FSAL precedent Flashcards
what is abrogation
The doctrine of abrogation allows common law rules to be discarded if they aren’t used, irrational or out of pace with modern notions.
court a quo
court of first instance
appellate jurisdiction
The power of a higher court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right
Application Procedure
civil
- Applicant V Respondent
- when there is no dispute between parties
- affadavits, arguments presented
- notice of motion, answering affadavit, replying affadavit
- court can grant or dismiss application
- usually no oral evidence, just papers in court
Action Procedure
civil
- claim for damages or divorce matters
- plaintiff v defendant
- material dispute of facts
- oral evidence , witnesses
- summons, plea, replication
- court can grant or dismiss the action
nomine officio ( NO)
official capacity, when person litigates on the behalf of someone else
In re
usually to clarify a case
Ex parte
only 1 party to the case
Amicus curae
friend of the court, advisor
Class action
one person institutes proceedings on behalf of a group of persons who are affected by a matter
criminal case
- State v individual
- burden of proof on the state
- beyond reasonable doubt
- public law
- punish the acccused
SCA Jurisdiction
Only deals with appeals form High courts
Can be appeals relating to civil, constitutional, criminal matters
Serves all areas of SA
Inherent power to regulate own processes and develop the common law
Provincial High Courts Jurisdiction
General civil, criminal, constitutional jurisdiction
Serious criminal matters
Matters not covered by the magistrates courts
Appeals from lower court heard by 1 judge or by 3 if the appeal comes from SAME high court
Power to process and develop the common law & to declare a law unconstitutional , although this will then have to be validated by the constitutional courtCivil claims exceeding R100 000 to R300 000
Regional Magistrates Jurisdiction
Civil & Criminal but NOT treason
Maximum R600 000 sentence in civil or 15 years in prison Family disputes
Decides Property disputes between R100 – R200 000
Credit agreements
Road accident Fund same amount
Specifically Civil
Nullity of marriage or civil union
Divorce
Hear and decide issues relating to Recognition of customary marriages act
The Regional Magistrates’ Courts deal with murder, rape, armed robbery and serious assault
In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrate’s Court can sentence a person who has been found guilty of offences that include murder or rape to imprisonment for life.armed robbery/ stealing a motor vehicle to prison for a period up to 20 years.
district magistrates court jurisdiction
Civil and Criminal
Deals with Civil claims not exceeding R100 000
NO JURISDICTION
over
Treason, murder, rape
Over validity or interpretation of wills
Person wants to affect status of someone’s mental capacity
Decree of perpetual silence ll these high court only
constitutional court jurisdiction
Constitutional matters i.e. s167 of cons – any issue involving the interpreting, protection or enforcement of the Constitution
May act as court of appeal or court of first instance in constitutional matters Other courts may rule something Unconstitutional but the Constitutional court has to confirm it
Exclusive jurisdiction of Constitutional court – can also choose to hear any case that takes that sparks their interest, but are not obligated to do so
1. Disputes between organs of state concerning their functions
2. Constitutionality of a parliamentary or provincial bill
3. Application for above
4. Whether the president/ parliament has failed to fulfil a constitutional obligation 5. Approval of provincial constitution
what are the advantages of precedent
Certainty Predictability Reliability Equality Uniformity Convenience
What is meant by the radiating effect of precedent?
That a previous precedent is followed in various cases that come after it where the criteria for following a precedent are ET. Through this the effects of precedent is extended over time.
What are the circumstances in which an existing precedent may be overruled
When the ratio of a decision is fundamentally flawed ie per
incurium
Clearly conflicts with the Constitution
pre constitutional-
When the boni mores that informed the decision of the judge in his reasoning has changed
What is the retrospective effect of precedent?
The legal effect of overruling precedent is founded on the notion that the later court corrects a mistake made by the earlier court about what the law has been all along. The retrospective effect of precedent is not automatic when a precendent is overruled by virtue of a change in boni mores
