PBL 210 Exam - Judicial Authority & Jurisdiction of Courts PDF

PBL 210: EXAM THEME 13: JUDICIAL AUTHORITY & JURISDICTION OF COURTS ________________________________________ SEPARATION OF POWERS:  Separation of powers between: (a) Legislature (b) Executive (c) Judiciary  Legal adjudication = Court’s process of finding, applying & interpreting law. It must be d...

PBL 210: EXAM THEME 13: JUDICIAL AUTHORITY & JURISDICTION OF COURTS ________________________________________ SEPARATION OF POWERS:  Separation of powers between: (a) Legislature (b) Executive (c) Judiciary  Legal adjudication = Court’s process of finding, applying & interpreting law. It must be done fearlessly, impartially and without favour or prejudice.  Courts indirectly make law when they interpret + apply law (statutory law, common law & customary law)  S 39 of Constitution must be used during interpretation of statutes.  Other executive bodies also interpret + apply legal rules. JUDICIAL BODIES – COURTS:  According to S 165 of Constitution, judicial authority of RSA is vested in courts.  S 165 contains general provisions on independence of judicial authority.  Courts are independent & subject only to the Constitution and law, which they must apply impartially and without fear or prejudice.  - CHRISTELLE SAMONS PBL 210: EXAM  S 165 determines specifically where & in whom the judicial authority of RSA is vested in.  S 165(6) Chief Justice is head of Judiciary.  S 165(2) Courts are independent… - Independence of judicial authority is a fundamental component of the doctrine of separation of powers. PERSONAL INDEPENDENCE:  Personal independence refers to specific judicial officers (JO) that exercise judicial authority.  personal independence refers to their: (a) Appointment (b) General conditions of employment of judicial officers. (c) Dismissal. a) Appointment of judicial officers:  Constitution provides for the appointment of JO, which makes it difficult for the executive authority to manipulate judicial appointments.  Judicial Service Commission (JSC) appoints + dismiss judicial officers.  S 174 of C provides for judicial officers. - CHRISTELLE SAMONS PBL 210: EXAM b) General conditions of employment of judicial officers:  S 176 of C regulates terms of office and remuneration.  The term of office of Judges are limited by age.  According to the Judges’ Remuneration and Conditions of Employment Act, it is possible: i) to extent the CC judges’ term from 12 to 15 years. j) And for other judges (non-CC judges) to remain in office until the age of 25. c) Dismissal of judicial officers:  S 177 provides for circumstances under which the JO’s must vacate their office before the expiry of their term.  Judges may be removed from office if: a) The JCS finds that judge suffers from incapacity, is grossly incompetent or is guilty of gross misconduct. b) If NA calls for judge to be removed, by resolution with supporting vote of 2/3 of its members. - CHRISTELLE SAMONS PBL 210: EXAM FUNCTIONAL INDEPENDENCE:  Refers to the functional exercise of powers by the court.  Inherent powers of courts are provided for in S 173 of C.  Objectivity of judicial bodies must be protected: - In the Certification case it was held that the SA system of precedents does not detract from the principle of judicial independence. - Courts are further protected through measures of immunity of judicial officers. - Courts hold the power to hold someone in contempt of court.  SA courts are subject to the Constitution + law & no person or body of state may interfere with the function of courts.  Functional independence of the judiciary is constitutionally entrenched in S 165(3) of the Constitution. IMPARTIALITY OF JUDICIAL AUTHORITY:  Apart from independence of the judiciary, it is important that courts should be impartial in their exercise of judicial authority.  Courts should not be bias in any way: - They should apply the law without favour, fear of prejudice. - And presiding officers should either voluntarily or on request recuse himself from proceedings.  S 165(5): compliance with the court’s decision by all parties is very important for guaranteeing a constitutional dispensation. RIGHT TO ACCESS TO SOURTS:  S 34 of the Constitution provides for the right to access to courts and to a fair public hearing.  S 34 is also limited by S 36 of the Constitution. - CHRISTELLE SAMONS PBL 210: EXAM SA COURT STRUCTURE: a) b) c) d)   Constitutional Court (CC) (highest court) Supreme Court of Appeal (SCA) The High Court of South Africa (HC) The Magistrates’ court. You start with the Magistrates’ Court and work your way up to CC. S 166 provides for the structure of courts: JUDICIAL AUTHORITY OVER CONSTITUTIONAL MATTERS:  There are disputes between persons and the government / government bodies.  SA’s Constitution is the Supreme Law.  Principle of judicial control over compliance with provisions of Constitution says that courts may invalidate actions / decisions that are inconsistent with provisions of Constitution.  In SA a special CC has been established for final control over the compliance to the Constitution. - The “special” body interprets and applies the Constitution as the supreme law. JURISDICTION: CONSTITUTIONAL COURT  CC = highest court in ALL constitutional matters.  The CC consists of: a) Chief Justice b) Deputy Chief Justice c) 9 other judges  All matters in CC must be heard by at least 8 judges. - CHRISTELLE SAMONS PBL 210: EXAM  S 167(3) and (4) of the C provides for the jurisdiction of CC.  Before constitutional amendment in 2012, SA had two highest courts (CC & SCA)  CC was highest court in constitutional matters.  SCA was highest court in non-constitutional matters.  After 17th Constitutional Amendment Act, CC = highest court in SA & decides constitutional matter + any other matter, under certain circumstances. S 167 UNDER 17TH CONSTITUTIONAL AMENDMENT:  Role of Chief Justice = head of judiciary (S 165)  S 167 regulates jurisdiction of CC and SCA.  Constitutional Court:  CC = highest court of ALL matters. - S 167(3)(b)(ii) broadened the jurisdiction of CC.  There was a deviation from CC’s traditional status as “specialist” court dealing with purely CC issues, to a “generalist” court dealing with a range of issues. - CHRISTELLE SAMONS PBL 210: EXAM JURISDICTION: SUPREME COURT OF APPEAL:  S 168 of C provides for SCA.  SCA consists of: a) President b) Deputy President c) Number of judges determined in Act of Parliament.  SCA may not decide: a) In respect of labour. b) Competition matters to such an extent as may be determined by Act of Parliament.  SCA may only decide: (a) Appeals (b) Issues connected with appeals. (c) Any other matter referred to in Act of Parliament. S 168 UNDER 17th CONSTITUTIONAL AMENDMENT:  SCA was (before 17th Constitutional Amendment), the highest court that could hear competition and labour matters.  17th constitutional amendment removed jurisdiction of SCA to hear matters of competition and labour.  Labour matters are heard in = Labour Appeal Court.  Competition matters are heard in = Competition Appeal Court. JURISDICTION OF HIGH COURTS:  S 169 of C provides for jurisdiction of HC’s.  HC has jurisdiction in all constitutional matters, EXCEPT matters that: a) CC may decide has to be heard directly ito S 167(6)(a) & S 167(4). b) Assigned by Act of Parliament to another court of similar status. - CHRISTELLE SAMONS PBL 210: EXAM JURISDICTION OF ALL OTHER COURTS:  All other courts, other than those in S 167 (CC), S 168 (SCA) & S 169 (HC), may decide any matter determined by an Act of Parliament, but a court of lower status of HC may not: a) Enquire into or rule on the constitutionality of any legislation. b) Or any conduct of the President. COURT PROCEDURES:  Constitution provides that Act of Parliament must provide for rules & procedures of all courts (Superior Courts Act of 2013)  S 173: CC, SCA & HC each have power to regulate their own procedures. - CHRISTELLE SAMONS