Constitutional Law and the Bill of Rights: South African study guide

About this module

Educational tool, not legal advice. All law is South African.

This module teaches South African constitutional law in plain language, for LLB students taking a first constitutional law course (structures of government) and a Bill of Rights course. It assumes you have done Module 1 (the legal system) and refers back to Modules 2–5 where they used constitutional rules.

How to use it. Each chapter starts with a problem, gives you the big picture, teaches the concepts one section at a time, and boxes the leading cases (Legal issue / Held / Why it matters; facts only where they help distinguish a case). Each chapter ends with common mistakes, a five-sentence recap, checkpoints, a worked example, 15 flashcards and a 38-mark quiz with an answer key. Practice exams are at the end.

Keep the Constitution open. Constitutional law is about a text. Read every section mentioned in the Constitution of the Republic of South Africa, 1996, as you go. Quotations here are short; the section itself is always the authority.

How cases were chosen. Course outlines rarely list cases, so the boxed cases are the leading Constitutional Court judgments that appear in reading lists and the main textbooks. The cases table and each chapter's source notes say which judgments were read for this module and which were described from other sources.

Common cases in this module

These are the cases taught in boxes. All are Constitutional Court judgments. "Read" means the judgment was read on SAFLII for this module, through a summarising tool; "partly" means part of the outcome was taken from another source, named in the chapter's source notes. Cases marked "IC" were decided under the interim Constitution (1993).

Cases mentioned but not boxed: S v Zuma (1995) and Masiya (2007) (read for Module 5); Carmichele (Module 4); Ferreira v Levin NO (1995, partly read); Dawood is also relied on in G4; UDM v Speaker (2017) (read; used in G9).

Module blueprint

How a Bill of Rights problem is answered. Most Bill of Rights questions follow the same steps, and chapters G2–G8 and G12 teach them in order:

1. Application (G3): does the Bill of Rights apply to this conduct or law, and to this party?
2. Interpretation (G2, G5–G8): what does the right protect, and has it been limited?
3. Limitation (G4): is the limitation justified under s 36?
4. Remedy (G12): if not, what should the court order?

The structures chapters (G1, G9–G11, G13–G14) explain the institutions that make, apply and enforce the law, how power is shared between the spheres of government, and how representatives are elected.

G1: The Constitution and constitutional supremacy

B. Start with a problem: the President's proclamation

Parliament passes a new Act on medicines. It comes into force on a date the President proclaims. On officials' advice, the President proclaims a date, although the regulations needed to make the Act work have not been made. Pharmacies cannot operate lawfully. The government says: "The President has the power to proclaim a date, and he acted in good faith, so the courts cannot interfere."

Think first: can a court set aside something the President did in good faith, under a power the law gave him?

C. The big picture

In short: the Constitution is the supreme law: law or conduct inconsistent with it is invalid (s 2). South Africa is founded on values including dignity, equality, the supremacy of the Constitution and the rule of law (s 1). At a minimum, the rule of law means that public power may be exercised only as the law allows (the principle of legality, Fedsure), and that it must be rationally related to the purpose for which it was given (Pharmaceutical Manufacturers). Good faith is not enough.

By the end of this chapter you should be able to answer five questions:

1. What does constitutional supremacy mean, and what did it replace?
2. What are the founding values in s 1?
3. How hard is it to amend the Constitution?
4. What is the principle of legality?
5. What does rationality require?

Key words

D. Teaching the concepts

G1.1 From parliamentary sovereignty to constitutional supremacy

In short: before 1994, Parliament was sovereign; since then, the Constitution is supreme and courts can declare any law or conduct invalid if it is inconsistent with it.

Under parliamentary sovereignty, a court could not set aside an Act of Parliament because its content was unjust. Apartheid laws were enforced on that basis. The interim Constitution (1993) and the final Constitution (1996) replaced this with constitutional supremacy.

Section 2 of the Constitution provides: "This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled." Note both halves: it invalidates inconsistent law and conduct, and it imposes obligations that must be carried out.

G1.2 The founding values and amending the Constitution

In short: s 1 lists the founding values; s 1 (together with s 74(1) itself) is the hardest part of the Constitution to amend, and the Bill of Rights also needs a special majority.

Section 1 provides that South Africa "is one, sovereign, democratic state" founded on:

Amending the Constitution (s 74). The Constitution can be amended, but only by special majorities:

Checkpoint 1. A party with 70% of seats in the National Assembly wants to delete "non-sexism" from s 1. Can it do so alone? (Answer: CP1.)

G1.3 The principle of legality

In short: public power is legitimate only when it is lawful; the legislature and executive may exercise no power beyond what the law confers.

Case: Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan Council (Constitutional Court, 1998)

• Legal issue: Is the exercise of legislative power by an elected local authority subject to the rule of law?
• Held: Yes. Rates and levies decided by an elected council are legislative, not administrative, acts (para 42), but all public power is subject to the rule of law: organs of state "exercise no power and perform no function beyond that conferred upon them by law" (para 58). The principle of legality is implicit in the Constitution (paras 56, 59).
• Why it matters: it established the principle of legality, which applies to all public power, even where the rules on administrative action do not.

G1.4 Rationality and one system of law

In short: every exercise of public power must, at least, be rationally related to its purpose; this is judged objectively, and good faith does not save an irrational decision.

