CHAPTER 3 – IMPORTANT CONSTITUTIONAL CONCEPTS AND PRINCIPLES

• There are various important principles and concepts within the ambit of CL, that are
seemingly complex in nature and may be difficult to understand, that need to be
studied and applied carefully.
• *These principles underlie the constitutional system and influence the interpretation
of certain provisions in the consti.
• Some principles are expressly entrenched in the consti whilst others are implicit.
• *These principles provide the blueprint of the new constitutional order, but they
should only be used as a last resort when the ordinary rules of law are not sufficient
or clear enough to resolve the dispute.

*The principle of constitutionalism

• The state is founded on the law and the gov derives its powers from the law
• The law is founded on a written consti
• No one, not even the gov, is above the law. Gov powers are limited by certain
provisions set out in the consti
• There is only one system of law and it is shaped by the consti which is the supreme
law. All law, including common and customary law, derives its force from the consti
and is subject to constitutional control
• The principle of constitutionalism is implicit (not directly mentioned in the consti)
• A challenge of constitutionalism: when a consti is drafted, a balance needs to be
achieved between est. a gov with enough powers to govern on one hand, and a gov
without absolute despotic powers on the other
• *The consti limits the powers of the gov/state in 2 ways:
o It imposes structural and procedural limitations whereby gov powers are to be
exercised
o It sets substantive limitations through the incorporation of a BoR

The principle of democracy and public participation

• Democracy is a universally recognized constitutional principle

• Power to govern is not vested in one person (monarch) or a small group of persons
(aristocracy) but in the people of the state. The relationship between the gov and the
people is based on consent not power abuse. *Government by explanation rather
than by force.
• *There are 2 views of democracy:
1. Traditional view o People should be allowed to govern themselves and
should be permitted to participate in crucial decisions that impact their
lives
o A gov of the people, by the people, for the people
2. Modern view o Democracy does not mean majority decision making
only

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 o There are certain fundamental rights that not even the majority can take
away or limit
• *The BoR is the cornerstone of democracy in SA. This is because the democratic
values of human dignity, equality, and freedom are affirmed and protected in the
BoR. The principle of democracy is specifically entrenched in the constitution which
means that any law or conduct inconsistent with democracy is invalid.
• *Except for the BoR, the rest of the consti generally imposes obligations on the state
only, thus signifying vertical application. It is thus sometimes argued that the
principle of demo has no horizontal application and private persons and institutions
are not required to conduct themselves in a democratic way. However, the
constitution is the supreme law of the land and all people of the state are bound by
it. The fact that the principle of demo is constitutionally entrenched thus suggests
that all people should act in a democratic way.
• *The consti recognizes 3 forms of democracy:
1. Representative democracy:
o Indirect form of demo directed at political representation of the citizens
of the state
o De Lille v speaker of NA: court held that the principles of representative
demo lay at the heart of the consti
2. Participatory democracy:
o The participation of individuals or institutions in governmental processes
that have an effect on them
o Doctors for life international v speaker of NA: in terms of the provisions
of the consti, international law, and foreign case law, south African demo
included the principle of participatory democracy. o The court also
mentioned the term “public participation”. This is when the public is
afforded sufficient opportunities to participate in the legislative processes
3. Direct democracy
o The direct involvement of the citizens of a state. This is provided for
through the right of everyone to assemble, demonstrate, or present
petitions, and thru the participation in national or provincial referendums
o Referendums are an important tool when political parties are divided
over key issues because public opinion can be obtained by calling a
national or provincial referendum
• Common characteristics of a democratic system: majority rule / free and fair
elections / public participation / multi-party-political system / protection of certain
fundamental rights / accountability / gov control via checks and balances /
compliance with RoL and SoP / judicial review / freedom of expression / gov based
on consent

The principle of accountability

• The principles of openness, responsiveness, and accountability are protected and

entrenched in S1 of the consti

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• *These principles are important bc they imply that gov institutions must be
accessible and officials should respond to the needs and requests of the people they
govern. The gov must also explain laws or conduct if called upon to do so.
Gov responsiveness is action that is prospective (forward-looking). Gov
accountability is explanation in retrospect (backwards looking)
• It is not only the gov that is required to act in such a manner. Private institutions can
also be forced to adhere to these principles. (Davis case)
• Davis v Clutchco: the court held that the Promotion of Access to Information Act
(PAIA) had to permit a shareholder to obtain access to information in the books of
account to safeguard his investment in the company or to ensure that he had
knowledge of the value of the shares
• SA liquor trader’s association v Gauteng liquor board: court held that the principle of
accountability required the courts to give reasons for the decisions made where
provisions of an Act of Parliament or provincial legislation were declared
unconstitutional even when the order was unopposed
• *Langa v Hlophe: there was no basis for keeping lawful complaints against judges a
secret
State liability (SL) (linked to the principles of accountability, openness, transparency)
• SL is the criminal and civil liability of the state
• *The state is a legal person and it is accepted that a citizen or visitors to a particular
state can hold the state liable for acts or omissions permitted or committed by the
state
• State is represented by people acting on its behalf. These people don’t act in their
personal capacity, only in their official capacity
• People who are aggrieved by the actions or omissions of a state via any of its organs
should be permitted to claim monetary damages or even criminal claims
• SL is regulated by an Act of Parliament (the State Liability Act 20 of 1957). The
provisions of the act must be read in conjunction with the consti
• The judgments against the state must actually be enforced or else the principle of SL
is rendered meaningless

The principle of secularism

• The separation between religion (church) and the state.

