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Judicial authority LECTURE 2 WEEK 1 (25 JULY-29 JULY) Judicial authority Sources q Judicial authority- Bekink p 469-578; q Judicial authority- SA Constitutional Law in context 2nd edition of 2021Chapter 6 q Kibet E & Fombad C “ Transformative constitutionalism and adjudication of constitution...

Judicial authority LECTURE 2 WEEK 1 (25 JULY-29 JULY) Judicial authority Sources q Judicial authority- Bekink p 469-578; q Judicial authority- SA Constitutional Law in context 2nd edition of 2021Chapter 6 q Kibet E & Fombad C “ Transformative constitutionalism and adjudication of constitutional rights in Africa” 2017 (17) African Human Rights Journal 340-366 q Relevant constitutional sections: Section 1 (c), sec 2, 165, 166, 167, 168, 169, 170 and section 174 (2) of the Constitution of the Republic of South African Act 108 of 1996 Introduction/ History u An advocate was once ridiculed on various social media platforms for failing to answer the question pertaining to “ parliamentary sovereignty” while questioned by the JSC for a judicial position…. u What is the importance of knowing the history of the judiciary prior to democracy? u Parliamentary supremacy vs constitutional supremacy u Separation of powers u What is the constitutional role of the judiciary? Introduction/history u What is a mechanical application of the law? u What is transformative constitutionalism? u What is judicial transformation? u How does decolonization affect the judiciary?/ what does the concept of decolonization entail for the judiciary? u Judicial authority in South Africa u The structure of the South African judiciary? Constitutional supremacy Constitutional supremacy Section 1 (c) of the Constitution provides that South Africa is a republic founded on the value of constitutional supremacy. Section 2 of the Constitution provides that the Constitution is ‘supreme law in the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled’. The rules in the Constitution thus trump all other rules contained in statutes, common law and custom. Any rule inconsistent with a constitutional rule is an invalid rule. Any conduct that contradicts the constitution, including failing to fulfil an obligation imposed by the Constitution, is similarly invalid. Constitutional supremacy u Constitutional supremacy has various implications for a state, state actors, and persons within a state’s jurisdiction, primarily that the rules in a Constitution both establish and constrain the exercise of state power . A state can only act in terms of its Constitution. If it exceeds the bounds of the Constitution its conduct is legally invalid. Parliamentary supremacy u Constitutional supremacy is often contrasted with parliamentary sovereignty. Parliamentary sovereignty (or supremacy) is where the legislature has supreme law-making power. There is no rule that parliament cannot make or repeal. The Westminster model, under which the United Kingdom operates, adopts parliamentary sovereignty. u Under apartheid, South Africa also functioned under parliamentary sovereignty. The core difference between parliamentary sovereignty and constitutional supremacy is where the ultimate authority for law-making lies. In parliamentary sovereignty, it is the legislature; in constitutional supremacy, it is the constitution of a state. Separation of powers u A common model for the separation of these powers is known as the trias politica, which establishes three independent arms of state: the executive, the legislature, and the judiciary. Significant powers and duties are then distributed to each of these arms: the legislature is empowered to make laws, the judiciary is empowered to interpret laws, and the executive is empowered to enforce the law. Each arm of state has distinct personnel who work exclusively within that arm; members of parliament make up the legislature, judges work within the judiciary, and the executive comprises cabinet members or ministers. Furthermore, each arm in some way holds the other arms accountable through checks and balances. For example, the South African legislature can remove judges who are guilty of gross misconduct . Conversely, the judiciary can prevent the legislature from passing laws that are contrary to the Constitution. Separation of powers u The rationale behind a tripartite separation of powers is obvious. Throughout history, power was often (and in some cases continues to be) concentrated in a single ruler. Monarchs, for example, had the power to make, interpret, and enforce laws. The concentration of power meant that rulers could not be held accountable for decisions they made. Whatever they decided was the law and only they would be allowed to resolve disputes about what the law meant, and they would decide to enforce laws against their subjects. People residing in the jurisdiction of the monarch were subject to the whim of that monarch, with no avenues for challenging a monarch’s decision. In contrast, separating powers between independent arms of state ensures that major decisions taken by those in power can be checked by and held to account by another arm of state. For