Topic 4

Question 1

How did the judiciary operate during apartheid?

Answer 1

During apartheid the judiciary operated under parliamentary supremacy, and by upholding discriminatory and unjust legislation, the judiciary functioned as part of the apartheid legal order and contributed to legitimising and sustaining it

Question 2

How is the date of the Presidents election determined?

Answer 2

The date of the President’s election is determined by the Chief Justice within 30 days after the vacancy s86(3)

Question 3

How were judges appointed before 1994?

Answer 3

Before 1994, the State President appointed judges in terms of section 10 of the Supreme Court Act, however in practice it was the Minister of Justice who made appointments based on the recommendations of the Chief Justice or Judge President of the relevant division

Question 4

How does a judicary act in a Constitutional democracy?

Answer 4

In a Constitutional democracy with a supreme and enforceable constitution, an independent judiciary is free to interpret and apply the law impartially and without consideration of the wishes of politicians, powerful business interests or civil society groups.

Question 5

How is the judiciary empowered by the Constitution?

Answer 5

The judiciary is empowered by s172(1)(a) of the Constitution to enforce its provisions and to declare invalid acts and omissions of the legislature and the executive that fail to comply with the obligations imposed by the Constitution

Question 6

Where is the hierarchical structure of the courts highlighted?

Answer 6

The hierarchical structure of the courts is highlighted in s166.

Question 7

What does the Justice Alliance case highlight?

Answer 7

In the Justice Alliance case, it is highlighted that the Chief Justice exercises responsibility over the establishment and monitoring of norms nd standards for the exercise of the judicial function of all courts. They are required to represent the judiciary and to act on its behalf in dealing with the other arms of government, and they may also be called on to perform administrative duties. They are the most senior judges in the judicial arm of government, and their distinctive manner of appointment reflects that they may be called upon to liaise and interact with the Executive and Parliament on behalf of the judiciary

Question 8

What is the ideal of the indepence of the judicary?

Answer 8

This independence refers to the ideal is that individual judges should interpret and enforce the law impartially and without bias.

Question 9

What does the notion of impartiality presuppose?

Answer 9

This extreme notion of impartiality presupposes that a judge can banish from their mind all personal views and prejudices and can interpret a legal text and apply it to a set of facts without being swayed by political or other personal commitments or culturally influenced values and assumptions

Question 10

What was held in S v Makwanye about judges judgments?

Answer 10

In S v Makwanyane, it is required that judges ground their judgments in general human rights principles that are above controversy and cannot be related to the personal views of a judge.

Question 11

What was held in Rugby football union about judges impartiality?

Answer 11

In the Rugby Football Union case, it was stated that it must be assumed that judges can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case

Question 12

How do we make sure judges rule impartially?

Answer 12

They must be free from potential direct and indirect pressures that could sway individual judges trying to act in a manner as is humanly possible

Question 13

When is judicaial independece not meaningful?

Answer 13

The judicial independence is not meaningful if the judges cannot exercise their powers to check the arbitrary or unjust exercise of power by political and social actors in society

Question 14

What is the judicial service commission?

Answer 14

The Constitution created the Judicial Service Commission (JSC), which is involved in the appointment of all superior court judges. The JSC was envisaged as playing a fundamental role in ensuring the independence of the judiciary.

Question 15

How is the JSC composed?

Answer 15

The composition of the JSC reflects a compromise between these two positions. The JSC is normally composed of 23 members who are drawn from the judiciary, two branches of the legal profession, the two houses of the national legislature, the executive, civil society and academia as stated in s178(1) of the Constitution

Question 16

What is the role of the JSC?

Answer 16

The role of the JSC in the appointment of judges differs depending on the nature of the appointment to be made. The President, as head of the national executive, has a relatively wide discretion when they appoint the Chief Justice and the Deputy Chief Justice who both also serve on the CC.

Question 17

According to which section should the president consult?

Answer 17

When making these appointments. The President, as head of the national executive, appoints the person of their choice after consulting the JSC and the leaders of parties represented in the NA, s174(3) of the Constitution.

Question 18

What dose consultation with the President and JSC entail?

Answer 18

The notion of consultation with the President and JSC must at least it must entail the good faith exchange of views, which must be taken seriously.

Question 19

How does the President appoint judges of the CC?

Answer 19

The President, as head of the national executive, appoints the other judges of the CC after consulting the Chief Justice and the leaders of parties represented in the NA, as stated in s174(4)

Question 20

How does the JSC contriute to the appointment of judges?

Answer 20

The JSC must prepare a list of nominees with three names more than the number of appointments to be made and must then submit the list to the President. The President may make appointments from the list, but can also initially refuse to appoint someone from the list, but can also initally refuse to appoint someone from the list provided by the JSC. They must provide the JSC with reasons got the decision

Question 21

Who can we suggest as a judge according to s174(1)?

