In our country we have the Parliament and the State Assemblies that makes the laws. This is called the Legislature. A society also requires institutions to administer and govern the country. We have the Prime Minster and his cabinet, the civil service, the Attorney General Chambers, the various enforcement agencies and so on who, among other things, make government policies and implement them. This is called the Executive. Many of us speak about the rule of law without realising how important it is in our lives.

Rule of law means, among other things, that everyone is equal before the law, it is clear and unambiguous, everyone regardless of status has access to justice, the process itself is transparent and disputes or injustices suffered can be corrected.

The Legislature, Executive and Judiciary make up the three important branches of government that have a tremendous impact on the lives of every citizen every day and sometimes even after you die. Each of these branches have important roles to play and their roles are so far reaching on the lives of the citizens that checks and balances are necessary.

In other words, some sort of check and balance ought to be put in place so that each of them do not abuse their positions or behave oppressively. Firstly, the three branches of government owe their existence to the Federal Constitution. Secondly, their roles and the extent of their powers are actually spelt out in the Constitution.

In other words, they are all subject to Constitutional provisions and cannot do as they fancy. However, all these institutions are made up of mortals and mortals, we have to presume, may be carried away by vested interests and may be prone to all sorts of weakness from recklessness to corrupt practices. In theory, we say that the Legislature can check the Executive by holding the executive to scrutiny in Parliament.

In practice, however, it appears to be possible only if we have a credible and strong opposition. The cabinet is part of the legislature and we cannot expect it to criticize itself. The administrative part of the government, such as the civil service and others, are usually appointed or condoned by the political masters of the day.

Without casting any aspersions, how many would dare to dissent with an unlawful, irregular or dubious request from their political masters when it may affect their rice bowls? How then can society help to muster the courage of the honest civil servant to do the right thing?

Let us look at Parliament and ask this question: can Parliament pass any laws? A more radical question is this: can Parliament pass a law that can change the character of our constitutional monarchy and our democratic way of life? If we hold that Parliament is supreme, then the answer would be a resounding yes. However, Article 4 1 of the Federal Constitution not only declares itself to be the supreme law of the country but also goes on to limit the power of parliament to pass laws.

It does not recognise as valid any law passed by Parliament after Merdaka day that is inconsistent with the Constitution. Hence, Parliament is not supreme in the sense that it can pass any law it wants. This does not mean however that Parliament cannot amend the Constitution. Of course, it can and it may have to as life is ever changing and the law has to evolve with the changing times. In fact the procedures for amending the Constitution are set out in Article of the federal Constitution itself.

This procedural provision has been unsuccessfully argued by some as a provision that empowers Parliament to amend anything. If this was true, then the net result would be that even article 4 1 can be amended to make Parliament absolutely powerful to pass any laws, for example, including to abolish elections. All the fundamental liberties of the citizens can be removed by Parliament if indeed Parliament can pass any laws without any check and balances.

Legality implied that the holder of public power must act in good faith and not misconstrue his or her powers [11]. In Albutt , the Constitutional Court explained that rationality also had a procedural element [13].

As the court then clarified in Democratic Alliance , the means chosen to achieve a legitimate government purpose included the process leading up to the decision [14]. So, for example, if a hearing is required for the rationality of a decision, and a hearing is not given, then that decision is irrational.

The rule of law and legality review are topics canvassed fully in courses of administrative law. However, the rule of law features heavily in constitutional analysis.

To that extent, it is important to understand what the rule of law implies in the South African context. Democracy entails that citizens of a state decide on issues concerning themselves and their state. But how this plays out in practice can depend on a model of democracy. Should all citizens vote on every issue?

Should representatives be elected to vote on behalf of citizens? If so, how should those representatives be elected and how should they be held to account to citizens?

Models of democracy can differ on the answers to these questions. Below, we tabulate a summary of different models of democracy. A detailed analysis of democratic models is beyond the scope of this book. However, it is important to have a general understanding of democratic models. Section 1 of the Constitution establishes South Africa as a democratic state. As will become apparent, the different advantages and disadvantages of various democratic models feature significantly in cases concerning the separation of powers, for example Doctors for Life [15].

