Study Set Content:
- The Supreme Constitution is...
- Value-laden
- Open Ended
- Has the goal of longevity
2: What does Value-laden mean?
Value-laden means presupposing the acceptance of a particular set of values, and involves subjective moral evaluations.
3: The Supreme Constitution is the _______ of the South African Legal System?
Lex Fundamentalis (Fundamental Law)
4: What is Constitutional Supremacy?
- The C is the lex fundamentalis
- The idea of CS is that no rule or law may be inconsistent with a constitutional rule, the offending rule will be declared invalid to the extent that it contradicts a constitutional rule.
5: For a law or conduct to be valid, it must...
Conform to the prescripts of the Constitution as it is the ultimate authority for law-making and lawful conduct.
6: Constitutional Interpretation involves...
An analysis of the written constitutional text to determine meaning.
7: Constitutional Interpretation goes further than...
Any other Legal Interpretation
8: The Constitutional Interpretation does 3 things?
- Wards off unconstitutional action.
- Halts the abuse of power.
- Provides redress for the adverse consequences of unconstitutional conduct.
9: Constitutional Interpretation also gives content to...
The values that underlie and pervade a democratic, constitutional state (rechtstaat)
10: The final Constitution is not...
An act of Parliament
11: There is a complex relationship between...
Constitutional Intepretation and Ordinary Statutory Interpretation, they are interrelated but also separate
12: Who interpretes the constitution?
- Constitution-makers
- Courts
- Legaslative and executive organs of state
- Citizens
- Other non-state organs, empowered and obliged by the Constitution.
- Legal-Scholars
14: S v Makwanyane 1995 (3) SA 391 (CC) [paras 9-10]
The court deals with the approach to be adopted in the interpretation of the Fundamental Rights
15: What is purposive interpretation?
S v Makwanyane and S v Zuma 1995 held that when the Constitution is being interpreted the purpose of the C is the prevailing factor.
16: R v Big M Drug Mart gives guidelines on how the purpose is interpreted
- The nature and larger objects of the Bill of Rights;
- The language used to articulate the specific provision
- The historical origins of the provision or the concept to be interpreted;
- The meaning and the purpose of the other rights associated with the right in question.
17: Historical interpretation includes...
Using the historical context of the Constitution.
18: Historical context includes factors such as...
- The circumstances which gave rise to the adoption of the constitution
- Preceding discussions and negotiations
- The ‘original intent’ of the drafters of the constitutional text or those that ratified it
19: Generous Interpretation
A generous or liberal approach seeks to optimise safeguards against interference with constitutionally entrenched rights. Not forgetting the limitation clause.
20: Comparative Interpretation
Courts examine the interpretation of similar legislation by foreign courts, as well as international law.
21: Comparative Interpretation refers to
The process prescribed by section 39(1)(c ) of the constitution during which the court examines international human rights law and the constitutional decisions of foreign courts.
