Judiciary

Question 1

What was the composition of the judiciary during apartheid?

Answer 1

Mostly white and male, enforcing apartheid laws and policies.

The judiciary had limited powers of judicial review in the context of parliamentary sovereignty.

Question 2

What significant change occurred in the judiciary after 1994?

Answer 2

Transition from parliamentary sovereignty to constitutional supremacy.

This allows courts to declare laws or actions inconsistent with the Constitution invalid.

Question 3

What section of the Constitution extends the powers of judicial review?

Answer 3

Section 172.

It allows courts to declare laws or conduct inconsistent with the Constitution invalid.

Question 4

What is the role of the Judicial Service Commission (JSC) in judicial appointments?

Answer 4

Establishes a new appointment process for judges to promote inclusion of women and Black people.

This is outlined in Section 178 of the Constitution.

Question 5

What is the definition of Judicial Authority?

Answer 5

The power vested in courts to make orders, uphold the Constitution, and hold government branches accountable.

Defined in Section 165 of the Constitution.

Question 6

True or False: Judicial independence means judges are immune to political influences.

Answer 6

True.

Judicial independence ensures courts apply the law impartially without fear or favor.

Question 7

What is a limitation on transformative constitutionalism according to Karl Klare?

Answer 7

A progressive legal culture is necessary for long-term success.

Klare suggests that without a supportive legal culture, transformative constitutionalism may not succeed.

Question 8

What does the term ‘Judicial Overreach’ refer to?

Answer 8

When courts exceed their authority and interfere in the roles of other branches of government.

Identifying judicial overreach requires understanding the boundaries of judicial authority.

Question 9

Fill in the blank: The judiciary must act without ______, ______, or ______.

Answer 9

fear, favour, or prejudice.

This principle is essential for maintaining judicial independence.

Question 10

What is the Counter-Majoritarian Dilemma?

Answer 10

Judges can rule against decisions made by elected representatives, raising questions about democratic legitimacy.

This dilemma highlights the tension between judicial authority and democratic accountability.

Question 11

Which case exemplifies the judiciary’s role in policy-making?

Answer 11

Minister of Health and Others v Treatment Action Campaign (TAC).

This case illustrates the courts’ ability to impact policy while respecting separation of powers.

Question 12

What does Section 167(4)(e) of the Constitution state regarding exclusive jurisdiction?

Answer 12

Only the Constitutional Court may decide if Parliament or the President has failed to fulfill a constitutional obligation.

This section emphasizes the unique role of the Constitutional Court in constitutional matters.

Question 13

True or False: South Africa has a political questions doctrine.

Answer 13

False.

The political questions doctrine was rejected, allowing courts to adjudicate cases with political implications.

Question 14

What did Judge Zondo criticize in his remarks about Lindiwe Sisulu’s attack?

Answer 14

He claimed it was an unwarranted attack on the African judiciary, potentially breaching Section 165(4).

This section mandates state organs to assist in maintaining judicial independence.

Question 15

In the Mwelase case, what was the primary issue regarding the appointment of a Special Master?

Answer 15

Whether the Land Claims Court overreached its powers by appointing a Special Master to assist with implementation.

The case highlighted the balance between judicial authority and the functions of the executive.

Question 16

What is the importance of preventing judicial overreach?

Answer 16

To maintain legitimacy and moral authority of the judiciary, as it lacks direct democratic accountability.

Without checks, the judiciary risks losing its authority and public trust.

Question 17

What is the main goal of the different branches of government according to Cameron J?

Answer 17

To fulfill the Constitution’s vision of justice, dignity, and equality.

This perspective promotes collaboration among branches rather than strict separation.

Question 18

What is the purpose of the Bill of Rights in relation to state policy?

Answer 18

To ensure that state policy respects and fulfills constitutional rights.

Courts must evaluate whether policies align with constitutional obligations.

Question 19

What is judicial independence?

Answer 19

The concept that courts should not be subject to improper influence from other branches of government or from private or partisan interests

Important for the proper functioning of a State based on democratic values.

Question 20

Which sections of the Constitution ensure the independence of courts?

Answer 20

Section 165(2) and Section 165(3)

Section 165(2) states that courts are independent and subject only to the Constitution and law, while Section 165(3) prohibits interference with court functions.

Question 21

What are the two components of judicial independence?

Answer 21

• Independence of individual judges/personal independence
• Structural/functional independence of the Judiciary

Question 22

Why is impartiality important for judges?

Answer 22

Judges must be fair and treat everyone equally, as required by the rule of law

If this is not done, section 1(c) of the Constitution would be violated.

Question 23

What is the presumption regarding judicial officers?

Answer 23

There is a common law presumption that judges are not biased

This presumption must be rebutted for a judge to recuse themselves.

Question 24

What is the Reasonable Apprehension of Bias test?

Answer 24

Whether a reasonable person, with all relevant facts, would have a reasonable apprehension of bias

It has a high threshold and is difficult to meet.

Question 25

What must be shown to prove a judge's bias?

Answer 25

A connection between the judge's views and the subject matter of the case ## Footnote It is not enough to simply state a judge has a certain political view.

Question 26

What does the test for recusal assess?

Answer 26

Whether a reasonable litigant would have a reasonable apprehension that the judge is biased ## Footnote It is based on reasonable grounds.

Question 27

What is security of tenure for judges?

