Unit 3 Flashcards

1
Q

3 Previous elections of C

A

1910
1961
1983

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2
Q

These C took little account

A

Ethnic
multi-cultural
multi-lingual

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3
Q

They catered for…

A

afrikaans
christian
patriachal minority

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4
Q

This included …

A

land dispossesion
curtural marginalization
human rights violations

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5
Q

A oppressive policies made possible…

A

paliamantary sovereignty

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6
Q

Parliamentary sovereignty power to … and … rules in form of …

A

make;enforce; legislation

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7
Q

pariamentay sovereignty originated … power

A

colonial

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8
Q

… won Anglo Boere War in …

A

Britain; 1902

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9
Q

SA consisted = 4 british colonies

A

cape
transvaal
orange river
natal

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10
Q

… colonies where unified into …

A

1909; SA

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11
Q

Constitutional structure =modeled

A

brittish system (sovereign legislature)

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12
Q

SA parliament = lack most NB of PS =

A

democratic representation

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13
Q

SA= left british commonwealth …

A

1960

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14
Q

In that time leader =

A

HF Verwoerd

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15
Q

… allowed enact … in unbridled fashion

A

retention; apartheid laws

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16
Q

basis which court could declare … invalid was on ground incorrect …

A

statute ; legislative procedure

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17
Q

Interim C brought … of … vested in … to a close

A

destructive reign; parliamentary , minority

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18
Q

CS now means that …..

A

law or conduct not consistant to C is invalid

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19
Q

Customary and common law that is inconcistant with C , is now …..

A

invalid

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20
Q

who has the power to develop common law…..

A

C Court
SUPREME COURT OF APPEAL
HIGH COURT

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21
Q

ANY DVELOPMENT OF COMMON LAW MUST SUPPORT

A

BILL OF RIGHTS

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22
Q

THE RULE OF LAW APPLIES TO

A

ANYONE

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23
Q

8 CARACTERISTICS OF RULE OF LAW:

A

GENERAL TERMS , PUBLICLY PROMULGATED , PROSPECTIVE INTO EFFECT , UNDERSTANDABLE TERMS , CONSISTANT , NOT REQUIRE CONDUCT , STABLE , CONGRUENCE

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24
Q

c recognises result = … resulted in = equalties = …

A

descrimination in past;

sa society

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25
Q

…is fanal arbiter = determine if law = … with …

A

CC ; inconsistent ; c

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26
Q

CC including … play crucial role in upholding….

A

judiaciary , cs

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27
Q

Why are …… in power to declare unconctitutional decisions of ………elected government

A

unelected judges , democratically

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28
Q

democracy is ….sense of the majoritalian rule

A

UN

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29
Q

C regulates the power of the ……. in one way or another

A

government

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30
Q

the idea that the ….. should have ……. to subject is called …..

A

government , limited power , liberal democracy

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31
Q

C is separated 3 powers

A

legislative(PARLIAMENT , EXECUTIVE(PRESIDENT AND CABINET)JUDICIARY(THE COURTS) TRAIS POLITICA

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32
Q

JUDICIARY IS PART OF GOVERNMENT AN IS …….

A

INDIPENDANT

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33
Q

there is no ….. system for the separation of powers

A

Universal

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34
Q

………… can not be judge in own case

A

executive/ legislature

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35
Q

members of cabinet ar also part of …..

A

legislature

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36
Q

this makes …..more directly answerableto elected legislature

A

executive

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37
Q

right to have acces to …… = nb part of judiciaryand is an aspect to the ……..

A

courts , speperation of powers

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38
Q

……that seek to bring the …… under control of legislature or executive could be struck down by …….. even if no particular provision of the constitution is violated

A

legislation , courts,sepertaion of powers doctrine

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39
Q

our democracy contains … that would not nnnormally form place of a liberal democracy

A

elements

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40
Q

our C protects……….

A

sosio economic rights , order

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41
Q

makes those rights ….

A

justicible

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42
Q

C addresses …..and ….. injustices of the past

A

social,economical

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43
Q

SA HAS A ……. C

A

TRANSFORMATIVE

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44
Q

JUSTICIBLE RIGHTS WERE……IN SUCH A WAY TO KNOW THAT THE RECOURSES ARE …….

