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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uj/uj:6748 |
| Date | 08 April 2010 |
| Creators | Van Eck, Michele M. |
| Source Sets | South African National ETD Portal |
| Detected Language | English |
| Type | Thesis |
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