Unit 3 Flashcards
1
Q
3 Previous elections of C
A
1910
1961
1983
2
Q
These C took little account
A
Ethnic
multi-cultural
multi-lingual
3
Q
They catered for…
A
afrikaans
christian
patriachal minority
4
Q
This included …
A
land dispossesion
curtural marginalization
human rights violations
5
Q
A oppressive policies made possible…
A
paliamantary sovereignty
6
Q
Parliamentary sovereignty power to … and … rules in form of …
A
make;enforce; legislation
7
Q
pariamentay sovereignty originated … power
A
colonial
8
Q
… won Anglo Boere War in …
A
Britain; 1902
9
Q
SA consisted = 4 british colonies
A
cape
transvaal
orange river
natal
10
Q
… colonies where unified into …
A
1909; SA
11
Q
Constitutional structure =modeled
A
brittish system (sovereign legislature)
12
Q
SA parliament = lack most NB of PS =
A
democratic representation
13
Q
SA= left british commonwealth …
A
1960
14
Q
In that time leader =
A
HF Verwoerd
15
Q
… allowed enact … in unbridled fashion
A
retention; apartheid laws
16
Q
basis which court could declare … invalid was on ground incorrect …
A
statute ; legislative procedure
17
Q
Interim C brought … of … vested in … to a close
A
destructive reign; parliamentary , minority
18
Q
CS now means that …..
A
law or conduct not consistant to C is invalid
19
Q
Customary and common law that is inconcistant with C , is now …..
A
invalid
20
Q
who has the power to develop common law…..
A
C Court
SUPREME COURT OF APPEAL
HIGH COURT
21
Q
ANY DVELOPMENT OF COMMON LAW MUST SUPPORT
A
BILL OF RIGHTS
22
Q
THE RULE OF LAW APPLIES TO
A
ANYONE
23
Q
8 CARACTERISTICS OF RULE OF LAW:
A
GENERAL TERMS , PUBLICLY PROMULGATED , PROSPECTIVE INTO EFFECT , UNDERSTANDABLE TERMS , CONSISTANT , NOT REQUIRE CONDUCT , STABLE , CONGRUENCE
24
Q
c recognises result = … resulted in = equalties = …
A
descrimination in past;
sa society
25
...is fanal arbiter = determine if law = ... with ...
CC ; inconsistent ; c
26
CC including ... play crucial role in upholding....
judiaciary , cs
27
Why are ...... in power to declare unconctitutional decisions of .........elected government
unelected judges , democratically
28
democracy is ....sense of the majoritalian rule
UN
29
C regulates the power of the ....... in one way or another
government
30
the idea that the ..... should have ....... to subject is called .....
government , limited power , liberal democracy
31
C is separated 3 powers
legislative(PARLIAMENT , EXECUTIVE(PRESIDENT AND CABINET)JUDICIARY(THE COURTS) TRAIS POLITICA
32
JUDICIARY IS PART OF GOVERNMENT AN IS .......
INDIPENDANT
33
there is no ..... system for the separation of powers
Universal
34
............ can not be judge in own case
executive/ legislature
35
members of cabinet ar also part of .....
legislature
36
this makes .....more directly answerableto elected legislature
executive
37
right to have acces to ...... = nb part of judiciaryand is an aspect to the ........
courts , speperation of powers
38
......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
legislation , courts,sepertaion of powers doctrine
39
our democracy contains ... that would not nnnormally form place of a liberal democracy
elements
40
our C protects..........
sosio economic rights , order
41
makes those rights ....
justicible
42
C addresses .....and ..... injustices of the past
social,economical
43
SA HAS A ....... C
TRANSFORMATIVE
44
JUSTICIBLE RIGHTS WERE......IN SUCH A WAY TO KNOW THAT THE RECOURSES ARE .......
FORMULATED , LIMITED
45
SAHRC WOULD BE GIVEN A ....... TO ........REALISATION OF THESE RIGHTS
MANDATE , MONITOR
46
INTERIM C SET SCENE FOR CREATION OF .......
TRC
47
TRC WAS CREATED IN
1995
48
CREATED IN TERMS OF AN ACT...........
PROMOTION OF NATIONAL UNITY AND RECONSILIATION ACT
49
TRC FICILITATES ..... PROCESS
AMNESTY
50
PEOPLE WHO COMMITED....... IN PAST WOULD BE GRANTED .......
