PBL 210: Exam - Theme 8: South African State PDF

PBL 210: EXAM THEME 8: THE FOUNDING PROVISIONS, LEGAL ORDER AND SYMBOLS OF SOUTH AFRICAN STATE ________________________________________  Drafting + adoption of the Constitution was intended to ensure that the country would be governed in a democratic manner and under an instrument that was legitim...

PBL 210: EXAM THEME 8: THE FOUNDING PROVISIONS, LEGAL ORDER AND SYMBOLS OF SOUTH AFRICAN STATE ________________________________________  Drafting + adoption of the Constitution was intended to ensure that the country would be governed in a democratic manner and under an instrument that was legitimate in the eyes of all South Africans. THE LEGAL SYSTEM OF THE STATE:  The legal system can be summarised as the total of all legal rules applicable in a state.  Every state has its own legal system, because every state has different social, economic, religious and political views and needs which have to be included in the total legal order.  Legal systems also have sub-legal systems (in SA it is called ‘spheres. Refers to national, provincial and local)  Legal + sub-legal systems are regulated by national constitution.  Directives + requirements for the quality of the legal rules are usually contained in a ‘bill of rights.’  BoR defines the particular rights of the individual + sets limitations on rights.  The Preamble to the South African Constitution  Preamble of an ordinary statute: summary of the purposes of such statute.  Preamble of Constitution: is longer and is often formulated in poetic language. Contains background history to constitution + circumstances under which it was adopted.  In SA preamble, reference to religion is considered as discriminative. Main objective of preamble of SA Constitution (in First Certification Judgement): (1) To heal divisions of the past + establish a society based on democratic values, social justice and fundamental rights. (2) To lay foundations for a democratic + open society with a government based on the will of the people, where the law equally protects every citizen. (3) To improve quality of life of all citizens + to free the potential of each person. (4) To build a united democratic South Africa. - CHRISTELLE SAMONS PBL 210: EXAM  The interpretive significance of the Preamble of the Constitution  Preamble plays important role in the interpretation and application of that constitution.  Colonial Treasurer v Rand Water Board, the Court held that a preamble could be consulted if the words of an Act create doubt about their object.  Union and Rock Insurance Company Ltd v Carmichael’s Executor, the Court referred to the preamble as a key to open the minds of the makers of the Act and the aspects which they intended to redress. Preamble can only be used if wording is ambiguous.  The limited importance attached to the preambles of ordinary statutes should not be followed in cases where the preamble of a constitution is involved, bc  Preamble has a lot of info about history, purpose + objectives of Constitution. Is therefore important source of interpretation.  Court in S v Mhlungu and Others confirms importance of preamble.  Preamble should be interpreted as an integral part of the Constitution. The state as a juristic entity:  State is regarded as juristic person, because. (1) A state, like other juristic persons, has its own characteristics that distinguish it from other states (for example its name, symbols, coat of arms). - CHRISTELLE SAMONS PBL 210: EXAM     (2) The law, like all other natural/juristic persons, also binds the state. (3) The state may institute legal proceedings, or such proceedings may be instituted against it. (4) A juristic person cannot act itself. People must be appointed to act on behalf of the juristic entity. In Die Regering van die Republiek van Suid-Afrika v Santam Versekeringsmaatskappy, the Court stated the following: It is clear that the Republic is a juristic person, as was its predecessor, the Union of South Africa. State Liability Act prohibits execution against the property of a provincial government, making it difficult to obtain satisfaction of a debt from them. Want to institute legal proceedings against organ of state? Consider the Organs of State Act. Organs of State Act  Regulates prescription + harmonising periods of prescription of debts that certain organs of state are liable for + includes notice requirements.  The Act also recognises that the Prescription Act is the primary legislation for regulating the expiration of debts through prescription.  New Act was necessary, bc SA transitioned from parliamentary state to democratic state (BoR = important)  S 34 of Constitution guarantees everyone right to access to court, with limitations in S 36.  Act applies to debt arising from delictual, contractual/ other liabilities + acts of omission. Organ of state = any national, provincial, or municipal government.   Before legal proceedings, written notice of intent must be given to relevant organ of state within 6 months. Organs of State Act repealed Limitation of Legal Proceedings Act. FOUNDING PROVISIONS + SYMBOLS OF NEW SA STATE:  Founding provisions of SA Constitution = in Chapter 1 - CHRISTELLE SAMONS PBL 210: EXAM  Stipulates fundamental values upon which Constitution is founded.  