Constitutional Law A

2024

1 Introduction
1.1 Overview
Constitutional Law A is a compulsory semester course for LLBU 2 students. It is
further one of the four component courses of Legal Theory 2, a major subject in the
Faculties of Humanities, Science and Commerce.

Students will be introduced to key concepts of constitutional law and to the Constitution
of the Republic of South Africa, 1996. The consideration of key constitutional concepts
will provide students with the necessary knowledge skills to identify these concepts in
the South African constitutional framework, as well as the ability to compare the South
African constitutional framework with other major constitutional frameworks.

This course is designed to familiarise students with constitutional concepts and their
application in the South African context, in relation to theory and practical application.
It is intended to equip students with the necessary knowledge and analytical skills to
refine their knowledge in further courses.

1.2 Credit value and NQF level

10 credits which translate to 100 notional hours to be spent on this course. The course
is offered at NQF level 7.

NQF level 7 requires students to demonstrate integrated knowledge of the field of

constitutional law, and the ability to apply and evaluate the key concepts, theories,
principles and rules of the field. Students are further expected to demonstrate an
understanding of contestations in the field, apply the methods in the field in context,
solve unfamiliar by identifying, analysing, evaluating and critically reflecting on
complex problems. Additionally students are expected to produce and communicate
information in the form of well-formed arguments based on validated sources and
express an own opinion.

Students must be able to manage their own learning and take responsibility for their
own learning in an independent manner, and must also be able to work with other
students
2 Outcomes
At the end of this course, students should be able to identify and explain the meaning
and content of key constitutional law concepts and relate these concepts to major
constitutional models and pertinently to South African constitutional law. Students are
required to demonstrate insight and understanding to the application of the identified
concepts with in the South African context with reference to case law.

3 Teaching methods
This course requires intensive reading and students are expected to read
judgments, articles and other prescribed material on their own.

Lectures will be presented in the allocated slots in accordance with the lecture
schedule available on RUConnected. Lectures will be interactive and students are
required to participate in class discussions.

Students are expected to take responsibility for their learning by independent

study according to the guidance provided by the detailed course outline and in
lectures.

Legal Theory 2 has a tutorial programme. Details regarding the programme will be
supplied in due course. Materials discussed during tutorials form part of the course
material and are examinable.

4 Course content

Term 1
The focus in term 1 is on acquiring knowledge and understanding the field of
constitutional law.

Constitutions and Constitutional Law

● Codified and uncodified constitutions
o The South African Constitution

Sources of Constitutional Law

● Why do we consider the sources of law?
● What are the sources of law and constitutional law specifically?
● What is the relevance of each of the sources for SA constitutional law?

The South African Constitution in historical context

Key Constitutional Concepts

● Constitutionalism
o Models of constitutionalism (the American, Westminster and German
models)
● Constitutionalism in South Africa and transformative constitutionalism
● Democracy
o Representative democracy
o Participatory democracy
 o Constitutional democracy
● Separation of powers
o The purpose of separation of powers
o Composition and functions of the legislature, executive and judiciary
under the Constitution
o Constitutional supremacy and parliamentary sovereignty
o Judicial review and the counter-majoritarian dilemma
● The rule of law
o Theories of the rule of law
o Key judgments on the rule of law
● Human rights as constraints on the exercise of governmental power
● Presidential and parliamentary constitutions
o The SA hybrid
● Unitary and federal division of power
o Co-operative governance under the Constitution

Term 2

The focus in term 2 is on acquiring knowledge and gaining understanding of case law
illustrating the application of constitutional concepts in relation to judicial review of
different aspects of the powers and functions of the national legislature, national
executive and the judiciary.
In addition, the course considers the notion of cooperative government more
pertinently with a view to understand how multi-level government works as provided
for in the Constitution through a consideration of legislation and court decisions.

5 Resources
The prescribed textbook for the first semester is:

De Vos and Freedman (eds) South African Constitutional Law in Context 2nd ed (2021)
OUP: Cape Town.

The book is available as an ebook in the library. Hard copies are available on short
loan in the law library and in the main library. The listed readings from this book
and from other prescribed materials form the core readings for the course and
the texts are to be considered conjunctively. References in the reading list are to
the surnames to the authors.

