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Covers summary of readings of Chanock; Dugard; Corder and Davis & Le Roux.
As well as themes and concepts explored this semester:
...
Week 1
Summary of Introduction, themes and concepts
**These are key points taken from Word documents and Power Point presentations. SOME parts are directly quoted, others have been
simplified by me. I do not take credit for any knowledge expressed in this document, only the summary of notes and easy access to key
points that I found important**
- Baase, Mathabo. (2021). Week 1 Introduction, Themes and Concepts. Unpublished manuscript, PVL1003W, University of
Cape Town, South Africa.
- Baase, Mathabo. (2021). Week 1Four Readings. Unpublished manuscript, PVL1003W, University of Cape Town, South Africa.
Objective:
- the history of South Africa and the judgments handed down by the Judiciary during the period of
1879 - 1986
- discover the legal culture of that time and evaluate the importance of governance by Rule of
Law
Generational rights
- traditionally categorised into three separate groups
o typified by a colour and include a short descriptor
- The first are blue rights.
o civil and or political rights
o e.g: security of the person; freedom of movement etc.
o Fundamental to all of these of course is the right to vote
- The second are red rights
o socio-economic rights
o colour is associated with socialism or communism
- third generation of rights, green rights.
o primarily environmental
o include nebulous rights inter alia (right to human development)
o provided for in Sections 24 and 18 of the South African Constitution.
Rule of Law
- term finds origin in the work of Dicey.
- Dicey was a Prof of law at Oxford and had great influence in English and South African Public
Law.
- identified three legs to the Rule of Law.
- Firstly, absolute primacy or predominance of regular law as opposed to the influence of
arbitrary power.
o refers to ruling society either through law or whatever the rules of the day dictate.
o This form of ruling, however, excludes the existence of wide discretionary authority on the
part of the government.
o became problematic, wide discretionary authority was necessary to govern large groups of
people who were living together in cities.
1
, - The second leg is equality before the law,
o or the equal subjection of all classes to the ordinary law of the land administered by the
ordinary law courts.
o identifies this leg within the context of the class based nature of British society,
o Dicey argues that there cannot be one system of law courts for one group of people and
another for another group
- The third leg is used as a formula which expresses the fact that, in Britain, it is the consequences of
the rights of individuals which are the sources of the law and not the constitution
o the rule of law in England had been established by ordinary people going to ordinary courts to
insist upon their ordinary rights most typically supported by a jury system.
o responsibility of this jury of peers to uphold the people’s rights against the local lord,
bishop or town council.
In short
1. absolute supremacy of the regular law,
2. equality before the courts
3. the fact that the rule of law is shaped from below
- English social historian EP Thompson described the rule of law
o as a human achievement of universal significance during the late 1700’s.
o before then arbitrary rule, by whoever the ruler was, was more common than rule through law
- South African author in this area was Prof Tony Matthews.
o identified 3 propositions of the rule of law and these overlap with Dicey’s.
o safeguards needed to be set in place
o safeguards had to be available to everyone who was challenged under the law.
Recent definition in 2010
3 elements to the rule of law
1. Firstly that law is supreme
2. secondly, this first point implies that there must be certain basic rights and freedoms
including equality before the law
3. Lastly that these basic rights and freedoms are not absolute,
i. Section 36 of the Constitution accordingly provides the general limitation clause.
ii. enables the courts to limit any right or freedom provided that such is justifiable in an
open and democratic society based on dignity, equality and freedom.
iii. The proportionality test guards against the un-proportional limitation of a law in order
to achieve a small aim.
iv. Stated differently, laws are only limited to the extent that is necessary to achieve the
aim of that limitation. The notion of limitable rights is a critical element of the rule of
law.
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