Study Theme 1 & 2: South African Judicial Authority

Question 1

Constitutional Supremacy

Answer 1

→Section 1 of the Constitution provides that South Africa is a republic founded on the values of constitutional supremacy
→Section 2 of the Constitution provides that the Constitution is the supreme law of the land and any law or conduct inconsistent with it is invalid. The obligations imposed by it must be fulfilled.
→Thus, the rules of the Constitution trumps over all other rules contained in statutes, common law and customary law.

Question 2

Parliamentary Supremacy

Answer 2

→ Where the legislature has the absolute right to enact laws and there are no rules that the legislature cannot enact or amend.
→ Importantly, South Africa has shifted from a system of parliamentary sovereignty to constitutional supremacy.

Question 3

Separation of Powers

Answer 3

→ The trias politica, which establishes three independent arms of state: the executive, the legislature, and the judiciary.
→ Separating powers between independent arms of state ensures that major decisions taken by those in power can be checked by and held to account by another arm of state.

Question 4

Transformative Constitutionalism

Answer 4

→ Activism by adjudicating rights
→ Judges act as guardians of social transformation
→ Constitution emphasises equality and justice
→ Empowering through the protection of social-economic rights
→ Prioritising substantive rights in the Bill of Rights over procedures
→ Law as a tool for South African social change

Question 5

What is the criticism of transformative constitutionalism?

Answer 5

→ It obscures how the law is political
→ It maintains the inequality from South Africa’s exclusionary past in different ways
→ It limits our civil liberties and rights to things like self-determination and puts more powers on the state to be coercive (and by proxy) oppressive.
→ Some critics go as far as saying abolish the entire thing and draft a new Constitution

Question 6

Judicial Authority

Answer 6

→Section 165 of the Constitution
→Authority over the courts who are repsonsible

Question 7

Judicial Systems

Answer 7

→Section 166 of the Constitution
The courts are:
➤Constitutional Court
➤Supreme Court of Appeal
➤High Court of South Africa
➤Magistrate’s Courts
➤Other courts established in terms of an Act of Parliament

Question 8

Constitutional Court

Answer 8

→Section 167 of the Constitution
➤Chief Justice, Deputy Chief Justice and 9 other judges = 11 Judges
➤At least 8 judges must be present to hear a matter.

Question 9

Supreme Court of Appeal

Answer 9

→Section 168 of the Constitution
➤Judge President, Deputy Judge President & a number of judges determined by an Act of Parliament
➤For matter to be heard, certain amount of judges needs to be present; determined by an Act of Parliament.

Question 10

High Court of South Africa

Answer 10

→Section 169 of the Constitution
➤Judge President, may have more than one Deputy Judge Presidents
➤Number of judges is determined by National Legislation.

Question 11

Jurisdiction

Answer 11

→ Whether a court has the competence to hear a particular matter.
Two kinds if jurisdictions:
➤Exclusive Jurisdiction
➤Concurrent Jurisdiction

Question 12

Exclusive Jurisdiction

Answer 12

Only this court can hear this kind/certain type of matter.

Question 13

Concurrent Jurisdiction

Answer 13

More than one court can hear this sort of matter/do that kind of thing

Question 14

Constitutional Court has Jurisdiction to:

Answer 14

Section 167 of the Constitution:
→ Decide Constitutional matters
→ Any other matter that the court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by the court
→ Makes the final decision on whether a decision is in its jurisdiction

Question 15

Constitutional Court has exclusive jurisdiction to:

Answer 15

→ Confirm the invalidity of an Act of Parliament.
→ Decide on the amendment of the constitution
→ Decide that Parliament or the President has failed to fulfil a constitutional obligation → Decide on the Constitutionality of any Parliamentary or Provincial Bill

Question 16

Doctors for Life v Speaker of the National Assembly and Others

Answer 16

→ In this matter the applicants brought an application to the court challenging the constitutional validity of four health Bills on the basis that Parliament had failed to fulfil its obligation to facilitate public involvement when passing the bills.
→ The court agreed and held that the Constitutional Court is the only court which can hear a challenge of this nature because the challenge involved a decision on whether Parliament had failed to fulfil a constitutional obligation.

Question 17

Sonke Gender Justice NPC v President of the Republic of South Africa and Others

Answer 17

→ Applicant seeks confirmation of a High Court order declaring sections 88A(1)(b), 88A(4), and 91 of the Correctional Services Act unconstitutional.
→ Constitutional Court to decide whether to confirm the High Court’s invalidity order.
→ Application focuses on confirming the order, not the reasoning.
→ According to Constitution’s sections 167(5) and 172(2)(a), High Court’s invalidity orders need confirmation before taking effect.

ONLY the Constitutional Court can confirm invalidity(Exclusive Jurisdiction), whereas the Supreme Court of Appeal and High Court may hear it, but not confirm it.

Question 18

The Supreme Court of Appeal has jurisdiction to:

Answer 18

Section 168 of the Constitution:
→Decide on appeals in any matter arising form the High Court of South Africa or a court of similar status to the High Court
→Decides only on; Appeals, issues connected with appeals, any other matter that may be referred to it in circumstances defined by an Act of Parliament.
→Can also hear matters on the constitutionality of things.

Question 19

The High Court of South Africa has jurisdiction to:

Answer 19

Section 169 of the Constitution:
→Decide any Constitutional matter except:
➤ A matter that the Constitutional Court has granted direct access to.
➤ A matter that an Act of Parliament to another court of similar status

→ Decide any other matter not assigned to another court by an Act of Parliament.
→ Can also decide on the constitutionality of an Act or Bill.

Question 20

The Magistrate’s Court has jurisdiction to:

Answer 20

Section 170 of the Constitution:
→Lower branch of the judiciary, does not have inherit jurisdiction.
→A court lower than the High Court of South Africa may not enquire on the constitutionality of any legislation or any conduct of the president.

Question 21

Appointment of Judges

Answer 21

→Section 174 of the Constitution
→President appoints Chief Justice & Deputy Chief Justice after consultation with the JSC & NA
→President appoints President & Deputy President of the SCA after consultation with the JSC
→President appoints judges of all other courts on the advice of the JSC
→Other judicial officers are appointed in terms of an Act of Parliament

Question 22

Constitutional Court Appointment of Judges:

Answer 22

→At least 4 members of the CC must have been judges

Question 23

Terms of office and remuneration

Answer 23

→Section 176 of the Constitution
→CC Judge hold office for non-renewable term of 12 years or until age 70(comes first unless Act of Parliament extends term of office)
→Other judges hold office until discharged by an Act of Parliament
→Salaries, allowances and benefits may not be reduced

Question 24

Removal of judges

Answer 24

→Section 177 of the Constitution
→JSC finds that judge suffer from: An incapacity, grossly incompetent and gross misconduct
→NA calls for judge to be removed, by supporting vote of 2/3 of its members

Question 25

Judicial Service Commission

Answer 25

→Section 178 of the Constitution
→Composition:
➤Chief Justice(presiding officer)
➤President of SCA
➤One Judge President
➤Cabinet member for admin of justice
➤2 Practicing advocates and 2 attorneys

Question 26

The National Prosecuting Authority

Answer 26

→ The prosecuting authority has the power to institute criminal proceedings on behalf of the state.
→ Also, discontinue criminal proceedings