Week 1 Flashcards
(23 cards)
What is the Judicial Authority often regarded as?
Is often regarded as an indispensable requirement of an effective democratic government which ensures that the liberties & rights of the people are protected.
It is separate & independent from the other authorities
Define the judicial authority
The JA is the power of being able to resolve disputes by determining what the law is & applying that law to try to resolve the dispute
The JA is exercised by Judicial Bodies that should not be partly to those disputes
Discuss Constitutional supremacy
Sec 2 of the Constitution states that the Const is the Supreme law of the land & that any law that is inconsistent with the Constitution is invalid
&
Section 1 c of the Const states that the Republic is founded on the value of Const Supremacy
Parliamentary Supremacy
•A contradiction of Const Supremacy
• It is when the legislator has Supreme law-making powers
Therefore parliament can make or repeal or amend the law.
The Westminster System, UK,uses parliamentary supremacy
Separation of powers
3 independent arms of the government
The Judiciary- Judges- interpret the law
The Legislature - Parliament - make the law
Executive - Cabinet- enforce
How does the trias politica keep the arms accountable
Through a system of checks and balances.
Eg the legislature remove the judiciary for gross misconduct
& the judiciary can stop the legislature from enforcing laws that contradict the Const
What is the aim of Trias Politica
It ensures that major decisions taken by those in power are checked & that they can be held accountable
Transformative Constitutionalism
- Seeks to transform SA From unequal to 3 features
- Doesn’t confirm to status quo
- ambitious legal document to change material conditions of SA
What does TC include
- EoJ SoR& SE
- Cautious of the interplay between law and morality
- Demands that lawyers are aware that the law affects power relations, access to resources & human dignity
- Demands that lawyers know that legal reasoning is influenced by a lawyer’s political & moral convictions especially if the lawyer is vague & ambitious
Use law to move society to a better version of its self
Discuss Kimbet & fambad on TC
TC focuses of substantive justice & substantive equality
Seeks to empower the previously disadvantaged by protecting socio-economic rights
Places less emphasis on technicalities & procedures in order to realise substantive rights
Places a lot of faith on the law for being in instrument of social & political change
What is the criticism of Tc
It obsures law & politics
What does TC require from judges
To be self -conscious of the history of the country
TC is a form of activism in the adjudication of rights
NCoG&L e & S v M
Mechanical interpretation of law
The 6 of s165
- Judicial Authority
- Courts impartial
- No interference
- Organs of state must assist
- order of the court
- Chief Justice
Where are the courts listed
S166
Section 167- CC
- Chief Justice
- Constitutional matter must be heard by 8 judges
- A cc highest court in land
B may decide on const matter, any other matter & final say on matters w/in it’s jurisdiction
Exclusive jurisdiction
168
Supreme Court of Appeal
Appellate Division -166(b)
The SCA & Const have jurisdiction of SA
Direct access of the cc
Yes
167(6)
A & b
SCA s168
- President
- Matter brought b4 is decided by judges decided in act of Parliament
- 3 decide
High court 169
- HC can hear any consti matter except a) consti agreed to hear or b)assigned to another court AoP
- Divisions determined by AoP
One or two more seats, jurisdiction - Quorum
a) judge President
b) one or more deputy judge president
C) other judges determined AoP - Superior Court
- Geographical limitation
- Appeals from lower courts
- Court of 1st instance
170 magistrate court
Can hear a matter of AoP
Can not decide on Constitutionality of Legislature or conduct of President
& other courts
MC & similar can’t hear on alleged violation of rights unless granted by AoP
But they must ensure that the BoR are enforced & observed
Therefore indirect jurisdiction