limiting the power of government in that it imposes structural and
procedural limitations on power.
Secondly, particularly through the
Bill of Rights, it limits the exercise of such power.
14. Thus the point emphasised in the above case 1s the concept that
constitutionalism demands that any law or conduct that is not in
accordance with the Constitution for procedural or substantive factors
will be held invalid. See also State v Makwanyane 1995 (3) SA 391.
15. That is why the most important power that the Constitutional Court
has is that of judicial review that is to say the power to overturn
legislation or administrative executive actions on the basis that they are
in fact unconstitutional.
16.
The
second
constituent component of the
supremacy of the
Constitution is clearly the doctrine of the rule of law in the wide sense
propounded by Dicey.
17. The Dicey concept of the rule of law requires that the same is to
protect individual by requiring the State to act in accordance with clear
and general rules that are enforced by the impartial courts in
accordance with fair procedures. 1
18.
In South Africa, the Constitutional Court have accepted the concept of
the rule of law by simply holding that the State's conduct must be
rationally related to government purposes.
The leading case on the
subject matter is clearly the case of Pharmaceutical Manufactures
Association of Sout/1 Africa: In re ex parte President of Republic of
South Africa 2000 (2) SA 674 (CC);
19.
1
At paragraph 50 the Constitutional Court stated as follows:~
AV Dicey: An Introduction to the Study of Law of the Constitution 101h Edition (1959}.
Page 5 of 46
Applicant's Heads of Argument in the matter between:
Love ness Mudzuru & Another v Minister of Justice Legal & Parliamentary Affairs & 2 Others
Case Number CCZ 79/2014
Prepared by Tendai Biti Law