Case: Pharmaceutical Manufacturers Association of SA: In re Ex parte President of the RSA (Constitutional Court, 2000)

• Legal issue: Is the exercise of public power that is not administrative action subject to review, and on what standard?
• Held: Yes. "There is only one system of law", shaped by the Constitution (para 44). Bringing an Act into force is public power though not administrative action (paras 78–79). It must be rationally related to the purpose for which the power was given, a "minimum threshold requirement" judged objectively; good faith does not save an irrational decision (paras 85–86, 90) (Chaskalson P, unanimous).
• Why it matters: it is the foundation of rationality review of all public power, and of the idea that all law is subject to the Constitution.

Back to the proclamation. This is Pharmaceutical Manufacturers. Bringing an Act into force when it cannot work is not rationally related to the purpose of the power to proclaim it. The President's good faith does not save the decision; a court can declare it invalid.

Checkpoint 2. A municipality, wanting to raise money quickly, charges a "visitor's fee" that no law authorises. Which principle does this breach? (Answer: CP2.)

G1.5 Spheres of government (an introduction)

In short: government is constituted as national, provincial and local spheres, which must co-operate with one another.

Chapter 3 of the Constitution (s 40) describes three spheres of government that are distinctive, interdependent and interrelated, and requires them to observe principles of co-operative government (s 41), such as not encroaching on each other's powers and settling disputes by negotiation before going to court. Parliament is the national legislature (G9); provinces have legislatures and executives (premiers); and municipalities have councils. Each sphere's powers come from the Constitution and the law, so the principle of legality applies to all of them, as Fedsure shows for a municipal council.

I. Common mistakes

J. Recap in five sentences

1. The Constitution is the supreme law; inconsistent law or conduct is invalid, and its obligations must be fulfilled (s 2).
2. The founding values in s 1 include dignity, equality, non-racialism, non-sexism, supremacy of the Constitution and the rule of law.
3. Section 1 needs 75% of the National Assembly and six provinces to amend; the Bill of Rights needs two thirds and six provinces (s 74).
4. Public power may be exercised only as the law allows (legality, Fedsure).
5. Public power must be rationally related to its purpose, judged objectively, whatever the decision-maker's good faith (Pharmaceutical Manufacturers).

Back to the problem. The government is wrong; the proclamation is invalid (Pharmaceutical Manufacturers).

Explain it to a friend. In about 100 words, explain why a President acting in good faith can still act unconstitutionally.

G1 practice

Checkpoint answers

Worked example: the minister's random appointment

The facts. A law allows the Minister of Health to appoint "a suitably qualified person" to run a medicines regulator. The Minister appoints her nephew, a musician with no medical or management experience.

Issue. Is the appointment valid?

Principle. Public power must be exercised within the law (legality) and rationally related to its purpose (Pharmaceutical Manufacturers paras 85–90).

Application. The power exists to ensure a competent regulator. Appointing someone with no relevant qualifications is not rationally related to that purpose, and arguably is not even within the power (which requires a suitably qualified person).

Conclusion. The appointment is likely invalid.

Started for you. A provincial premier issues a regulation on a subject that falls only within national competence. Under the principle of legality…

Your task: finish in two sentences. Model answer: …a public body may exercise only the powers conferred on it by law (Fedsure para 58). Because the premier has no power over that subject, the regulation is invalid.

Try it yourself. Parliament passes an Act allowing police to detain anyone for up to a year without trial. Hint: s 2; the Bill of Rights; who decides.

Model answer (outline): under constitutional supremacy the Act is subject to the Constitution; it limits rights such as freedom and security of the person (s 12) and the rights of detained persons (s 35); unless justified under s 36 (G4), a court must declare it invalid (s 172, G12).

Flashcards (15)

Quiz (38 marks, about 45 minutes)

Section A (6 marks, 1 each).

1. Section 2 of the Constitution provides that inconsistent law or conduct is: - A. valid until repealed. - B. invalid. - C. valid if passed by Parliament. - D. suspended for 12 months.
2. Amending s 1 requires a supporting vote of at least: - A. 75% of the National Assembly and six provinces. - B. a simple majority. - C. two thirds of the National Assembly only. - D. a referendum.
3. Fedsure is the leading case on: - A. rationality. - B. equality. - C. the principle of legality. - D. socio-economic rights.
4. In Pharmaceutical Manufacturers, the President's good faith: - A. made the decision lawful. - B. did not save the decision. - C. shifted the burden to the applicants. - D. was not considered.
5. Rationality is judged: - A. by the decision-maker's beliefs. - B. by Parliament. - C. by public opinion. - D. objectively.
6. Which is not a founding value in s 1? - A. Non-sexism. - B. The rule of law. - C. A one-party state. - D. Human dignity.

Section B (12 marks).

7. Explain the difference between parliamentary sovereignty and constitutional supremacy, with reference to s 2. (6)
8. Explain the principle of legality and rationality, with reference to Fedsure and Pharmaceutical Manufacturers. (6)

Section C (20 marks).

9. Advise on the proclamation in section B of this chapter. (10)
10. Advise on the minister's appointment in the worked example, as if it were a new problem, and discuss what the court could order. (10)

Answer key

Q7 (6). Parliamentary sovereignty (2); constitutional supremacy (2); both halves of s 2 (2).

Q8 (6). Legality and Fedsure (3); rationality and Pharmaceutical Manufacturers (3).

Q9 (10). Public power, a constitutional matter (2); rationality test (3); good faith irrelevant (2); invalidity and confirmation (3).

Q10 (10). Legality: within the power? (3); rationality (3); remedy: declaration of invalidity, possibly suspended (G12) (4).

G1 source notes