South African constitutional
history.
• Parliamentary sovereignty remained a constant feature in the South Africa until its demise
in 1994.
• Currently in South Africa the Constitution is regarded as the supreme law of the land.

CONSTITUTIONAL SUPREMACY

• Constitutional Supremacy was first introduced in the 18th century with the ratification of
the US Constitution;
• With the American Constitution, the Constitution takes on the nature of a higher law;
• This means that the provisions of the Constitution will prevail over all other legal or political
actions of government;
• Where there is inconsistency with the Constitution it will be declared null and void.
• Constitutional Supremacy is set in contrast to Parliamentary Supremacy;
• In a system of Parliamentary Supremacy – Westminster system – Acts of Parliament are
legally supreme and the constitution is subordinate;
• In a system of Constitutional Supremacy the constitution is supreme;
• The notion of Constitutional Supremacy is a prevalent doctrine in modern
constitutionalism;
• The constitution can be given the status of a supreme legal norm because it is
enforceable/justiciable by the courts. (Judicial Review);
• Supremacy of the Constitution therefore obliges all government bodies to act consistently
with the Constitution, lest their actions be declared invalid by the courts.

DOCTRINE OF SEPARATION OF POWERS

Origin and development of the doctrine

• French philosopher Montesquieu (1689 – 1755) expounded the doctrine of trias politica;
• However, de facto a situation of separation of powers had existed in England since the late
middle ages/Renaissance. This was confirmed in the cases of Chief Justice Coke during the
early 1600s;
• John Locke (1632 – 1704) recorded the virtues of the doctrine some 60 years before
Montesquieu;
• Locke advocated the division of the government functions into:
o Legislative
o Executive
o Foreign relations
• Basing his ideas on the British constitutional arrangement, Montesquieu classified them as:
o Legislative
o Executive
o Judicial
• Montesquieu’s classification still stands today.
• Both the above must be seen in the context in which the concept was developed.
• European monarchs possessed absolute power – hence the idea of dividing power was
created.
• By dividing the power and allocating to different institutions absolute power was limited.
• Clearly this concept arises out of a distrust of government power and a need for individual
freedom.
• The United States Constitution translated the doctrine into constitutional provisions.

Legislature Executive Judiciary

Congress and Senate The President Supreme Court
• Strict separation of functions and personnel. Judges with lifelong tenure
• President and other members of executive cannot be
members of legislature.
• President may enter into treaties only with the consent
of a 2/3 majority of the members of Senate.
• President may be impeached by Congress.
• This doctrine is most strictly observed in the US than anywhere else in the world, other
than perhaps France, where the role of the courts in administrative and constitutional law
is limited.
• South Africa has adopted this doctrine also, though more in line with the “weaker” British
parliamentary version, which separates function strictly, but has an overlapping of
personnel between the executive and legislature.

Separation of powers and the modern state

• The doctrine is in essence a method of limited government or constitutionalism.

• Essentially it means that a constitution must provide effective checks and balances on the
exercise of power in a nation state in which constitutionalism prevails. (Note that the term
“checks and balances” has a strict US contextual meaning and a looser usage which relates
more to “checks” in meaning).
• An excessive concentration of power in a single organ or person is an invitation for abuse
or maladministration

Meaning and purpose of the doctrine of separation of powers (SOP)

• SOP means that the functions of government must be classified as either:

o Legislative – making law;
o Executive – executing the law;
o Judicial – resolving disputes.

• These functions must be performed by different branches of government/persons;

• Purpose of separating the functions and personnel is to prevent the excessive concentration
of power in one single person or body;
• Need for checks and balances is obvious (US system);
• Purpose of checks and balances is to ensure that certain branches of government limit the
discretion or actions of another (checks) and serve as counterweights to the power possessed
by other branches (balances) (US system);
• Example of a “check” – power of the judiciary to review laws and the conduct of the
executive and the administration. (“Checks” are a one-way exercise) (SA system);
• Example of a “check and balance” – the power of the US President to appoint Federal
Judges – subject, however, to ratification by the US Senate. (A “check and balance” is a
“two-way” exercise, with more than one body sharing and competing in a role).

