Unit 1 Flashcards
Public & Constit. Law (20 cards)
1
Q
What is private law
A
That which is concerned with the interests of PRIVATE INDIVIDUALS and institutions, as well as the regulation of the relationships between individuals and between individuals and private institutions.
2
Q
What is public law
A
Deals with that part of the law that concentrates on two principles:
- Government authority
- Public interest
It deals with the legal functions, obligations, and responsibilities that the government has over the various societal spheres found within the territory it governs.
3
Q
What does ‘state’ mean?
A
- A specific geographically defined territory with a community of people who live within that territory
- An organised system of government
4
Q
Define public law (6)
A
That part of the law that concerns itself with the public interest,
the latter being that which is the continuous striving towards the most effective application,
by means of the government’s authority,
via political and legal processes,
of the maximum realisation possible of each and every individual’s needs and interests,
while simultaneously striving towards the maximum level of harmony possible concerning the co-existence of these various interests.
5
Q
Discuss the theoretical explanation of constitutional law (11)
A
- There are many theories regarding what form and function political power needs to take for the ordering of a country’s society
- In any given society there is some or other form of power present among the members of such a society
- Lord of the Flies - forms of power developing from each individual as well as the groups they form
- When a group of human beings finds themselves in a “primitive state” or a “state of nature” where there is not a developed political and legal system, there will be a need to establish some form of control and regulation.
- There arises a specific relationship between ‘power’ and ‘law’
- Where the ruler decides on what the law should be -> power is dominant over law.
- Where the ruler is subservient to certain foundational norms -> law is dominant over political power.
- Here Constitutional law comes in - the relevance of foundational or moral norms for the protection of society’s interests
- Tap = power; hose-pipe = fundamental norms
- Constitutional law addresses issues related to models of political power and the law for a given society.
- Checks and balances; the office of rule v the person who rules; the separation and overlap between forms of government.
6
Q
What is meant by constitutionalism? (15)
A
- It is the theory of constitutional law
- Prescribes what a constitution and constitutional law should do, as opposed to simply describing what a particular constitution does
- The idea that gov. should derive its powers from a written constitution and that its powers should be limited to what is in the constitution
- The fundamental problem that is addressed: To establish a government with enough power to govern but, to structure and control that power so as to prevent it being used oppressively
- Limitation is done in two ways:
- (1) A constitution imposes structural and procedural limitations on power, and may do so only if specific procedures are followed;
- (2) Via the BoR, substantial limitations are imposed. - Neither of these 2 limitations will be effective without - constitutional supremacy, justiciability, and entrenchment.
- It is a way to ensure limited government, as opposed to the arbitrary rule of an autocracy.
- The Principle of Limitation applies in 2 ways:
- (1) In restricting the range of things which the various organs of state can do;
- (2) In prescribing the procedures the must follow in doing those things within their competence. - As a theory of governance, constitutionalism shares with democratic society a central respect for Human Worth and Dignity
- Modern constitutionalism is prescriptive (indicates how state power should be exercised) and normative (sets out the values that should be upheld)
7
Q
Discuss Constitutional Supremacy (3)
A
- Dictates that the rules of the Constitution are binding on all branches of the government and have priority over any other rules made by the government
- Any law or conduct not in accordance, either for procedural or substantive reasons, will not have the force of law
- Confirmed in section 2 and 8 of the C
8
Q
Discuss Justiciability (3)
A
- It does not aid the process if there is no organ to effectively enforce the Constitution and therefore accommodation must be made for a specialised institution to do this
- The courts are responsible for enforcing the Constitution
- The courts need the power to enforce the C
9
Q
Discuss Entrenchment (2)
A
- Refers to the fact that the contents of the C cannot easily be amended
- It would not assist the understanding of constitutionalism and the rule of law if the contents of the C - which are there to develop and protects the principles entrenched in law and constitutionalism - could be amended easily and arbitrarily
10
Q
Discuss ‘Rule of Law’ (7)
A
- The rule of law is almost a conditio sine qua non
- The rule of law and constitutionalism overlap
- The rule of law is an older concept than constitutionalism and was popularised in 19th C England by Dicey
- Dicey emphasiserd the absolute supremacy of the law, equality before the law, and the constitution is the result of the ordinary laws of the land
- There are several versions of the rule of law doctrine: Restricted version (gov. must strictly adhere to law), sophisticated definition (the law must be clear and stable)
- The rule of law is not a concept that our courts refer to as direct authority, but it remains an important concept
- Our C provides for many of the principles that are present in the rule of law doctrine: freedom, equality, human dignity and democracy.
