Chapter 2- Creation Of Legal Rules And The Adminstration Of Justice

Question 1

What are the requirements for custom to qualify as legal rule?

Answer 1

1. The custom must be reasonable
2. It must have existed for a reasonable period
3. It must generally have been observed by the community in which it applies
4. It must be certain and clear

Question 2

Can custom be abrogated?

Answer 2

Just as legal rules can be created by custom, they can be abrogated by disuse of rule or by the development of custom to the contrary.
A new custom to the contrary can abrogate a previous custom or rule of the common law, but legislation cannot be abrogated by a custom of the contrary.
Legislation can only be repealed by Parliament which passes legislation

Question 3

Define legislation

Answer 3

Rules of law promulgated by a body or person bestowed with power of creating rules of law.
Sometimes legislation is passed by body such as Parliament, which then authorities a particular individual ( Minister/ President) to promulgate subordinates by means of regulations or proclamations in terms of the Parliamentary act.

Question 4

Which two Constitutions brought radical change in the legislative process of the new South African Parliament formed in 1994?

Answer 4

South Africa’s interim Constitution, Act 200 of 1993 and the subsequent Constitution of 1996

Question 5

What does the Parliament consist of?

Answer 5

The National Assembly and the National Council of Provinces.

Question 6

How is an act usually passed and are there any exceptions? If so further elaborate on them.

Answer 6

Usually passed by an ordinary majority.
Yes their are exceptions. The Bill of rights in the Constitution itself, for instance can be amended by two thirds majority only of the members of the National Assembly and six of the nine provinces in the National council of Provinces.

Question 7

Can legislation be tested? If so further discuss.

Answer 7

In the past Parliament was sovereign, and court could not declare it invalid.
But now legislation can be tested against the provisions of the Constitution and declare invalid if found in Conflict therewith.
Legislation can not violate human rights.

Question 8

Discuss the role of provincial legislature.

Answer 8

There are 9 provinces with their own legislature. Provincial Legislature may pass legislation on a variety of subjects ( local government, agriculture, language, tourism, health, education and etc).
The Constitution contains comprehensive provisions regulating the divisions of powers between Provincial Legislature and Parliament ( provincial legislature forbidden in foreign affairs and defence )

Question 9

Discuss Subordinate Legislation

Answer 9

There are a large number of persons and bodies in South Africa to which legislative powers have been delegated by statute ( university council, government bodies & Ministers).
They are Empowered to pass, amongst others, regulations and proclamations, and to create new law in the process..

Question 10

List the requirements for the validity of subordinates legislation

Answer 10

1. It must be reasonable
2. It must be impartial and not discriminatory
3. It must be certain ( clear) and not vague
4. It must be promulgated (proclaimed)
5. It may not be ultra vires ( the particular legislature must have power to pass such legislation)

Requirements for subordinates legislation are therefore strict.

Question 11

At what extension does the Constitutional Court, Hight Courts and the Supreme Court of Appeal also lower Courr declare legislation invalid?

Answer 11

The Constitutional Court has the power to declare an Act of Parliament, a provincial Act, or conduct of the President invalid if found to be in conflict with the Constitution.

The high Court and the Supreme Court of Appeal have likewise the power to declare a legislation invalid as being in conflict with the Constitution but have be confirmed with the Constitutional Court.

Lower Court has the power to declare subordinates legislation invalid, except for the proclamation of State ( President) on the grounds of validity of subordinates legislation

Question 12

Elaborate on the hierarchy of Courts in South Africa. Discuss their duties and location.

Answer 12

In first place, the Constitutional Court which residences in Johannesburg is the highest Court of the Republic. This court can decide on constitutional matters, any other matter ( the court grants leave of appeal on the grounds that the matter raises an arguable point in the law of general public importance which ought be considered by that court). And makes the final decision whether the matter is within its jurisdiction.

Secondly, The Supreme of Appeal is the highest of all other matters. It can decide on appeals in any other matter arising from the high courts or courts of status, except in respect of labour or competition matters to such extent as may decided by Act of Parliament. Issues related to appeals. This court is not a court of first instance as its purely for appeals. A plaintiff must approach other courts before appeal to the Supreme Courts of Appeal. Located in Bloemfontein. Has jurisdiction over the entire country regarding appeals, final decisions lie with the Constitution court.

The lower courts are the Magistrates courts which is divided into the district courts and Regional Courts, they deal with matters not exceeding R200000.
District courts deal with civil sometimes criminal cases.
Regional court hears mainly criminal cases but sometimes civil ( divorces)

Special courts are courts limited to hearing specific types of cases

Question 13

Explain the Appeal process.

Answer 13

A matter is taken on appeal from lower courts to higher courts, and from higher courts to the Supreme Court of Appeal.
Sometimes an appeal lies from the court to the Constitutional Court which is the final court of Appeal

Question 14

Discuss the extension of lower courts jurisdiction in relation to civil and criminal disputes

Answer 14

The civil jurisdiction of district court is limited to claims not exceeding R200000, unless parties agree to higher amount. Specific legislation may increase a district courts jurisdiction (e.g. unlimited jurisdiction regarding credit agreement)
In criminal cases jurisdiction is limited to R120000 and 3 year imprisonments.
A regional Courts jurisdiction in civil matters is limited to claims of R400000.
In criminal cases jurisdiction is R600000 and 15 year imprisonments, may order imprisonments for life, correctional supervision.
Can act in case apart for treason

Question 15

Explain the high courts jurisdiction in civil and criminal cases

Answer 15

The high court has unlimited jurisdiction in criminal cases, but Act may limit the penalties in particular instances. There are few limitations on civil jurisdiction of the theses courts

Question 16

Elaborate of the extension of application of the doctrine of all courts

Answer 16

All the courts are bound to the Constitutional Court.
The Constitutional court is bound by its own decisions unless its convinced that previous decision was wrong or risen controversy/ uncertainty leading to conflicting decisions in courts lower in the hierarchy.

The Supreme of Appeal is bound to the Constitutional court and its own decisions and will only deviate from its own previous decision if its convinced that previous decisions was wrong.

Higher courts is bound to the decisions of the Constitutional court and the Supreme courts of Appeal and may not deviate therefrom.
It is also bound by its own previous decisions unless convinced that a decision was wrong, but is not bound by the decisions of other divisions at all.
A single judge is bound by decisions of full court of his own division and may not deviate therefrom.

Lower courts is bound by decisions of higher courts but its own decisions create no precedents.

Question 17

Who are responsible for decisions of the court?

Answer 17

Judicial officers also know as judges in the high courts

Question 18

Describe Advocates task in the legal profession

Answer 18

Specialised in the court work ( appear in court on behalf of clients) and the writing of legal opinions and do not take instructions (briefs) from clients but from the clients attorney.

Question 19

What is an Attorney?

Answer 19

Attorneys are involved in litigation and appear in court, they also draft contracts, wills, give legal advice, administration of estates and the incorporation of companies.

Question 20

Discuss civil cases

Answer 20

When two partied litigate against each other in order to resolve and dispute between them. Usually concerned with enforcement of a duty or exercise of right.
A party must prove his claim on a preponderance of probabilities

Question 21

Discuss criminal cases

Answer 21

The State prosecute a subject for the commission of crime. The procedure is usually that an accused is charged after the police has investigated a crime. The State’s case ( the prosecution) is conducted in court by the public prosecutor. The state must prove beyond reasonable doubt that the person is guilty of the offence.
The parties are known as the State and the accused