Answer 21

The criteria of who can be suggested as a judge in section 174(1) of the Constitution must be appropriately qualified and a fit and proper person to be appointed as a judge

Question 22

What does s165(1) state?

Answer 22

s165(1) highlights the judicial authority of the Republic is vested in court

Question 23

What does s165(2) highlight?

Answer 23

The Constitution requires that the judiciary should be independent, must protect the Constitution and uphold rights, and must apply the law impartially and without favour or prejudice, as stated in s165(2)

Question 24

What does s165(3) state?

Answer 24

s165(3) highlights that no organ of state may interfere with the function of the courts.

Question 25

What does s165(4) state?

Answer 25

s165(4) highlights organs of states must assist and protect the courts so they remain independent

Question 26

What does s165(5) state?

Answer 26

s165(5) highlights that any decision made by the courts are binding

Question 27

What does s165(6) state?

Answer 27

s165(6) The chief justice is the head of the judiciary

Question 28

What does section 167(1) state?

Answer 28

s167(1) states the CC consists of the the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges.

Question 29

What does s167(2) state?

Answer 29

s167(2) states that a matter before the Constitutional Court must be heard by at least eight judges.

Question 30

What does s167(3) state?

Answer 30

s167(3) highlights that they are the highest court of the Land

Question 31

What does s167(4)(a) state?

Answer 31

s167(4)(a) highlights that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state.

Question 32

What does s167(5) state?

Answer 32

s167(5) highlights that the CC makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made before that order has any force.

Question 33

What does s167(6) state?

Answer 33

s167(6) states that a person can bring a matter directly to the CC or appeal directly to them if it is in the interests of justice

Question 34

What does s168(3) state?

Answer 34

s168(3) highlights that the SCA may decide issues of appeals, issues connected to appeals or any matter referred to it in the circumstance by an Act. of Parliment

Question 35

What does s174(2) state?

Answer 35

s174(2) of the Constitution states that the need for the judiciary to reflect broadly the racial and gender composition of SA must be considered when judicial officers are appointed.

Question 36

What does s174(8) state about the oaths?

Answer 36

s174(8) of the Constitution highlights the oath a judge takes before taking office

Question 37

Where is the security of judges tenure entreched?

Answer 37

The independence of judges depends on a guarantee that judges will not be dismissed or face the threat of dismissal from office for making a decision adverse to the interest of the government of the day or of powerful business or societal interests. The security of tenure of judges is entrenched in the Constitution in s174(8)

Question 38

What does s176 state?

Answer 38

Section 176 of the Constitution states that the CC judges hold office for a non-renewable term of 12 years or until the age of 70, whichever occurs first, except where an Act of Parliament extends the term.

Question 39

What does section 4 of the Remuneration and Conditions of Employment Act state?

Answer 39

Section 4 of the Judes Remuneration and Conditions of Employment Act extends this term to 15 years of active service

Question 40

What does section 8 of the Remuneration and Conditions of Employment Act state?

Answer 40

Section 8 of the Judges' Remuneration and Conditions of Employment Act granted the power to extend the term of office of the Chief Justice and the President of the SCA to the President, who could extend the term for any period and for as many times as they wished.

Question 41

What are the facts in Justice Alliance?

Answer 41

In the Justice Alliance case, the court declared section 8(a) invalid, the judgment affirmed and elaborated on constitutional law principles relating to the independence of the judiciary, the rule of law and the separation of powers. This section was problematic because it conferred on the President an executive discretion to decide whether to request a Chief Justice to continue to perform active service and if the agrees to set a period extension

Question 42

What was held in Jusitice Alliance case?

Answer 42

It was held that, despite s176(1) of the Constitution, Parliament was not authorised to pass legislation that would extend the term of office of only the Chief Justice. The power of extension in s176(1) must be constructed so far as possible to minimise the risk that its conferral could be seen as impairing the precious institutional attributes of impartiality and public confidence that go with it

Question 43

What does s176(2) state?

Answer 43

s176(2) of the Constitution states that ordinary judges hold office until they are discharged from active service in terms of an Act of Parliament.

Question 44

When can a judge be removed from office according to s177?

Answer 44

s177 of the Constitution determines that a judge may only be removed from office if the JSC finds that the judge: - Suffers from an incapacity - Is grossly incompetent - Is guilty of gross misconduct

Question 45

What does s177 ensure?

Answer 45

s177 of the Constitution ensures that a judge cannot be arbitrarily removed from the bench for political or other reasons unrelated to the ability of that judge to perform their functions ot the integrity of the judge

Question 46

What does s179 state?

Answer 46

s179 of the Constitution creates a single national prosecuting authority (the NPA) consisting of a National Director of Public Prosecutions (NDPP) who is head of the prosecuting authority