A

FORMULATED , LIMITED

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45
Q

SAHRC WOULD BE GIVEN A ……. TO ……..REALISATION OF THESE RIGHTS

A

MANDATE , MONITOR

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46
Q

INTERIM C SET SCENE FOR CREATION OF …….

A

TRC

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47
Q

TRC WAS CREATED IN

A

1995

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48
Q

CREATED IN TERMS OF AN ACT………..

A

PROMOTION OF NATIONAL UNITY AND RECONSILIATION ACT

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49
Q

TRC FICILITATES ….. PROCESS

A

AMNESTY

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50
Q

PEOPLE WHO COMMITED……. IN PAST WOULD BE GRANTED …….

A

POLITICALOBJECTIVE, AMNESTY

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51
Q

coud not be sued by someone =compensation for damages as a result of act commited with……

A

political objective

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52
Q

law eccepts exceptions that are ………..

A

rationally motivated

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53
Q

……..played crucial role in transition

A

amnesty

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54
Q

could only grant amnesty to people who commited crimes of …….

A

political motive

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55
Q

applicant must appear in …..before hearing a commitee and desclose …. on why they seek ……..

A

person, facts , amnesty

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56
Q

members of ……and supporters of …………could apply

A

state , supporters of political organisations

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57
Q

……. would apply for amnesty and only …..would be granted

A

7000 , 1000

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58
Q

different trc commitees

A

amnesty court, hrvc , rarc

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59
Q

human rights and violations commitee…………………. violations of human rights

A

ficilitate , initiate , coordinate

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60
Q

reperation and rehab commitee=tasked with development policy………. and ………for ……of victems

A

reperation , rehabilitation , needs

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61
Q

they make ………… to ……….. appropriape repairative measures

A

suggestions , parliament

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62
Q

5 COMPONENTS OF REPERATION AND REHABILITATION

A

urgent interim reperation, individual reperation grants ,symbolic reperations accomodated by legal and administrative interventions(death certificate) , community rehab , institutional reform

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63
Q

presidents fund was established by ……………….. and recieved funds from………….

A

department of justice and constitutional development , individuals, foreign countries , government

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64
Q

fund is still ………

A

underutilized

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65
Q

fund has net acces of

A

900 million rand

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66
Q

amnesty ,affirmative action , non descrimination can all be used as form of …………..

A

transformative restorative justice

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67
Q

pastenequalities= C cannot be simply ……..

A

liberal

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68
Q

massive ………transitions still have to take place

A

socio economic transition

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69
Q

daily lives linked to

A

social reconciliation

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70
Q

positivist approach in apartheid…….

A

policies were executed in acts of parliament

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71
Q

natural law approach= APARTHEID WAS SO ………THAT THEY COULDNT BE CALLED……..

A

EVIL , LAWS

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72
Q

apartheid legislative power was …….. because they didnt support the ……… of the people

A

illigitimate ,majority

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73
Q

governmnent did everything to mask ………

A

illegitimacy

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74
Q

law has…….. and …… power

A

productive , destructive

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75
Q

…… and……. had a debate after world war 2

A

hart , FULLER

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76
Q

HART SAYS

A

COMMUNITY RECOGSNISES CERTAIN LAW AS BINDING

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77
Q

FULLER SAID

A

LAW NOT ONLY TO CREATE ORDER , BUT GOOD ORDER

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78
Q

HOBBES SAID

A

WITOUT LAW , STATE BETWEEN HUMANS WOULD BE NASTY , SOLITARY ,POOR

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79
Q

LOCKE

A

BELIEVED IN A STATE OF NATURE

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80
Q

rousseau said

A

people form a good government of laws through their collective realisation of the benefits of cooperation.(social contract , general will)

81
Q

different sources of law ……….. the legal authorities with which ……work

A

constitute , lawyers

82
Q

understand the ……… and ………. of law in solving problems.

