PBL: CHAPTER 2 -THE INTERACTION BETWEEN CONSTITUTIONAL LAW, THE STATE, AND
THE INDIVIDUAL
The concept of “state”
• *A set of institutions that possess the authority to make and enforce the rules that
govern the people in a particular society, and which has internal and external
sovereignty over a defined territory
• *A state has 5 core elements: community of people, defined territory, specific
government, authority, independence
• When the state enters a contract or legal dispute, the state is afforded the status of
a juristic/legal person
• *The concept of “state” should be distinguished from the following terms:
o ‘state’ = the entity that complies with all the requirements of a state o
“government” = the way in which the highest political offices and offices of
executive authority are filled (removing a gov from a nation does not mean
the state will also vanish) *(latin word “gubernatio” means ‘to steer’. i.e. the
gov steers the state)
o “political system” = the ensemble of all social structures that function to
produce collectively binding decisions in society, such as the political regime
and political parties
o “community” = fellowship and social cohesiveness between people that
share a certain identity or purpose (e.g. religious community)
o “society” = consensual reciprocal agreement between people for mutual
benefit. These people act as partners and should be equal.
• Analogy: state = cargo ship / people = cargo / gov = crew / president = captain / laws
= rules / constitution = course
• *Features of a modern state: combined wealth of a sovereign territory (not privately
owned) / combo of organs of state which manage public affairs / continuous and
independent public power / geographically identifiable territory / internal and
external jurisdiction over the territory / a community of people with rights and
responsibilities / institution of authority who is able to govern / power to enforce
rules and use legitimate force / power and authority restricted by international law /
powers and functions are regulated in terms of predetermined legal rules and
principles
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Historical development of the concept of the state
• Concept of a state developed when centralization of power occurred .. centralization
of power occurred because of the development of agriculture and writing
• The history of the state in the west begins with classical antiquity and political
innovations that came from Greek city states and the Roman Republic
• After the period of classical antiquity, the development of the modern state in the
west began with the dissolution of the western roman empire .. parliaments were
created
• Western Europe’s gradual institutional development in the late 15 th century
culminated in the rise of absolutism and capitalism
• This centralization of power involved the depiction of political boundaries as
monarchs gradually defeated other sources of power such as the church
• This gave rise to the highly centralized and increasingly bureaucratic forms of
absolute monarchial rule of the 17th and 18th centuries
• During this time, the features of a state included: a standing army / a central taxation
system / diplomatic relation / the development of a state economic policy
• Cultural and national homogenization figured prominently in the rise of the modern
state system
• The modern state is both separate from and connected to civil society
• During the 20th century, factors such as globalization, mobility of capital and people,
and the rise of international institutions, contributed to the circumscription (marking
the limits of) of state action
• The rise of the modern state system is related to developments in political thought
and theories that attempt to explain the politics of the state in practice. Other than
the 3 main theories/traditions listed below, other general theories of state include:
the Absolutist theory, the Constitutional theory, the Ethical theory, and the Class
theory
There are 3 main traditions (general theories of state) within political science that shaped
the concept of statehood:
1. The Marxist tradition o The state is regarded as the executive committee tasked
with managing the common affairs of the bourgeoisie (middle class)
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2. The Pluralist tradition o The state is regarded as a neutral arena for contending
interests.
o State action is the result of pressures applied by a variety of organized
interests as all groups in a particular society have the opportunity to
pressure the state.