example, a decision by the President to do something may require parliamentary approval or could be subject to review by a court. In this way, power is kept in check. Transformative constitutionalism u A key feature of the Constitution is that it seeks to transform South Africa from its deeply divided, unequal past into a society founded on equality, dignity, and freedom. In this sense the Constitution, unlike many other constitutions, does not seek to maintain a status quo. The Constitution is an ambitious legal document that aims to change the material conditions of South African society. Transformative constitutionalism u The transformative goals of the South African Constitution, and the means by which the Constitution seeks to achieve transformation, have often been described as ‘transformative constitutionalism’. Transformative constitutionalism often includes an endorsement of justiciable socio-economic rights and substantive equality. It also endorses a form of legal reasoning that is conscious of the interplay between morality and law. Transformative constitutionalism demands that lawyers are aware of how the law does and can play a role in affecting power relations, access to resources, and human dignity. It also demands that lawyers understand that legal reasoning is heavily influenced by a lawyer’s political and moral convictions, especially when the law is ambiguous or vague. Transformative constitutionalism demands all this because, at heart, it entails using law to ensure that society moves towards a better version of itself. Transformative constitutionalism and the judiciary- Kibet and Fombad u Focuses on substantive equality and substantive justice; u Comprises of a deliberate effort to empower previously excluded segments of the society through devices such as the protection of socio economic rights; u It requires less emphasis on technicalities and procedure so as to maximize the realization of substantive rights; u Transformative constitutionalism places a lot of faith in the law as an instrument for social and political change; u Its criticism however is that it obscures law and politics… Transformative constitutionalism and the judiciary- Kibet and Fombad u Judgments reflective of transformative constitutionalism are among others National Coalition for Gay and Lesbian Equality and S v Makwanyane; u Transformative constitutionalism requires of judges as guardians of the socio-political transformation project to commit to doing more with the law; u Requires a historical self conscious judge who pays regard to the legal history; u It is a form of activism in the adjudication of rights…. Mechanical interpretation and application of the law u Because the judiciary operated under the system of parliamentary supremacy, it meant that ‘ by upholding blatantly discriminatory and unjust legislation, the judiciary functioned as part of the apartheid order and contributed to legitimizing and sustaining it. u Judges were regarded as mere mechanical interpreters of the law; u Judges function was seen by many as to merely ascertain the intention of the apartheid legislature through the text of the legislation and then to give effect to that intention, no matter how nefarious the intention might have been Mechanical interpretation and application of the law u Most judges believed that they could employ only limited interpretational aids in the event of the ambiguity or inconsistency, or if adherence to the ordinary meaning of the text would result in absurdity; u They adhered to the notion that any modifications, corrections or additions to the text should be left to the legislature as the government branch responsible for making law u These judges were thus constrained under the system of parliamentary supremacy Judicial transformation u Section 174 (2) of the Constitution of the Republic of South Africa Act 108 of 1996 provides for “ the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” u This stems from the fact that in the pre-democratic era, the judiciary was composed almost entirely of white males drawn from the elitist and privileged ranks of the ruling minority; u Judicial appointees were drawn primarily from the ranks of senior counsel practicing as advocates at the various bars in South Africa Decolonization and the judiciary u The colonial encounter fundamentally changed the way in which customary law was applied and developed in apartheid South Africa; u Customary law was preserved, upgraded and frozen out of relevance to the flux of the traditional community’s life; u This was evidenced by cases such as Bhe v Khayelitsha Magistrate and Shilubana v Nwamitwa which focused on the development of customary law through the lens of either the common law or the Constitution u This puts focus on the relevance of judicial structures that/who would be able to truly deal with living customary law as reflected by the opinions and evidence given by villagers on customs…. Judicial authority- Sec 165 of the Constitution u The judiciary is in charge of legal adjudication which entails that in their functioning the find the law, they interpret the law and then apply the