Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Introduction into law > Module 11 > Flashcards

Module 11 Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards MBE flashcards MPRE flashcards
1
Q

How is a courts jurisdiction determined in a criminal case??

A
  • kind of offence and
  • possible sentence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

How is a courts jurisdiction determined in a civil case??

A
  • the nature of the relief sought
  • Constitutional matters
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

How is a civil case intitated?

A

In Civil cases, the Plaintiff/Applicant will initiate the case where the defendant works or resides or where the cause of action arose.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

How is a criminal case initated?

A

In Criminal cases, the State prosecutor will prosecute where the crime allegedly took place

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

what is the difference between civil cases and criminal cases?

A

Civil cases talk about liability, and criminal cases they are talking about guilt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is jurisdiction?

A

Jurisdiction is the ability of a particular court to hear a specific case. Each court has jurisdiction within a specific geographical area in the country. There must be some connecting factors between the persons before the court and the court’s geographical area of jurisdiction. Jurisdiction can be found by looking at where the cause of action arose

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is an appeal?

A

An appeal happens when someone is not happy with the findings of the law. In an appeal, the higher court considers whether the lower court made the correct decision on the facts and the law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is a review?

A

The review court may go beyond the record of the original court as any irregularities may not be apparent from the record. It can be a new trail. If there is an irregularity in the procedure, the case can also be reviewed by a higher court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Where is the right to repeal and review granted?

A

The right to appeal and review is constitutionally guaranteed in section 35(3)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

When can the CC hear matters of appeal and when can it be court of first instance?

A

The Constitutional Court only hears matters of appeal if they are in line with section 167(3)(b)(ii). It can only be the court of first instance in terms of section 167(4) of the Constitution.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the CC jurisdiction?

A

Geographical jurisdiction in the Con-Court is a seat in Johannesburg/Braamfontein and has jurisdiction within the whole geographical area of South Africa.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

How can SCA deal with constitutional matters?

A

The SCA can declare an Act of Parliament, a Provincial Act or conduct of the President of South Africa unconstitutional; but any such order has to be confirmed by the Constitutional Court. SCA jurisdiction is highlighted in section 168.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is the scope of the SCA?

A

The SCA only functions as a court of appeal and not as a court of first instance but not appeals directly from a magistrates’ court. SCA jurisdiction is highlighted in section 168.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is the jurisdiction of the High Court?

A

High Court jurisdiction is highlighted in section 169. There is a relationship between the provincial and local divisions of the high court. The provincial division with its local division have concurrent or co-ordinate jurisdiction- these courts have the same authority to hear and adjudicate matters brought before them. However, provincial divisions have larger geographical jurisdiction in a province than a local division

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What cases can the High Court hear?

A

A High Court has appeal jurisdiction and it can function as a court of first instance. An appeal from the decision of a single judge in a High Court will normally lie to a full bench of a High Court. Furthermore, an appeal lies from a magistrate’s court to a High

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What type of criminal cases can the High Court hear?

A

Criminal cases: any offence and impose any sentence (only High Courts can hear the offence of treason or impose sentences which exceed 15 years imprisonment or a R600 000 fine).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What type of civil cases can the High Court hear?

A

Civil cases: any matter and grant any relief only High Courts can hear matters relating to status (presumption of death, wills)
Only high courts can hear cases where specific performance (without an alternative) is sought or where a claim exceeds R400 000

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What are the connecting factors that deal with the jurisdiction of the High Court?

A

Connecting factors that deal with the jurisdiction of the High Court:
- A provincial or local division has jurisdiction over all persons residing in or being in its area of jurisdiction.
- In relation to all causes arising and all offences committed within, its area of jurisdiction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what are the two levels in a mag court?

A

It exists at two levels: district and regional courts. The regional mag court is the higher mag court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What statue governs the Mag court?

A

These courts do not have concurrent jurisdiction (as this is specifically regulated by legislation). Such as the Magistrate Courts Act 1944

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What type of cases can the Mag court hear?