A

construction , meaning

83
Q

law comprises………….. that society has ………. to regulate relationships between people and people and peolpe and things

A

authoritative rules , formulated

84
Q

Blacks dictionary defines source of law as something that provides …..and point of ……. for law

A

authority , origin

85
Q

First reason for sources of law = which iinstitutes have the ………. to develop ………

A

capacity , prescriptive norms

86
Q

rules wice such …….develop have certain measure of…….which resluts that people are willing to ……..

A

institutes ,power , comply

87
Q

for …… the rule that only certain intitutions have ……. to make and extend law must be ….. by …….. bound by the law

A

legitimacy , power , mandated , majority of society

88
Q

ussually accompanied by rules relating to how ……… or ………… as well as safeguards relating to ……. of the law

A

rules must be made , changed(procedural safeguards) ,substansive content(rights aricilated from the bill of rights).

89
Q

second , knowing which …….of…… have authority of …….

A

kinds ,rules , law

90
Q

contrabutes to ……..and ……. society

A

peaceful ,orderly

91
Q

those at recieving end know what law …….and ……….

A

provides , requires

92
Q

………. ensure that people in charge of …… the …… and people who abide by law know what the …… says

A

sources of law, making , law, law

93
Q

every one has ……… to the law

A

equal access

94
Q

legal certainty is ……. of rule of …….

A

core , law

95
Q

sources of law provide…….. on the …… of law

A

information, content

96
Q

some sources ……what the law actually says while others…….

A

indicate , explain

97
Q

primary sources= law……. by …..vested with authority of ………… such as ………

A

generated , institutions , law making , parliament legislatures judgements of courts

98
Q

secondary sources provide ………on…….and are not ……….

A

further information , primary sources , not binding

99
Q

content of C=

A

legislation , content created by lawyers , judicial precedant

100
Q

codified legal system= ……….recorded in a ……….code which serves as ……..of its origin and knowledge abut it

A

systematically , comprehensive , primary source

101
Q

uncodified legal system= SOURCES OF LAW NOT ……… RECORDED

A

SYSTEMATICALLY

102
Q

sources are therefore …… accress many …….and …… sources such as …………..

A

scattered , written ,unwritten, legislation customary law common law case law

103
Q

sa has …….. legal system because of wide range of sources such as ……………………..

A

uncodified , constitution , statutes ,judicial precedent , customary law common law, RD AND E LAW , indiginous law ,international and foreign law

104
Q

german civil code is ……….

105
Q

……. is ultimate source of law in SA

A

constitution

106
Q

used as …… for other law as well as ……. arising from other laws

A

standard , conduct

107
Q

if law does not meet the standard it is ……..

A

unconstitutional

108
Q

c provides direct sources of law such as…………..

A

C values , fundamental rights, organisation , operation , and powers of government

109
Q

provides……..of state and manner wich it should ……..

A

origin , function

110
Q

c provides 3 spheres of government

A

national , provincial , local

111
Q

different forms of state power

A

legislative , judicial ,executive

112
Q

c provides state ……… supporting C DEMOCRACY SUCH AS…………

A

INSTITUTIONS , PUBLIC PROTECTOR HRC AUDITOR GENERAL ELECTORAL COMMISSION

113
Q

IT HAS SECTIONS ON ………..

A

TRADITIONAL LEADERS , SECURITY SERVICE , FINANCE ETC.

114
Q

c= MOST IMPORTANT SECTIONS =………….(allocation of powers among ……………………. spheres of government

A

schedule 4 , 5 , national provincial and local

115
Q

legislation = written legal rule ………to be …….. authority in the state

A

promulgated , legislative

116
Q

C was cited as a act of parliament(…….of…….)legislator indicated that it should be cited as follows(…………………)

A

108 of 1996 ,constitution of the repubic of south africa

117
Q

can regulate almost any ……… of human ………

A

aspect ,activity

118
Q

should fall within the law making …….

119
Q

legislation passed by parliament ………

A

primary legislation

120
Q

legislation passed by minister or official in department

A

delegated legislation

121
Q

ultra vires applies to making ……………

A

secondary legislation

122
Q

regulations will be ultra vires if minister or others exceeds ……….