3. The Institutionalist tradition o Politics are molded by certain institutions in a
particular society o A distinction between “strong states” and “weak states” are
made. The degree of relative autonomy of the state from other pressures in
society determines the power of the particular state
The following forms of state are linked to political theory and practice (political/economic
systems):
• Absolutism = power is vested in a monarch, dictator, or other ruler
• Capitalism = there is private ownership of the means of production and free
enterprise
• Communism = the advocacy of a classless society where private ownership is
abolished
• Extremism = there are excessive actions and opinions that are considered radical
• Fascism = single party dictatorship, which is intensely nationalist, racist, militarist,
imperialist
• Federalism = power is divided between one central and several regional govs
• Idealism = the pursuance of ideals where it is believed that the mind shapes the
world
• Legalism = strict adherence to the letter of law
• Liberalism = the belief in freedom of thought and free will
• Marxism = communism will ultimately replace capitalism and class struggle is the
agency of historical change
• Nationalism = an exaggerated devotion to a national identity where there are shared
symbols
• Nazism = the fascist and totalitarian ideology of the nationalist-socialist workers
party in Germany from 1933-1945
• Nepotism = those in power show favoritism to their relatives and close friends
• Racism = unfair treatment of people belonging to a certain race and the belief that
some races are better than others
• Popularism = politicians appeal to the interests and prejudices of ordinary people
• Paternalism = the gov manages the affairs of a country with the attitude of a fatherly
figure that usurps individual responsibility
• Patriotism = devotion to one’s country and the concern for its defense
• Positivism = investigation and observation are the only sources of substantial
knowledge
• Socialism = the means of production belong to the community collectively, usually
through the state, and distribution of income goes according to work rather than
need (more flexible than communism)
• Totalitarian = dictatorial one-party state, where the state regulates every realm of
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life
The concept of a nation-state
• *A nation state in essence is a state which aims to create/recognize homogeneity of
one culture and one ethnic unit. The citizens of a nation state will typically have very
similar characteristics in terms of race, religion, ethnicity, culture, and language
• General characteristics of nation states: NS regard their territory as semi-sacred and
non-transferrable / They also use the state as an instrument of national, economic,
social, and cultural unity / they have precisely defined borders by areas of
settlement / believes in the concept of “one nation, one state”
• *Nation states claim to absolute sovereignty within its borders has been much
criticized in terms of modern international law. State sovereignty is now regarded as
outdated and perceived as a barrier to achieving global peace and harmony.
• However, the reality is that all states consist of ethnic minority groups. This is the
biggest challenge to achieving “one nation, one state”. In the past, these minority
groups were persecuted, expelled, or exterminated in order to achieve only one
nation (racism, fascism)
• Examples of nation states: Egypt, japan, north and south korea, india, china, France,
England, Italy
• South Africa is not a nation state -> SA is very diverse with vast cultural, language,
ethnic, racial differences among its members.
• It is not constitutionally speaking acceptable to refer to south Africa as a nation
state. -> the constitution protects and recognizes the multi-culturalism that exists in
SA republic and the multiple ethnic, cultural, and linguistic groups. Since the consti
does this, SA cannot be labelled a nation state.
• National identity is not the same as a nation state. National identity is the idea that
we are all united by our diversity. In a nation state, the nation is united by a common
ethnicity, culture, descent, language.
*The difference between a sovereign state and a federated state
• Sovereign state o a political association with effective internal and external
sovereignty over a geographical area and population, which is neither dependent on,
not subject to, any other power or state
o Japan, Egypt, Italy
• Federated state o A territorial and constitutional community that together form part
of a federal union
o United states, Germany, Canada
• Difference: federated states differ from sovereign states in that they have
transferred a portion of the sovereign powers to a federal gov
Characteristics of legal rules
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• *Note. Generally, the law of a state consists of rules which prescribe the way in which
members of the community must conduct themselves. Constitutional law is part of
the law in general. The law in general is made up of legal rules (LR) which have
certain characteristics:
• LR apply only within the specific territory of a state (state, airspace, surrounding sea
water)
• LR normally apply to all people present within the territory of that state. There are
exceptions (such as diplomatic personnel)
• LR apply to both natural and legal/juristic persons. Legal persons are entities such as
church orgs and the state itself. Natural persons are designated to act as organs of
the state on the state’s behalf. These people and bodies are called “government
bodies”
• *The state enforces the rules of law and this power is known as “government
authority”. Gov authority is divided between 3 different gov branches/bodies:
legislative, executive, and judicial bodies. Legislative authority = the power to enact,
amend, or repeal LR. Executive authority = the power to execute and enforce the law.
Judicial authority = the power to determine the law and apply it in dispute situations.
There are also 3 spheres/levels of government: national, regional, local.
• If the LR are violated, then enforcement can be implemented. The state can
criminally prosecute the offender and/or impose certain penalties. In addition,
private individuals or legal entities can institute legal steps against each other or the
state. In a criminal case, the state is always a party. The state not only enforces the
law but is also subject to it.