A

The Mag court primarily function as a court of first instance and do not generally have appeal jurisdiction. They can only hear appeals against criminal decisions of chiefs or headmen under the Black Administration Act 38 of 1927.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the powers of the Mag court in dealing with Constitutional matters?

A

Section 170 of the final Constitution provides that a Magistrate’s Court may decide any matter determined by an Act of Parliament, but does not possess the power to enquire into or rule on the constitutionality of any legislation or any conduct of the President

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What type of civil matters can a regional mag court hear?

A
  • All Cases where a claim is between R200 000 –R400 000
  • Divorce cases
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What type of criminal matters can a regional mag court hear?

A
  • Fine up to R600 000 and 15 years imprisonment
  • 20 years for 2nd offence and up to 25 years for 3rd offence for certain crimes including drug offences.
  • Accroding to the Criminal law Amendment Act 105 of 1997. They cannot hear the Treason case
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What type of civil matters can the district mag court hear?

A
  • All Cases where the claim is less than R200 000
  • No status, divorce or will cases
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What type of criminal matters can the district mag court hear?

A
  • Fine up to R 120 000 and 3 years imprisonment
  • Up to 25 years imprisonment for dealing certain drugs.
  • All other crimes except treason, murder or rape
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is a small claims court?

A

A small claims court is a court that derives its power from The Small Claims Courts Act 61 of 1984 which provides for the establishment of a number of courts presided over by officers called commissioners.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

What is the small claims court jurisdiction?

A

Each small claims court exercises jurisdiction over an area for which it has been established

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What are the limitations in a small claims court?

A

Limitations in the Small Claims Courts Act. No legal representation allowed. No juristic persons can use this forum, can only claim against people

30
Q

What types of cases can be heard in a small claims court?

A

Types of cases that can be heard in a small claims court:
- Can function as a court of first instances in civil cases where a claim does not exceed R20 000 from 1st April 2019.
- Has no appeal jurisdiction and its orders are final (decisions can only be taken on review)
- Cannot hear divorce cases, cases related to wills or defamation.

31
Q

What are the two main systems for conducting a trial?

A

Two main systems for the conduct of trials are the adversarial (or accusatorial in criminal trials) system and the inquisitorial system.

32
Q

What is an adversarial court system?

A
  • The presiding officer plays a passive role as the parties to a proceeding are responsible for gathering evidence and presenting it in the trial.
  • The parties present their evidence and arguments to the court as adversaries
    (opponents) and the presiding officer’s role is to make sure that the presentation of evidence is clearly, fairly and in accordance with the rules of evidence (principle of party control)
  • Emphasis falls on the oral presentation of evidence and the cross-examination thereof.
33
Q

What is the inquisitorial court system?

A
  • The presiding officer plays an active role as s/he supervises the collection of evidence needed to resolve a case
  • The inquisitorial system is not a battle between the parties, but rather a fact as the presiding officer steers the search for evidence and questions parties to the proceedings
  • There is no right to cross-examination and the enquiry is mainly paper-based
34
Q

What act sets out the rules of how crimes should be proceeded?

A

The Criminal Procedure Act 51 of 1977 sets out these rules of how crimes should be proceeded.

35
Q

Wht does section 35 of the Constitution deal with?

A
  • Section 35(1) deals with the rights of those arrested
  • Section 35(2) deals with the rights of the detained and sentenced prisoners
  • Section 35(3) deals with the right of the acused
36
Q

How should criminal trials be proven?

A

Criminal trials have to be proven beyond a reasonable doubt.

37
Q

What are the phases of the pre-trial phase of a criminal trial?

A
  • Crime Report - the machinery of criminal law is put into operation once a crime is reported
  • Investigation Police - they open a docket (a file) and gather information
  • Decision to Prosecute: DPP - decide whether they will prosecute the accused based on the prima facie case. This power is sometimes delegated to public prosecutors in the lower courts and state advocates in the higher courts.
  • Charge sheet - a detailed sheet is right in section 35(3)
  • Arrest/ Summons - an accused must be brought to court for the first time within 48 hours of the arrest
  • Bail
38
Q

What are the two stages of a criminal trial?

