Theme 8.pdf

THE FOUNDING PROVISIONS, THE LEGAL ORDER AND THE SYMBOLS OF THE SOUTH AFRICAN STATE Discuss and analyse the importance of the preamble to the South African Constitution. ▪ The preamble to the South African Constitution o The preamble precedes the text that is to follow o It is often not regarded as...

THE FOUNDING PROVISIONS, THE LEGAL ORDER AND THE SYMBOLS OF THE SOUTH AFRICAN STATE Discuss and analyse the importance of the preamble to the South African Constitution. ▪ The preamble to the South African Constitution o The preamble precedes the text that is to follow o It is often not regarded as being part of the text of the legislation o The preamble of an ordinary statute is a summary of the purposes of such statute o The preamble of the constitution is different ➢ It is longer ➢ It is formulated in poetic languages ➢ It is eloquent and ideological o The content of a preamble is different in each constitution ➢ It identifies the people who drafted the constitution ➢ It contains the background history to the constitution and the circumstances under which it was adopted o The preamble sets out certain basic values that are important to a community which explains their aspirations and goals for the future Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Explain whether the South African Constitution is religiously neutral. ▪ The Constitution protects the principles of secularism and freedom of religion ▪ The Preamble and the Constitution in general is not a completely religious neutral instrument ▪ The Constitution reflects a slight bias in favour of religion o Some agnostics, atheists and progressive theologians argue that the multiple references to God are problematic and a departure from equality o The CC has mooted such argument and has state that a secular state isn’t necessarily a state that is intrinsically hostile to religion Identify and discuss the four main objectives of the Constitution as set out in the preamble. ▪ There are four main objectives in the Preamble: o 1. To heal the divisions of the past and establish a society based on democratic values, social justice and fundamental rights o 2. To lay foundations for a democratic and open society with a government based on the will of the people, where the law equally protects every citizen o 3. To improve the quality of life of all citizens and to free the potential of each person o 4. To build a united democratic SA Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Evaluate the interpretative significance of the preamble of the South African Constitution? ▪ The preamble plays an important role in the interpretation and application of a state as it lays down the basic constitutional values and goals ▪ In the past it was accepted that the preamble didn’t contain directly enforceable rules of law ▪ Normally the preamble of an Act is a recitation of the reasons why and circumstances under which a legislature has enacted a statute ▪ SA courts in the past held that a preamble to a statue may be used as an aid to the interpretation of vague and ambiguous provisions and to limit the meaning of general concepts ▪ The preamble can’t be used if the meaning of the Act is clear and plain, only if the wording is ambiguous or in broad language is it proper to have recourse to the preamble ▪ The significance of the preamble to a constitution for interpretation and application purposes is more far-reaching and important ▪ The limited importance attached to the preambles of ordinary statutes shouldn’t be followed in cases where the preamble of a constitution is involved ▪ The reasoning is twofold: o 1. A preamble to a constitution contains much more information on the history, purpose and objectives of the constitution than normal statutes, and is therefore an important source for interpretation o 2. The SA CC has confirmed the importance of the Preamble of the Constitution ▪ In S v Mhlungu and Others the court stated that: The preamble in particular should not be dismissed as a mere inspirational and throat clearing exercise of little interpretive value. It connects up, reinforces Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. and underlies all of the text that follows. It helps to establish the basic design of the Constitution and indicates its fundamental purpose ▪ The provisions of the Constitution must be interpreted and applied within the context of the Preamble and not only in cases of vague and ambiguous situations ▪ The vague and objectives enumerated in the Preamble are developed and elaborated on in other parts of the Constitution (especially section 1 and Chapter 2) ▪ It is uncertain and unlikely that the Preamble will be interpreted as conferring real rights and powers on its own ▪ The Preamble should be interpreted as an integral part of the Constitution o It requires a value-based and context-based methodology of interpretation as required in section 39 of the Constitution o Such interpretation will prevent superficial and unjust results of a qualified contextual approach without due regard to the Preamble as an unqualified part of the text of the supreme statute Name the reasons why it is useful to regard the state as a juristic person. ▪ The state is regarded as