law. u Judicial authority is importantly exercised by courts and they are know as judicial bodies u Judicial authority entails the power to resolve disputes through determining how the applicable law should be applied to a specific dispute. u It is important to also take into account in the process of adjudication the judiciary makes law in the secondary sense…. Importance of the judiciary in a democratic country u In accordance with the judgment in the case of Pharmaceutical Manufacturers of South: In re: Ex parte President of the Republic of South Africa 2000 (2) SA 674 (CC) the following key features have emerged since the coming into existence of the South African Constitution, namely: u 1. rejection of the principle of parliamentary sovereignty; u 2. rule of law u 3. control of public power; u 4. judicial review of legislation and testing of conduct against the Constitution Section 165 of the constitution ( summary of sub-sections 1-6 u Sub –sec:1. judicial authority vests in the courts; u Sub -sec:2. courts must be independent and impartial and subject only to the Constitution; u Sub-sec: 3. provides a guarantee against the interference with the functioning of courts; u Sub-sec:4. provides that organs of the state must assist with ensuring the independence of the courts; u Sub-sec:5 provides that an order of courts binds all persons; u Sub-sec 6 provides that the chief justice is the head of the judiciary….. Section 166 of the Constitution provides that the courts are u The Constitutional Court; u The Supreme Court of Appeal; u The High Court of South Africa, and any High Court of appeal that may be established by an Act of Parliament to hear appeals from any court of a status similar to the High Court of South Africa; u The Magistrates Court; u Any other court established or recognized in terms of an Act of Parliament, including any court of a status similar to either the High Court of South Africa or the Magistrates ‘ Court… Constitutional Court- Section 167 of the Constitution u Headed by the Chief Justice; u The Chief Justice exercises responsibility over the establishment and monitoring of the norms and standards for the exercise of the judicial functions of all courts- Section 167 (1) of the Constitution read with section 165 (6) of the Constitution; u The Deputy Chief Justice serves as the deputy leader of the judiciarySection 167 (1) of the Constitution; u The Chief Justice and Deputy Chief Justice take their place alongside nine other judges of the Constitutional Court u The seat of the Constitutional Court is in Johannesburg; Supreme Court of Appeal- Section 168 of the Constitution u The Appellate Division was renamed the Supreme Court of Appeal (SCA)Section 166 (b) of the Constitution; u The SCA is headed by the President of the SCA who is assisted by the President of the SCA- Section 168 (1) of the Constitution; u The seat of the SCA is in Bloemfontein; u Both the Constitutional Court and Supreme Court of Appeal have jurisdiction across the Republic High Court/s- Section 169 of the Constitution u The creation also created a number of High Courts- Section 169 of the Constitution; u The High Court of South Africa consists of Divisions determined by an Act of Parliament- Section 169 (2) of the Constitution; u The High Court functions as a superior court and acts as both a court of first instance and as a court hearing appeals from the lower courts; u High Courts have geographically limited jurisdiction u Each Division of the High Court consists of a Judge President and one or more Deputy Judges President High Court/s- Section 169 of the Constitution The High Court consists of the following divisions u Eastern Cape Division, with its main seat in Grahamstown; u Free State Division, with its main seat in Bloemfontein; u Gauteng Division, with its main seat in Pretoria; u Kwazulu-Natal Division, with its main seat in Pietermaritzburg; u Limpopo Division, with its main seat in Polokwane; u Mpumalanga Division with its main seat in Nelspruit High Court/s- Section 169 of the Constitution The High Court consists of the following divisions u Northern Cape Division, with its main seat in Kimberley; u North West Division, with its main seat in Mahikeng; u Western Cape Division, with its main seat in Cape Town Magistrates Court- Section 170 of the Constitution u Magistrates’ courts and all other courts are empowered in terms of section 170 of the Constitution to decide any matter determined by an Act of Parliament; u Magistrates’ courts may not enquire into or rule on the constitutionality of any legislation or conduct of the President… Superior specialist courts u The Labour Court established in terms of Section 151 of the Labour Relations Act; u The Land Claims Courts established in terms of section 22 of the Restitution of Land Rights Act; u The Tax Court established in terms of section 8 (3) of the Income Tax Act; u The Children’s Court; u The Maintenance Court; u The Domestic Violence Courts established in terms of the Domestic Violence Act….. u Apart from the Equality Courts, the above courts do not usually play a direct role in the adjudication of constitutional issues….