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Questions and Answers
What did the Constitutional Court find regarding the interpretation of the words 'survivor' and 'spouse'?
What did the Constitutional Court find regarding the interpretation of the words 'survivor' and 'spouse'?
- They are irrelevant to the Bill of Rights.
- They must be strictly defined by existing legislation.
- They only refer to legally married couples.
- They can include surviving partners of monogamous Muslim marriages. (correct)
What is the primary focus of the courts in developing common law, according to the Carmichele case?
What is the primary focus of the courts in developing common law, according to the Carmichele case?
- To adhere strictly to legislative provisions.
- To preserve existing laws without modification.
- To limit the scope of judicial interpretation.
- To align with the spirit and objects of the Bill of Rights. (correct)
Why is indirect application of the Constitution preferred over direct application?
Why is indirect application of the Constitution preferred over direct application?
- It does not involve interpretation of the Constitution.
- It respects the legislature's authority to reform laws. (correct)
- It is easier for courts to apply.
- It requires less judicial resources.
What is the principle of avoidance in relation to constitutional application?
What is the principle of avoidance in relation to constitutional application?
What limits the power of courts in developing the common law?
What limits the power of courts in developing the common law?
What characterizes the common law compared to legislation?
What characterizes the common law compared to legislation?
In what scenario might direct application of the Constitution be the obvious choice?
In what scenario might direct application of the Constitution be the obvious choice?
What is a potential outcome of applying the principle of avoidance?
What is a potential outcome of applying the principle of avoidance?
What does the case of Carmichele illustrate about judicial power?
What does the case of Carmichele illustrate about judicial power?
How do the courts approach the adaptation of common law according to the principles discussed?
How do the courts approach the adaptation of common law according to the principles discussed?
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Study Notes
Constitutional Interpretation and Application
- When conflicting interpretations arise, prefer the one that aligns legislation with constitutional standards.
- Relevant legislation must adapt to the Constitution; the Constitution should not be adjusted to fit the legislation.
- Legislative provisions must allow reasonable interpretations consistent with constitutional values.
Case Study: Daniels v Campbell
- The Constitutional Court reviewed benefits for surviving spouses after a spouse's death.
- High Court deemed benefits unconstitutional for not recognizing monogamous Muslim marriages.
- The Constitutional Court overturned this, asserting "survivor" and "spouse" can include partners in monogamous Muslim marriages, validating legislative provisions without direct Bill of Rights application.
Indirect Application of the Constitution
- Indirect application can involve two categories:
- Interpretation of Legislation: Courts must favor interpretations aligning with Bill of Rights' spirit and values over inconsistent ones.
- Common Law Development: Courts are empowered to evolve common law towards the objectives of the Bill of Rights, reflecting judicial flexibility.
Case Study: Carmichele
- In this case, the court emphasized its responsibility to refine common law in line with constitutional values.
- Since common law is not legislative, courts have more freedom to adapt legal standards to uphold constitutional principles.
Preference for Indirect Application
- Courts generally favor indirect application to maintain space for legislative reform, adhering to the principle of avoidance.
- Direct constitutional application is considered when there is a clear infringement or lack of alternative remedies.
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