Concepts and Definitions

Question 1

Amnesty

Answer 1

An official pardon of peoople who have been convicted of political offences.

Question 2

Rule of Law

Answer 2

A political philosophy that all citizens and institutions within a country, state or community are accountable to the same laws, including lawmakers and leaders

Question 3

Transitional Justice

Answer 3

An approach to systematic or massive violations of human rights that both provides redress to victims, creating or enhancing opportunities for the transformation of the political systems, conflicts and other conditions that may have been at the root of the abuses.

Question 4

Human Rights Violations

Answer 4

The disallowance of the freedom of thought and movement to which all humans legally have a right.

Question 5

Ubuntu

Answer 5

An African philosophy of a quality that includes the essential human virtues, compassion and humanity.

Question 6

Truth and Reconciliation Committee (TRC)

Answer 6

Official body tasked with discovering and revealing past wrongdoing by a government.

Question 7

Bargaining Power

Answer 7

Relative capacity or ability of someone to influence or compel another party in a negotiation or dispute to agree on their own terms or to their advantage.

Question 8

Parliamentary Sovereignty

Answer 8

A concept in constitutional law of some parliamentary democracies stating that the legislative body has absolute sovereignty.
- It is supreme over all other government institutions including executive or judicial bodies.

Question 9

Legitimacy

Answer 9

Conformity to the law or to rules.

Question 10

Constituency

Answer 10

A group of people who are entitled to elect a representation for their area or who support a politician or political party.

Question 11

Disfranchised

Answer 11

To deprive someone/people of the right to vote.

Question 12

Government Gazette

Answer 12

Official publication of the government outlining new policies. legislation and notices to the public.

Question 13

What is Law?

Answer 13

• Body of rules regulating human interaction and conduct
• It is implemented to prevent and/or alleviate disorder and chaos whilst enforcing various punishments when law is broken

Question 14

What does prescriptive law refer to?

Answer 14

• How it should be

Question 15

what does descriptive law refer to?

Answer 15

• How it is

Question 16

State the outcome of the “Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae) 2005 (1) SA 580 (CC)”

Answer 16

• It ruled that customary law practice is unconstitutional due to its infringement on the right to equality in terms of gender and dignity

Question 17

What is meant when referring to the South African legal system as “uncodified”

Answer 17

• That not all of it is written down and is a system which is based on the Roman-Dutch law

Question 18

Who do positivists refer to?

Answer 18

• People created the law

Question 19

Who do naturalists refer to?

Answer 19

• People who believe that the law was created by a higher being (i.e.: God and the Ten Commandments)

Question 20

What does morality refer to?

Answer 20

• A set of principles connecting the distinction between right and wrong
• Standards expected to be lived by
• May be a persuasive factor in the changing laws (i.e.: abolishment of Apartheid)

Question 21

Discuss the case law authority for morality

Answer 21

• S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) (CCT31/01) [2002] ZACC 22
• The criminalising of unlawful sexual intercourse for reward under s20(1) of the Sexual Offences Act
• This is after the owner and two employees of a massage parlour appealed to the Pretoria High Court challenging the constitutionality of the act which states that sexual intercourse between two persons of opposite sex who are not married is an offence only if practiced for the reward (money).

Question 22

Define religion

Answer 22

• The belief and worship of a superhuman controlling power

Question 23

List three case law authorities related to the practice of religion

Answer 23

• MEC for Education: Kwa-Zulu Natal and Others v Pillay 2008
• Prince v President of the Law Society of the Cape of Good Hope 2002
• Christian Education South Africa v Minister of Education 2000

Question 24

List the primary sources of South African law

Answer 24

• The Constitution
• Legislation
• Judicial precedent (i.e.: case law)
• Common law (i.e.: Roman-Dutch law with English law elements)
• Customary law (i.e.: African law, religious and cultural laws)
• Customs
• International law

Question 25

List the secondary sources of law

Answer 25

• Foreign law
• Modern writings (i.e.: books and journal articles)

Question 26

What is the Constitution?

Answer 26

• Supreme law of the land and is binding
• Contains the Bill or Rights (Chapter 2)

Question 27

What is Legislation?

Answer 27

• Laws which are written down in statutes or Acts
• These are rules and regulations

Question 28

What is meant by “case law”/judicial precedent?

Answer 28

• comes from doctrine of “stare decisis” (standing by previous decision)
• Binding depending on what the court judgement was heard i.e.: if issue was heard in the Supreme Court of Appeal or the Constitutional Court, it would be binding.
  However, if heard in any court UNDER the SCA, only binding for a specific province such as a magistrate’s court judgement would set precedent in Gauteng and not the whole country.

Question 29

What is common law?

Answer 29

• Usually uncodified laws and are binding
• Some have been codified (e.g.: the Criminal Offences Act stating that murder is illegal and that it is a crime under the common law.)

Question 29

What is common law?

Answer 29

• Usually uncodified laws and are binding
• Some have been codified (e.g.: the Criminal Offences Act stating that murder is illegal and that it is a crime under the common law.)

Question 30

What are customs?

Answer 30

• Not usually written down and are difficult to prove
• Binding and tested to be proved in “Van Breda v Jacobs 1921 AD 330”
• The case states that in order for a custom to be proven, it must (four factors):
  a.) be a long standing practice
  b.) be established since origin
  c.) reasonable and logical
  d.) certainty of what to do and what not to do
  e.) generally recognised and observed by the whole community