South African Human Rights Commission Quiz

PBL 220 Exam Notes 2024

• The Judiciary refers to the courts of South Africa.
• Section 165 of the Constitution dictates that the judicial authority of the Republic vests in the courts and that the courts are independent.
• Section 166 of the Constitution outlines the Judicial System: Constitutional Court, Supreme Court of Appeal, High Court, and other courts.
• Chief Justice can serve at the Constitutional Court for 12 years, plus a minimum of 3 years at another court or for a straight 15-year period.
• Section 176 of the Constitution controls terms of office and remuneration of judges.
• Constitutional Court confirmed the Supreme Court of Appeal ruling, recognizing Muslim marriages and declaring certain sections of the Marriage Act and Divorce Act unconstitutional.
• The other court rulings are not valid until confirmed by the Constitutional Court.
• The Public Protector impeachment inquiry has taken place despite initial recission bid, and there were consequently no parliamentary rules for the removal of the head of a Chapter 9 Institution.
• Section 194 of the Constitution provides for the removal of the Public Protector, Auditor General or a member of commission on misconduct, incapacity or incompetence.

Socio Economic Rights

• The text includes the Life Esidimeni Tragedy, where patients were relocated to unsuitable facilities without proper certification, leading to many deaths.
• The judicial inquest is ongoing.

Judicial Authority

• Consider the mechanical application of laws.
• Consider transformative constitutionalism.
• Think about judicial transformation.
• Consider how decolonization, colonial encounter and judicial authority in South Africa affects the current judiciary, including structure, and implications.
• Consider how constitutional supremacy contrasts with parliamentary sovereignty
• The Constitution is the supreme law of the Republic and invalidates laws inconsistent with it.

Parliamentary Supremacy

• Constitutional supremacy is contrasted with parliamentary sovereignty.
• Parliamentary sovereignty is where the legislature has supreme law-making power.
• Under the Apartheid era, South Africa functioned under parliamentary sovereignty.

Separation of Powers

• The principle establishes the three arms of state:
• Executive: Enforces laws (cabinet and ministers)
• Legislature: Creates laws (members of parliament)
• Judiciary: Interprets laws (judges)

Transformative Constitutionalism

• The core principles include socio-economic rights, substantive equality and the interplay between morality and law.
• It emphasizes the empowerment of previously disadvantaged groups and the use of the law for social and political change.
• Transformative constitutionalism requires sensitivity to existing historical injustice and the importance of legal reasoning to address political and moral convictions.
• Relevant judgements include National Coalition for Gay and Lesbian Equality (NB), and S v Makwanyane (NB) in South Africa.

Judicial Authority

• Section 165 of the Constitution: The judiciary is responsible for legal adjudication: finding, interpreting, and applying the law.

Judicial Transformation

• Section 174(2) of the Constitution: Judicial appointments should reflect broad racial and gender composition of South Africa.
• This stemmed from the historical composition of the judiciary in the pre-democratic era.

Decolonization and Judiciary

• Colonial encounter changed the application and development of customary law. This was evidenced by cases such as Bhe v Khayelitsha Magistrate and Shilubana v Nwamitwa in South Africa.

Constitutional Jurisdiction

• The power or competence of a court to hear a case is determined by jurisdiction.
• Specific courts have responsibility for certain types of cases.
• The Constitution dictates specific jurisdiction for different court levels.

Judicial Authority Continued

• Section 165 of the Constitution: Judicial authority is vested in the courts, which must be independent and impartial, and only answerable to the Constitution.
• Various sections (1–6) of Section 165: provide guarantees against interference, emphasize the instrumental role of all organs of state to assist and protect courts and that orders of courts bind all persons.
• The Chief Justice as the head of the judiciary is specified.

Constitution

• Constitutional and other courts have specific jurisdictions.
• Constitutional matters can be dealt with by various courts concurrently and, where appropriate, by the Constitutional Court.