• LR are created in different ways but usually in terms of common/customary law or
legislation
• *The aim of law is to regulate the relationship between people and between people
and the state. The LR and legal system must be equitable, legitimate, and accepted
by the people of the state. Not all matters are regulated by LR, only those areas
where friction or disputes occur should be regulated.
*The differences between private law and public law
PRIVATE LAW PUBLIC LAW
The aim is to protect the individual The aim is to protect the public interest and
sometimes also the individual (dual
purpose)
Regulates an equal relationship between Regulates an unequal relationship where
parties in a dispute the state is in a position of power *(the BoR
protects the individual in such instances)
The state does not have to be a party in the The state is always a party to the dispute
dispute
• *Constitutional law conforms to all 3 aspects of public law and it deals with the
composition and functioning of gov bodies and forms the foundation of the entire
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legal order. All law (common, customary, legislation) must comply with the
requirements of the constitution. Therefore, public law impacts on all other legal
domains.
The interaction between constitutional law (CL) and administrative law (AL)
• *AL = branch of public law that governs the actions and conduct of the state and
regulates the legal relationship of public authorities when interacting with other
public authorities or private individuals/institutions
• AL and CL are closely related and share some similarities: both are part of public law,
both are related to the manner in which a state functions and which gov authority is
exercised
• *AL differs from CL because it focuses on the executive branch that regulates
administration of state activity (administrative action). CL is more concerned with
the structure of the state, whereas AL is more concerned with giving practical effect
to the functions of the state
• Administrative action = the conduct of the state to fulfill its day-to-day functions and
responsibilities
The role/impact/importance of the constitution on administrative law
• Before the consti: even though the courts had the power to review the legality of
administrative conduct (judicial review), the SA parliament was free to determine
what conduct was regarded as lawful and what was not, based on the doctrine of
parliamentary sovereignty.
• The commencement of the new constitutional dispensation resulted in the shift
from parliamentary sovereignty to the supremacy of the constitution. this
revolutionized SA administrative law.
• Provisions relevant to AL: founding values in S1, BoR, powers of judicial review, S195,
chapter 9 institutions, S33 (S33 est. the foundation of AL), PAJA, PAIA, PEPUDA
• *Primary sources of AL = the constitution and PAJA (promotion of administrative
justice Act)
• *This means that all public power must be consistent with the consti, which includes
powers provided for in legislation such as PAJA
• The power of judicial review is no longer founded on the common law, now it is
entrenched in the consti
• *AL is linked with the principle of separation of powers (SoP) -> the doctrine
provides for the division of state power between 3 branches, and the activities of a
modern state/public administration involves all 3 of these branches
• Policy making lies primarily in the domain of highest-ranking political reps in the gov
(executive branch). Legislative organs then give effect to these policies by enacting
legislation. The judiciary then resolves any disputes relating to the meaning or effect
of such laws. The administration then implements and administers the policies of the
gov which have been translated into legislative format
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• Minister of health v New Clicks: the making of delegated legislation by executive
authorities is an important part of public administration. Such authority is not
contrary to the SoP principle
The interaction between constitutional and criminal law
• *Criminology is the field of social sciences that investigates why human beings
commit crimes
• Every society has identified forms of conduct that are unacceptable (crime).
Measures have been put in place to prevent people from committing crime.
Measures have also been put in place to punish those who have committed crimes
• *It is part of human nature to retaliate against those who have inflicted pain,
suffering, of injury on others. Private vengeance has many disadvantages, which is
why the system of private vengeance was developed to a system of state
administered retaliation/punishment. It is now the rule of law that no one may take
the law into their own hands
• *Criminal law = that branch of national law (public law) that establishes certain
forms of human conduct as crimes and determines what punishment must follow
such crimes for those persons with criminal capacity, who unlawfully and with a
guilty mind committed such crime.