A

statutory power

123
Q

…………….. says: ……… or other functionary officials must comply with the C and enabling …… when making secondary legisation

A

doctrine of n legality , minister , parent law ,

124
Q

………… spheres pass legislation support of ……………..such as …………..

A

national and provincial , local government , firefighting sanitation child care facilities

125
Q

all 3 spheres can have …………… in some cases

A

legislative authority

126
Q

provincial legislation = pass legislation for its …….. within ………… provincial government

A

province , functional area

127
Q

provincial legislation sees to problems such as …………

A

disaster management , rural development , housing etc.

128
Q

judicial precedent = made by ………. of SA

A

JUDICIAL AUTHORITY

129
Q

PRECEDENTS= referred to as the …….. or ………

A

courts ,judiciary

130
Q

J P resolve …………arising from …………

A

legal disputes ,statutes

131
Q

If there is such a case , they would ask courts to ………… it correctly

132
Q

one party ussually argues that they were …….. effected by …………courts have to establish whether this is the case and provide a ………..

A

negetively , opposing party ,remady

133
Q

court also assists on …….. legal interests where 2 or more ………. clam to protect their ……….

A

balancing , parties , rights

134
Q

primary tasks of courts in SA is to solve legal ……… and ……… that arise in a society

A

conflicts , questions

135
Q

stare decices rule…….

A

stand by previous court decisions

136
Q

This stare decices rule comes from

A

English law

137
Q

courts are bound by their own ……… and lower courts must ……..

A

judgements, apply

138
Q

Judicial precedent refers =NEW RULE THAT ……… FROM JUDGEMENTS

139
Q

LOWER courts are not courts of …….. and ……… can not be precedents

A

record , judgements

140
Q

……… cases can also be used as judicial precedents

A

unreported cases

141
Q

legislation does not always fit law exactly , and there will be ……. on howw the rule should …………..

A

arguments , apply

142
Q

new precedent is then ………. and then becomes law

143
Q

CITATION=

A

indication of different law reports where they will find a judgement

144
Q

court decisions adheres the following structures:

A

statement of facts , legal question , statement of applicable law ,application of law due to facts , conclusion/order

145
Q

most cases usually have more than ……. legal question

146
Q

law ………to ……….. before application f law to the facts(court decision)

A

appicable ,each one of them

147
Q

facts should strike good ………. with not to many …….. with enough …….

A

balance , words , detail

148
Q

statement of legal question must be …………..and …………….

A

concise , comprehensive

149
Q

overview of applicable law should look to main …………./ source of law the courts used to reach its ………….

A

legal authorities , decision

150
Q

This can include ……………that court applied(court reaches their decision)

A

statutes ,judicial precedents

151
Q

International,foreign and regional law: BODY CREATED BY MANY……..

152
Q

does not fall under domestic ………..

A

jurisdiction

153
Q

bodies such as … and …. provide platform for states to ……..

A

UN,UA , INTERACT

154
Q

issues that international law deal with…………..

A

environment , humanitarium aid, public health etc….

155
Q

has …….. effects on many countries

156
Q

international law: REFORMS LEGAL SYSTEMS TOO ……..WITH INTERNATIONAL LAW

157
Q

UN is based in ……..

158
Q

UN= Main institution responsible for creating ……….. law such as……….

A

international law , treeties and conventions

159
Q

Signing international contract=……….

A

PACTA SUNT SEVANDA

160
Q

INTERNATIONAL …………….IS ANOTHER IMPORTANT SOURCE OF LAW

A

CUSTOMARY LAW

161
Q

COMPRISES TO ………… AND IT IS CONSIDERED TO BE LAW

A

UNWRITTEN CUSTOMS

162
Q

commiting crimes against ……….. is an exaple of custom crime(international)

163
Q

countries need not draft to be …….. and ………. among the countries and is binding force of law

A

accepted , practiced

164
Q

…,…,… play imprtant role in developing regional laws

A

AU ,SADC ,EU

165
Q

THEY REPRESENT NUMBER OF ….OF…… AND HAVE LAW MAKING ………

A

STATES , REGIONS , POWERS

166
Q

au created …………….. on ……….. and bonds african countries= SIGNED AND ……….. IT

A

AFRICAN CHARTER , HUMAN RIGHTS , RITIFIED

167
Q

international …….. become law once it has been ……….

