THE JUDICIAL AUTHORITY MEANS OR INCLUDES THE MAGISTRATE, THE JUDGES OR OTHER PERSONS AUTHORISED UNDER THE LAW TO PERFORM THE FUNCTIONS THE SAME AS OR SIMILAR TO THOSE PERFOMED UNDER SECTION 33 OF THE CONSTITUTION
- Section 165: Judicial authority vested in the courts.
- Judiciary: Performs adjudicatory function. The exercise of judicial authority occurs when a
court/tribunal is involved through the application of law, in solving disputes between subjects.
- What is constitutional adjudication: - Judiciary interprets and applies legal rules to concrete legal
disputes, enforcing legal rules, imposing necessary sanctions.
- Function would be useless without ubi ius ubi remedium: where there is a right there is a remedy.
- Independent, unbiased body to impose relevant sanctions after interpretation of the law and application
to the facts of the case.
ACTIVITY 50: pg 191:
Read the following scenario:
Jedi is a student at Unisa. Whilst walking in Sunnyside he is arrested and taken to the Sunnyside police
station. Jedi has no knowledge of why he is being arrested and the policemen have not informed him of
the charges against him, nor have they informed him of the right to remain silent or that he is entitled to
obtain the services of an attorney. You are an intern at the law school and, as part of your training, you
have been sent to the police station to assist another accused. Jedi sees you and asks you for advice.
Now answer the following question:
Advise Jedi of the legal steps that he can take against the policemen who effected the arrest.
To answer this question, you have to be familiar with the Criminal Procedure Act of 1977. Why?
Because this piece of legislation was enacted by Parliament to regulate inter alia the conduct of the police
in effecting an arrest. [This is the enactment phase.]
Remember that members of the police force form part of the broader category of the executive and are
bound to adhere to the provisions of the Act. For example, in terms of the said Act, a policeman is under
a legal duty to inform you of the reason for your arrest and to tell you that you have the right to remain
silent. [This is the implementation or enforcement phase.]
If a police officer fails to comply with the provisions of the Act, a victim such as Jedi can institute action
against the Minister for Safety and Security and against the individual policeman for unlawful arrest and
detention.
If Jedi decides to take the matter to court, the presiding officer who hears the dispute will look at the
provisions of the Act and determine whether the police officer was in violation of certain of its
provisions. If the police officer was in breach of the provisions of the Act, then the presiding officer
is empowered to impose an appropriate sanction. [This is the interpretation and application phase.]
,10.2 JUDICIARY IN HISTORICAL CONTEXT: 10.3 THE ROLE OF THE JUDICIARY UNDER THE
1996 CONSTITUTION:
The Judiciary: Historical Context The Judiciary: 1996
1910 – 1993: - In a country where constitutional democracy is
Parliamentary sovereignty. entrenched, necessary the judiciary is given constitutional
No body could place limitations on Parliament. functions.
The implications of this system were; - Judiciary now plays pivotal role in maintaining &
upholding the Constitution.
Judiciary subordinate - Judiciary has the following functions;
- Couldn’t intervene apartheid ideologies.
Preserve human rights
- Courts promote values underlying an open, democratic
Viewed with distrust society based on freedom and equality by hearing cases
- Being an organ of state; effectively shared the involved in alleged violation of Chapter 2 rights.
responsibility for implementing and promoting - Baloro & Others v University of Bophuthatswana and
segregation. Others. 1995
Instrument of oppression
- Enforced the oppressive ideology. Power to test constitutionality of legislation
- All laws passed by Parliament and provincial legislature.
No power to test Legislative
- Despite attempts, Second Harris case, courts had no Watchdog function
power to test the legislative and did not compare to the - Ensures executive adheres to the norms, values and
power wielded by Parliament. principles of the Constitution.
- Absence of a Bill of Rights.
Adaption legislation
Test for Procedure - Courts not only interpret legislation but engage in
- The courts could only test an Act of the legislature for generating new laws where existing law is unjust,
manner and form provisions or procedure in which it was ambiguous or inefficient.
enacted.
Demographic
- Courts staffed by conservative, elite, white males.
- A few black Magistrates in the homelands but could not
influence the legal culture.
1993 & 1996 Constitutions
- Constitutional supremacy, promotion of democratic
objectives.
- Removed the constraints imposed on the courts.
, ACTIVITY 51 : pg 193-194
1) Define judicial authority. (3)
2) Draw a diagram in which you
- Differentiate between the three organs of state.
- Explain what each of these organs is responsible for. (6)
3) Read the following passage:
The new Constitution establishes a fundamentally different order to that which previously existed.
Parliament can no longer claim supreme power subject to limitations imposed by the
Constitution; it is subject in all respects to the provisions of the Constitution and has only the
powers vested in it by the Constitution expressly or by necessary implication [per Chaskalson P
(as he was then) in Executive Council,Western Cape Legislature & Others v President of the
Republic of South Africa & Others].
Now answer the following questions:
a) Identify and set out the content of the provisions in the Constitution which confirms that
Parliament is no longer supreme. (5)
b) Do you agree with the views expressed by Chaskalson P (as he then was) above? If you do,
evaluate the effect that this metamorphosis has had on the capacity and the role of the judiciary. (15)
To answer question (a), you have to do the following:
Refer to sections 1 and 2 of the Constitution.
To answer question (b), you have to consider the following points when formulating your answer:
This is a mini essay. Your answer needs to be logical and coherent.
Start with an introduction.
Determine which branch of government is responsible for applying and interpreting the law.
Make certain you understand the meaning of the word ``metamorphosis''.
Determine the role of the judiciary prior to 1993.
Determine the status of the judiciary after 1993.
Refer to section 1 and section 165 of the Constitution.
Draw your own conclusions based on the above analysis.
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