48 Questions
Explain the importance of knowing the history of the judiciary prior to democracy.
Knowing the history of the judiciary prior to democracy is important because it provides context and understanding of how the judicial system has evolved over time. It helps to identify any biases or injustices that may have existed in the past and allows for a more informed analysis of current legal principles and decisions.
What is transformative constitutionalism and how does it relate to judicial transformation?
Transformative constitutionalism is a concept that refers to the use of the constitution to bring about social change and address historical injustices. It involves interpreting and applying the constitution in a way that promotes equality, dignity, and human rights. Judicial transformation, on the other hand, refers to the role of the judiciary in implementing transformative constitutionalism through its decisions and judgments.
How does the concept of decolonization affect the judiciary?
The concept of decolonization in the judiciary refers to the need to address and rectify the historical legacies of colonialism and its impact on the legal system. It involves recognizing and challenging any discriminatory or oppressive practices that may have been inherited from the colonial era and promoting a more inclusive and equitable justice system.
Name three courts established by Section 166 of the Constitution.
Constitutional Court, Supreme Court of Appeal, High Court of South Africa
Who is the Chief Justice of the Constitutional Court?
The Chief Justice
Where is the seat of the Constitutional Court located?
Johannesburg
Name one of the divisions of the High Court of South Africa.
Eastern Cape Division
What is the core difference between parliamentary sovereignty and constitutional supremacy?
In parliamentary sovereignty, the ultimate authority for law-making lies with the legislature, while in constitutional supremacy, it lies with the constitution of a state.
What is the rationale behind the tripartite separation of powers?
The rationale is to ensure that major decisions taken by those in power can be checked and held to account by another arm of state, preventing concentration of power and promoting accountability.
What is transformative constitutionalism?
Transformative constitutionalism refers to the goals and means by which a constitution seeks to transform a society, often including justiciable socio-economic rights, substantive equality, and a form of legal reasoning that considers the interplay between morality and law.
What is the significance of constitutional supremacy for a state?
Constitutional supremacy establishes and constrains the exercise of state power, whereby a state can only act in accordance with its constitution. Any conduct inconsistent with the constitution is legally invalid.
What are the key features that have emerged since the coming into existence of the South African Constitution in relation to the judiciary?
rejection of the principle of parliamentary sovereignty, rule of law, control of public power, judicial review of legislation and testing of conduct against the Constitution.
What does Section 165 of the South African Constitution state?
It states that judicial authority vests in the courts, courts must be independent and impartial and subject only to the Constitution, provides a guarantee against the interference with the functioning of courts, organs of the state must assist with ensuring the independence of the courts, an order of courts binds all persons, and the chief justice is the head of the judiciary.
What case is referenced in the text to support the importance of the judiciary in a democratic country?
Pharmaceutical Manufacturers of South: In re: Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC)
What does transformative constitutionalism demand from lawyers?
Understanding that legal reasoning is heavily influenced by a lawyer’s political and moral convictions, especially when the law is ambiguous or vague.
What are the key characteristics of transformative constitutionalism?
Substantive equality and substantive justice, protection of socio-economic rights, less emphasis on technicalities and procedure, faith in the law as an instrument for social and political change.
What was the role of judges in the apartheid era?
They were regarded as mere mechanical interpreters of the law, ascertaining the intention of the apartheid legislature and giving effect to it, regardless of how nefarious the intention might have been.
What is the purpose of Section 174(2) of the Constitution of the Republic of South Africa?
To ensure that the judiciary reflects broadly the racial and gender composition of South Africa when appointing judicial officers.
What does Section 167 of the South African Constitution provide for?
Section 167 of the South African Constitution provides for the Constitutional Court, including the Chief Justice, Deputy Chief Justice, and 9 other judges.
What is the highest court in constitutional matters in South Africa?
The Constitutional Court is the highest court in constitutional matters in South Africa.
What is the jurisdiction of the Constitutional Court?
The jurisdiction of the Constitutional Court involves issues of interpretation, protection, or enforcement of the Constitution.
What is constitutional jurisdiction?
Constitutional jurisdiction refers to the power or competence of a court to hear and adjudicate on legal disputes related to constitutional matters.
What is the difference between concurrent and exclusive jurisdiction?
Concurrent jurisdiction is exercised concurrently with the High Court and the Supreme Court of Appeal (SCA), while exclusive jurisdiction is exercised solely by the Constitutional Court.
What does the Constitution grant jurisdiction to certain courts for?
The Constitution grants jurisdiction to certain courts to award remedies pertaining to constitutional matters.
Who can appeal directly to the Constitutional Court to confirm or vary an order of constitutional invalidity?
