NAME:
GUGULETHU MDA
STUDENT NUMBER:
15178099
MODULE CODE:
CSL2601
DUE DATE:
10 SEPTEMBER 2024
ASSESSMENT 2 / SEMESTER 2 / 2024
Question 1
South African constitutional law is the field of South African law which relates to the
formal interpretation and application of the Constitution of the Republic of South Africa
by the country’s courts. Every law of South Africa must comply with the Constitution,
should it not comply with the constitution it will be regarded as null and void as it would
have no effect or force.
The Constitution is a law passed by the Parliament and it is considered as the highest
law of the land1. The Constitution also prevents each new government from passing
its own laws that contradict the constitution. It is quite difficult to change the constitution
than any other law and this leads to the constitution protecting democracy in South
Africa.
Our constitutional law of South Africa also helps against the abuse of power by
ensuring that no person or government body has too much power, dividing or splitting
power amongst different branches of government through the separation of powers,
setting out human rights that people have in the Bill of Rights, creating independent
courts and commissions that will protect people’s rights as well as making it
compulsory for all government bodies to be accountable and transparent to the public.2
Case law is of paramount importance when it comes to South African Constitutional
law as it participates crucially in the growth and expansion of South African
Constitutional law. The relevant case law is that of S v Makwanyane and in this case,
the Constitutional court decided to put an end to the death penalty, which highlights
the fact that the constitution values and protects the right to life. It was also mentioned
that the death penalty which was formerly called judicial homicide, includes a person
being executed in a manner that is cruel and inhumane and this does not comply with
the constitution.
The Constitutional court is the highest court in constitutional affairs and it has provided
milestone decisions that are of importance and vital when it comes to the development
of the South African constitutional law. 3An example of South African Constitutional
law is the security and preservation of the interaction between the social and economic
habits of a group of people. The Constitutional court has a legal duty to take rational
legislative courses of action and ensuring that the rights of its citizens are protected.
1
The Constitution of the Republic of South Africa, 1996.
2
De Vos Pierre. 2021. South African Constitutional law in context. 2nd edition. Oxford University Press
3
CSL2601
Question 2
In South African Constitutional law, the principle or doctrine implied by the reference
to the executive showing up late to court and not complying with its obligation is the
principle of accountability and the principle of the separation of powers. This principle
draws attention to branches of the government and their roles. 4The separation of
powers means that no one can interfere in the work of the Constitutional Court and
other courts in the country. This means that each arm of the state keeps watch over
the power the power of others. The courts can judge the actions of the legislature and
the executive but they cannot pass laws.5
The separation of powers is a basic foundational doctrine of the South African
constitutional structure and it is linked to the branches of the government, these
branches of the government have their own functions. The executive is one of the
branches of government and it has a responsibility of applying governance and laws.
It is often involved in the framing of policy and for the daily administration of a country.
The judiciary is responsible for interpreting the law, deciding disputes and applies the
Constitution in the name of the state. The South African judicial authority is vested in
the system of courts as well as judges and magistrates who sit in these courts. This
branch of government has a duty to ensure equal justice under the law. The judiciary
must be strictly independent, impartial and non-political as the principle of the
separation and balance of powers commands.
6
The legislature is responsible for making laws for the country, in accordance with the
constitution. The legislative authority scrutinizes budgets, and annual and quarterly
performance and strategic and annual performance plans of government. This branch
has the power to summon any person to appear before it. It also considers, pass,
amend and create or even reject legislation.
The executive branch is expected to comply with court orders and also obey the
authority of the judiciary. The executive undermines the authority of the judiciary when
it fails to appear in court and not adhering to its obligations. It does not only undermine
the judicial authority but it also fails to respect constitutional principles.
7
The relevant case law is that of Minister of Defence v South African National Defence
Union and others (CCT65/06) [2007]. In this case, the Constitutional court emphasized
4
De Vos Pierre. 2021. South African Constitutional law in context. 2nd edition. Oxford University Press
5
The Constitution of the Republic of South Africa, 1996.
6
South African Government article
7
About Parliament article
8the principle which includes that the executive must adhere to the rule of law and
authority of the courts. This case pointed out that the executive’s conduct must be in
accordance with its constitutional obligations and if it fails to comply and obey court
directives, it can lead to judicial enforcement and possible contempt of court.
ACADEMIC DISHONESTY DECLARATION
DECLARATION:
I understand what academic dishonesty entails and am aware of Unisa’s
policies in this regard.
I declare that this assignment is my own original work. Where I have used
someone else’s work, I have indicated this by using the prescribed style of
referencing.
I have not allowed and will not allow anyone to copy my work with the intention
of passing it off as their own work.
I did not make use of another student’s work and submit it as my own.
NAME: Gugulethu Mda
SIGNATURE: G. Mda
STUDENT NUMBER: 15178099
MODULE CODE: CSL2601
DATE: 07 September 2024
8 Saflii
