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CL > Sources of SA Law (2) > Flashcards

Sources of SA Law (2) Flashcards

1
Q

Define ADR?

A

Alternative dispute resolution.

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2
Q

Define Appeal?

A

A matter is taken on appeal if the loser in the case is unhappy with the outcome of the matter.

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3
Q

Define Bill of Rights?

A

The Bill of Rights is contained in Chapter 2 of the Constitution, and sets out the rights of all people in South Africa.

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4
Q

Define Cabinet?

A

Comprises the president, the deputy president and the ministers of the various national departments in South Africa. Cabinet is responsible for formulating and controlling governmental policy. The president appoints a member of cabinet to be the leader of government business in parliament.

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5
Q

Define Constitution?

A

The Constitution of the Republic of South Africa, 1996 is the supreme law of the country, and sets out the rights and duties of all who live there.

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6
Q

Define Court a quo?

A
  • The court that initially heard a matter from which an appeal or a review is initiated.
  • Court of first instance
  • A court in which legal action may be initiated.
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7
Q

Define Doctrine of judicial precedent?

A

An important source of the South African law. Presiding officers apply this doctrine in reaching their decisions by following previous decisions reached by higher courts.

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8
Q

Define Intestate?

A

A person dies intestate if they die without a will.

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9
Q

Define Limitations clause?

A

Limitations clause Section 36 of the Constitution, which enables courts to limit the rights contained in the Bill of Rights under certain circumstances.

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10
Q

Define National Assembly?

A

It has 400 members representing the political parties. The number of members representing a political party in the assembly is proportionate to the number of votes that it received during the national elections.

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11
Q

Define National Council of Provinces?

A

It is composed of a single delegation of each of the nine provinces consisting of ten delegates. It represents the provincial interests in the national sphere of government.

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12
Q

Define Parliament?

A

Comprises two houses:
- The National Assembly and
- The National Council of Provinces.

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13
Q

Define Review?

A

A matter is taken on review if there was a procedural defect in the matter initially heard. SCA Supreme Court of Appeal.

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14
Q

Define SCA?

A

Supreme Court of Appeal.

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15
Q

The main sources of the South African law are?

A
  • The Constitution of the Republic of South Africa, 1996
  • Legislation
    -Judicial precedent
  • Common Law
  • Custom
  • Indigenous law
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16
Q

Define Constitution?

A

The Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.

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17
Q

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including?

A
  • the nature of the right;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • the relation between the limitation and its purpose; and
  • less restrictive means to achieve the purpose.
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18
Q

Define legislation?

A

Legislation is a very powerful source of law; and in principle, it binds the whole society. As South Africa’s law developed, society’s leaders soon realised that the law needed to be laid down by an organ of state, which had the power to do so.

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19
Q

The following table sets out the main types of delegated legislation.

A

Provincial legislature - Ordinances
Municipalities - By-laws
Ministers - Regulations
President - Proclamations

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20
Q

Define Judicial precedent?

A

Judicial precedent is often erroneously referred to as ‘judge-made law’. Only the legislature may make laws (i.e. legislation). Judges do, however, have to interpret legislation. In so doing, they ‘create law’.

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21
Q

Define common law?

A

In South Africa, common law is a hybrid system comprising Roman-Dutch law and some English law; and when a specific matter is not ruled by legislation, the common law normally applies. Many general legal principles that we know, and according to which we live, come from common law (Kleyn and Viljoen, 2014). (Note: Refer to Unit 1 for more detail.)

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22
Q

Define customs?

A
  • Customs are unwritten rules.
    In Van Breda v Jacobs 1921 AD 330, the Appellate Division (now called the SCA) laid down the requirements for a custom to be valid. In today’s world, custom is no longer as important a source of law, as it was in primitive communities.
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23
Q

Define Indigenous law?

A
  • Indigenous law refers to the law that existed in South Africa prior to colonisation.

The Law of Evidence Amendment Act 45 of 1988 stipulates that courts may take judicial notice of indigenous law, as long as it does not contravene public policy or natural justice.

24
Q

Which source of law is an authoritative source of law in South Africa?

A

Judicial precedent

25
Q

In terms of section 39(2) of the Constitution of the Republic of South Africa, every court is obliged to promote the spirit, purport and objects of the Bill of Rights when developing which law?

A

Indigenous law

26
Q

The Constitution confers upon all citizens of South Africa
the right to freedom of expression. However, the right to
freedom of expression is not absolute. Which section of
the Constitution may limit the freedom of expression?

A

Section 36

27
Q

Denise lives in an informal settlement on the outskirts of Cape Town. She does not have access to clean and drinkable water, and is forced to walk 5 km’s to the nearest p. Derise takes the local municipality to court to force them to provide her with access to sufficient water. What is the highest court able to adjudicate on the matter?

A

The Constitutional Court

28
Q

The Minister of Home Affairs has published a white paper on immigration in South Africa in the Government Gazette. The white paper sets out the Department of Home Affairs’ position on immigration and proposes that the requirements for immigration into the Republic be enhanced. What needs to be drafted in the next step to create legislation on the matter?

