Unit 2

Question 1

When does direct application of the BoR take place?

Answer 1

Direct application is applicable when the courts give an order of invalidity of -

1. A common law norm
2. A statute or clause as well as whn an order of invalidity is given
3. Regarding conduct which is contrary to the BoR

Question 2

What is meant by indirect application of the BoR?

Answer 2

It means that the C and the BoR do not directly bind actors.
Instead, the influence of the BoR is mediated through other law: statutory or common law.
Where possible, a legal dispute should be decided ito the existing principles or rules of ordinary law, properly interpreted or developed with reference to the values contained in the BoR, prior to any direct application of the BoR to the dispute.

When it comes to statutory law the principle means that a court murst first attempt to interpret legislation in conformity with the BoR (indirect application) before considering a declaration that the legislation is in conflict with the BoR and invalid (direct application)

Question 3

What is concurrent jurisdiction?

Answer 3

According to the C, jurisdiction pertaining to constitutional matters can be exercised concurrently between the CC, SCA, and the HC. Iow the CC, SCA, and HCs have jurisdiction to decide on constitutional matters.
These matters relate to all constitutional matters that do not form part of matters in which the CC has exclusive jurisdiction.

Question 4

What are the functions of the Constitutional Court?

Answer 4

• Ordinarily an appellate court.
• In matters in which it has concurrent jurisdiction with other courts, the CC functions as a court of final instance.
• In the limited number of matters over which it has exclusive jurisdiction, the CC may be approached directly.
• The CC’s 4 principal functions are:
  1. It acts as a court of first instance
  2. It may grant direct access to hear a matter within its concurrent jurisdiction
  3. It hears appeals from other courts related to constitutional issues
  4. It confirms orders by other courts declaring parliamentary legislation or conduct of the President constitutionally invalid

Question 5

What are the main areas of jurisdiction for the SCA?

Answer 5

1. Constitutional matters
2. Appeals in any matter
3. Order of invalidity of legislation for constitutional reasons
4. Appeals raising only constitutional matters
5. Direct application of constitution
6. Granting of interim relief
7. Exclusive jurisdiction of the CC [there are exceptions when SCA may attend to matters under the exclusive juris. of the CC in context of interim relief]

Question 6

What are the main areas of jurisdiction for the HC?

Answer 6

1. Constitutional matters
2. Granting interim relief
3. Exclusive jurisdiction of the CC [there are exceptions when HC may attend to matters under the exclusive juris. of the CC in context of interim relief]

Question 7

Briefly discuss the jurisdiction of the Magistrates’ Courts

Answer 7

• No declaration on invalidity of any law - direct application of BoR
• May make use of indirect application of the BoR (condition of the doctrine of precedent)
• Are bound to uphold and give effect to constitutional rights

Question 8

Discuss the admission of an amicus curiae (10)

Answer 8

• The CC rules permit a person with an interest in a matter before the court and who is not a party in the matter to be admitted as an amicus
• An amicus assists the court by furnishing information or argument regarding questions of law or fact
• An amicus is not a party to litigation, but believes that the court’s decision may affect its interest
• An amicus does not have a direct interest in the outcome of the litigation
• An amicus is a “friend of the court”
• An amicus joins in the proceedings to assist the court because of its expertise on or interest in the matter before the court
• It chooses the side it wishes to join, unless requested by the court to urge a particular position
• An amicus is confined to making written submissions
• The CC determined that in addition to the other requirements to be added as an amicus, the submissions that the amicus intends to make must be relevcant to the proceedings and must raise new contentions that may be useful to the court
• An amicus may also be admitted in proceedings before the HC that raise constitutional issues