• In SA, the state is not completely neutral towards religion but there is no state
religion. SA is a secular state. We are allowed religious practice.
• The consti indirectly incorporates the concept of secularism
• S15 of the BoR protects everyones right to freedom of religion, belief, opinion
• S31 says that a person who belongs to a religious or cultural community may not be
denied the right to enjoy his culture or practice his religion
• The SA state may practice religion, as long as it is in the ambit of s15(2)

The doctrine of the separation of powers (SoP)

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 • *Gov powers should be divided into legislative, executive, and judicial powers
• Each of these powers are exercised by specific bodies of the state -> legislative
authority is vested in parliament, provincial legislatures, municipal councils (power
to make, amend, repeal RoL) / executive authority is vested in the president, the
premiers of the provinces and municipal councils (power to execute and enforce
RoL) / judicial authority is vested in the courts (power to determine the law and the
way in which it should be applied)
• This principle is also known as “trias politica”
• SoP made its way into SA common law thru the English law
• Purpose: to prevent the excessive concentration of gov powers in one person or
body of the state (as this may result in abuse and maladministration)
• SoP is not directly mentioned in the consti by name, but its concept is evident in
several sections (S43, 44, 104, 156, 85, 125, 165)
• *4 results occur when the SoP is enforced:
o Formal division of state authority between 3 branches of gov
o Separation of personnel (prevents a person or organ functioning in more than
one branch)
o A separation of functions (so branch can’t usurp the function of another) o
The inclusion of checks and balances (e.g. the power of review where the
judiciary acts as a watchdog over the legi and exec branches to make sure
that all gov actions are in line with the consti. Legi and exec authority also
counter control judicial authority. Courts must not overstep boundaries and
have thus developed self-constraint mechanisms to not exceed their own
power. counter and cross checks allowed which ensures a responsible gov)
• *The doctrine is not enforced on an absolute basis. There is a degree of overlap
between the diff branches. The overlap between legislative and executive authority
strengthens accountability and does not infringe on the doctrine.
• South Africa association of personal injury lawyers (SAAPIL) v Health: the consti
provides for the separation of state authority into diff branches and any law
inconsistent with the consti is invalid
• *other methods of controlling the gov apart from the SoP: the BoR, judicial control,
regular democratic elections, independent judiciary, accountability and openness of
gov, constitutionally protected commissions

The concept of judicial review (JR)

• An important constitutional principle where the courts are vested with the power to
determine legal and constitutional issues, and are authorized to interpret/apply law
and invalidate laws/conduct that is in conflict with the consti • JR occurs mostly in
countries where there is a rigid consti in place • JR is specifically incorporated into
the consti:
o S165: judicial authority is vested in the courts which must be
independent, impartial, and subject only to the consti and the law

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o S172: the court must declare any law or conduct that is inconsistent with
the consti to be invalid
• Main criticism of JR: with JR, there is the perception of an unaccountable judiciary
which gives rise to a dilemma of a counter-majoritarian nature

*The counter-majoritarian dilemma

• This refers to the jurisprudential dilemma of unelected officials (judges) having the
power of setting aside the decisions of elected officials (e.g. the president)
Judicial review seems to be going against the SoP principle. the judges, who were not
elected by the people, seem to go against the will of the people/public opinion/
majority opinion when they control or review legislative or executive
decisions/actions.
• However, democracy does not only mean majority decision making only, it means
majority decision making within a framework of predetermined rules, procedures,
and fundamental rights.
• A system of checks and balances of powers needs to be kept. This is why the consti
vests the judiciary with the power to test the laws of democratically elected
legislature. (s165, 172) Judicial control is essential in all democratic systems
• Judicial review is a SoP that we allow. However, the judiciary may not usurp the role
of the legislature by making new laws.

*The concept of a constitutional state (Rechtstaat)

• This concept originated in German constitutional law

• There are 7 main constitutional principles that underlie a constitutional state:
o Separation of powers doctrine o
The supremacy of the constitution o
The principle of legality o Legal
certainty
o Access to independent courts o
Enforceable fundamental rights o
Multi-party democratic gov
• The status of law in a constitutional state: the law is supreme, and the state is also
bound by the law

*The principle of the rule of law (RoL)

• *A universally recognized constitutional principle that protects basic individual rights

by requiring the gov to act in terms of preannounced, clear, and general rules (sine
lege nulla poena) These rules and actions are then enforced by independent and
impartial courts in terms of fair procedures
• *Purpose: to protect basic individual rights

