Transformative Constitutionalism
True or False: Transformative constitutionalism aims only for formal equality, treating everyone the same regardless of their past disadvantages.
False
True or False: Third-generation rights are often associated with collective or group rights, such as the right to a clean environment.
True
Provide an example of an African customary law practice that is now formally recognized in South African legislation.
Lobola, the customary practice of the groom's family paying wealth to the bride's family, is recognized as a requirement for a valid customary marriage under the Recognition of Customary Marriages Act.
True or False: African customary law is only recognized in South Africa if it is written down.
False
In simple terms, what is the difference between "formal equality" and the "substantive equality" promoted by transformative constitutionalism?
Formal equality means treating everyone the same, while substantive equality recognizes that due to past disadvantages, some people may need positive measures and different treatment to achieve a truly equal outcome.
The three generations of rights are often color-coded as Blue (First), Red (Second), and _____ (Third).
Green
How does case law come into existence?
Case law arises when a legal dispute is brought before a court. The court must establish the facts, determine if a party's rights have been violated, and decide on an appropriate remedy. The written judgment from this process becomes case law.
What is the historical foundation of South African common law?
Roman-Dutch law, which has been significantly influenced by English law over time.
Describe the main goal of transformative constitutionalism.
Its goal is to use the Constitution as a tool for social, political, and economic change to redress past injustices (like apartheid), dismantle inequality, and build a society based on human dignity, equality, and freedom.
Describe the focus of second-generation rights.
Second-generation rights focus on socio-economic rights, such as the right to access housing, healthcare, food, water, and education, which require the state to take active steps to provide for its citizens.
Briefly explain the difference between a primary and a secondary source of law.
A primary source of law is an authoritative and binding origin of legal rules (like the Constitution, legislation, or case law). A secondary source is not binding itself but is used to interpret and understand the primary sources (like textbooks or academic journals)
Who are the recognized legislative authorities that create legislation in South Africa?
Parliament (for national legislation), provincial legislatures (for provincial statutes), and municipal councils (for local by-laws).
How does transformative constitutionalism require the judiciary to act?
It requires the judiciary to interpret and apply the law in ways that support transformation, such as upholding socio-economic rights and challenging discriminatory practices, to ensure the Constitution's values are reflected in real life.
What is the defining characteristic of third-generation rights?
They are often described as "green rights" and are collective or group-oriented rights, focusing on broader societal issues like the right to a clean environment, peace, or development.
Name one of the four requirements, established in Van Breda v Jacobs, that a custom must meet to be recognized as a legal rule.
The custom must: 1) Have existed for a long time, 2) Be generally observed by the community, 3) Be reasonable, and 4) Have clear and certain content.
What is the core principle behind the doctrine of stare decisis?
The core principle is that courts must stand by previous decisions. When a court hears a case, it should take into account and follow previous judgments in similar cases to ensure consistency, predictability, and fairness in the law.