Constitution and State Power Quiz

PBL 220 Exam Notes 2024

• Theme 1: The Judiciary

  • The judiciary refers to the courts of South Africa.
  • Section 165 of the Constitution vests judicial authority in the courts and states that the courts are independent.
  • Section 166 of the Constitution outlines the judicial system, including the Constitutional Court, Supreme Court of Appeal, and High Court.
  • A chief justice may serve at the Constitutional Court for a period of 12 years plus minimum 3 years at another court, or a straight 15-year period; the president can extend terms.
  • Section 176 of the Constitution lays out the terms of office and remuneration for judges.
  • The Constitutional Court legally recognizes Muslim marriages, declaring sections of the Marriage Act and Divorce Act unconstitutional.
  • Courts have no force on constitutionality until the Constitutional Court confirms their rulings.
  • The Public Protector impeachment inquiry has proceeded despite the Public Protector's recission bid.
  • Section 194 outlines the process for removing the Public Protector, Auditor General, or members.

• Judicial Authority

  • Consider the mechanical application of the law.
  • Consider transformative constitutionalism and judicial transformation.
  • Consider how decolonization affects the South African judiciary.
  • Examine the structure of the South African judicial system.
  • Understand the concept of constitutional supremacy, where the Constitution is the supreme law of the republic.
  • The Constitution constrains state power. State conduct outside constitutional bounds is invalid.

• Parliamentary Supremacy

  • Constitutional supremacy is contrasted with parliamentary sovereignty, where the legislature holds supreme law-making power.

• Separation of Powers

  • This divides power among the executive, legislative, and judiciary branches of government.

• Transformative Constitutionalism

  • This emphasizes substantive equality and justice, empowering previously marginalized communities.
  • It prioritizes socioeconomic rights and minimizes procedural technicalities.

• Judicial Transformation

  • Section 174(2) mandates that the judiciary reflects South Africa's racial and gender composition, particularly important given the prior dominance of white males in the pre-democratic era.
  • Focuses on understanding how colonization has influenced South Africa’s customary law and the way it is viewed, particularly through instances where traditional customs are upgraded but frozen out of their current context.

• Judicial Authority: Section 165 of the Constitution

  • The judiciary's role is legal adjudication.
  • Courts exercise judicial functions including interpreting the law and resolving disputes.
  • Courts make law in a secondary sense through their interpretations of legal disputes and by applying the law to specific cases.

• Constitutional Court: Section 167 of the Constitution

• Section 165 outlines the structure and roles of the Constitutional Court within the Judiciary of South Africa.

• Supreme Court of Appeal: Section 168 of the Constitution

• Section 168 of the Constitution deals with the structure and function of this court, which acts as a final court of appeal for certain matters.

• High Court: Section 169 of the Constitution

  • The High Court acts as a court of first instance and appeals court.
  • It comprises different divisions based in certain geographical locations.

• Magistrates Court: Section 170 of the Constitution

• Section 170 designates jurisdiction powers to lower Magistrates court in terms of national legislation for any matters decided by an Act of parliament.

• Note the restrictions in specific cases of constitutionality.

• Section 167 of the Constitution: Introduces the Head of State as the Chief Justice, with various judicial officers playing supporting roles in the constitutional justice system of South Africa.

• Theme 2: Appointment of Judges

  • This theme covers the appointment, terms, and removal procedures for judicial officers in the South African court system. This includes detailing pertinent legislation.

• Section 174(Appointment of Judicial Officers): Explains the criteria for appointing judicial officers; details who can be so appointed and their qualifications.

• Section 175 (Appointment of Acting Judges): Defines how acting judges are appointed in different courts

• Section 176 (Terms of Office and Remuneration): Outlines the terms of office for judicial officers, including the non-renewable term limitations.

• Section 177 (Removal of Judges): Describes the grounds for removing a judge from office and the procedure involved in impeachment.

• Section 178 (Judicial Service Commission): Provides specifics on that particular body's structures, composition, and powers for appointing and removing judges from office.

• Section 180 (National Legislation and Administration of Justice): Details the specific legislation and administration of justice related to the matters concerned, including judicial appointments.

• Case Study Analysis: Presents real-world examples or cases to illustrate the application of these sections in practical legal situations.