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 • No one is above the law. Every person and institution, including the state, is subject
to the jurisdiction of the courts
• No person may be deprived of their basic rights thru the exercise of arbitrary and
wide discretionary powers of the state. Only the courts may limit such basic rights
• The gov must obey the law and exercise its powers in accordance with the law
• *The requirement for the state to act in a lawful manner is referred to as the legality
requirement
• Legality is determined by 2 requirements / legality places two constraints on gov:
o There must be a rational relationship between conduct and purpose. The
state may not act capriciously or arbitrarily. If there is no rational connection,
then the gov conduct is contrary to RoL and thus invalid
o gov action may not infringe on basic fundamental rights, unless the
infringement is justified as a lawful limitation in terms of the consti

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* RoL is specifically entrenched in the consti and it is a founding value [s1(c) of const]

The concept of public interest/boni mores and public opinion

• Public opinion is not determined by the majority view of all SA citizens. Public
opinion is determined by the constitution and will always be viewed in the ambit of
the BoR
• Boni mores in SA is determined by public opinion within the ambit of the consti
• Public opinion is important for a legitimate system
• Some argue that it is paradoxical how the consti is regarded as “will of the people”
but public opinion does not play an integral part in constitutional interpretation.
However, the values of the consti are regarded as the values deemed to be those of
the general SA community (indirect app of will of ppl)
• The courts must resolve issues that are legal in nature, not moral or philosophical.
Therefore, the courts should not be influenced by public opinion. The court must
rather investigate, interpret, and apply the law.
• Reasons for excluding public opinion in judicial interpretation:
o Judges cannot conduct a referendum before making a decision, so they
do not know for certain what public opinion is
o According to SoP, it is parliaments job (not the courts job) to further
public opinion and then incorporate such views in policy and legislation.
Political decisions should include public opinion, not judicial decisions o
Public opinion is ever-changing and sometimes irrational. It can also be
dangerous when it limits the rights of minorities
• Legislatures should ensure that public opinion is incorporated into the law, which the
courts base their decisions on. This will result in the court indirectly applying will of
the people
• Barkhuizen v Napier: public policy must be determined in terms of the law, with
reference to the consti

The bill of rights

• The BoR is the part in the consti that defines basic fundamental rights and lays down
the limitations of such rights
• *The purpose of the BoR is to protect these basic fundamental rights
• The BoR is the cornerstone of democracy in SA. This is because the democratic
values of human dignity, equality, and freedom are affirmed and protected in the
BoR. The principle of democracy is specifically entrenched in the constitution which
means that any law or conduct inconsistent with democracy is invalid.
• The rights in the BoR are not absolute and may be limited.
• S7(3) says that the rights in the BoR may be limited in 2 ways: o Through S36 of the
consti which is the limitation clause (external limitation)
o Or as mentioned elsewhere in the Bill (such as S16(2)) (internal limitation)

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The concept of Ubuntu

*Ubuntu is a traditional African concept, based on African values and experiences,

that recognizes all people as human beings who should be treated as such and who
are entitled to dignity, respect, and acceptance
• *The concept of ubuntu is not directly entrenched in the consti. However, it is
regarded as an underlying principle of the new value system the consti has created
and should be read and interpreted in conjunction with the founding provisions
• S v Makwanyane: CC stated that the concept of ubuntu underlies the new consti
• *Characteristics the concept encompasses: humanness, social justice, rehabilitation

Special tribunals and amnesty

• A truth and reconciliation committee is usually created by states that have recently
emerged from periods of unrest or civil war
• *In a SA context, the TRC was a court like body, set up in terms of the Promotion of
National Unity and Reconciliation Act in 1995, at the end of apartheid. *Its mandate
was to bear witness, record, decide on amnesty applications for crimes relating to
human rights violations, and assisting in the reparation and rehabilitation processes
• *The TRC performed its functions through 3 sub committees: 1. Human rights
violation committee (HRVC)
o Responsible for investigating fundamental human rights abuses that took
place between 1960 and 1994
2. Reparation and rehabilitation committee (RRC)
o Responsible for restoring the dignity of victims and assisting with possible
rehabilitation of victims 3. Amnesty committee (AC)
o Responsible for considering amnesty applications of those charged with
atrocities during apartheid.
o *Amnesty was granted under 2 conditions: crime had to be politically
motivated / and the entire truth was told by the person seeking amnesty
• *Criticisms of TRC: allowed crimes to go unpunished / amnesty was granted for
serious human rights abuses
• TRC findings: both sides (NP and ANC/PAC) were condemned for the immoral and
unlawful acts they committed. Shows that the TRC was fair.
• Du Preez v TRC: persons implicated in the TRC processes were not entitled to any
info obtained by the investigation’s unit prior to the commencement of a hearing
• AZAPO v TRC: although the Promotion of National Unity and Reconciliation Act
infringed on the right to access to court, this infringement was justified by the need
for national reconciliation and reconstruction
• Gerber v TRC: the court confirmed that the applicant, whose amnesty application
was dismissed, had full protection under the consti, but failed to show that the TRC
had failed to apply the provisions of the Act

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• Nieuwouldt v TRC: the workings of the TRC were of crucial importance to the process
of reconciliation in SA

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