Answer 27

Judges cannot be dismissed for unpopular decisions or promised future appointments ## Footnote Secured through fixed term appointments or age of retirement.

Question 28

What does Section 176 of the Constitution state about judges?

Answer 28

Judges have a non-renewable term of 12 years or until age 70 ## Footnote Difficult to remove judges as it requires a procedure involving the Judicial Service Commission and National Assembly.

Question 29

What is the role of the Chief Justice in the judiciary?

Answer 29

The Chief Justice is responsible for the administration of the judiciary ## Footnote This includes establishing norms and standards for judicial functions.

Question 30

What does the Judicial Oath require from judges?

Answer 30

Judges must be faithful to the Republic, uphold the Constitution, and administer justice without fear, favour, or prejudice ## Footnote As stated in Schedule 2: 6(1).

Question 31

What protections do judges have against civil liability?

Answer 31

Judges are protected from civil claims unless they acted with malice ## Footnote This is to prevent endless litigation that could impair impartiality.

Question 32

What is the significance of the Van Rooyen case?

Answer 32

It challenged the constitutionality of legislation affecting the independence of magistrates' courts ## Footnote The court affirmed that all judges and judicial officers are bound by Section 165(2).

Question 33

What is the objective test for judicial independence?

Answer 33

Whether a reasonable and informed person would perceive that the judge or court enjoys the essential conditions of independence ## Footnote This perception is crucial for public confidence in the justice system.

Question 34

What is the relationship between higher courts and lower courts regarding independence?

Answer 34

Higher courts should have more judicial independence than lower courts ## Footnote This is due to the greater protection afforded to higher courts.

Question 35

What does a lack of independence in magistrates' courts imply?

Answer 35

It suggests that the executive's involvement in the appointment of magistrates undermines judicial independence ## Footnote This was a core issue in the Van Rooyen case.

Question 36

What is required for a judge to act impartially?

Answer 36

Judges must act without fear, favour, or prejudice ## Footnote This is part of the broader requirement for judicial independence.

Question 37

What is the ultimate finding regarding the independence of the courts?

Answer 37

The courts were institutionally independent. ## Footnote This conclusion was drawn despite the presence of the executive.

Question 38

What argument did the court reject regarding magistrates' judicial independence?

Answer 38

The argument that magistrates have no judicial independence due to the composition of the Magistrates Commission. ## Footnote The court affirmed that magistrates maintain judicial independence.

Question 39

What is the composition of the Magistrates Commission compared to the Judicial Service Commission?

Answer 39

The composition of the Magistrates Commission is similar to that of the JSC, maintaining the same political balance.

Question 40

What does the Constitution provide regarding the appointment and impeachment of judges?

Answer 40

It sets standards for the higher judiciary that are relevant to the lower judiciary as well.

Question 41

What is the significance of the political balance in the JSC and MC?

Answer 41

It reflects the transformation of society, aiming to address historical racial and gender disparities.

Question 42

What conclusion is drawn about the executive's influence in the appointment of the Magistrates Commission?

Answer 42

The executive's strong influence does not negate the institutional independence of magistrate courts.

Question 43

What was the historical context of judicial appointments during apartheid?

Answer 43

Judicial appointments were political and lacked transparency.

Question 44

What balance must be struck in judicial appointments according to the new Constitution?

Answer 44

A balance between democratic legitimacy and protecting independence and impartiality.

Question 45

What is the role of the Judicial Services Commission (JSC)?

Answer 45

To oversee the appointment of judges to Superior Courts.

Question 46

How many members are in the JSC, and who chairs it?

Answer 46

23 members, chaired by the Chief Justice.

Question 47

What is the requirement for JSC decisions?

Answer 47

JSC decisions must be rational and are subject to rationality review.

Question 48

What case affirmed the JSC's power as a public power subject to review?

Answer 48

Judicial Service Commission and Another v Cape Bar Council and Another.

Question 49

What right do individuals have regarding JSC decisions?

Answer 49

The right to know the reasons why they were not recommended or appointed.

Question 50

What did the Helen Suzman case establish regarding JSC deliberations?

Answer 50

JSC deliberations are relevant to decisions made and must be disclosed for rationality review.

Question 51

What is essential to the strength of the judiciary according to the text?

Answer 51

The judicial appointment process must attract and select the best possible candidates.

Question 52

What does Section 174(1) of the Constitution state about judicial appointments?

Answer 52

Any appropriately qualified person who is a fit and proper person may be appointed.

Question 53

What does Section 174(2) require concerning the judiciary's composition?

Answer 53

The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered.

Question 54

What are the criteria for a candidate to be considered 'fit and proper'?

Answer 54

Independence, impartiality, fairness, integrity, judicial temperament, and commitment to constitutional values.

Question 55

What does the JSC need to consider to ensure transformation?

Answer 55

Redressing the marginalization of Black people and women in the judiciary.

Question 56

What did CJ Mohamed's guidelines for the appointment of judges emphasize?

Answer 56

Integrity, energy, motivation, competence, experience, and potential for training.

Question 57

What is the challenge regarding the interpretation of qualifications under Section 174?

Answer 57

Balancing individual merit against demographic transformation.

Question 58

What does the term 'appropriately qualified' imply in the context of judicial appointments?

Answer 58

It sets a minimum requirement for all judges.