A

The trail consists of two stages:
- Trail on the merits (the question of guilt or innocence)
- Trial on sentence (the question of an appropriate punishment following a conviction)

39
Q

What is the stages of trail when someone pleads not guilty?

A

The trial when pleaded not guilty
- Explanation
- State case
- Defence case - i the state hasn’t proven guilt, an application for discharge can be given
- Arguments
- Finding - the courts hand down their verdict.
- Sentence

40
Q

What are the phases of a trial when someone pleads not guilty?

A

The trial when pleaded not guilty
- Questioning
- Finding
- Sentencing

41
Q

What is a plea agreement?

A

An amendment to the Criminal Procedure Act in 2001 introduced the possibility of plea agreement. The plea agreement must be in writing and must be reached before the accused pleads to the charge. The accused may accept or reject this sentence.

42
Q

When does a civil dispute aries?

A

A civil dispute between parties arises when one party violates a subjective right of another, or threatens to do so. A court can grant an order instructing a party to compensate another party or an order of specific performance.

43
Q

What are the two kinds of civil procedure?

A

There are two kinds of civil proceedings:
- Action
- Application

44
Q

What is an action proceeding?

A

Action - fundamental disputes on facts. Evidence is presented in court by witnesses who testify orally as to what happened. started by a summons (plaintiffs and defendants)

45
Q

What is an application proceeding?

A

Application - is a dispute on the law. Also called motion proceedings. The evidence is placed before the court using affidavits, which are written statements made under oath that have been prepared beforehand. Started by a notice of intention (applicants and respondents)

46
Q

What does a pleading stage of civil procedure contain?

A

The Pleading stage contains:
- The pleadings contain statements by the respective parties about the facts of the case and not the applicable legal principles.
- The facts on which the parties agree and on which they disagree are presented in the pleadings so that the dispute between them is clearly defined

47
Q

What is the purpose of pleading?

A
  • To reduce the dispute between parties
  • To prevent the parties from surprising each other in court
  • To make the judge familiar with the case before
48
Q

What is the pleading stage in an action proceeding sequence?

A
  • Summons - informs the defendant of the plaintiffs claim against them
  • Notice of intention to defend and judgment by default - if this is not given the court may grant the plaintiff judgment by default
  • Plea - The defendant admits or denies the allegations made by the plaintiff and sets out the facts she bases her defence
  • Replication- answer the plea if needed
  • Litis contestatio- the closing of pleadings, preparation for trial
49
Q

What does an action procedure contain?

A
  • Witnesses Testify
  • No legislation prescribing when it is to be used but used when you foresee a difficult factual dispute
  • Trial
50
Q

On what balance is a civil procedure case decided?

A

Civil procedure cases are decided on a balance of probabilities. The principle is she who asserts must prove and is used to determine the burden of proof.

51
Q

What was decided in Coetzee case?

A

In Coetzee, the Con-Court declared that it was unconstitutional for judgment debtors who did not pay their debts to be imprisoned by the Magistrate Court.

52
Q

How is an applicatin proceeding instituted?

A

An application proceeding is instituted by way of a notice motion. It must be accompanied by an affidavit, which is a written statement given under oath before a commissioner of oaths.

53
Q

What is the law of evidence?

A

The Law of Evidence sets the rules which apply to trials in SA. The Law of Evidence works with both Civil and Criminal Procedure to determine the kind of evidence needed in a case to prove either the plaintiff/state or the defendant’s claim.

54
Q

What legislation sets out the law of evidence?

A

The Law of Evidence is codified in various pieces of legislation, including the
Civil Proceedings Evidence Act 25 of 1965
Criminal Procedure Act 51 of 1977

55
Q

What is admissable evidence?

A

Admissable evidence:
- Oral evidence
- Real evidence
- Electronic evidence
- Presumptions and judicial notice
- Direct and circumstantial evidence

56
Q

What is the witness process at trial?