THE RULE OF LAW

“How can it be that all should obey, yet nobody take upon him to command, and that all should serve and yet
have no masters? These wonders are the work of law. It is to law alone that men owe justice and liberty. It is
this salutary organ of the will of all which establishes in civil right the natural equality between men. The first
of all laws is to respect the laws”.
Jean-Jacques Rousseau

• Term now used to convey this idea is the “rule of law”;

• Rule of law doctrine contains principles which have formed part of English law since the
13th century;
• Only in 1885 was the term popularised by Dicey in his work Introduction to the Study of the law
of the Constitution;
• Dicey described the rule of law in terms of three main principles:
o The principle of legality, which states that no person may be deprived of rights and
freedoms through the arbitrary exercise of wide discretionary powers by the
executive – this may only be done by the ordinary court of the land. This was a
principle with particular application to criminal law;
o The principle of equality, which states that no person is above the law and every
person (including the state’s officials) is subject to the jurisdiction of the ordinary
courts;
o The principle that applies in Britain, namely that the rights of individuals are
effectively protected by the action and decisions of the ordinary courts rather than
by guarantees contained in a constitution/Bill of Rights.
• Several other versions of the doctrine exist beside that of Dicey;
• For instance, a narrow, formalistic version reduces the rule of law to the bare requirement
that the government must have authority provided by a law for everything it does,
regardless of the procedural or substantive qualities of the law – frequently propagated by
the old regime in South Africa – attempted to justify its racist and authoritarian actions by
pointing out that they were authorised by law;
• However, most versions are more sophisticated and apart from legal authority for state
action require observance of the “principle of legality”. The legality principle requires that
the law in terms of which the state acts must be general, prospective, clear and relatively
stable;
• Another aspect of the principle of legality requires that all decisions made by state officials
should be rational. A set of tests has been formulated by the courts for assessing whether or
not a state official has made a decision rationally, and there has been a significant amount
of litigation on this point in post-apartheid South Africa;
• Also, various procedural standards must be met in the enforcement of the law;
• In short, the law should be impartially enforced by independent courts or tribunals
according to fair procedures.

Dicey’s version has been subject to many reformulations.

• This was also done by Mathews in South Africa in 1964 during the apartheid era.
• Mathew summarised it as follows:
o In a decent society the idea that a state should wield arbitrary power over the
individual is unthinkable;
o All persons, including government officials, are equally responsible to the law;
o Effective judicial remedies afford the individual greater protection than
constitutional declarations.
• The rule of law is contained in among the founding provisions of the current South African
Constitution, in association with the supremacy of the Constitution (section 1(c)). Some
ideas and principles contained in the rule of law can also be found in the Bill of rights
(Chapter 2 of the SA Constitution), but rule of law litigation is rarely based on the Bill of
Rights as it has become a cause of action in its own right.
REPRESENTATIVE and RESPONSIBLE GOVERNMENT

• Understanding the term “parliament”;

• The word “parliament” can be traced back to the Latin word parliamentum, the Fench word
parler, and the English parley – to speak;
• 13th century – “parliaments” referred to the meetings of the monarch and the noblemen
and the knights;
• There was official recognition of the term in 1272 when the previous ad hoc “Great
Council” became a permanent body known as Parliament;
• This concept developed mainly out of the monarch’s need to obtain the consent of the
people for the imposition of taxes;
• This led to a gradual development of the principle of representation. Originally only the
aristocracy met as permanent members of the Great Council in their own capacity.
However, representatives drawn from the gentry (knights and wealthy merchants) of each
district were elected by their peers to augment the aristocracy for the Great Council of
1258. This practice continued after the formalisation of Parliament in 1272, with the
representative members forming the ‘House of Commons’ (i.e. the house representing
districts or communities) and the aristocracy who sat in their own capacity forming the
“House of Lords”.