A

treeties ,legislated

168
Q

to become source of SA law it has to be ……….

A

legislated

169
Q

not apply to……………………since it is already a source of SA law according to …………………

A

international customary law ,constitution

170
Q

when courts interpret ………… it must consider …………

A

bill of rights ,international law

171
Q

international law has a ……… influence on SA law

172
Q

Influences result in creation of …………

A

legislation

173
Q

has potential to influence court …………… and accordingly ………………

A

decisions , judicial precedent

174
Q

Roman dutch law was influenced by ………

A

english law

175
Q

common law is a ……………………source of modern SA law

A

important historical

176
Q

Lawyers ……………importance of common law

A

importance

177
Q

Common law could pass through common law in …………. that could ………… remarkably from common law position

A

statute , differ

178
Q

where legislation doesnt support certain issue sufficiantlyit relies on ………

A

common law

179
Q

many ……………. aspects have been incorporated in SA ……………

A

COMMON LAW , LEGISLATION(PROMOTION OF ADMINISTRATIVE JUSTICE ACT)

180
Q

To establish ………… law lawyers and courts ……… the original law sources , esppecially when no legal rules …………

A

applicable , consult , applies

181
Q

works of old ……….. are …………… authoritative sources of SA law

A

authorities , binding

182
Q

possible authoritative works to rely on ……. FOR PREESENT DAY COMMON RULE

A

HUGO DE GROOT , JOHANNES VOET , SIMON VAN GROENEWAGEN , ARNOLDIUS VINIUS

183
Q

COURTS MAY …………….. COMMON LAW SOURCES

A

FURTHER DEVELOP

184
Q

CUSTOMARY LAW: OVER A LONG PERIOD OF TIME PEOPLE CAN DEVELOP ………..

185
Q

IF PEOPLE IN COMMUNITY AGREE CUSTOM CAN BECOME ……..

186
Q

FOLLOWING REQUIREMENTS BEFORE DECLARED AS CUSTOMARY RULE BY COURT OF LAW

A
  1. EXIST FOR LONG TIME
  2. BEEN OBSERVED BY COMMUNITY
  3. BE REASONABLE
  4. CONTENT AND MEANING MUST BE CERTAIN AND CLEAR
187
Q

INDIGINOUS LAW: SOME ……… SOME ………

A

FADED , REMAINED

188
Q

INDIGININOUS law: form of …………….law

A

unwritten customary

189
Q

what act says that parties may use indiginous law in courts

A

law of evidence amendment act

190
Q

in indiginous law cases courts can take ………..

A

judicial notice

191
Q

clear ………. that seek to rely on ………….. because they do have to prove that indiginous law is ……..

A

advantage , indiginous law , custom

192
Q

courts are under ……….to develop ……….. in accordance to ………..

A

obligation,indiginous law , constitutional standard

193
Q

no law or provision may ………… with …………. of …………

A

contradict , provisions ,constitution

194
Q

modern day commentary on law:

A

PRESENT DAY WRITERS ALSO WRITE COMMENTARY ON LAW

195
Q

CRITICAL …….. IS DONE IN PERSIUT TO ……… LAW

A

ANALYSIS , DEVELOP

196
Q

VISIT LOCAL ……….. TO READ MODERN DAY COMMENTARY ON LAW

197
Q

COMMENTARIES ON ……………. ARE RECOGNIZED …………… BUT NOT AUTHORITATIVE AND BINDING ONLY…………

A

MODERN DAY LAW , SECONDARY LAW SOURCES , PERSUASIVE

198
Q

SOMETIMES COURTS ALSO RELY ON ………. TO ……. AND ……… THEIR DECISIONS

A

SECONDARY LAW SOURCES , INFORM ,SUPPORT

199
Q

Understand significance of C, understand essence of … Know what .. means

A

Apartheid

parliapentary sovereignty