Study Set Content:
1- Flashcard
  1. The Supreme Constitution is...
  1. Value-laden
  2. Open Ended
  3. Has the goal of longevity
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2- Flashcard

2: What does Value-laden mean?

Value-laden means presupposing the acceptance of a particular set of values, and involves subjective moral evaluations.

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3- Flashcard

3: The Supreme Constitution is the _______ of the South African Legal System?

Lex Fundamentalis (Fundamental Law)

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4- Flashcard

4: What is Constitutional Supremacy?

  1. The C is the lex fundamentalis
  2. 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.
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5- Flashcard

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.

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6- Flashcard

6: Constitutional Interpretation involves...

An analysis of the written constitutional text to determine meaning.

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7- Flashcard

7: Constitutional Interpretation goes further than...

Any other Legal Interpretation

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8- Flashcard

8: The Constitutional Interpretation does 3 things?

  1. Wards off unconstitutional action.
  2. Halts the abuse of power.
  3. Provides redress for the adverse consequences of unconstitutional conduct.
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9- Flashcard

9: Constitutional Interpretation also gives content to...

The values that underlie and pervade a democratic, constitutional state (rechtstaat)

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10- Flashcard

10: The final Constitution is not...

An act of Parliament

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11- Flashcard

11: There is a complex relationship between...

Constitutional Intepretation and Ordinary Statutory Interpretation, they are interrelated but also separate

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12- Flashcard

12: Who interpretes the constitution?

  1. Constitution-makers
  2. Courts
  3. Legaslative and executive organs of state
  4. Citizens
  5. Other non-state organs, empowered and obliged by the Constitution.
  6. Legal-Scholars
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13- Flashcard

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

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14- Flashcard

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.

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15- Flashcard

16: R v Big M Drug Mart gives guidelines on how the purpose is interpreted

  1. The nature and larger objects of the Bill of Rights;
  2. The language used to articulate the specific provision
  3. The historical origins of the provision or the concept to be interpreted;
  4. The meaning and the purpose of the other rights associated with the right in question.
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16- Flashcard

17: Historical interpretation includes...

Using the historical context of the Constitution.

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17- Flashcard

18: Historical context includes factors such as...

  1. The circumstances which gave rise to the adoption of the constitution
  2. Preceding discussions and negotiations
  3. The ‘original intent’ of the drafters of the constitutional text or those that ratified it
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18- Flashcard

19: Generous Interpretation

A generous or liberal approach seeks to optimise safeguards against interference with constitutionally entrenched rights. Not forgetting the limitation clause.

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19- Flashcard

20: Comparative Interpretation

 Courts examine the interpretation of similar legislation by foreign courts, as well as international law.

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20- Flashcard

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.

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