Representative government

• In modern states the principle of representation is one of the essential elements of a

democratic system. (Direct democracy is seldom used as most modern states are too large
for it to operate except in rare circumstances such as referenda);
• Democracy is commonly translated as government of the people, by the people and for the people;
• Given expression in different ways in the differing systems – the ideal is not equally
effectively realised in all systems;
• But all democratic systems must satisfy the principle of representation;
• Representative government refers to a system in which authority is exercised by bodies
and persons who are representatives of the people;
• Therefore, governing bodies must be elected by the people to ensure that they are
representative;
• Some important methods of giving effect to the principle of representation:
o Franchise;
o Regular elections;
o The choice of electoral system;
o Right to freely form political parties and participate in elections.

Responsible government

• During the medieval period the English Parliament won the sole right to create legislation,
removing it from the monarch. However, the monarch remained the executive;
• The further development of parliament in early modern times from the late 17th century
revolved around two aspects:
o Development of political parties;
 o Development of cabinet. (The ministers now selected from members of Parliament
by the prime minister rather than the monarch, with the eventual exclusion of the
monarch from cabinet).
• Hence, the legislative initiative was being transferred to the executive. (The members of the
cabinet were prominent in Parliament and introduced legislation to Parliament);
• However, due to the concept ‘representative government’ the executive/cabinet could only
govern with the continuous support of Parliament;
• Why? – because it has to be ensured that the elected government at all times acts in the
interests of the people on whose behalf it governs;
• Thus, the principle “responsible government” is established through Parliament’s control
of the executive. The ministers are responsible for their ministries and answerable to
Parliament for their performance and that of their ministries.
• This includes functions such as:
o Control of state spending;
o Inquiries into the administration;
o Analysis and criticism of government policy through questions and debate.

INDEPENDENCE OF THE JUDICIARY

• Independence of the judiciary is an incidence of the separation of powers.

Judicial Independence in the Westminister System

• Originally courts were just another branch of the state – judges had no institutional
independence from the monarch;
• Judges exercised their power in the name of the king;
• 1215 Magna Carta – the popular king’s courts were required to remain in one place. This
created a physical separation from the king’s royal court, which moved around the country.
This led to a notional separation, even though the king still appointed and dismissed judges
at his discretion;
• During the leadership of Chief Justice Coke (1552-1634) courts began to assert their
independence – rejecting the king’s treatment of judges as his servants;
• Act of Settlement of 1701 – improved the position of the judges by providing that they could
not be dismissed during good behaviour – previously judges were threatened with dismissal
if they did not comply with the king’s wishes;
• In modern Westminster constitutions independence of the judiciary is secured by several
mechanisms:
o Judges are appointed by the executive in consultation with the bench;
o Judges cannot be removed from office except by the resolution of both houses of
Parliament – only on grounds of misconduct and unfitness;
o Remuneration of judges is fixed directly by Act of Parliament – not possible to
reduce a judge’s salary his/her tenure;
o There are restrictions on the right to bring legal proceedings against judges;
o If incorrect judgment is given judge cannot be held liable;
o contempt of court proceedings protect the judiciary from public denigration.
Judicial Review in the American System

• The judiciary assumed the important role of enforcing and upholding the American
Constitution;
• Power of the courts to enforce the Constitution is referred to as judicial review;
• In interpreting the Constitution the courts ventured into giving decisions on social and
political issues – e.g. abortion, electoral system;
• Thereby they assumed a more political role and were accused of “activism” by usurping
the main policy-making functions of other structures.