• *3 benefits/objects of criminal law: o To preserve and promote individual autonomy
o To preserve and promote the welfare of society
o To maintain law and order and peace by furthering the fundamental rights
of the people in a particular state
• *The criminal justice system (CJS) is the administrative system of criminal law
involving various gov agencies (e.g. police, NPA, judicial systems/courts) to
prosecute, put on trial, and punish criminal offenders
• *The CJS entails: a specific act committed, complaint/charge, investigation, arrest,
trial, evidence and procedure, prosecution, defense (attorney/advocate),
verdict/conviction, sentence/punishment, correctional
service/rehabilitation/restorative justice
• *Crime is regarded as being perpetrated against the state. Therefore, the
prosecution of crime is conducted by and in the name of the state if it is in the public
interest to prosecute.
• Main sources of criminal law: legislation, common law, case law
Role/impact/importance of the constitution on criminal law
• The constitutions supremacy plays an important role within the overall CJS (criminal
law must comply with the consti)
• *Du Plessis v De klerk: the enforcement of criminal law has to be compatible with
the provisions and requirements of the SA consti, particularly the BoR
Impact of the consti on certain criminal law issues / specific criminal law issues
important for CL:
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1. Capital punishment o In S v Makwanyane, the CC declared the death penalty
unconstitutional, except in the cases of treason or war, as it was incompatible
with a variety of rights in the BoR
2. Corporal punishment o In S v Williams, the court declared that juvenile
whipping was an unconstitutional violation of S10 and S11 of the BoR
3. Freedom of expression o CC declared that S2(1) of the Indecent or Obscene
Photographic Matters Act, which prohibited the possession of indecent obscene
photos, was unconsti and invalid bc the infringement of the individual right to
personal privacy provided for in the BoR was unreasonable
o Freedom of expression is subject to the following forms of limitation ->
internal (S16(2)) and external (S36) limitation
4. The use of deadly force o the court held that S49 of the Criminal Procedure
Act was too broad and S49(2) was unconstitutional
5. The presumptions and onus of proof burdens o in S v Zuma, the court held
that not all statutory provisions which create presumptions in criminal cases
are invalid as being contrary to the
presumption of innocence because some circumstances require
presumptions in order to provide for the prosecution of certain crimes
6. Punishment/sentencing o in S v Vilakazi, it was decided that a proportionality
test was to be done in each particular case where the court must assess
whether the prescribed sentence was proportional to a particular offence.
Courts are also obligated to distinguish between the rights of juveniles and
adults as kids are more vulnerable
7. Sexual conduct o In S v Jordan, the court confirmed the constitutionality of the
criminality of prosecution
o In Phillips v DPP, the prohibition of public nudity on certain licensed
premises was struck down for being too widely formulated
o In S v M, the crime of bestiality was held to be a reasonable and justifiable
limitation of certain rights in the BoR
o In National coalition for gay and lesbian equality v minister of justice, the
common law crime of sodomy was held to be unconsti and invalid
8. The principle of strict liability o In S v Coetzee, it was held that people who are
not at fault should not be deprived of their freedom
o In S v De Blom, it was held that a bona fide and genuine ignorance or
mistake of the law could exclude subjective intent. However, in a criminal
case the ignorance would have to be reasonable to exclude liability
Criminal law and the constitutional principle of legality
• The principle of legality requires that punishment may only be inflicted for the
contravention of a clearly defined crime, created by law that was in force before the
contravention occurred
• Features of the principle of legality: it is a principle of the rule of law, and it is a
founding value of the consti
• *The principle of legality in criminal law has 5 elements:
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o Conduct must be accepted by the law as a crime (ius acceptum) o Crime
must be clearly defined with reasonable certainty (ius certum) o Crime must
be declared in advance (ius praevium)
o Court must interpret crime narrowly rather than broadly (ius strictum) o
Punishment for crime must be clear and determined in advance (nulla poena
sine lege) (related note: nullam criment sine poena = some punishment
must be affixed by law for the commission of an offence)
*Crimes committed against the state and the administration of justice
• The state is an important juristic entity and its structures and institutions need to be
protected. Criminal sanctions have been developed to prevent certain conduct that
is harmful to the state. Crimes such as treason and sedition are directed at
protecting the democratically elected gov by punishing those who unlawfully and
unconstitutionally want to overthrow the gov
1. Treason o Any overt act unlawfully committed by a person who has taken
sides to assist external enemies of a particular state to conquer the state or
promote unlawful internal revolutionary change in the gov
