: Transformation of the judiciary? - Answer-Helen Suzman v Foundation v JSC and
others: JSC interviewed Adv Jeremy gauntlet to fill a vacancy in the CC. Gauntlett was
a great legal mind with vast experience. S174 (1) of the constitution provides that a
candidate must be suitably qualified. Only reason why his name not submitted to
president - White. Constitution states that judiciary must reflect the gender & racial
profile of SA - already heavily criticized for number of white men on bench.
/.Acting chairperson: JSC and others v Premier of WCP and freedom under law v acting
chairperson: JSC and others. With reference to these cases and the constitution,
critically discuss the extent, if any, to which the JSC has contributed towards:
Independence of the Judiciary? - Answer-> Requires judges free to decide matters
before them with facts in relation to the law without interference from other bodies,
persons or parties.
> Judicial independence expressly entrenched in our constitution.
> S165 of the constitution - Judicial authority of republic vested in the courts which are
independent - Subject to constitution and law only which they must apply without fear,
prejudice or favor.
> No person or organ of state may interfere with the functioning of the courts
/.Al-bashir be arrested - Government failed to do so. Explain fully whether the rule of law
was undermined by government? - Answer-> S1 (c) of Constitution - SA based on rule
of law - Everyone bound by the rule of law - president too
> Substantive conception of the rule of law - Perceived commitment of legal order to the
supremacy of the constitution and spirit of the law
> Constitutional democracy of SA - Notion of constitutionalism - limited by a written
constitution - all must obey the law
> Characteristics of a constitutional state - Supreme constitution, rule of law,
democracy, protection of human rights, independent judiciary, accountability,
responsiveness, openness and transparency and the separation of powers
> S165 - judicial authority vested in courts - Everyone is subject to the courts decision
no matter who they are.
> Glenister case - The state does not act arbitrarily or irrationally
In this case the rule of law was undermined by the government by failing to follow a
court order and arrest al-bashir.
/.Assume government not happy with decision and wants to appeal. With reference to
the constitutions 17th amendment act 2012, which court will have jurisdiction to hear
this appeal and make the final decision on the matter? - Answer-> Before 2013,
S167(3)(a) CC was the court of final instance.
> August 2013 the 17th amendment act was passed and amended S167(3) (a)
> This act changed the jurisdiction of the CC - highest court in the republic - may
consider all matters incl constitutional matters
, > The government can appeal to the CC which will decide if they want to hear the
matter or not.
> CC will hear matter - if matter raises arguable point of law - necessary for CC to give
clarity on this point of law
/.Can parliament assign its law-making functions to the executive and if under what
circumstances? - Answer-> Legislative authority vested in parliament under S37 of
interim constitution.
> Parliament cannot be expected to deal with all matters
> No provision preventing parliament from delegating subordinate regulatory authority to
other bodies and the power to do so is necessary for effective law-making
Court decided in the above mentioned case that parliament delegating the power to
amend its laws to the president - inconsistent with doctrine separation of powers and
constitution
Not allowed under new constitutional dispensation, Parliament cannot delegate its law-
making power to executive (president)
/.Case law for previous question - Speaker of NA v De lille - Answer-Ms de lille stated
she had info on 12 members of parliament who were spies for the apartheid
government. When challenged she mentioned 8 names who were no longer members
of the NA. Asked to withdraw her remark - unparliamentary - she did. Ad hoc committee
of NA asked that she apologize and be suspended for 15 working days. The NA
adopted this recommendation. She challenged its constitutionality in HC. HC held that
under the supreme constitution parliamentary privileges were subject to judicial review.
SCA upheld HC decision because S58(2) of the constitution guarantees freedom of
speech in the NA. NA no constitutional authority to suspend her. Rules amended now -
20 working days suspension.
/.Constitution & case law - What is counter-majoritarian? - Answer-> The relationship
between supreme constitution & Courts testing powers - All law and conduct must
comply with it - if not declared invalid - S172 obliges courts to declare law invalid.
Testing powers of court reinforces supremecy of the constitution.
> the counter-majoritarian is where 11 judges have declared a law invalid, but the law
they declared invalid was a law passed by 400 parliamentarians.
/.De lange v Smuts NO - Answer-> Important for our understanding of the unique and
special form the separation of powers doctrine takes in SA.
> Constitution - does not prescribe a specific, fixed form of separation of powers
doctrine.
others: JSC interviewed Adv Jeremy gauntlet to fill a vacancy in the CC. Gauntlett was
a great legal mind with vast experience. S174 (1) of the constitution provides that a
candidate must be suitably qualified. Only reason why his name not submitted to
president - White. Constitution states that judiciary must reflect the gender & racial
profile of SA - already heavily criticized for number of white men on bench.
/.Acting chairperson: JSC and others v Premier of WCP and freedom under law v acting
chairperson: JSC and others. With reference to these cases and the constitution,
critically discuss the extent, if any, to which the JSC has contributed towards:
Independence of the Judiciary? - Answer-> Requires judges free to decide matters
before them with facts in relation to the law without interference from other bodies,
persons or parties.
> Judicial independence expressly entrenched in our constitution.
> S165 of the constitution - Judicial authority of republic vested in the courts which are
independent - Subject to constitution and law only which they must apply without fear,
prejudice or favor.
> No person or organ of state may interfere with the functioning of the courts
/.Al-bashir be arrested - Government failed to do so. Explain fully whether the rule of law
was undermined by government? - Answer-> S1 (c) of Constitution - SA based on rule
of law - Everyone bound by the rule of law - president too
> Substantive conception of the rule of law - Perceived commitment of legal order to the
supremacy of the constitution and spirit of the law
> Constitutional democracy of SA - Notion of constitutionalism - limited by a written
constitution - all must obey the law
> Characteristics of a constitutional state - Supreme constitution, rule of law,
democracy, protection of human rights, independent judiciary, accountability,
responsiveness, openness and transparency and the separation of powers
> S165 - judicial authority vested in courts - Everyone is subject to the courts decision
no matter who they are.
> Glenister case - The state does not act arbitrarily or irrationally
In this case the rule of law was undermined by the government by failing to follow a
court order and arrest al-bashir.
/.Assume government not happy with decision and wants to appeal. With reference to
the constitutions 17th amendment act 2012, which court will have jurisdiction to hear
this appeal and make the final decision on the matter? - Answer-> Before 2013,
S167(3)(a) CC was the court of final instance.
> August 2013 the 17th amendment act was passed and amended S167(3) (a)
> This act changed the jurisdiction of the CC - highest court in the republic - may
consider all matters incl constitutional matters
, > The government can appeal to the CC which will decide if they want to hear the
matter or not.
> CC will hear matter - if matter raises arguable point of law - necessary for CC to give
clarity on this point of law
/.Can parliament assign its law-making functions to the executive and if under what
circumstances? - Answer-> Legislative authority vested in parliament under S37 of
interim constitution.
> Parliament cannot be expected to deal with all matters
> No provision preventing parliament from delegating subordinate regulatory authority to
other bodies and the power to do so is necessary for effective law-making
Court decided in the above mentioned case that parliament delegating the power to
amend its laws to the president - inconsistent with doctrine separation of powers and
constitution
Not allowed under new constitutional dispensation, Parliament cannot delegate its law-
making power to executive (president)
/.Case law for previous question - Speaker of NA v De lille - Answer-Ms de lille stated
she had info on 12 members of parliament who were spies for the apartheid
government. When challenged she mentioned 8 names who were no longer members
of the NA. Asked to withdraw her remark - unparliamentary - she did. Ad hoc committee
of NA asked that she apologize and be suspended for 15 working days. The NA
adopted this recommendation. She challenged its constitutionality in HC. HC held that
under the supreme constitution parliamentary privileges were subject to judicial review.
SCA upheld HC decision because S58(2) of the constitution guarantees freedom of
speech in the NA. NA no constitutional authority to suspend her. Rules amended now -
20 working days suspension.
/.Constitution & case law - What is counter-majoritarian? - Answer-> The relationship
between supreme constitution & Courts testing powers - All law and conduct must
comply with it - if not declared invalid - S172 obliges courts to declare law invalid.
Testing powers of court reinforces supremecy of the constitution.
> the counter-majoritarian is where 11 judges have declared a law invalid, but the law
they declared invalid was a law passed by 400 parliamentarians.
/.De lange v Smuts NO - Answer-> Important for our understanding of the unique and
special form the separation of powers doctrine takes in SA.
> Constitution - does not prescribe a specific, fixed form of separation of powers
doctrine.
