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PBL: A > Chap 2 > Flashcards

Chap 2 Flashcards

1
Q

What is a State?

A

It is a set of institutions that have the authority to make up & enforce the rules that govern the people of a certain state, and which possess internal & external sovereignty over a specific territory

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2
Q

Name the core elements of a state

A

CDSai

  • a community of people
  • defined territory
  • specific gov
  • authority
  • independence
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3
Q

Is the state a juristic/legal person

A

Yes!

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4
Q

How is the CL & the Const an idea of a social contract

A

A const is a set of legal rules & values of which people of a certain state have agreed to be governed by

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5
Q

The difference between a state & gov

A

State

  • Define
  • it complies w the requirements of a state
  • it is created by a group of people who have agreed to be governed by the institution they created

Gov

  • steers the state Gubernatio
  • how the higher political & executive seats are filled
  • removing gov won’t remove state
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6
Q

Diff between state & community

A

State-define remember

Community- the fellowship & social cohesiveness between people that share a certain identity or purpose

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7
Q

Diff between state & society

A

State- remember
Society-the consensual reciprocal agreement between people for mutual benefit
These people act as partners& are equal

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8
Q

Read analogy

A
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9
Q

The 5 core features of a modern state

A
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10
Q

Discuss a nation state

A

Nation-state seeks to protect, create, manange, and recognise a homogeneity of one cultural/ethnic group

High sense of homogeneity/ sovereignty

Similar characteristics in terms of race, language, religion, culture etc.

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11
Q

What is the challenge/criticism of a nation state?

A

In reality, all states have ethnic minority groups

Places a barrier to achieving global peace & harmony

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12
Q

Is SA a nation state?

A

No
In SA there are many cultures, languages, races, religions, and ethnic groups

The Const protects & recognises the multiculturalism of SA- sec 9 eg

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13
Q

Differences between nation state & nation id

A

Nation-state- united because we have a common ethnicity, culture, race, language & descent

Nation ID- united in our diversity

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14
Q

Discuss the characteristics of legal rules

A

Legal rules- prescribe how people of a specific territory should govern themselves

Characteristics are

  1. Apply only in one specific territory
  2. They apply to all the people present in that territory but there are exceptions
  3. They apply to legal/juristic persons( enterprises) & natural persons(people)
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15
Q

Discuss gov authority

A

Gov authority- the power to enforce legal rules, it is divided into 3 branches

Executive Authority- the power to execute and enforce the legal rules
Judicial Authority- the power to determine the law & apply it
Legislative authority- the power to create, repeal or amend these legal rules

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16
Q

Aim of the law

A

Regulates the relationship between the state & the people(vertical) & the people(horizontal)

17
Q

Differentiate between private law & public law

A

Private law
Aim- protect the individual
Regulates an equal relationship where both parties involved in the dispute are protected
The state is not always party

Public Law
- dual aim, it protects public interest but sometimes also protects the individual
-regulates an unequal relationship as the state often has higher authority but the BoR protects the individual in such instances & separation of powers etc
The state is always party to a dispute( S v De Haan)

18
Q

Administrative Law

A

AL- A Branch of public law that governs the actions & conduct of the state
And regulates the legal relationship of public authorities when interacting with other public authorities or private individuals or institutions

19
Q

Discuss the similarities of AL & CL

A

They both form part of public law

They are both concerned w matters of state functions & how gov authority is exercised

20
Q

Discuss the differences between AL & CL

A

CL is concerned w the executive branch that regulates the administration of state activities
It is considered w the structure of the state

AL is concerned with practical effects to the functions of state

21
Q

Administrative action

A

The conduct of the state fulfilling its day-to-day functions & responsibilities

22
Q

Criminal law

A

Is a field of social sciences that investigate why people commit a crime
- a branch of public law that establishes certain human conduct as crimes, and it determines what punishment must follow those crimes for people w criminal capacity who unlawfully & we guilty mind committed a crime
Main sources: case law, legislation & common law

23
Q

Discuss the 3 +s of Criminal law

A
  • it preserves & promotes individual autonomy
  • it preserves & promotes the welfare of society
  • it maintains law & order & peace by protecting the rights of the people w/in a state
24
Q

Discuss the CJS

A

Is the administrative system of criminal law which involves certain gov institutions( the police, NPA & courts) who prosecute, put on trial & punish criminal offenders

Read the steps of what it entails

25
Q

The principle of legality on Criminal Law

A

Is a principle of the RoL which is a founding provision of the Const

-requires that punishment may only be inflicted on a clearly defined crime, established by law that was in force before crime occurred

26
Q

The elements of the principle of legality on a criminal law

A
  1. The conduct must be accepted as a crime by the law (ius acceptum)
  2. The conduct must be clearly defined & certain(ius certum)
  3. The crime must be determined in advance(ius praevium)
  4. The courts must interpret the crime narrowly instead of broadly(ius strictum)
  5. The punishment must be clearly defined & determined in advance(nulla poena sine lege)
27
Q

Define comparative constitutional law

A

-the transplanting of constitutional norms & principles which have been borrowed from older & more established constitutional jurisdictions & incorporating them into modern Constitutions

28
Q

What contributed to the growth of comparative constitutionalism?

A

The Internationalization of Constitutional law

29
Q

Why is comparative constitutionalism nb for the development & interpretation of SA Const Law?

A
  1. Constitutional revision, amendment & improvement & allows for possible future rewards from other legal jurisdictions. Also, it can influence future constitutional design & development
30
Q

What is the challenge of foreign laws for comparative Constitutionalism

A
  1. There are language barriers
  2. There are different backgrounds & developments led to the establishment of these laws which are not always applicable to us.
31
Q

Is Comparative Constitutionalism Constitutionally entrenched in SA?

A

Yes
1. Some drafters of the SA const borrowed certain constitutional aspects from other countries eg USA, Canada, Germany & India

  1. The Const of SA states that when interpreting the BoR, all courts, tribunals & other forums MUST consider International law, while they MAY consider foreign law. This shows that the consideration/ incorporation of international law is constitutionally entrenched & as a result so is the value of foreign law aka Comparative Constitutionalism. Section 39(1)(b) of Const recognises the importance of international law& foreign law

The value of foreign law is dependent on how the Const is interpreted
Section 39- how the BoR is interpreted
Section 239- interprets & defines the Const as a whole

Cases that confirm this S v Zuma & S v Makwayane pg 25 Cram

PBL: A (5 decks)

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