Chapter 1: – Introduction to Constitutional Law Theory Nature and Position of the Separation of Powers Doctrine in South Africa Constitutional jurisprudence remains a highly controversial issue. Despite the famous fact that the South African Constitutional Court was more interventionist than in many comparative jurisdictions, the Court did not always take a progressive approach in this regard. The recent case of National Treasury and Others v. Opposition to Urban Tolling Alliance and others, regarding the legality of a controversial government decision to impose toll roads in Gauteng, can be described as particularly conservative in its approach to the separation of powers. In this case, the Constitutional Court contradicted its own earlier formulation and articulation concerning the place of the doctrine of separation of powers in South Africa. It is argued that the South African model of separation of powers, as agreed by constitutional negotiators, politicians, judges and academics, allows for more interference in the executive branch than the Court has recognized in this case. A review of comparative jurisprudence shows that the doctrine of separation of powers does not preclude courts from ruling on the legality of matters relating to the allocation of resources to the executive. It is further argued that the electronic toll case has profound implications for human rights issues and that the Court did not rule on the constitutionality of the electronic toll system, since these legal issues have never been raised before the courts or by the courts. We submit that, given the significant impact of the case on the lives of South African commuters, it is regrettable that the Court was unable to seize the opportunity to render a more comprehensive decision. In short, the decision does not do justice to the impact and importance of electronic tolling. Article 1 of the Constitution states that South Africa is a republic based on the value of constitutional supremacy. Article 2 of the Constitution provides that the Constitution is «the supreme law of the Republic; the law or the conduct which is incompatible with it is void and the obligations it imposes must be fulfilled». The rules of the Constitution therefore prevail over all other rules contained in statutes, the common law and the common law.

Any rule incompatible with a constitutional norm is invalid. Any conduct contrary to the Constitution, including non-compliance with an obligation imposed by the Constitution, is also invalid. The rule of law and the review of legality are issues that are comprehensively addressed in administrative law. However, the rule of law plays an important role in constitutional analysis. In this regard, it is important to understand what the rule of law implies in the South African context. Chapter 16: – State Institutions at the Service of Constitutional Democracy For example, the Physicians for Life case concerned the constitutionality of Bill 38 of 2004 amending the abortion election [1]. The law gave women the right to terminate a pregnancy. The Constitutional Court declared the bill unconstitutional, not because the legalization of abortion violated the right to life enshrined in the Bill of Rights, but because, by passing the law, Parliament had failed in its constitutional duty to take reasonable steps to ensure public participation in the legislative process.

The law is unconstitutional not for a legal reason, but because it does not fulfill its constitutional duty. As explained at the beginning of this chapter, constitutional law is divided into two main parts: the separation of powers and the Bill of Rights. The book reflects this division. Finally, it should be noted that constitutional primacy does not mean that Parliament can never amend the Constitution. As we will see later in the book, the Constitution imposes various requirements to amend various articles of the Constitution [7]. Constitutional primacy only means that all laws and conduct must be consistent with the Constitution, including amending the Constitution. Chapter 10 introduces the Bill of Rights. The chapter begins with an introduction to the Bill of Rights and some general principles of the Bill of Rights. The following six chapters deal with specific rights or groups of rights in the Bill of Rights.

Chapter 3: – Key Constitutional Principles and Concepts Constitutional commentaries and curricula therefore focus separately on the Bill of Rights and the separation of powers. This work roughly follows this structure. However, there is an overlap between these two branches of constitutional law, and this overlap is highlighted in this book where relevant. The transformative objectives of the South African Constitution and the means by which the Constitution seeks to transform itself have often been referred to as «transformative constitutionalism». Transformative constitutionalism often involves the defence of justiciable socio-economic rights and substantive equality. He also advocates a form of legal reasoning that is aware of the interaction between morality and law.