POLITICALOBJECTIVE, AMNESTY
51
coud not be sued by someone =compensation for damages as a result of act commited with......
political objective
52
law eccepts exceptions that are ...........
rationally motivated
53
........played crucial role in transition
amnesty
54
could only grant amnesty to people who commited crimes of .......
political motive
55
applicant must appear in .....before hearing a commitee and desclose .... on why they seek ........
person, facts , amnesty
56
members of ......and supporters of ............could apply
state , supporters of political organisations
57
....... would apply for amnesty and only .....would be granted
7000 , 1000
58
different trc commitees
amnesty court, hrvc , rarc
59
human rights and violations commitee...................... violations of human rights
ficilitate , initiate , coordinate
60
reperation and rehab commitee=tasked with development policy.......... and .........for ......of victems
reperation , rehabilitation , needs
61
they make ............ to ........... appropriape repairative measures
suggestions , parliament
62
5 COMPONENTS OF REPERATION AND REHABILITATION
urgent interim reperation, individual reperation grants ,symbolic reperations accomodated by legal and administrative interventions(death certificate) , community rehab , institutional reform
63
presidents fund was established by .................... and recieved funds from.............
department of justice and constitutional development , individuals, foreign countries , government
64
fund is still .........
underutilized
65
fund has net acces of
900 million rand
66
amnesty ,affirmative action , non descrimination can all be used as form of ..............
transformative restorative justice
67
pastenequalities= C cannot be simply ........
liberal
68
massive .........transitions still have to take place
socio economic transition
69
daily lives linked to
social reconciliation
70
positivist approach in apartheid.......
policies were executed in acts of parliament
71
natural law approach= APARTHEID WAS SO .........THAT THEY COULDNT BE CALLED........
EVIL , LAWS
72
apartheid legislative power was ........ because they didnt support the ......... of the people
illigitimate ,majority
73
governmnent did everything to mask .........
illegitimacy
74
law has........ and ...... power
productive , destructive
75
...... and....... had a debate after world war 2
hart , FULLER
76
HART SAYS
COMMUNITY RECOGSNISES CERTAIN LAW AS BINDING
77
FULLER SAID
LAW NOT ONLY TO CREATE ORDER , BUT GOOD ORDER
78
HOBBES SAID
WITOUT LAW , STATE BETWEEN HUMANS WOULD BE NASTY , SOLITARY ,POOR
79
LOCKE
BELIEVED IN A STATE OF NATURE
80
rousseau said
people form a good government of laws through their collective realisation of the benefits of cooperation.(social contract , general will)
81
different sources of law ........... the legal authorities with which ......work
constitute , lawyers
82
understand the ......... and .......... of law in solving problems.
construction , meaning
83
law comprises.............. that society has .......... to regulate relationships between people and people and peolpe and things
authoritative rules , formulated
84
Blacks dictionary defines source of law as something that provides .....and point of ....... for law
authority , origin
85
First reason for sources of law = which iinstitutes have the .......... to develop .........
capacity , prescriptive norms
86
rules wice such .......develop have certain measure of.......which resluts that people are willing to ........
institutes ,power , comply
87
for ...... the rule that only certain intitutions have ....... to make and extend law must be ..... by ........ bound by the law
legitimacy , power , mandated , majority of society
88
ussually accompanied by rules relating to how ......... or ............ as well as safeguards relating to ....... of the law
rules must be made , changed(procedural safeguards) ,substansive content(rights aricilated from the bill of rights).
89
second , knowing which .......of...... have authority of .......
kinds ,rules , law
90
contrabutes to ........and ....... society
peaceful ,orderly
91
those at recieving end know what law .......and ..........
provides , requires
92
.......... ensure that people in charge of ...... the ...... and people who abide by law know what the ...... says
sources of law, making , law, law
93
every one has ......... to the law
equal access
94
legal certainty is ....... of rule of .......
core , law
95
sources of law provide........ on the ...... of law
information, content
96
some sources ......what the law actually says while others.......
indicate , explain
97
primary sources= law....... by .....vested with authority of ............ such as .........
generated , institutions , law making , parliament legislatures judgements of courts
98
secondary sources provide .........on.......and are not ..........
further information , primary sources , not binding
99
content of C=
legislation , content created by lawyers , judicial precedant
100
codified legal system= ..........recorded in a ..........code which serves as ........of its origin and knowledge abut it
systematically , comprehensive , primary source
101
uncodified legal system= SOURCES OF LAW NOT ......... RECORDED
SYSTEMATICALLY
102
sources are therefore ...... accress many .......and ...... sources such as ..............
scattered , written ,unwritten, legislation customary law common law case law
103
sa has ........ legal system because of wide range of sources such as ..........................
uncodified , constitution , statutes ,judicial precedent , customary law common law, RD AND E LAW , indiginous law ,international and foreign law
104
german civil code is ..........
codified
105
....... is ultimate source of law in SA
constitution
106
used as ...... for other law as well as ....... arising from other laws
standard , conduct
107
if law does not meet the standard it is ........
unconstitutional
108
c provides direct sources of law such as..............
