Theme 13: Separation of Powers PDF

Lecture theme 13: Separation of Powers, Judicial Authority, and the jurisdiction of the courts Define judicial authority as determined in section 165 of the Constitution. Where is judicial authority of the South African State vested? ▪ The judicial authority of the Republic is vested in the courts...

Lecture theme 13: Separation of Powers, Judicial Authority, and the jurisdiction of the courts Define judicial authority as determined in section 165 of the Constitution. Where is judicial authority of the South African State vested? ▪ The judicial authority of the Republic is vested in the courts. Inquire into the constitutional protection with regard to the independence of the courts. ▪ The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. ▪ The independence of the judicial authorities, as indicated above, is a fundamental component of the doctrine of separation of powers. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Evaluate the constitutional requirements with regard to impartiality of the South African courts. ▪ In general, the courts must interpret and apply the law, which includes the constitution of the state, and do so fearlessly, impartially and without favour or prejudice. ▪ Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Does the South African Constitution protect the right to access to judicial authority? Inquire also into the extent of such protection. ▪ The South African Constitution guarantees every person the right to access to the judicial authority. ▪ Section 34 of the Constitution states that every person has the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or other independent and impartial tribunal or forum. ▪ Section 34 implies compliance with the following: o Government is obliged to establish appropriate courts, tribunals or forums that function properly, in order for the right to be exercised. o The exclusion of the jurisdiction of the courts or any other limitation on access would be unconstitutional, unless such exclusion or limitation complied with the requirements of the limitation clause. Examples of such limitations are time limits for initiating actions, civil immunity and also measures to contain vexatious litigation. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o Every individual has the right to have disputes settled by an independent court. o Thus the individual also has a claim against the courts to function impartially. o Where appropriate, every person has the right to a fair and public hearing. This guarantee has major implications for both criminal and civil procedures. The right to a fair trial is covered by both the general right to access and the rights of accused persons. o The concept of a fair trial is a comprehensive term and must be evaluated against various aspects included in the Bill of Rights. In general, the guarantee to access to courts also applies to civil actions. Appointment, term of office and removal of judicial officers Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. With reference to the Constitution, inquire into the South African structure of the judicial bodies. ▪ According to the South African Constitution, the South African court structure is the following: Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. With reference to the Constitution, inquire into the constitutional requirements regarding the composition and functioning of the Constitutional Court. ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. Inquire into the different exclusive jurisdictional grounds of the Constitutional Court with reference to the Constitution. ▪ According to Section 167(4): o Only the Constitutional Court may ➢ (a) decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; ➢ (b) decide on the constitutionality of any parliamentary or provincial Bill, but may do so only in the circumstances anticipated in section 79 or 121; ➢ (c) decide applications envisaged in section 80 or 122; ➢ (d) decide on the constitutionality of any amendment to the Constitution; ➢ (e) decide that Parliament or the President has failed to fulfil a constitutional obligation; or ➢ (f) certify a provincial Constitution in terms of section 144. Inquire into and distinguish between the terms “prior” and “ex-post facto” control, and “concrete” and “abstract” control. SCA, High Court & Magistrate’s courts ▪ The judicial control over constitutional disputes can be divided into prior over ex post facto control, and abstract over concrete control. o According to the principle of prior control, a Bill is reviewable by an appropriate judicial authority before its commencement, in order to determine its constitutional consistency. In contrast, ex post facto control refers to judicial control only after a law has been adopted and implemented. The South African Constitution provides for both prior and ex post facto control. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. o The principle of concrete control entails the consideration of a real dispute before a court. Abstract control, in contrast, applies to the review of a law without the rule being applied to an actual dispute. In terms of abstract control, it is possible to obtain clarity on the validity of legal rules before such rules are applied in practise. The Constitution again provides for both mechanisms of control. Concrete control is basically the normal functioning of the judiciary. Examples of abstract control are found in various constitutional sections. Inquire into the constitutional requirements regarding the composition, functioning and powers of the Supreme Court of Appeal, the High Court and Magistrate’s courts. ▪ ▪ Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share. ▪ Inquire into and evaluate the ways in which control over the judiciary can be exercised. ▪ There are various ways in which control can be exercised over the judiciary itself. The most prominent of these mechanisms are the following: o Political control: Since legislative and executive organs of state, which represent the people, are involved in the appointment or removal of judicial officers, several instances of political control over the judiciary are a reality. o Public control: This protection does however not exclude all criticism of the courts by outsiders or the media. o Judicial control: Certain judicial bodies are also subject to different forms of judicial control. The frequent appeals against or reviews of the decisions of lower courts by higher courts constitute good examples of judicial control. In addition, judicial officers only have limited personal immunity. If a judicial officer has acted mala fide for example, such officer can be held liable for civil actions in certain circumstances. Judicial officers can similarly take civil action or even have criminal prosecution instituted against people who have harmed them, for things they have said or done in the exercise of their official duties. Notes by Sasha ©. I assume no responsibility or liability for any errors or omissions in the content of these notes. Please do not illegally share.