Other books available on short loan which may aid your understanding of constitutional
law concepts are:

Devenish The South African Constitution (2005)

Rautenbach and Malherbe Constitutional Law 7th ed (2018)

Boulle, Harris and Hoexter Constitutional and Administrative Law (1989)

Carpenter Introduction to South African Constitutional Law (1987)

De Smith and Brazier Constitutional and Administrative Law 6ed, 7ed and 8ed (1989),
(1994) and (1998)

Baxter Administrative Law Cape Town (1984)

De Waal, Currie and Erasmus The Bill of Rights Handbook 6 ed (2013)

Woolman and Bishop Constitutional Law of South Africa available at

https://constitutionallawofsouthafrica.co.za/

Journal articles referred to in course outline.

Court judgments referred to in course outline and recordings.

Materials on RUConnected

6 Student assessment
All students are required to do the work of the class. Failure to do so will result
in the removal of your DP certificate.

Class assessment counts 40% of your final mark. The work of the class comprises
one written assignment of 1500 words (counting 20% towards your final mark), a test
(counting 10% towards your final mark) and tutorial assignment (counting 10%
towards your final mark). Feedback will be provided on these tasks. Students are
also encouraged to raise questions regarding the course content throughout the
semester. In addition, students are required to complete and submit one formative
tutorial task and attend tutorials as scheduled.

At the end of the semester there is one summative assessment exercise in the form
of a 2-hour exam. The exam mark obtained counts 60% towards the final mark. In
preparing for the exam students have to pay heed to the assessment criteria for the
intended specific outcomes. These are presented in table form:

Intended specific Assessment criteria

outcomes Students will provide evidence that
On successful completion of this they can:
course the students will be able to:
Identify, list and explain the ● Name the sources of
significance of the different sources of constitutional law;
constitutional law ● Provide a description of each
source and its background and
relevance;
● Indicate the importance of
particular sources for South
African constitutional law
against the background of the
history of the South African
Constitution.
Outline and discuss the historical ● Understand the historical
development of constitutional law in context within which the
South Africa with specific reference to Constitution came into being;
the era of constitutional democracy. ● Explain the key events and
their significance in the process
of drafting the Constitution.
● Critique the process of
constitution-making.
Explain the content and significance ● Integrate information regarding
of key constitutional law concepts and constitutional concepts
relate these concepts to major extracted from court
constitutional models judgments;
● Relate different constitutional
concepts to different
constitutional models;
● Show in what ways the
selected constitutional models
have impacted on the South
African Constitution
● Solve constitutional law
problems by application of
constitutional concepts with
reference to authority
Classify the South African ● Explain the selected modes of
Constitution in terms of the modes of classification:
classification identified - Codified and uncodified
constitutions;
- Rigid and flexible constitutions;
- Presidential and parliamentary
constitutions;
- Unitary and federal
constitutions;
● Relate the SA Constitution to
these modes of classification.
Know and explain the composition ● Know, understand and explain
and functions of the elected branches the different roles and functions
of state in the national sphere, as well of the key branches of state
as that of the judiciary. and the constitutional
underpinnings of their roles.
Understand and explain application of ● Know, understand and explain,
the doctrine of separation of powers with reference to constitutional
in the South African context provisions and precedent, the
extent and limitation of the
power of judicial review,
stemming from constitutional
supremacy within the
framework of separation of
powers. Give advice in
hypothetical matters involving
 the separation of powers with
reference to authority
Know and explain the purpose and ● Know, understand and explain,
functioning of multi-level government with reference to constitutional
in South Africa. provisions and precedent what
the notion of co-operative
government entails; how the
Constitution allocates original
legislative and executive
powers to the provincial and
local spheres of government,
and how conflicts of law
stemming from the exercise of
powers by the different spheres
of government are resolved.

7 Evaluation
This course will be reviewed and updated by the lecturer on an annual basis.
Evaluation of the course will take place in accordance with the evaluation cycle set up
by the Faculty. This means that the course will be evaluated at least once in every
three years. Evaluation will take place at the end of the first term to enable the lecturer
to provide feedback to the students on the evaluation and to address any complaints.
Students are invited to discuss their difficulties and problems with this course either
personally or through their student representative with the lecturer.

R KRüGER
January 2024