Defining impartiality and independence

• Independence of the judiciary refers to two ideals:

o Judiciary should enforce the law impartially – judges should act without bias and
should not be subject to external pressure or influence;
o Judiciary should function independently of the legislature and the executive.
• Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and
the parties in a particular case – connotes absence of bias;
• Independence is concerned with the nature of the relationship between the branches of
government;
• It is said that independence comprises three essential components:
o Security of tenure;
o Basic degree of financial independence;
o Institutional independence in respect of the courts’ judicial functions.
• South African Constitution guarantees independence of the judiciary and protects the
courts from interference by the executive.

Constitutionalism

1. What is constitutionalism?

• Refers to the theory of constitutional law;

• Regarded as the body of theoretical prescriptions – it prescribes what a constitution or
constitutional law should do as opposed to describing what a particular constitution does;
• The SA Constitution is based on the constitutional philosophy that prescribes that a
Constitution must structure and constrain (limit) state power;
• The Constitution must ensure that the State has enough power to govern;
• But it must also ensure that the State does not violate the law or the human rights of citizens.

2. Westminster Constitutionalism

• No formal constitution in the sense of a document or a group of documents only;

• It does have a constitutional law – set of laws and conventions resulting in a body of law;
• Evolved over a period of time;
• Developed gradually and progressively;
• Has influenced the development of constitutions in many other states – former British
colonies – SA‘s first constitution and even aspects of the current constitution.

2.1 Constitutional monarchy

• Monarch’s power no longer absolute;
• Limited by the constitution;
• No legislative powers – no right to veto Parliamentary legislation.
• Executive power is limited by law;
• Judicial power transferred to courts;
• King is a non-partisan head of State – doesn’t vote, remains out of politics;
• Performs his constitutional duties on the instructions of the government of the
day, under the fiction that they operate under his instruction. His duties are
largely ceremonial, although some have legal effect.

2.2 Parliamentary supremacy

• Monarchy replaced by Parliament as the dominant organ of state since the late
17th/ early 18th century;
• Parliament can make or unmake any law whatsoever – parliamentary
omnicompetence;
• No other body can set aside legislation made by Parliament – Parliamentary
monopoly;
• All other bodies are subordinate to parliament;
• What prevents parliament from being a tyrant?
• The fact that it comprises of elected representatives – people have elected them;
• No substantive constraints on the power of Parliament;
• There are procedural constraints and the restraints of certain conventions;
• Has had important influence on SA’s constitutional history.

2.3 Parliamentary government

• After general elections the king calls on leader of majority party in House of
Commons to form a government;
• Prime Minister and cabinet form the executive;
• Executive is accountable to Parliament;
• (Note that parliamentary government largely remains part of the current South African
constitutional dispensation).

2.4 Judicial Independence

• Originally judges had no independence from the monarch – exercised their
power in the name of the king;
• Magna Carta and other developments (see above) – courts began to assert their
independence;
• Act of Settlement 1701 – landmark in development of judicial independence in
Westminster systems – improved the position of judges;
• Modern Westminster systems – judicial independence secured through many
mechanisms:
o Judges appointed by executive – informal consultation with the bench;
o Judge cannot be removed from office except by resolution of both houses
of Parliament and only on grounds of unfitness or misconduct;
 o Remuneration of judges fixed by law – cannot reduce a judges salary
during tenure;
o Restrictions on the right to bring legal proceedings against judges;
o Contempt of court – protects court from public denigration.
• Judicial independence now an established feature.

2.5 Representative government (RG) and the party system

• RG – Began in 1258 – see above. Franchise was “qualified” and only males who
had a certain annual income were permitted to vote;
• 19th century – franchise was extended and only extended to women in 1918;
• Party system arose in 17th and 18th centuries;
• Resulted in two predominant parties, - the “Whigs” and the “Tories”.

3. American constitutionalism

Profoundly important and the model for most modern democratic constitutions, apart from
the Westminster System.

• Regarded as a revolutionary contract – state’s power is only legitimate to the extent that it
derives from the consent of the people. (Social Contract);
• 1787 Constitution – unification of 13 states – product of a deliberate process;
• Delegates at a convention drafted the document – assumed they were representatives of the
people.