Conceptions of democracy also underpin judgments concerning political rights, especially the right to vote [16]. A key feature of the Constitution is that it seeks to transform South Africa from its deeply divided, unequal past into a society founded on equality, dignity, and freedom. In this sense the Constitution, unlike many other constitutions, does not seek to maintain a status quo.

The Constitution is an ambitious legal document that aims to change the material conditions of South African society. As the Constitutional Court has held:. To understand a constitution, since it concerns fundamental assumptions about the nature of the state, it must be read and seen in its historical context. South African constitutional law is no exception. The Constitution, given its transformative nature, emphatically demands attention to history and the existing socio-economic context when interpreting and applying its rules.

A full historical account of South Africa and the drafting of the Constitution is beyond the scope of this book [18]. However, the transformative nature of the Constitution makes history relevant in three ways. First, South Africa has undergone several constitutional changes in the past years [19]. Secondly, the Constitution was drafted deliberately and through a process of negotiation between various stakeholders in the early s.

Finally, until , South Africa operated on a legal system that oppressed and marginalised black people, while privileging white people, on a broad range of levels. These three points are important to bear in mind when, and have obvious relevance to, interpreting the Constitution.

The Constitution seeks to transform South African society on a broad range of levels. For example, section 1 establishes that South Africa is based on certain values that are diametrically opposed to those of the apartheid regime.

The Constitution endorses a notion of substantive equality, which entails affirmative action being taken by the state to address existing inequalities between social groups [20]. The Constitution includes justiciable socio-economic rights, which allow citizens to challenge inequitable material conditions in court [21].

Transformative constitutionalism often includes an endorsement of justiciable socio-economic rights and substantive equality. It also endorses a form of legal reasoning that is conscious of the interplay between morality and law. Transformative constitutionalism demands that lawyers are aware of how the law does and can play a role in affecting power relations, access to resources, and human dignity.

Transformative constitutionalism demands all this because, at heart, it entails using law to ensure that society moves towards a better version of itself.

Quite clearly such a process involves grappling with fundamental moral and political ideas [22]. As explained at the start of this chapter, constitutional law is roughly divided into two parts: separation of powers and the Bill of Rights. The book reflects this division. The next three chapters of the book detail the powers and duties of the three arms of government established by the Constitution: the legislature, executive, and judiciary. Chapter 5 deals with multi-level government.

Multi-level government concerns the three spheres of the executive arm of the state: local, provincial, and national. Chapter 6 concerns special institutions established by Chapter 9 of the Constitution. These institutions, like the Public Protector, occupy an interesting zone in the separation of powers.

Chapter 9 institutions are not part of any arm of state and perform specialised functions. Simultaneously, they are held to account by the executive, legislature, and judiciary. Chapter 10 introduces the Bill of Rights. The chapter begins with an introduction to the Bill of Rights and some general principles pertaining to the Bill of Rights. The six chapters after that deal with specific rights or groups of rights in the Bill of Rights.

A constitution is those sets of rules that establish a state. This may not entail a bill of rights. An act can be inconsistent with the Constitution if passing it exceeded the duties and powers imposed on the legislature by the Constitution.

A country could be democratic even though there are certain rules constraining the will of the majority. The South African Constitution aims to transform South Africa away from its unequal past to a better society for all. Two areas: Bill of Rights and separation of powers. Bill of rights: concerns the rights guaranteed to persons in Chapter 2 of the Constitution.

Law and conduct may not violate these rights; if it does, that law or conduct is unconstitutional. Separation of powers: concerns the powers and duties given to arms of state by the Constitution. Law and conduct of these arms cannot exceed the powers or violate the duties given to the arm in terms of the Constitution.

Join over 1. Page 1. Save View my saved documents Submit similar document. Share this Facebook. There is a fundamental difference between Constitutional supremacy and Parliamentary Supremacy. Extracts from this document Middle There are major differences between Parliamentary Supremacy and Constitutional Supremacy as it relates to Parliamentary supremacy the rules of the constitution is not written, codified it does not exist in a documentary form.

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