Any person or organ of state with a sufficient interest
What case challenged the constitutional validity of certain Bills?
Doctors for Life International v The Speaker of the National Assembly and Others
Which four Bills did Doctors for Life International argue were passed without fulfilling the constitutional obligation to facilitate public involvement?
the Sterilisation Amendment Bill, the Traditional Health Practitioners Bill, the Choice on Termination of Pregnancy Amendment Bill, and the Dental Technicians Amendment Bill
Which court did Sonke Gender Justice NPC launch a constitutional challenge to the Act in?
High Court, Western Cape Division, Cape Town
Who were the first to sixth respondents in the High Court proceedings in the Sonke Gender Justice NPC case?
the President of the Republic of South Africa, the Minister of Justice and Correctional Services, the National Commissioner of Correctional Services, the Inspecting Judge for Correctional Services, the Minister of Finance, and the Minister of Public Service and Administration
Who lodged complaints with the Public Protector concerning the security upgrades at the President's Nkandla private residence?
Several South Africans, including a Member of Parliament
According to section 167(4)(e) of the Constitution, who has the exclusive jurisdiction to decide that Parliament or the President has failed to fulfill a constitutional obligation?
Constitutional Court
What does the EFF ask for in their application to the Constitutional Court?
An order affirming the legally binding effect of the Public Protector's remedial action, directing the President to comply with the Public Protector's remedial action, and declaring that both the President and the National Assembly acted in breach of their constitutional obligations
Which courts have jurisdiction to pronounce on the constitutional validity of laws or conduct of the President?
Supreme Court of Appeal, High Court, and courts of similar status
What does Esau claim in their case?
That the failure to initiate and prepare legislation providing for the recognition of Muslim marriages as valid marriages in South Africa discriminates against Muslim women
What does Esau call for in their case?
A declaration that the failure is inconsistent with the Constitution and directing the Cabinet and the Minister of Justice to prepare and initiate the required legislation within 18 months
According to section 172(2)(a) of the Constitution, what must happen for a High Court order concerning the constitutional validity of conduct of the President to have force?
It must be confirmed by the Constitutional Court
What is the jurisdiction of the Constitutional Court?
The Constitutional Court has jurisdiction to decide on the constitutionality of any amendment to the Constitution and to decide that the Parliament has failed to fulfill a constitutional obligation.
Why does the Constitutional Court have exclusive jurisdiction?
The Constitutional Court's exclusive jurisdiction reflects its special status as guardian of the Constitution and avoids tension with other arms of government.
What is the jurisdiction of the Supreme Court of Appeal?
The Supreme Court of Appeal has jurisdiction to deal with non-constitutional matters and to make an order concerning the constitutional validity of an Act of Parliament, a provincial Act, or any conduct of the President, but the order of constitutional invalidity has no force unless confirmed by the Constitutional Court.
What powers do the courts have in constitutional matters?
When deciding a constitutional matter within its power, a court must declare any law or conduct inconsistent with the Constitution as invalid to the extent of its inconsistency, and may make any order that is just and equitable.
What powers do the courts have in constitutional matters?
The Supreme Court of Appeal, the High Court of South Africa, or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act, or any conduct of the President, but the order of constitutional invalidity has no force unless confirmed by the Constitutional Court.
What is the role of other courts in constitutional matters?
Other courts, excluding those referred to in sections 167, 168, and 169 of the Constitution, may decide any matter determined by an Act of Parliament, but a court of lower status than the High Court of South Africa may not inquire into or rule on the constitutionality of any legislation or conduct of the President.
What is the main question at issue in the matter of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma?
Mr Zuma's guilt of contempt of court for failure to comply with an order
What did the order in the case Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma3 (CCT 295/20) direct Mr Zuma to do?
Comply with summonses issued by the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State and to appear and give evidence on dates determined by the Commission
What actions did Mr Zuma take in response to the order?
He did not appear before the Commission on the dates determined by the Commission nor did he file any affidavits in accordance with the Commission’s directives
What does Section 167(6)(a) of the South African Constitution provide for?
Direct access to the Constitutional Court
Why is direct access being granted in this case?
The matter is self-evidently extraordinary. It is thus in the interests of justice to depart from ordinary procedures
How does Section 34 of the South African Constitution guarantee the right to access courts?
It guarantees the right to access courts with regard to constitutional matters (section not restricted to civil and criminal matters)
Test your knowledge about transformative constitutionalism and its relationship with the judiciary in this insightful quiz. Explore the impact of political and moral beliefs on legal reasoning, as well as the role of law in shaping a more progressive society. Discover the key concepts and principles behind transformative constitutionalism as explained by Kibet and Fombad.
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