3 aspects of Constitution stand out: (1) Republic is one state. (2) State is sovereign (make own rules/laws) (3) State is a democratic institution (includes BoR and “ubuntu”)  In Makwanyane case, it was stated that enactment of Interim Constitution signalled a dramatic change in system of governance, because individual rights were guaranteed.  S v Jordan:  Issue regarding prostitution.  SA Constitutional framework permitted + required legislature to enact laws which fostered morality + morality had to be one which was found on constitutional values.  Was concluded that Sexual Offences Act continued to pursue an important + legitimate constitutional purpose, namely, control of commercial sex.  Minister of Health v New Clicks SA (Pty) Ltd and Others:  Court held that accountability, responsiveness and openness on the part of government were fundamental values of SA Constitution.  August and Another v Electoral Commission:  S 1(d) of Constitution provides one of the values upon which the one, sovereign + democratic state of RSA is founded.  If parliament wants to limit unqualified right of adult suffrage, it will have to be done so in terms of law of general application.  Supremacy of the Constitution:  S 2 of Constitution: Constitution is supreme law of the state.  Ito supremacy of constitution, all authority must be exercised in accordance with all provisions of Constitution.  General rule: the Constitution is only applicable within the borders of the state.  First Certification Judgement:  Issue with indigenous laws + leadership.  Emphasis laid on that no one may exercise power outside the Constitution.  New clicks case:  Exercise of all public power was subject to constitutional control. - CHRISTELLE SAMONS PBL 210: EXAM  Affordable medicines trust v minister of health:  In order 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.  Protection of citizenship:  S 3 of constitution provides + protects SA citizenship  This section aims to unifying all people with a common + equal citizenship in one sovereign state. Symbols of the SA state:  Symbols are protected in the Constitution.  National Anthem  S 4 of the Constitution provides for the national anthem.  President can proclaim a new Constitution.  Pre-1994, SA had 2 national anthems: (1) Official anthem = “Die Stem [van Suid-Afrika] (2) Unofficial anthem = “Nkosi Sikelele iAfrica” (symbol of independence + resistance to apartheid)  Post-1994, “Die Stem” and “Nkosi Sikelele iAfrica” was merged into one.  The South African national flag  S 5 of the constitution, read with schedule 1, deals with the national flag + its colours.  National flag designed by Mr Fred Brownell + first used on 27 April 1994.  When flag is placed behind a speaker, it should be placed on their right. - CHRISTELLE SAMONS PBL 210: EXAM  The National Coat of Arms and Seal of the Republic:  No reference in the Constitution to a coat of arms or a seal of the state.  New coats of arms was adopted on 27 April 2000 under Heraldry Act.     Role: the Great Seal = highest emblem of state. Absolute authority is given to documents with Great Seal on it, bc it means it has been approved by the President of SA. It reflected the gov’s aim of highlighting the democratic change in SA + new sense of patriotism.  Symbols of the Coat of Arms:  The motto: “diverse people unite”.  The ears of wheat: emblem of fertility + growth.  The elephant tusks: symbolises wisdom, strength, moderation and eternity.  The shield: dual function as a vehicle for the display of identity + spiritual defence.  Human figures: represents the beginning of the individual’s transformation into the greater sense of belonging to a nation + collective humanity.  The spear + knobkierie: dual function (defence + authority): (1) Spear + knobkierie standing up: represents powerful legs of secretary birds. (2) Spear + knobkierie lying down: symbolising peace. - CHRISTELLE SAMONS PBL 210: EXAM    The protea: emblem of the beauty of our land Secretary bird: characterised in flight, the natural consequence of growth + speed. The rising sun: emblem of brightness, splendour, and the supreme principle of the nature of energy.  Decorations, honours and the State President:  President + his office = no longer protected constitutionally, meaning president has to rely on private law remedies  Official languages:      SA = multi-lingual country + new Constitution reflects it. Languages are protected in S 6 of Constitution. Languages are important for official state communications. SA has 11 official languages + Constitution recognises all of them. Lourens v The President of the RSA: the government has a duty to regulate the use of official languages by promulgating a National Language Act.  Duty of translation of legislation falls onto executive branch, not Parliament.  Pan SA Language Board: must promote equal use + enjoyment of all official languages, promote respect for other languages + prevent exploitation of any language.  First Certification Judgment:  Failure of constitutional drafters to include any of the languages spoken by South Africans of Indian descent in list of official languages in section 6 was not in conflict with constitutional principles of Interim Constitution.  Balance of section 6 was [thus] directed at fostering linguistic diversity, which it clearly did. - CHRISTELLE SAMONS PBL 210: EXAM - CHRISTELLE SAMONS