a juristic or legal entity that can enter into agreements and can summon other or be summoned itself ▪ Reasons why it is useful to regard the state as a juristic person: o The state is comprised of people (citizens of the state) with the necessary competencies to take part in the exercise of the authority of the juristic person o A state has its own characteristics that distinguish it from other states (example its name, symbols, coat of arms) o The law also binds the state Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o The state may institute legal proceedings or such proceedings may be instituted against it o The assets of a juristic person are separate from the assets of the natural persons comprising the juristic person ➢ The assets of the state are normally not the assets of the individual people exercising authority on behalf of the state ▪ A juristic person cannot act itself o People must be appointed to act on behalf of the juristic entity o Within the state, people are elected or appointed to form government bodies that act and exercise authority of behalf of the state ▪ It is the overall responsibility and constitutional obligation of the state to respect, protect, promote and fulfil the rights in the Bill of Rights ▪ There is some uncertainty whether the state, in its capacity as a legal entity or person can also rely on some rights in the Bill of Rights in extraordinary circumstances Identify the founding values of the South African Constitution. (See s 1.) ▪ The founding values of the South African Constitution are human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism, supremacy of the Constitution and the rule of law, and a multi-party system of democratic government to ensure accountability, responsiveness and openness. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Explain the importance of the fact that the South African Constitution is the supreme law of our State. ▪ SA’s new constitutional order is a breakaway from the Westminster model of government and parliamentary sovereignty ▪ The Constitution is the supreme law of the state (section 2 of the Constitution) ▪ The supremacy clause creates a foundation for the whole state and body politic o It was included in the Interim Constitution o It brought fundamental changes in SA jurisprudence and administration of justice ▪ In terms of supremacy of the Constitution all authority (public or private) must be exercised in accordance with the provisions of the Constitution ▪ First Certification Judgment o The fact that they (indigenous laws and leadership) are declared to be subject to the new text underlies the point that in a constitutional state no one exercises power or authority outside the Constitution o The CC also confirmed that the supremacy of the Constitution means that the Constitution alone is the supreme law of the state o Protecting other laws (example: the Labour Relations Act) from constitutional scrutiny did not comply with the supremacy requirement o All statutory provisions must be subject to the supremacy of the Constitution unless they are made part of the Constitution itself o If provisions are not part of the Constitution then they are subject to constitutional review Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ Minister of Health v New Clicks o The Court stated that the exercise of all public power was subject to constitutional control and that it was the duty of the courts, when called upon to do so, to determine whether or not a power or authority has been exercised consistently with the requirements of the Constitution and the law in general – ▪ Affordable Medicines Trust v Minister of Health o The Court mentioned that the SA constitutional democracy is founded upon the values and principles of constitutional supremacy and the rule of law o To give effect to the supremacy of the Constitution the courts must declare any law or conduct which is inconsistent with the Constitution invalid to the extent of its inconsistency o All public powers are subject to constitutional control and such powers must be exercised in full compliance with the constitutional provisions (which include procedural or substantive requirements) ▪ The general rule is that the law which includes the Constitution is only applicable within the borders of the State ▪ The Constitution itself is not self-executing ▪ The supremacy of the Constitution is not automatically enforced ▪ What the Constitution requires is that an institution with the necessary constitutional authority (that is the courts acting on their entrenched judicial powers) must first determine whether a law or conduct is inconsistent with the constitutional provisions ▪ When inconsistency has been determined then does a law or conduct become invalid Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Consider whether there are provisions in the SA Constitution which are not supreme? ▪ No, there are no provisions in the South African Constitution that are not supreme. The Constitution is the supreme law of the land and all other laws and actions must be consistent with it. Any law or conduct that is inconsistent with the Constitution is invalid. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share.