Module 8

Question 1

What is the court?

Answer 1

The court means a presiding officer and their position, this is where you find judicial precedent.

Question 2

What do courts look at?

Answer 2

They look at legislation, rules of common law, customary law and customs that may apply to the particular case before them

Question 3

Where does the Judiciary get it is power from?

Answer 3

The Judiciary gets its authority from Constitution Section 165, they are subject only to the Constitution and the law which they must apply impartially and binds all persons

Question 4

What part of the Constitution give courts the power to interpret law?

Answer 4

Section 39(2) of the Constitution gives the judiciary the power to develop the law, and be involved in law making.

Question 5

What are the different courts within South Africa?

Answer 5

• Constitutional Court Section 166 (a)
• Ordinary Courts- Section 166(b-d). - Supreme court of Appeal, High Court and Magistrate Court
• Special Courts- Section 166(e) that have the same status as some ordinary courts, that are at different levels. Such as the labour courts, equality court, tax court, Children’s court
• Supreme courts are CC, SCA, HC these are found in section 1 of the Superior Courts Act

Question 6

What are previous judicial decisions?

Answer 6

Courts must also take into account their previous judgement in similar cases, because they are bound to the approach followed in the past. Previous judicial decisions are also a primary source of law.

Question 7

What is stare decisis doctrine?

Answer 7

Stare decisis doctrine means to stand on previous decisions. Previous judgements create precedents which must be followed. It means that the doctrine is the law which was applied to a specific factual situation. Should be applied to all similar situations.

Question 8

What is the result of the stare decisis doctrine?

Answer 8

Stare decisis doctrine means to stand on previous decisions. Previous judgements create precedents which must be followed, they are a primary source of law. It means that the doctrine is the law which was applied to a specific factual situation. Should be applied to all similar situations.

Question 9

What are material facts?

Answer 9

Material facts are facts that are essential to the findings of previous cases.
Also known as analogous

the facts of a case are materially the same to those of the previous cas

Question 10

What does does it mean if the case facts are not materially the same?

Answer 10

If the facts of the case are not materially the same as those in the case before the court, the two cases are distinguishable and do not apply and the precedent does not apply.

Question 11

What is the hierarchy of the courts?

Answer 11

The hierarchy of Courts:
1. Traditional court
2. Magistrate courts - do not create precedent, bound by the decisions of the courts above them. The Judgements are not reported
3. High Court - Bound by the decisions of the SCA and the CC. If there is no previous decision it is bound by its own judgements unless they are wrong. Single judge cases are bound by a full bench (three judges).
4. Supreme Court of Appeal - Bound by the decision in the CC. If they are none, it is bound by its own judgments, unless they are wrong
5. Constitutional courts - its decisions bind all courts even if it seems wrong. Decisions can be made in constitutional matters, and in some civil and criminal matters

Question 12

What is the impact of the 17th Amendment on the Constitutional court?

Answer 12

• The Constitutional Court is now the highest court, due to section 167(3) of the Constitution Seventeenth Amendment Act of 2012. The Constitutional Court is the apex court of South Africa and decides both constitutional issues and other cases.
• Constitutional court can now hear all matters, if it been granted leave of appeal on the ground that the matter rises an arguable point of law which ought to be considered by the court

Question 13

What is the impact of the 17th Amendment on the High court?

Answer 13

Clarifies the position of the High Court and that they are all one high court bound by their own decisions. Before the 17th Constitutional Amendment the High Courts were not bound by decisions of other provinces High Court Unclear, it is, after the amendment courts are bound by decisions of the same court in a different province, creating certainty

Question 14

What is the impact of the 17th Amendment on the Supreme court?

Answer 14

The supreme court of appeal is no longer the high court in all civil matters

Question 15

What are the two issues the court has to decide?

Answer 15

A court has to decide two issues:
- Tho facts of the case
- The law that is applicable to the facts

Question 16

What is obiter dictum?

Answer 16

Obiter dictum are remarks in passing, it is not binding but can be persuasive. They don’t create precedent.

Question 17

What is Ratio decidendi?

Answer 17

Ratio decidendi means reason for deciding. The ratio decidendi is the legal principles applied to material facts of the case, it creates precedent and is binding

Question 18

Where is the ratio decidendi found?

Answer 18

The ratio decidendi is found in the judgement of the majority of judges, who based their judgment on the same reasons.

Question 19

What are the three types of judgement?

Answer 19

Types of judgement:
- Majority judgement - the reasons based on the same reason as the president. The ratio decidendi is found within the majority judgement only.
- Minority/dissenting judgement - they disagree with the findings and conclusions of the majority in the matter, their is a persuasive value depending on the standing of the judge
- Separate concurring judgement- Agrees with the finding of the majority judgement but not the reasons or emphasises a certain aspects; does not create a precedent

Question 20

What are the advantages of judicial setting and the doctrine of precedent?

Answer 20

• Legal certainty - the doctrine of precedent ensures that a court will be fairly consistent in its decisions in similar case
• Legal uniformity - the fact that all courts are bound by judgments of the highest courts ensures to a great extent that law is applied uniformly throughout the country. This principle gives effect to the right to equality guaranteed in section 9(1

Question 21

What are the disadvantages of judicial precedent and the doctrine of precedent?

Answer 21

• Stops legal reform - a precedent may have been decided incorrectly
• Incorrect decisions can be perpetuated - seeing that courts are bound by their previous decisions, it becomes difficult to depart from them. It takes a long time for the courts to change the law and to adapt it to new circumstances and needs.

Question 22

When are cases reported?

Answer 22

Cases are reported if there’s a new issue, with conflicting judgements, socio political implications or an influential minority judgement. The cases that are reported are the ones that create precedents. Unreported cases have the same authority as reported ones.

Question 23

What Act changed the names of courts?

Answer 23

The Superior court Act 10 of 2013 changed the names of the courts slightly, high courts became divisions and the main high court of a province the local division

Question 24

What does semble mean?

Answer 24

Semble means as it seems or appears. This shows what editors of a case summary think the impact on the law will be

Question 25

What does Quaere mean?

Answer 25

Quaere means it is doubtful and it means enquiry. This indicates that the court questioned a certain point of law but did not make a decision

Question 26

What is held in Matiso case?

Answer 26

In Matiso case it is pointed out that judges may sometimes create law through their interpretations, but this process differs from traditional law-making. judicial precedent is seen as a vital tool for maintaining the integrity of the legal system and promoting democratic principles.

Question 27

What was held in the Paulsen case?

Answer 27

It is held in Paulsen case dealt with s167(3)(b)(ii) that an arguable point of law refers to the fact there are some prospects of success on appeal. This depends on the particular circumstances of each case. The general public importance refers to a significant part of the republic.