C values , fundamental rights, organisation , operation , and powers of government
109
provides........of state and manner wich it should ........
origin , function
110
c provides 3 spheres of government
national , provincial , local
111
different forms of state power
legislative , judicial ,executive
112
c provides state ......... supporting C DEMOCRACY SUCH AS............
INSTITUTIONS , PUBLIC PROTECTOR HRC AUDITOR GENERAL ELECTORAL COMMISSION
113
IT HAS SECTIONS ON ...........
TRADITIONAL LEADERS , SECURITY SERVICE , FINANCE ETC.
114
c= MOST IMPORTANT SECTIONS =.............(allocation of powers among ......................... spheres of government
schedule 4 , 5 , national provincial and local
115
legislation = written legal rule .........to be ........ authority in the state
promulgated , legislative
116
C was cited as a act of parliament(.......of.......)legislator indicated that it should be cited as follows(.....................)
108 of 1996 ,constitution of the repubic of south africa
117
can regulate almost any ......... of human .........
aspect ,activity
118
should fall within the law making .......
domain
119
legislation passed by parliament .........
primary legislation
120
legislation passed by minister or official in department
delegated legislation
121
ultra vires applies to making ...............
secondary legislation
122
regulations will be ultra vires if minister or others exceeds ..........
statutory power
123
................. says: ......... or other functionary officials must comply with the C and enabling ...... when making secondary legisation
doctrine of n legality , minister , parent law ,
124
............ spheres pass legislation support of .................such as ..............
national and provincial , local government , firefighting sanitation child care facilities
125
all 3 spheres can have ............... in some cases
legislative authority
126
provincial legislation = pass legislation for its ........ within ............ provincial government
province , functional area
127
provincial legislation sees to problems such as ............
disaster management , rural development , housing etc.
128
judicial precedent = made by .......... of SA
JUDICIAL AUTHORITY
129
PRECEDENTS= referred to as the ........ or .........
courts ,judiciary
130
J P resolve ............arising from ............
legal disputes ,statutes
131
If there is such a case , they would ask courts to ............ it correctly
interpret
132
one party ussually argues that they were ........ effected by ............courts have to establish whether this is the case and provide a ...........
negetively , opposing party ,remady
133
court also assists on ........ legal interests where 2 or more .......... clam to protect their ..........
balancing , parties , rights
134
primary tasks of courts in SA is to solve legal ......... and ......... that arise in a society
conflicts , questions
135
stare decices rule.......
stand by previous court decisions
136
This stare decices rule comes from
English law
137
courts are bound by their own ......... and lower courts must ........
judgements, apply
138
Judicial precedent refers =NEW RULE THAT ......... FROM JUDGEMENTS
EMERGES
139
LOWER courts are not courts of ........ and ......... can not be precedents
record , judgements
140
......... cases can also be used as judicial precedents
unreported cases
141
legislation does not always fit law exactly , and there will be ....... on howw the rule should ..............
arguments , apply
142
new precedent is then .......... and then becomes law
created
143
CITATION=
indication of different law reports where they will find a judgement
144
court decisions adheres the following structures:
statement of facts , legal question , statement of applicable law ,application of law due to facts , conclusion/order
145
most cases usually have more than ....... legal question
1
146
law .........to ........... before application f law to the facts(court decision)
appicable ,each one of them
147
facts should strike good .......... with not to many ........ with enough .......
balance , words , detail
148
statement of legal question must be ..............and ................
concise , comprehensive
149
overview of applicable law should look to main ............./ source of law the courts used to reach its .............
legal authorities , decision
150
This can include ...............that court applied(court reaches their decision)
statutes ,judicial precedents
151
International,foreign and regional law: BODY CREATED BY MANY........
COUNTRIES
152
does not fall under domestic ...........
jurisdiction
153
bodies such as ... and .... provide platform for states to ........
UN,UA , INTERACT
154
issues that international law deal with..............
environment , humanitarium aid, public health etc....