2. Sedition o The deployment of public opinion, against the existing gov and its
agencies, that is achieved by persons gathering unlawfully to protest or engage
in revolutionary action
• The judicial system of a state is a crucial element of a state. Crimes such as
obstructing the course of justice, contempt of court, perjury, and compounding have
been developed to ensure the respect and stability of the system of the
administration of justice
1. Defeating or obstructing the course of justice o Unlawfully committing an act
which is intended to or does defeat or obstruct the due administration of
justice
o E.g. persuade a witness to give false evidence, tampering with evidence,
falsely accusing someone, interfering with a police investigation
2. The contempt of court o Unlawfully and intentionally violating the dignity or
authority of a judicial body, or interfering in the administration of justice in a
matter pending before a court
o Examples of contempt in the face of court (facie curiae) include:
physically attacking or threatening judge/counsel/witness, smoking or
being drunk in court, misbehaving by shouting or signing, use of insulting
language towards judge, appearing seriously improperly dressed for court
o Examples of contempt outside of the court (ex facie curiae) include:
publishing prejudicial info in the media on matters that are still underway
in judicial proceedings, interfering with witnesses or judicial officers,
failure to attend court proceedings, disregarding summons
3. Perjury o Unlawfully and intentionally making an affirmation under oath,
before a competent tribunal, which the maker knows is false
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4. Compounding o Unlawfully and intentionally agreeing, for reward, not to
prosecute a crime which is punishable by means other than a fine
o E.g. person A refrains from prosecuting person B in consideration for
payment
The principle of comparative constitutional law
• *Comparative CL is the transplanting of constitutional norms and principles, that
have been borrowed from older and more established constitutional jurisdictions,
and incorporating them into modern constitutions
• The internationalization of CL through the implementation of the provisions of
international and regional human rights legal instruments, is an important factor
that contributed to the growth of comparative CL
• Comparative CL is effective in presenting universal principles that may act as
universal solutions to countries that face similar legal problems. As a result, many
constitutions have similar provisions
• *Comparative constitutional law/analysis is important for the interpretation and
development of SA CL as it allows constitutional revision, amendment,
improvement, and allows for the attainment of possible rewards from other legal
jurisdictions. In addition, constitutional transplants can influence future
constitutional design and development.
• *There are 2 main challenges that are encountered in relation to comparative CL: 1.
The different background and development of different societies (what is relevant in
one constitutional context may not be relevant in another)
2. Foreign legal systems are difficult to access because of language barriers
Constitutional comparison (cc) has both positive and negative consequences and must thus
be approached with necessary circumspection and care
NEGATIVE POSITIVE
cc has created the tendency for certain role Countries with less developed constitutional
players to use foreign authorities for jurisprudence are able to benefit from the
strategic political purposes experiences of countries with more
developed jurisprudence as the provision of
fundamental rights are universal in nature
Transplants of a system devoted to a cc is useful in terms of constitutional design
division and decentralization of powers or political assessment in relation between
(federations) have developed towards various institutional arrangements
dictatorships with full centralization of
power
• *The SA consti does allow for the application of comparative constitutional
jurisprudence and constitutional analysis.
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o The SA consti is a homegrown consti and the drafters borrowed aspects
from other constitutional systems (such as USA, Germany, india, Canada)
o The SA consti specifies that when interpreting the BoR, all courts,
tribunals, or forums must consider international law and may consider
foreign law. This shows that recognition and compliance with
international law is constitutionally entrenched, and the value of foreign
law and the value of comparative constitutional analysis is confirmed
• The value of comparative CL depends on how the SA consti is interpreted. S39
contains an interpretation clause pertaining to the interpretation of the BoR. S239
incorporates some definitions that apply to the interpretation of the consti as a
whole
The following case law highlights and confirms the application and value of comparative
constitutional interpretation and dispute resolution within the SA legal context:
• S v Zuma
o the CC compared and applied the view of the Canadian Supreme Court in the
case of R v Big M Drug Mart
• S v Makwanyane o The court held that comparative human rights jurisprudence will
be of great importance while SA develops its own indigenous jurisprudence
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