11
Q
Discuss the separation of powers and checks and balances
A
- There is no express reference in the C to the principles of separation of powers and checks and balances; but these principles o come forth indirectly.
- The doctrine of separation of powers requires the functions of government to be classified as legislative or executive or judicial and requires each function to be performed by separate branches of government.
- The purpose if to prevent the excessive concentration of power in a single person or body.
- The CC has recognised that a delicate balance must be developed between “the need to control the government by separating powers and enforcing checks and balances; and to avoid diffusing power that the government cannot take timely measures in the public interest”.
- The relationship between the courts and government forms an important pillar
- The ‘In re Certification’ case of 1996 is important here.
- In the case the CC had the power to pronounce on the validity of the final Constitution submitted by the Constitutional Assembly. The CC refused to certify the text, citing that the provisions of the draft constitution relating to provincial powers, local government, entrenchment of the BoR and the Public Service Commission did not comply with the Constitutional Principles.
12
Q
Discuss Soobramoney v Minister of Health, KZN iro separation of powers (10)
A
- Section 27(1) and (2) of the C
- The CC refused to order the state to provide expensive dialysis treatment to keep a critically ill patient alive.
- “Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. This is not a judgment which the court can make”.
- We live in an unequal world (we lath, unemployment, clean water).
- The obligations imposed on the state by ss 26 and 27 are dependent upon the resources available for such purposes, and that the rights are limited by the lack of resources.
- Appellant relied upon an Indian court case (for constitutional damages)
- The available dialysis machines were over-subscribed and by admitting everyone that needed it, the programme would collapse and no-one would benefit.
- The provincial administration is responsive for the funds allocated to healthcare. A court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities.
- Courts are not the proper place to resolve the agonising personal and medical problems that underlie these choices.
- A court’s review function is important, but the areas where institutional incapacity and appropriate constitutional modesty require the courts to be especially cautious.
13
Q
Discuss the Government of SA v Grootboom and Others case iro separation of powers (20)
A
- Deals with section 26 of the Constitution - everyone has the right to access to adequate housing
- CC stated that the C placed an obligation on go. to see to it that the poor living conditions of thousands of citizens be remedied.
- The gov. must provide access to sufficient housing, health services, sufficient nutrition and water, and social security.
- The values in the C cannot be attained if people’s socio-economic status is not good.
- While socio-economic rights are important, it is not always in the government’s capacity to substantially and absolutely give effect to this right.
- Although this right is not always attainable, the CC must see to it that these rights need to be attended to by the gov.
- Questions is “Is gov’s approach to the realisation of the right contained in sec26, reasonable, taking into consideration the circumstances in each case?”
- Court decided that ss 26 and 28 of the C do not give anyone the right to claim a house from the government merely on demand - it does not place an unqualified obligation on the government (“access to housing”).
- The gov’s obligations differ according to the various “classes” in the community.
- The project did not succeed to provide temporary provision to those people with absolutely the minimum facilities (even though the project is in progress)
- The CC emphasised that its judgment does not mean that people can now occupy any property with the aim of convincing government to supply them with houses.
- The CC did not judge the government’s involvement, by investigating which alternative measures the government should apply, or by testing whether the gov maybe used the funds at its disposal wrongly. Such an issue is open to complications ito separation of powers.
- The judiciary must be careful to not take decisions obo the government, because this would be contrary to the value of democracy, because it is the government that was elected by the people.
- On the other hand, this does not mean that the judiciary must ignore that which the government does or does not do.
- The judiciary must see to it that the government attends to the various values and rights in the Constitution.
- The actual issue was thus whether the gov took all reasonable measures iot develop socio-economic rights.
- What does progressive realisation mean? It means that the government must do all it possibly can to develop (and not let worsen) sec 26 while staying within the limits of its capabilities.
- All the rights in our BoR are inter-related and mutually supporting
- International law is important.
- There is at least a negative obligation placed upon the state and all other entities and person to desist from preventing or impairing the right of access to adequate housing.
- Different areas have different requirements.
- Subsection (2) places a positive obligation on the state, to devise a comprehensive and workable plan to meet its obligations; but, that the obligation is not absolute or unqualified.
- A coordinated housing programe must be a comprehensive one determined by all 3 spheres of government in consultation with each other as contemplated by chapter 3 of the C.
- Legislative measures by themselves are not likely to constitute constitutional compliance. The stat is obliged to act to achieve the intended result.
