Abstract
LL.M.
This study seeks to investigate the extent to which the state fails to
comply with its constitutional and legal duties, and the impact of this
failure on democracy. The study determines the effect of such failure
and assesses the effectiveness of existing compliance mechanisms in
ensuring the state fulfills its constitutional and legal duties.
The duties imposed on the state must be complied with to ensure the
legitimacy of the Constitution remains intact. State compliance with
these duties forms an essential foundation of the Constitution.
It is accepted in this study that the manner in and extent to which the
state fails to comply with its duties impacts the status of the
Constitution and the development of democracy in South Africa.
There are two ways in which the state may fail to comply with its
duties:
1. The first instance is where the state bona fide misinterprets
legislation.
2. The second instance is where the state negligently ignores its
duties or wilfully disregards its duties or takes on “imagined
powers”.
This study concerns itself with this second instance of non-compliance.
The question not only concerns the extent of state non-compliance
with its duties. The question also becomes, what are the ramifications
if the state does not comply with its duties? What would be the
consequences if the state wilfully, with mala fide intent or by the use
of “imagined powers” neglects or ignores its duties? What would be the
effect on the development and sustainability of democracy in South
Africa? What are the existing compliance mechanisms and are they
effective enough to ensure state compliance with its duties?
The study endeavours to explore these questions. The study looks at a
series of court cases illustrating the extent to which the state has so
far failed to act in compliance with its duties. The study attempts to
determine whether such non-compliance was merely a mistake or
whether the state acted with some form of wilfulness or neglect. The
study looks at the existing mechanisms and watchdogs that ensure
state compliance with the Constitution and briefly examines whether
they are effective. Other possible mechanisms that may strengthen
control over state compliance are also considered.
The study first looks at the duties of the state and the existing control
mechanisms. Then a selection of cases are analysed to determine in
what manner and to what extent the state is failing to comply with its
constitutional duties. The study then assesses the current control
mechanisms to determine whether they are effective in enforcing state
compliance with its duties. Lastly, the study examines other
possibilities and alternative mechanisms that may be introduced to
secure state compliance.