BASIC FEATURES OF THE NEW CONSTITUTIONAL ORDER – PART 1References:The New Constitutional & Administrative Law, Volume 1, Iain Currie and Johan de Waal,pages 72 – 124.1.Constitutional Supremacy:Constitutional supremacy means that the rules of the Constitution are binding on allbranches of the state and have priority over any rules made by the legislature. Thus anylaw or conduct which does not comply with the Constitution is invalid and does not havethe force of law.Sec 2 of the 1996 Constitution gives expression to the supremacy of the Constitution byproviding that the Constitution is the supreme law and that law or conduct which isinconsistent with the Constitution is therefore invalid.Sec 8 of the 1996 Constitution provides that the Bill of Rights has supremacy over allforms of law and that the bill of rights binds all branches of the state and individuals.For a Constitution to be supreme, the judiciary must have the power to enforce ittherefore section 172 of the Constitution provides that a court which has jurisdiction mustdeclare any law or conduct which is inconsistent with the Constitution as being invalid tothe extent of its inconsistency. Section 165 of the 1996 Constitution provides that anyorder or decision of a court is binding on all persons and organs of state to which itapplies.Important to note is that the Constitution is not only enforced by the Judiciary, there areother democratic ways for example: citizens can lobby the government to give effect totheir rights and also the Constitution makes provision for the establishment of Chapter 9institutions such as the SA Human Rights Commission, the Gender Commission and soon. These institutions are created with the purpose of ensuring that the provisions of theConstitutions are complied with.2.Rule of Law:One of the fundamental ideals of constitutionalism is that state power should begoverned and constrained by the Constitution. This principle is provided for by theentrenchment of the rule of law in sec 1 of the 1996 Constitution.Albert Dicey described the rule of law into three principles:Firstly, the absolute supremacy of law as opposed to arbitrary power. This meantthat a person could not be punished without there being a breach of the law.Secondly, equality before the law. Everyone should be subject to the same laws andjurisdiction of the ordinary courts.Thirdly, the Constitution was the result of the ordinary law of the land. This impliedthat rights such as the personal liberty and the freedom of speech arose from thecommon law and not the bill or rights.2.1Constitutional Court Application of the Rule of Law:1
The following cases relate to the application of rule of law dealt with by the ConstitutionalCourt.