- A programme that excludes a significant segment of society cannot be said to be reasonable.
- The 3rd defining aspect of the obligation is that it does not require the state to do more than its available resources permit.
- It is extremely difficult for the state to meet these obligation in the conditions that prevail in our country.
- The programme failed to provide any form of relief to those desperately in need of access to housing.
14
Q
Discuss Minister of Health v Treatment Action Campaign ito separation of powers (17)
A
- Concerns section 27 of the C (healthcare, nutrition, water)
- Sec 27(1) - everyone has the right to access to health care services etc.
- Sec 27(2) - the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights
- Case deals with the availability by state hospitals of specialised medication for mothers who are HIV positive
- Factors for provision of the medication: HIV/Aids is a serious epidemic, the Medicines Control Board has registered it as a medicine, the administering of the medication is easy
- Factors against: Costs, the medication is a dangerous substance, can lead to resistance to the medication
- CC decided that ss 27(1) and (2) of the C requires that the gov, while staying within its limits available means, must establish an effective programme to allow progressive realisation to take place regarding the rights of pregnant women.
- There must be a reasonable provision made for HIV testing
- Court found that the gov did not give enough expression to the above issue, especially iro providing the drug.
- The development of the programmes was taking place too slowly
- CC ordered the gov to make the medication available to all state hospitals and clinics with the condition that a medical official as well as the medical superintendent of the specific institution is convinced that the specific patient is tested and counselled thoroughly.
- Sec 28 of the C supports the provision of such medication, to give expression to the rights of the child.
- The court emphasised that the gov’s reliance on the separation of powers doctrine to keep the matter beyond the courts was fundamentally misconceived.
- The exercise of all public power must conform to the C.
- This does not mean that we now have a judge-run society; the courts will show deference to the choices made by elected representatives of the people.
- In matters of detailed execution of policy, the gov is best placed to make choices.
- There are no “no-go” areas for the courts, because the fundamental job of the courts is to decide whether public power is exercised within the framework permitted by the C. Not whether the best decisions are made, but whether they meet the reqs of the C.
15
Q
Discuss the different forms of democracy
A
- There is no definition of democracy in the C
- There are 3 forms of democracy: Representative, Participatory, and Direct
Representative Democracy: The people should participate in politics through their duly elected representatives
Participatory Democarcy:
- Individuals or institutions must be given the opportunity to take part in the making of decisions that affect them.
- Sec 57(1)(b) National Assembly may make rules and orders with due regard to representative and participatory democracy
- Rules of the CC permit a person with an interest in a matter before the Court who is not a party to be admitted as an amicus curiae
Direct democracy:
- Individuals or groups whose interests are neglected by political parties, or who find it difficult to make use of the possibilities for participation (eg. a national referendum).
16
Q
Discuss the principles of openness, responsiveness and accountability (6)
A
- It is important to note that the C goes further than providing for representative, participatory and direct forms of democracy
- It requires the gov to “respond” to the will of the people.
- References to the principle of democracy in the C are often followed by references to openness, responsiveness and accountability.
- These ideas mean that gov institutions must be accessible and that gov officials must respond to the people they govern.
- The duty of accountability requires that gov must explain its laws and actions if required to do so
- Democracy is thus government by explanation rather than government by force
- Members of cabinet are accountable collectively and individually to Parliament, and members of the provincial executive councils are accountable to their respective provincial legislatures.
17
Q
Describe section 1 of the Constitution (5)
A
States that the RSA is one, sovereign, democratic state founded on the values of -
- Human dignity, achievement of equality and the advancement of human rights and freedoms
- Non-racialism and non-sexism
- Supremacy of the C and the rule of law
- Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government, to ensure accountability, responsiveness and openness.
18
Q
What are the main sources of constitutional law? (4)
A
Legislation
Case law
International law
International instruments (and bodies)
19
Q
Name 5 examples of legislation as sources of constitutional law
A
- Constitution
- National legislation
- Human Rights Commission
- Rules of the High Courts and the Constitutional Court
- PEPUDA, EEA, PAJA
20
Q
Name 5 examples of international treaties, conventions or charters which are sources of constitutional law
A
- The International Convention on Civil and Political Rights (ICCPR)
- The International Convention on Economical, Social and Cultural Rights (ICESCR)
- International Labour Organisation’s Conventions
- Convention on the Elimination of All Forms of Discrimination against Women and the International Convention of the Rights of the Child
- Convention Against Torture
