Sources of constitutional law Flashcards
(11 cards)
What are the sources of constitutional law?
Statute
Common law
Judicial decisions (precedent)
Custom
Conventions
Why do we need to know the sources of constitutional law?
What is the relevance of each of the listed sources for South African constitutional law?
What is the relevance or why is Statute important as a source of South African constitutional law?
The most important statutory source of constitutional law is the Constitution of 1996. The Constitution is the ultimate source of all State power - be it legislative, executive, or judicial. Meaning, every exercise of State power can only be deemed valid if it has a legal pedigree that can be traced back to the Constitution.
According to Froneman DJP in Carephone (Pty) Ltd v Marcus NO, the function of the Constitution is to establish
“a democratic state based… on the rule of law (section 1(c) and a multi-party system of democratic government to ensure accountability, responsiveness and openness (section 1(d)).” Furthermore, the Constitution sets out how the “the authority of the State is found in three arms of government: the legislative, the executive and the judicial (sections 43, 85 and 165).” Therefore, “Any public institution created by the Constitution or by legislation under its auspices (and there can be no other way), thus finds its ultimate authority and competence in the Constitution and its subject to its provisions”.
Apart from the Constitution, other statutes can create rules of constitutional law. Every other statute that deals with one of the three aspects of which constitutional law comprises serves as a source of constitutional law.
Which other statutes, besides the Constitution, can create rules of constitutional law?
The State Liability Act 20 of 1957 (deals with the Executive aspect of constitutional law)
Judicial Service Commission Act 9 of 1994 (Judiciary)
Independent Electoral Commission Act 150 of 1993 (Legislature)
Discuss the State Liability Act as a source of Constitutional law
What is the relevance or why is common law important as a source of South African constitutional law?
Common law is a relatively unimportant source of constitutional law. This is because most countries have enacted Constitutions relatively late in their political history and these have replaced principles expressed by common law writers, and because constitutional law is political and controversial and therefore inappropriate for common law regulation.
In South Africa, English common law holds more importance in practice than Roman-Dutch common law.
The South African Constitution has either changed or replaced common law rules.
What are a few examples of common law as a source of constitutional law rules, doctrines, or principles?
The Doctrine of Successful Revolution and the Concept of Necessity
The Doctrine of Parliamentary Sovereignty
The Prerogative
What is the relevance or why are judicial decisions (precedent) important as a source of South African constitutional law?
Case law is an important source of constitutional law. In jurisdictions where the courts have an active constitutional role, case law is the most important source. In South Africa, case law is important in certain areas, such as citizenship, the status of homelands, and the interpretation of some sections of the Constitution Act. And the importance of case law as a constitutional law source is likely to increase over time.
However, case law has only a conditional status because it can be easily bypassed by other institutions of the state.
Now, however, judicial decisions have assumed a great deal of importance in constitutional law. The primary reason for this is that the new constitutional order has increased and enhanced the power of the judiciary, giving it jurisdiction to even set aside Acts of Parliament if they conflict with the Constitution. Two well known examples are S v Makwanyane, the case in which the section of the Criminal Procedure Act 51 of 1977 providing for the death penalty as a punishment for murder was set aside as unconstitutional infringements of the fundamental rights to life, dignity, freedom from cruel, inhuman and degrading treatment or punishment and the right to equality, and S v Williams, in which the provision in the same Act allowing for corporal punishment of minors as a punishment for the commission of a crime was set aside as unconstitutional infringements of the rights to dignity and to be free from cruel, inhuman and degrading treatment or punishment. Judicial decisions may be important sources of constitutional law for other reasons too. For instance, in the first decision given by the Constitutional Court, S v Zuma, Kentridge AJ set out important principles for the interpretation of the Constitution.
What is the relevance or why is Custom important as a source of South African constitutional law?
Boulle, Harris and Hoexter observe that custom ‘is the oldest source of law in that originally law derived from the well-worn and well-accepted practices of the community. To be legally binding, a custom must have been generally observed over a long period; if it is reasonable by modern standards, and certain in its ambit it will then be enforceable, provided it has not been superseded by some other form of law’. Once these requirements have been met, a custom will become part of the common law. This is the way in which such aspects as the royal prerogative and parliamentary privilege find their way into the common law. Carpenter says that it is ‘doubtful whether there are any customary constitutional laws still awaiting judicial recognition or legislative endorsement, but the possibility that new customs may evolve is, of course, not excluded. Our Constitution seeks to codify all aspects of the exercise of legislative and executive power. The possibility, therefore, of custom being a source of South African constitutional law in the future is non-existent.
What is the relevance or why are Conventions important as a source of South African constitutional law?
