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