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PBL 220 > Week 1 > Flashcards

Week 1 Flashcards

1
Q

What is the Judicial Authority often regarded as?

A

Is often regarded as an indispensable requirement of an effective democratic government which ensures that the liberties & rights of the people are protected.

It is separate & independent from the other authorities

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2
Q

Define the judicial authority

A

The JA is the power of being able to resolve disputes by determining what the law is & applying that law to try to resolve the dispute

The JA is exercised by Judicial Bodies that should not be partly to those disputes

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3
Q

Discuss Constitutional supremacy

A

Sec 2 of the Constitution states that the Const is the Supreme law of the land & that any law that is inconsistent with the Constitution is invalid

&

Section 1 c of the Const states that the Republic is founded on the value of Const Supremacy

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4
Q

Parliamentary Supremacy

A

•A contradiction of Const Supremacy
• It is when the legislator has Supreme law-making powers
Therefore parliament can make or repeal or amend the law.
The Westminster System, UK,uses parliamentary supremacy

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5
Q

Separation of powers

A

3 independent arms of the government

The Judiciary- Judges- interpret the law

The Legislature - Parliament - make the law

Executive - Cabinet- enforce

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6
Q

How does the trias politica keep the arms accountable

A

Through a system of checks and balances.
Eg the legislature remove the judiciary for gross misconduct

& the judiciary can stop the legislature from enforcing laws that contradict the Const

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7
Q

What is the aim of Trias Politica

A

It ensures that major decisions taken by those in power are checked & that they can be held accountable

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8
Q

Transformative Constitutionalism

A
  • Seeks to transform SA From unequal to 3 features
  • Doesn’t confirm to status quo
  • ambitious legal document to change material conditions of SA
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9
Q

What does TC include

A
  1. EoJ SoR& SE
  2. Cautious of the interplay between law and morality
  3. Demands that lawyers are aware that the law affects power relations, access to resources & human dignity
  4. Demands that lawyers know that legal reasoning is influenced by a lawyer’s political & moral convictions especially if the lawyer is vague & ambitious

Use law to move society to a better version of its self

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10
Q

Discuss Kimbet & fambad on TC

A

TC focuses of substantive justice & substantive equality

Seeks to empower the previously disadvantaged by protecting socio-economic rights

Places less emphasis on technicalities & procedures in order to realise substantive rights

Places a lot of faith on the law for being in instrument of social & political change

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11
Q

What is the criticism of Tc

A

It obsures law & politics

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12
Q

What does TC require from judges

A

To be self -conscious of the history of the country

TC is a form of activism in the adjudication of rights

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13
Q

NCoG&L e & S v M

A
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14
Q

Mechanical interpretation of law

A
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15
Q

The 6 of s165

A
  1. Judicial Authority
  2. Courts impartial
  3. No interference
  4. Organs of state must assist
  5. order of the court
  6. Chief Justice
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16
Q

Where are the courts listed

A

S166

17
Q

Section 167- CC

A
  1. Chief Justice
  2. Constitutional matter must be heard by 8 judges
  3. A cc highest court in land
    B may decide on const matter, any other matter & final say on matters w/in it’s jurisdiction

Exclusive jurisdiction

18
Q

168

A

Supreme Court of Appeal

Appellate Division -166(b)

19
Q

The SCA & Const have jurisdiction of SA

A
20
Q

Direct access of the cc

A

Yes
167(6)
A & b

21
Q

SCA s168

A
  1. President
  2. Matter brought b4 is decided by judges decided in act of Parliament
  3. 3 decide
22
Q

High court 169

A
  1. HC can hear any consti matter except a) consti agreed to hear or b)assigned to another court AoP
  2. Divisions determined by AoP
    One or two more seats, jurisdiction
  3. Quorum
    a) judge President
    b) one or more deputy judge president
    C) other judges determined AoP
  4. Superior Court
  5. Geographical limitation
  6. Appeals from lower courts
  7. Court of 1st instance
23
Q

170 magistrate court

A

Can hear a matter of AoP

Can not decide on Constitutionality of Legislature or conduct of President
& other courts

MC & similar can’t hear on alleged violation of rights unless granted by AoP

But they must ensure that the BoR are enforced & observed
Therefore indirect jurisdiction

PBL 220 (1 decks)

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