155
has ........ effects on many countries
tangible
156
international law: REFORMS LEGAL SYSTEMS TOO ........WITH INTERNATIONAL LAW
COMPLY
157
UN is based in ........
new york
158
UN= Main institution responsible for creating ........... law such as..........
international law , treeties and conventions
159
Signing international contract=..........
PACTA SUNT SEVANDA
160
INTERNATIONAL ................IS ANOTHER IMPORTANT SOURCE OF LAW
CUSTOMARY LAW
161
COMPRISES TO ............ AND IT IS CONSIDERED TO BE LAW
UNWRITTEN CUSTOMS
162
commiting crimes against ........... is an exaple of custom crime(international)
humanity
163
countries need not draft to be ........ and .......... among the countries and is binding force of law
accepted , practiced
164
...,...,... play imprtant role in developing regional laws
AU ,SADC ,EU
165
THEY REPRESENT NUMBER OF ....OF...... AND HAVE LAW MAKING .........
STATES , REGIONS , POWERS
166
au created ................. on ........... and bonds african countries= SIGNED AND ........... IT
AFRICAN CHARTER , HUMAN RIGHTS , RITIFIED
167
international ........ become law once it has been ..........
treeties ,legislated
168
to become source of SA law it has to be ..........
legislated
169
not apply to........................since it is already a source of SA law according to .....................
international customary law ,constitution
170
when courts interpret ............ it must consider ............
bill of rights ,international law
171
international law has a ......... influence on SA law
direct
172
Influences result in creation of ............
legislation
173
has potential to influence court ............... and accordingly ..................
decisions , judicial precedent
174
Roman dutch law was influenced by .........
english law
175
common law is a ........................source of modern SA law
important historical
176
Lawyers ...............importance of common law
importance
177
Common law could pass through common law in ............. that could ............ remarkably from common law position
statute , differ
178
where legislation doesnt support certain issue sufficiantlyit relies on .........
common law
179
many ................ aspects have been incorporated in SA ...............
COMMON LAW , LEGISLATION(PROMOTION OF ADMINISTRATIVE JUSTICE ACT)
180
To establish ............ law lawyers and courts ......... the original law sources , esppecially when no legal rules ............
applicable , consult , applies
181
works of old ........... are ............... authoritative sources of SA law
authorities , binding
182
possible authoritative works to rely on ....... FOR PREESENT DAY COMMON RULE
HUGO DE GROOT , JOHANNES VOET , SIMON VAN GROENEWAGEN , ARNOLDIUS VINIUS
183
COURTS MAY ................. COMMON LAW SOURCES
FURTHER DEVELOP
184
CUSTOMARY LAW: OVER A LONG PERIOD OF TIME PEOPLE CAN DEVELOP ...........
CUSTOMS
185
IF PEOPLE IN COMMUNITY AGREE CUSTOM CAN BECOME ........
LAW
186
FOLLOWING REQUIREMENTS BEFORE DECLARED AS CUSTOMARY RULE BY COURT OF LAW
1. EXIST FOR LONG TIME
2. BEEN OBSERVED BY COMMUNITY
3. BE REASONABLE
4. CONTENT AND MEANING MUST BE CERTAIN AND CLEAR
187
INDIGINOUS LAW: SOME ......... SOME .........
FADED , REMAINED
188
INDIGININOUS law: form of ................law
unwritten customary
189
what act says that parties may use indiginous law in courts
law of evidence amendment act
190
in indiginous law cases courts can take ...........
judicial notice
191
clear .......... that seek to rely on .............. because they do have to prove that indiginous law is ........
advantage , indiginous law , custom
192
courts are under ..........to develop ........... in accordance to ...........
obligation,indiginous law , constitutional standard
193
no law or provision may ............ with ............. of ............
contradict , provisions ,constitution
194
modern day commentary on law:
PRESENT DAY WRITERS ALSO WRITE COMMENTARY ON LAW
195
CRITICAL ........ IS DONE IN PERSIUT TO ......... LAW
ANALYSIS , DEVELOP
196
VISIT LOCAL ........... TO READ MODERN DAY COMMENTARY ON LAW
LIBRARY
197
COMMENTARIES ON ................ ARE RECOGNIZED ............... BUT NOT AUTHORITATIVE AND BINDING ONLY............
MODERN DAY LAW , SECONDARY LAW SOURCES , PERSUASIVE
198
SOMETIMES COURTS ALSO RELY ON .......... TO ....... AND ......... THEIR DECISIONS
SECONDARY LAW SOURCES , INFORM ,SUPPORT
199
Understand significance of C, understand essence of ... Know what .. means
Apartheid
| parliapentary sovereignty
