STUDY UNIT 3: CONSTITUTION & FUNDAMENTAL RIGHTS

Question 1

DEFINE CONSTITUTION

Answer 1

a document in which the structure & functioning of an organization are regulated

it regulates people who fulfil constitutional functions & relationships between the state & citizens

its a contract between the citizens as they create a state & transfer power to it & accept its authority

Question 2

TYPES OF CONSTITUTIONS

Answer 2

written/unwritten

flexible/inflexible

unitary/federal

sovereign/subordinate

Question 3

HISTORY OF S.A CONSTITUTION

Answer 3

S.A constitution is regarded as transformative as it moved from an authoritative system to a more just system

before 1910 it was a Dutch government then divided by the Great Trek that divided the Boer & British constitution

Question 4

THE 1910 UNIFICATION

Answer 4

the British formed the constitution of the union under a unitary state where only whites were considered

the aim was to amend issues of reconciliation, language, federation or union & native question

the courts were subservient to parliament

Question 5

THE EMERGENCE OF THE REPUBLIC: 1961

Answer 5

it was formulated by the National Party to deviate from British authority then it was disregarded by common-wealth due to apartheid acts then was a republic after monarchy & the president became head of the state

Question 6

THE 1983 CONSTITUTION

Answer 6

it arose due to conflict in the National Party

it excluded blacks from the assemblies called Tricameral Parliament & whites were the executive, followed by Indians then coloreds were representatives

the cabinet & head of state had the executive authority

Question 7

INTERIM CONSTITUTION: 1993

Answer 7

the aim was to make S.A democratic whereby multi-party negotiations took place as it came into place in 1994

it allowed all S.Ans to vote making the constitution the apex law, division of 9 provinces, proportional voting, multi party cabinet & spheres of legislative functions were created

Question 8

FINAL CONSTITUTION 1996

Answer 8

the constitution was finalized in 96 & certified in 4 FEB 97

Question 9

CONSTITUTIONAL AMENDMENTS

Answer 9

by 2018 its been amended 17 times

the 14th time the ConCourt was made the Highest court of all matters

the 17th amendment made ConCourt the highest court, decides the constitutional matters & it has the final decision on matters within its jurisdiction

Question 10

SIMILARITIES OF INTERIM & FINAL CONSTITUTION

Answer 10

entails basic human rights that are in BOR

moved from adult suffrage to allowing all adults a right to vote

is against sexism & racialism

has spheres of gov. that bring people closer to the gov & constitution

Question 11

TRANSFORMATIVE CONSTITUTIONALISM: KARL KLARE THEORY

Answer 11

the aim of the new constitution is to transform S.A society

it is still yet to be enacted, interpreted & enforced in the long run

its aim is to transform the country’s political & social institutions along with power relationships in a democratic, participatory & egalitarian direction

the transformation must happen with law that’s w/o violence, through revolutions & the idea is to have a highly egalitarian, caring & multicultural community governed by democracy

Question 12

TRANSFORMATIVE CONSTITUTIONALISM: PIUS LANGA

Answer 12

the initial aim is to restore & heal the wounds of the past

the constitution aims to engender a culture of rights, meaning a culture of respect for human life & dignity based on Constitutional values

it includes justiciable socio-economic rights & substantive equality

includes a legal reasoning that’s inclusive of law & morality

Question 13

HOW CAN TRANSFORMATIVE CONSTITUTIONALISM BE ACHIEVED

Answer 13

community based on substantive equality

eradication of discrimination

development of equal opportunities

move from a culture of authority to a culture of justification

new order of persuasion, not coercion

using law to ensure a society moves to a better version of itself.

Question 14

BILL OF RIGHTS PROVISION

Answer 14

a right can be enforced & adjudicated upon in court

provides that everyone is equal equal before the law and prohibits discrimination on wide variety of grounds

grants rights that impose negative & positive obligations on the state

Question 15

NEGATIVE & POSITIVE OBLIGATIONS ON STATE BY B.O.R

Answer 15

negative obligations refer to prohibiting the state from interfering with the individual rights unlawfully

positive obligations refer to obliging the state to take lawful steps to fulfil human rights

Question 16

DEFINITION OF HUMAN RIGHTS

Answer 16

UN definition: rights inherent in our nature and without them we cannot live as human beings.

they are based on humankind’s demand for life in which inherent dignity and worth of each human being will receive respect and protection.

Indivisible: All have same basic characteristics.

Interdependent: Full enjoyment depends on the possession of all other rights.

Inalienable: Individuals cannot give them up and they cannot be taken away.

Question 17

INTERNATIONAL HUMAN RIGHTS

Answer 17

these were compiled by the U.N in 1945 to promote protection of human rights & peace

these rights are subjective as they can refer to protection of women & children’s rights, refugees & minority groups

Question 18

INTERNATIONAL SOURCES FOR HUMAN RIGHTS

Answer 18

Universal Declaration of Human Rights (UDHR), 1948 is the first source.

represented first effort by international community to limit powers of states by placing obligation on states to protect and promote these rights.

does not place a legal obligation on states.

International Covenant on Civil and Political Rights, 1966: the document that bound countries that agree to UDHR

International Covenant on Economic, Social and Cultural Rights, 1966: legally binding on states that signed.

these were established mechanisms to ensure that state parties comply with obligations.

Question 19

REGIONAL BASED HUMAN RIGHTS

Answer 19

European Human Rights system, Inter-American & African Human Rights

all these regions are interrelated & they cowork to form a framework for region based problems

Question 20

DIFFERENCE BETWEEN FUNDAMENTAL & HUMAN RIGHTS

Answer 20

fundamental rights refer to those that are for a particular country for its citizens

human rights refer to rights applicable to all human in every nation

thus the difference is the geography

Question 21

CLASSIFICATION OF RIGHTS

Answer 21

civil & political rights- protects people from unlawful interference by state & guarantee ability to participate in civil & political life

social & economic rights-impose obligations on state to take positive steps to provide citizens w/ resources & service sto endorse decent living

Question 22

DISTINCTION OF GENERATIONS & RIGHTS

Answer 22

first gen-blue rights-traditional, civil & political

sec gen-red rights-social & economic rights

third gen-green rights-self determination, development & enviro rights

Question 23

OPERATIONAL PROVISIONS OF B.O.R & 3 STAGES

Answer 23

procedural stage: courts answer who is entitled to claim & bound by fundamental rights

substantive stage: courts determine meaning of the laws, which right is infringed & if infringement is justifiable

remedies stage: the courts decide on the most appropriate remedy

Question 23

OPERATIONAL PROVISIONS OF B.O.R & 3 STAGES

Answer 23

procedural stage: courts answer who is entitled to claim & bound by fundamental rights

substantive stage: courts determine meaning of the laws, which right is infringed & if infringement is justifiable

remedies stage: the courts decide on the most appropriate remedy

Question 24

CASE LAW: Centre for Child Law v Minister of Basic Education

Answer 24

Case was heard in the High Court of the Eastern cape.

it was contended that no child may be barred from education, even if the child is undocumented (illegal foreigners).

the court contended that the right to basic education is enshrined without any qualification in section 29 of the Constitution.

thus it was decided that EVERY child in S.A is allowed a chance to be in school regardless of nationality they belong to

Question 25

PROCEDURAL STAGE: APPLICATION OF LAW

Answer 25

horizontal application: meant for between citizens application

vertical application: refers to state & citizens

not all B.O.R bind all citizens but its always binding on the state