A

A Bill

29
Q

Which source of law is an authoritative source of law in
South Africa?

A

Judicial precedent

30
Q

What is the constitutional court?

A

The Constitutional Court consists of the chief justice of South Africa, the deputy chief justice and nine other justices.

In terms of s 167(4) of the Constitution, the Constitutional Court also has exclusive jurisdiction on, inter alia:
- disputes between organs of state (national and provincial) regarding the constitutional status, powers or functions of any of those organs; and
- decisions on the constitutionality of bills (national and provincial).

31
Q

The most important lower court is?

A

the Magistrate’s Court, comprising Regional and District Magistrate’s Courts. Both criminal and civil matters may be heard by the Magistrate’s Courts. The presiding officers are called magistrates.

32
Q

What is the small claims court?

A

Small Claims Courts were established by the Small Claims Court Act 61 of 1984. Only civil matters may be initiated in the Small Claims Court by natural persons against any person (natural or juristic), except for the state. The maximum amount of money that may be claimed in the Small Claims Court is R 15 000. The presiding officers are called commissioners.

33
Q

Special courts have been established to deal with specialist matters. Some examples of special courts include, but are not limited to?

A
  • tax courts;
  • water tribunals;
    l- abour courts and labour appeal courts;
  • children’s courts; and
  • courts of chiefs and headmen.
34
Q

Define Civil and criminal cases?

A

The state initiates criminal matters against those accused. Civil matters are between individuals (natural and juristic persons) and governmental departments. The following table sets out the citations of criminal and civil matters, respectively.

35
Q

What is meant by Presiding officers of the courts?

A

The presiding officer is the person who hears a matter in the court or tribunal. The following table sets out the names of the presiding officers in the most important courts in South Africa.

36
Q

Define Alternative dispute resolution?

A

In recent years, parties to legal disputes have sought ways in which to settle their disputes, without having to do so in a court of law. Collectively, the manners in which disputes may be resolved without going to a court of law, is called alternative dispute resolution (ADR).

ADR may take many forms. The most used types of ADR are negotiation, mediation and arbitration.

37
Q

Define Negotiation?

A

The parties to a dispute try to reach a settlement, through talking to each other.

38
Q

Define mediation?

A

An independent third party, called a mediator, assists the parties to reach their own solution to the dispute.
The mediator acts as a go between to the disputing parties.
The parties are assisted to reach a win-win settlement to the dispute.

39
Q

Define Abritration?

A

An independent third party, called the arbitrator, listens to both sides of the dispute, and makes a final and binding award.

40
Q

Nokwanda wants to institute legal proceedings against Hein after he rented Nokwanda’s home and caused damage to the amount of R 250 000. Which is the most appropriate court to institute proceedings in?

A

Regional Magistrate’s Court

41
Q

Consider the citation: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 703 (CC). What does “CC” refer to?

A

The court

42
Q

What follows the most formal process of the three types of ADR-mechanisms?

A

Arbitration

43
Q

What is the maximum amount of money that may be claimed in the Small Claims Court?

A

R 15 000

44
Q

Is the most senior judge of the Constitutional Court, who exercises final authority over the functioning and
management of all the courts, known as?

A

Chief Justice

45
Q

The role of the Clerk of the Court

A

The clerk fulfils the same function at a Magistrate’s Court as would the registrar at a High Court.

46
Q

The role of the Conveyancer?

A

A qualified attorney who has passed an additional exam, qualifying them to transfer ownership in immovable property from one person to another.

47
Q

Define the role of the Master of the High Court?

A

The public official charged with the administration of estates. As such, the master plays an important role in sequestration proceedings and deaths (i.e. the distribution of a deceased person’s estate).

48
Q

Whats the duty of the Notary public?

A

A qualified attorney who has passed an additional exam, qualifying them to notarise agreements.

49
Q

Define the role of the Presiding officer?

A

The person who makes a decision (i.e. passes judgement) at a court or another forum, such as a tribunal.

50
Q

Define the role of the Public prosecutor?

A

Acts on behalf of the state in criminal trials in lower courts.

51
Q

What is the role of the Registrar of the High Court?

A

Each seat of the High Court has a registrar, who is responsible for the administrative aspects relating to litigation.

52
Q

Define the role of the Sheriff?

A

The sheriff of the court serves and executes documentation, issued by the South African courts.

53
Q

Define State advocate?

A

Acts on behalf of the state in criminal trials in superior courts.

54
Q

What is an official who specialises in the legal aspects regarding the buying and selling of property known as?

A

A Conveyancer

55
Q

Which Act restructured the legal profession in South Africa and, among other things, established a single unified statutory body to regulate the affairs of all legal practitioners?

A

The Legal Practice Act 28 of 201

56
Q

Gareth is accused of stealing copper wires from the Durban Electrical Substation on the 18th of March. He is set to appear in the in the Durban Magistrate’s Court on the 25th of March on charges of theft. What is the person who will act on behalf of the state in Gareth’s case known as?

A

Public Prosecutor

57
Q

What is the official charged with the administration of estates, and who plays an important role in sequestration
proceedings, known as?

A

The Master of the High Court

CL (12 decks)

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