Constitutional Interpretation Flashcards
(22 cards)
What are the two types of interpretation?
- Ordinary Interpretation
- Constitutional interpretation
What is meant by ordinary interpretation?
This is the normal way courts interpret laws. This interpretation should align with S39(2) of the constitution
What is meant by constitutional interpretation?
This happens during judicial review whereby the courts check whether a law or government actions goes against the constitution. In terms of S172 of the constitution.
In which case was the difference between ordinary and constitutional interpretation was set out?
In the case of Matiso v commanding officer
What did judge froneman say in this case?
When interpret the constitution the focus is on the fundamental values like dignity, equality and freedom. However when we interpret a specific law the goal whether that law can be interpreted in a way that aligns with the constitutional values.
What does Du plessis and Corder say about the difference between two interpretations?
He explained that we shouldn’t focus too much on their differences, as they are interrelated and both contribute to understanding the law. Instead, it may be more effective to treat them as aligned rather than separate. He further pointed out that using too many interpretative approaches could create confusion, which is why Section 39(2) emphasizes a textual approach for interpreting laws—not just the Constitution.
- Why is constitutional interpretation differentiated from ordinary interpretation?
Because the constitutional is the supreme law of the country.
What was said in the case of Hyundai motor distributors and Smit?
The Constitution is a prism. We have to look at all laws and actions through this prism.
Why is the supreme constitution different?
Because it is the supreme law (fundamental law) of the land.
Which 2 foundations is the constitutional state underpinned by?
Formal Foundation
Material or Substantive Foundation
What is the formal foundation about?
which includes aspects such as the separation of powers, checks and balances on the government, and the
principle of legality; in other words, the institutional power map of the country
What is the material or substantive foundation about?
refers to a state bound by a system of fundamental values such as justice and equality
How does Karpen define these foundations?
- The formal foundation as structure orientated
- The material foundation as value orientated
What does formal constitutionalism mean?
Focuses on government structure and how power is organized. The focus on rules and procedures, rather than values, when interpreting and applying the Constitution.
What does the formal map deals with?
Institutional and organizational structures and procedures of the state.
What does the formal map usually covers?
- Type of state (Unitary or federal, democracy)
- Branches of government (separation of powers)
- Checks and balances on the government
- Electoral system (flags and national anthem)
- Appointments and elections
- Finances
- Security forces
- Courts
- Symbols
What is the difference between the interim 1994 constitution and the 1996 constitution in terms of the formal map?
The interim constitution were formal power maps because they did not provide for a system of constitutional review by which the court can test the legislation and government against the set of constitutional principles.
The 1996 constitution has the extensive power maps, It includes a system of constitutional review
Which sections shows us that the constitution deals with practical institutional arrangements of government?
Chapter 3 – Co-operative government
Chapter 4 – Parliament
Chapter 5 – The President & Executive
Chapter 6 – The Provinces
Chapter 7 – Local Government
Chapter 8 – The Courts and Justice System
Chapter 9 – Institutions Supporting Democracy (like the Public Protector)
Chapter 10 – Public Administration
Chapter 11 – Security Services (police, military, etc.)
Chapter 12 – Traditional Leaders
Chapter 13 – Finance
What does substantive constitualism mean?
It means the Constitution is based on deep values like justice, equality, and dignity—not just power structures.
What does a substantive include?
It includes a justiciable Bill of Rights and core values like justice, equality, and freedom.
What is the constitutional state?
It means that the constitution is the highest authority for that country
