Textbook Notes Flashcards
(51 cards)
Discuss separation of powers
- No express reference in Constitution
- We know that both separation of powers and checks and balances have been built into the text
- Requires the functions of gov. to be classified as either legislative, executive or judicial
- To prevent excessive concentration of power in a single person or body
- No absolute
- There is overlap
- A flexible approach is used
- Underlies the principle of judicial independence
Discuss checks and balances
- Purpose is to ensure that the different branches of government control each other internally (checks) and serve as counterweights to the power possessed by the other branches (balances)
- To make the branches of government accountable to each other
What 3 forms of democracy is recognised by the C?
- Representative
- Participatory
- Direct
Which type of democracy is the C primarily aimed at safeguarding?
Representative democracy that has participatory elements
Who occupies centre stage with representative democracy?
Political parties
What serves as a counterweight to the importance of political parties?
Direct democracy - it is of particular importance to those whose interests are neglected by political parties
Which 4 elements are determinative of the direct application of the BoR?
- Beneficiaries
- Duties imposed by the BoR
- Time
- Limited territorial effect of the BoR
Are private individuals always directly bound by the BoR?
The C states that private individuals are only directly bound in some instances, not all.
When may common-law rules and principles be directly tested against the BoR?
In so far as they are relied upon by actors who are directly bound by the BoR.
What are the 5 general considerations when interpreting section 8(2)?
- It is possible that some provisions of the BoR may apply to the conduct of a private person or juristic person while other provisions in the same section will not apply to such conduct
- Questions concerning the horizontal application of the BoR cannot be determined a priori and in the abstract
- The purpose of a provision is an important consideration in determining whether it is applicable to private conduct or not
- The nature of any duty imposed by the right must be taken into account
- In some instances, indications are found in the BoR itself as to whether a particular right may be applied to private conduct or not.
What is ‘standing’?
Concerns whether someone who approaches a court is the APPROPRIATE person to PRESENT the matter to the court for adjudication.
Which approach is taken ito standing under the common law?
A restrictive approach. A person who approached a court for relief was required to have a direct interest in the subject matter of the litigation.
How similar are the approaches under the common law and the BoR?
The approach in BoR matters contrasts radically with the common-law approach.
Effective enforcement of the BoR demands a broader approach to standing.
Such an approach is expressly provided for in section 38.
What happens when an applicant alleges that a right in the BoR has been infringed or threatened?
Can directly rely on section 38.
In such matters, the common law of standing and any legislative requirements are irrelevant.
When does section 38 apply?
Only in cases where a litigant alleges that a right in the BoR has been infringed or threatened.
It does NOT apply when alleging that a provision of the C, outside of the BoR, has been infringed.
It will also not apply when the BoR is indirectly invoked ito sec 39(2)
What are the 2 requirements to determine standing ito Ferreira case?
As long as a court has jurisdiction to grant the required relief, applicants will have standing if:
1) There is an allegation that a right in the BoR has been infringed or threatened; and
2. The applicants can demonstrate, with reference to categories listed in sec38, that there is a SUFFICIENT INTEREST (not necessarily their own interest) in obtaining the remedy they seek
Discuss ‘sufficient interest’
- No test has been laid down to determine when an interest will be regarded as sufficient.
- The applicant must at least be directly affected by a law or conduct before he will have standing to challenge it
- The concept of ‘sufficient interest’ is linked to the categories of person listed in sec 38.
What is the most important feature of a class action?
Other members of the class, although not formally and individually joined, benefit from, and are bound by, the outcome of the litigation unless they invoke prescribed procedures to opt out of it.
What must be established for someone to act in the public interest?
- It must be shown that a person is acting in the public interest.
- It must be shown that the ‘public’ has a sufficient interest in the requested remedy.
Discuss ‘ripeness’ (7)
- The general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed
- It entails consideration of the timing of a constitutional challenge
- When a constitutional issue can be dealt with more conveniently at a later stage and the applicant will get not tangible advantage from an earlier ruling, the doctrine of ripeness requires the applicant to wait until the court can ground its decision in concrete relief
- An applicant must first exhaust the possibilities of ordinary legal relief, including the indirect application of the BoR by ‘reading down’ a statute, before invoking the BoR directly.
- Thus, the issue is not ‘ripe’ before indirect application or non-constitutional remedies have been considered.
- But, when the ordinary legal remedy offers few prospects of success or when the applicant would siffer serious and irreparable harm by being required to exhaust the remedy, it would be unreasonable to delay the constitutional challenge.
- Issues relating to ripeness and standing often overlap
Discuss ‘mootness’ (3)
Whereas ripeness prevents a court from deciding an issue too early, mootness prevents the court from deciding an issue when it is too late.
- A case is moot and therefore not justiciable, ‘if it no longer presents and existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law’
- Mootness is determined with reference to the date of the hearing before the court or even when it decides the matter.
Discuss ‘exceptions to the mootness doctrine in the interests of justice’ (2)
- The discretion of a court to try a moot case must be exercised according to the interests of justice
- A prerequisite is that any order that the court may make must have some practical effect on the parties or someone else.
What is the implications of the Constitution Seventeenth Amendment Act, 2012?
The CC is now the highest court in ALL matters and not in constitutional matters only.
- The CC is no longer a specialist constitutional court but has jurisdiction to hear appeals on arguable points of law of GENERAL PUBLIC IMPORTANCE.
When does the CC have exclusive jurisdiction?
- Constitutional disputes between organs of state at national or provincial levels of gov. concerning the constitutional status, powers or functions of any of those organs of state
- Disputes over the constitutionality of provincial or Parliamentary Bills
- Disputes about the constitutionality of an amendment to the C
- Decisions whether Parliament or the President has failed to comply with a constitutional duty
- The certification of provincial constitutions
