Chap 2

Question 1

What is a State?

Answer 1

It is a set of institutions that have the authority to make up & enforce the rules that govern the people of a certain state, and which possess internal & external sovereignty over a specific territory

Question 2

Name the core elements of a state

Answer 2

CDSai

• a community of people
• defined territory
• specific gov
• authority
• independence

Question 3

Is the state a juristic/legal person

Answer 3

Yes!

Question 4

How is the CL & the Const an idea of a social contract

Answer 4

A const is a set of legal rules & values of which people of a certain state have agreed to be governed by

Question 5

The difference between a state & gov

Answer 5

State

• Define
• it complies w the requirements of a state
• it is created by a group of people who have agreed to be governed by the institution they created

Gov

• steers the state Gubernatio
• how the higher political & executive seats are filled
• removing gov won’t remove state

Question 6

Diff between state & community

Answer 6

State-define remember

Community- the fellowship & social cohesiveness between people that share a certain identity or purpose

Question 7

Diff between state & society

Answer 7

State- remember
Society-the consensual reciprocal agreement between people for mutual benefit
These people act as partners& are equal

Question 8

Read analogy

Question 9

The 5 core features of a modern state

Question 10

Discuss a nation state

Answer 10

Nation-state seeks to protect, create, manange, and recognise a homogeneity of one cultural/ethnic group

High sense of homogeneity/ sovereignty

Similar characteristics in terms of race, language, religion, culture etc.

Question 11

What is the challenge/criticism of a nation state?

Answer 11

In reality, all states have ethnic minority groups

Places a barrier to achieving global peace & harmony

Question 12

Is SA a nation state?

Answer 12

No
In SA there are many cultures, languages, races, religions, and ethnic groups

The Const protects & recognises the multiculturalism of SA- sec 9 eg

Question 13

Differences between nation state & nation id

Answer 13

Nation-state- united because we have a common ethnicity, culture, race, language & descent

Nation ID- united in our diversity

Question 14

Discuss the characteristics of legal rules

Answer 14

Legal rules- prescribe how people of a specific territory should govern themselves

Characteristics are

1. Apply only in one specific territory
2. They apply to all the people present in that territory but there are exceptions
3. They apply to legal/juristic persons( enterprises) & natural persons(people)

Question 15

Discuss gov authority

Answer 15

Gov authority- the power to enforce legal rules, it is divided into 3 branches

Executive Authority- the power to execute and enforce the legal rules
Judicial Authority- the power to determine the law & apply it
Legislative authority- the power to create, repeal or amend these legal rules

Question 16

Aim of the law

Answer 16

Regulates the relationship between the state & the people(vertical) & the people(horizontal)

Question 17

Differentiate between private law & public law

Answer 17

Private law
Aim- protect the individual
Regulates an equal relationship where both parties involved in the dispute are protected
The state is not always party

Public Law
- dual aim, it protects public interest but sometimes also protects the individual
-regulates an unequal relationship as the state often has higher authority but the BoR protects the individual in such instances & separation of powers etc
The state is always party to a dispute( S v De Haan)

Question 18

Administrative Law

Answer 18

AL- A Branch of public law that governs the actions & conduct of the state
And regulates the legal relationship of public authorities when interacting with other public authorities or private individuals or institutions

Question 19

Discuss the similarities of AL & CL

Answer 19

They both form part of public law

They are both concerned w matters of state functions & how gov authority is exercised

Question 20

Discuss the differences between AL & CL

Answer 20

CL is concerned w the executive branch that regulates the administration of state activities
It is considered w the structure of the state

AL is concerned with practical effects to the functions of state

Question 21

Administrative action

Answer 21

The conduct of the state fulfilling its day-to-day functions & responsibilities

Question 22

Criminal law

Answer 22

Is a field of social sciences that investigate why people commit a crime
- a branch of public law that establishes certain human conduct as crimes, and it determines what punishment must follow those crimes for people w criminal capacity who unlawfully & we guilty mind committed a crime
Main sources: case law, legislation & common law

Question 23

Discuss the 3 +s of Criminal law

Answer 23

• it preserves & promotes individual autonomy
• it preserves & promotes the welfare of society
• it maintains law & order & peace by protecting the rights of the people w/in a state

Question 24

Discuss the CJS

Answer 24

Is the administrative system of criminal law which involves certain gov institutions( the police, NPA & courts) who prosecute, put on trial & punish criminal offenders

Read the steps of what it entails

Question 25

The principle of legality on Criminal Law

Answer 25

Is a principle of the RoL which is a founding provision of the Const -requires that punishment may only be inflicted on a clearly defined crime, established by law that was in force before crime occurred

Question 26

The elements of the principle of legality on a criminal law

Answer 26

1. The conduct must be accepted as a crime by the law (ius acceptum) 2. The conduct must be clearly defined & certain(ius certum) 3. The crime must be determined in advance(ius praevium) 4. The courts must interpret the crime narrowly instead of broadly(ius strictum) 5. The punishment must be clearly defined & determined in advance(nulla poena sine lege)

Question 27

Define comparative constitutional law

Answer 27

-the transplanting of constitutional norms & principles which have been borrowed from older & more established constitutional jurisdictions & incorporating them into modern Constitutions

Question 28

What contributed to the growth of comparative constitutionalism?

Answer 28

The Internationalization of Constitutional law

Question 29

Why is comparative constitutionalism nb for the development & interpretation of SA Const Law?

Answer 29

1. Constitutional revision, amendment & improvement & allows for possible future rewards from other legal jurisdictions. Also, it can influence future constitutional design & development

Question 30

What is the challenge of foreign laws for comparative Constitutionalism

Answer 30

1. There are language barriers 2. There are different backgrounds & developments led to the establishment of these laws which are not always applicable to us.

Question 31

Is Comparative Constitutionalism Constitutionally entrenched in SA?

Answer 31

Yes 1. Some drafters of the SA const borrowed certain constitutional aspects from other countries eg USA, Canada, Germany & India 2. The Const of SA states that when interpreting the BoR, all courts, tribunals & other forums MUST consider International law, while they MAY consider foreign law. This shows that the consideration/ incorporation of international law is constitutionally entrenched & as a result so is the value of foreign law aka Comparative Constitutionalism. Section 39(1)(b) of Const recognises the importance of international law& foreign law The value of foreign law is dependent on how the Const is interpreted Section 39- how the BoR is interpreted Section 239- interprets & defines the Const as a whole Cases that confirm this S v Zuma & S v Makwayane pg 25 Cram