3.1 Separation of powers

• Most significant constitutional mechanism of the modern era to limit state power;
• Fundamental feature of American constitutionalism;
• Provides for almost complete SOP;
• Joined with checks and balances.

3.2 Judicial review

• Power of courts to enforce the constitution.

3.3 Constitutional Supremacy

• Constitution will prevail over all other legal or political actions of government;
• Contrast to parliamentary supremacy;
• Constitution is supreme;
• This can be maintained because it is justiciable by the courts.

4. German Constitutionalism

• Post 1948/WW2 – fall of Nazi regime;

• Constitutional model established was in response to atrocities of Nazi regime – it
aimed to ensure that the inhumane excesses of that period were not repeated.

4.1 Constitutional Supremacy

 • Similar to US constitutional model;
• Added another layer to the notion of constitutional supremacy – sought to establish
a value based democratic order – meaning that when Constitution is applied or
interpreted – it must do so in accordance with values embodied in the Constitution
– e.g. value of human dignity – regarded as inviolable and cannot be amended.

4.2 Rechtsstaat

• Another defining feature of German model;

• Similar to constitutional supremacy;
• Demands more than formal compliance;
• It demands that the law and state actors must “strive to protect, freedom, justice
and legal certainty”;
• Linked closely to “Rule of Law”.

4.3 Social State

• Constitution establishes social state;

• State has an obligation to provide the basic needs of the society – housing, water,
electricity and education.

4.4 Separation of Powers

• Establishes and separates power into legislature, executive and judiciary.

4.5 Federal system

• Constitution establishes federal republic;

• Establishes provinces or Lander governments.

5. African Constitutionalism

5.1 Since the 1990s on the African continent, sweeping constitutional reforms have been
aimed at promoting constitutionalism and good governance with the introduction of
new constitutions (Fombad).

5.2 After gaining independence from colonial rule, African states often adopted
constitutions drafted by the very colonial powers from which they broke away –
adopting constitutions based on systems such as the Westminster model (British) with
some presidential system elements (US), or the Gaullist system (French) in French and
Portuguese speaking Africa (Francophone and Lusophone).

5.3 Most of these third wave constitutions (except Cameroon and Eritrea) have
incorporated elements of constitutionalism such as:
i. The recognition and protection of fundamental rights and freedoms;
ii. The separation of powers;
iii. An independent judiciary;
iv. The review of the constitutionality of laws;
v. The control of the amendment of the constitution;
 vi. Institutions that support democracy (Fombad (2011) 2).

5.4 On the African continent, transformative constitutionalism has the potential to

transform societies that may have been colonised, or under military dictatorship, or
suffered under years of conflict, to move towards principles of constitutionalism, good
governance, the rule of law and democracy.

5.5 The drafting of the constitutions are key, but also their implementation.

5.6 As Fombad argues, “Good constitutions do not lead in and of themselves to

constitutionalism, good governance and respect for the rule of law”.
5.7 For example, many of the key innovative constitutional provisions of the post 1990 era,
such as presidential term limits, have been easily and arbitrarily amended, or simply
ignored.

5.8 Similarly, constitutional institutions introduced to disperse power, enhance

accountability and limit the scope for abuse of powers often either have not been
established or are not functioning as they are meant to.

5.9 There is a gap however, between the provisions that promote constitutionalism in
constitutions, and the practice of constitutionalism. For example,
o Multiparty systems may have a multitude of opposition parties but these are not
effective and democracy is primarily practiced in the form of elections (to the
exclusion of other aspects of democracy). Instead dominant party dictatorships
are rife;
o African absolutism is created through the concentration of power in the
president who may dominate the legislative and judicial branches (e.g.
Francophone countries);
o Bread and butter issues have not been addressed – socio-economic rights may
be ‘guaranteed’ in some constitutions but implementation has been lacking.