A
  • The examination- when the state asks open-ended questions. The witness is giving their own version of the facts
  • Cross-examination- by the accused console tries to discredit the witness. - Leading questions can be asked
  • Reexamination of the witness to reestablish the witness’s credibility if needed
57
Q

Why is oral evidence subject to the cautionary rule?

A

Oral evidence is used with the cautionary rule. The court treats some oral evidence with caution because it has not been viewed as presenting a reliable account of events.
The evidence is treated with circumspection and may not automatically hold a lot of weight in the judge’s decision. Thid rule was overtun in S v Jackson

58
Q

What rule governs documentary evidence?

A

Documentary evidence is guided by the best evidence rule, which provides that the more original the document, the more probative value the evidence will hold.

59
Q

What does section 15(3) of the Electronic Communications Act state about electronic evidence?

A

The weight of the electronic evidence depends on a range of factors, as stated in s 15(3) of the Electronic Communications and Transactions Act including:
- The reliability of the manner in which the data message was generated, stored, or communicated
- The reliability of the manner in which the integrity of the data message was maintained;
- The manner in which its originator was identified

60
Q

When is evidence inadmissable?

A

Evidence is only inadmissible once the other party objects to its presentation before court. The court then decides whether the evidence is admissible or not by either sustaining or overruling the objection. If sustained: the evidence is inadmissible. If overruled: the evidence is admissible.

61
Q

What are the types of inadmissible evidence?

A

Types of inadmissible evidence:
- Character Evidence - Character evidence is evidence that attempts to discredit the witness’s testimony by discrediting who the person is rather than the evidence given.
- Hearsay Evidence - Hearsay evidence is evidence of something a person did not personally witness
- Opinion Evidence - Opinion evidence concerns opinion-based testimony on the facts.
- Privileged Evidence;
- Evidence Unconstitutionally Obtained - section 35(5) of the constitution

62
Q

what are the expectations to when character evidence can be admissible evidence?

A

Exceptions in the character evidence being inadmissible:
- If an accused gives evidence of their own good character, then the accused opens themselves up to evidence of bad character,
- A person found guilty of a crime may produce evidence of their good character to mitigate/lessen the sentence imposed.
- Character evidence will be admissible if there is a strong and relevant link between the facts before the court and the past conduct of the party considered

63
Q

What is hearsay evidence?

A

The Law of Evidence Amendment Act 45 of 1988 states that the definition of Hearsay evidence is evidence thats prohibitive value of depends upon the credibility of the other person not the person giving the testimony

64
Q

What is opinion based evidence?

A

Opinion evidence is in general inadmissible because it this would be usurping the role of the court, which is to give an opinion based on the facts. The exception to this rule is expert evidence, which is generally opinion-based

65
Q

when is evidence inadmissable according to section 35(5) of the Constitution?

A

Evidence is inadmissible according to section 35(5) if it would:
- Lead to an unfair trial; or otherwise
- Be detrimental to the administration of justice

66
Q

what is the principle of natural justice?

A

Principles of natural justice have to be applied in all tribunals and forms to increase the right to just administrative action in the Constitution section 33. There principles of natural justice is based on: Audi Alteram Partem and Nemo iudex in sua causa

67
Q

define Audi Alteram Partem

A

Audi Alteram Partem states that an adjudicator must hear all sides

68
Q

What is Audi Alteram Partem principle of natural justice?

A

This principle of natural justice states:
- Someone accused or suspected of misconduct must be informed of the charge against them;
- This person must be given a reasonable opportunity to answer the charges and put forward their case; and
- The adjudicator must listen to both sides and must hear all interested parties.

69
Q

define Nemo iudex in sua causa

A

Nemo iudex in sua causa states that an adjudicator must be unbiased.

70
Q

what is Nemo iudex in sua causa principle of natural justice?

A

This principle of natural justice states:
- The adjudicator must be free from any discriminatory motives arising from race, religion, etc.
- The adjudicator must not have an interest in the matter, be it financial or personal

Introduction into law (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions