Class notes
FSAL Semester 2 Notes
- Institution
- University Of Cape Town (UCT)
Concise notes covering all relevant information for the final FSAL exam. All cases for Term 3 & 4 are included.
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Foundations of South African LawJudicial law-making: Explained more @ end f notes: Sep of P’S = parlia law maker. Now accept judges make law. Not major
law-making role like Parlia. Parlia only partially limited by Const & BOR. Judges have 2 situate law-making task within lang
Parlia provided. B4 = belief judges passive, just applied law & objective in interp.1970’s Eng judge, lord Devlin, wrote The
Judge - 3 types of judicial law-making:
1) passive: follow plain meaning, don’t interrogate intention of Parlia .
2) judicial activism: Push back on general interp & understanding if application of it would have detrimental effect - argue Parlia used words
but situation requires reading & interpreting words diff & Parlia could never intend 2 limit fundamental HRs - justify more lib interp 2
secure Rs.
3) judicial dynamism: progressiveness. Push back on amendments made by Parlia or reasons 4 changes - threatens sep of ps as judges
taking over parlia law-making role. Devlin: judicial dynamism should only take place in areas within expertise of judges, e.g. court
process / law of evidence. Acceptable 4 judge 2 b dynamic in these areas of law & fill gaps Parlia may have overlooked, even in parlia
sov.
Judicial policy: legal relationship between Chief Justice (head of judiciary) & rest of bench = CJ doesn’t have authority 2
dictate a policy that all judges must adhere 2 - might lead 2 unduly orders 2 superior court judges & doc of precedent serves
that purp. Normally determined ex post facto (retrospectively) - looking back @ work of CC since ’95 = 1st 14 yrs, highly aware
of SA political division, until end of ’08, which coincided with chief justice-ship of Chaskalson & Langa. Judges were aware of
political climate, CC understood reconciliatory role during politically cautious time - unwritten policy during adjudication
process. CC been true 2 function & jurisdiction in terms of Const but has taken hard line on certain matters eg.
unconstitutional conduct of Pres. CC followed broad policy ’09-’18 & lower courts followed. Judicial policy often identified by
analysis of judgments. Primary objectives of courts = clear when consider judgments & reasons. Particularly when courts not
driven by instructions of Chief Justice or Pres, but LC of time & intention 2 preserve/change LC. Judges can make law & have
choices. Express choices passively or actively engage with intentions of law-maker. Often influenced by judicial policy of time
& according to LC.
LC: principles guiding those making, practising, interpreting & enforcing laws & forming expectations 4 subjects of laws.
Determined by analysing manner courts & lawyers: approach, address, interp & apply unjust law. Choice 2 interp law in favour
of lib & justice or comply with letter of law produced by Parlia. Cases below = culture of authority. Some = judges able 2
choose in favour of justice rather than letter of law. Choice available today although framework altered. LC determined in 2
ways: 1) top down: Parlia enacts, LP practices, judge interps, pub admin, police, armed forces enforce law = enforcement
pov. 2) bottom up: informed by ppl's expectations of law. Pub opinion imp & Judiciary’s legitimacy critical 2 success - need
pub confidence in courts or no authority 2 require exec & Parlia 2 adhere 2 court orders. Parlia & exec obeyed decisions of CC
even when didn’t agree with judgments. Expectation of pop from below & confidence in courts gives Judiciary power. SA has
both. Expectation = ability 2 use law 2 achieve justice. LC relatively subconscious - presumptions by & about ppl involved in
law process. LC can & does work in diff ways at diff times. Works in favour of HRs & justice or against = element of choice.
Interp law in favour of justice & HRs or in favour of letter of law & its perpetuation of injustice. Cases below pushed & formed
SA LC & made it vary. diff p-apartheid LC. Since ’94, been legal phases indicative of continued LC development. Case
analyses illustrates how LC developed. Famous prediction by Prof Mureinik ‘94: interim BOR represented aspiration of society
moving from culture of authority to justification = justification expected 4 every exercise of power; leadership given by gov
rests on cogency of case offered in defence of decisions, not fear inspired by force @ command. New order must b
community built on persuasion, not coercion. LC integral to governance & affects directly entire state. Stems from foundational
actions which establish legal syst & set of adjudicative forums. LC development influenced by direct effects of laws made by
legislature & by interp of such laws & com law rules by judges, through doc of prec. Indirectly, LC responds to historical
developments in relationships between powerful & those with little power. Argued LC shaped by econ syst - drives
development of country.
ROL: or principle of legality. S 1(c) Const. Expression of rules through legality or rechtsstaatsprinzips, principle of legal state.
Term origin: Dicey, Oxford prof, influence in Eng & SA Pub Law. Intro to Study of Law of Const: Identified 3 ROL legs:
1) supremacy of regular law not influence of arbitrary power.
2) equality b4 law / equal subjection of all classes 2 ordinary law of land administered by ordinary law courts. No diff syst of law courts for diff groups.
3) used as formula expressing that Rs of individuals are sources of law & not const.
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,SA, Prof T Matthews: identified 3 ROL propositions, overlap Dicey’s. Added - procedural safeguards need 2 b in place &
available 2 everyone challenged under law. 1) law sup. 2) must b basic Rs & freedoms including equality b4 law. 3) basic Rs&
Fs not absolute - part of Const. S 36 = general limitation clause - courts limit any R/F if limitation proportional & done by law of
general application justifiable in open & democ soc based on dignity, equality & freedom. Proportionality = test guards against
un-proportional limit of law 2 achieve small aim. Laws only limited 2 extent necessary 2 achieve aim of limit. Notion of limitable
Rs = critical ROL element.
Rule by Law: RBL: Parlia enacts, applied 2 citizens. ROL: enacted law should achieve certain lvl of justice. SA politics hist
shows Parlia’s ability 2 enact unfair law - made legal provision 4 race classification. Constitutional gov & democ state furthered
universal human achievement. Humanity progressed in diff ways & achievement = rule through law. As opposed to direct
democ - SA forebearers used 2 govern when race groups governed diff. Pop growth = law necessary, provides state with
means 2 govern. SA shows benefit of written democ const, direct result of decades of political struggle. Const based on
universal franchise, all citizens input in gov matters. Still substantive inequality = form v substance. Powerful individuals & maj
powerless unless unify. Law can serve as protective mechanism 4 vulnerable, especially if unify. Rule by discretion only
evident during state of emergency. Exercise of discretion was authorised by law. SA was law state during Apartheid. Gov used
law 2 strike down oppressed. When govs rule by law society can use enacted law against gov as shield to guard against
sword of law.
Lawfare: J Comaroff coined phrase. Use of law by ppl in power 2 enforce will on others. Additional meaning = use of law by
oppressed 2 stop damage through law. Argumes law has multiple aspects & is aspect allowing oppressed 2 use law against
oppressors. Cases below = lawfare waged both ways. Many expected lawfare 2 end ’94 & no longer need 2 resort 2 law to
hold gov responsible to Const obligations or stop gov acting unconstitutionally. Key aspect = not meaning of concept but use
of litigation - parties’ ability 2 legally approach courts 2 enforce law & ensure Rs in terms of law 2 hold gov accountable 2
obligations. Law progressed from basic syst through which governing takes place, 2 syst with certain basic characteristics of
justice & can b employed 2 advancement of socio-econ & social justice. Marxist explanation of law = part of superstructure,
determined by changes in econ forces. Marx never wrote law theory just analysed. Post-Marxist school of thought wrote about
law in ’70’s: doesn’t automatically respond 2 changes in econ forces, also has own life. Not own master, but relatively
autonomous. Since Dicey, ROL became rallying cry 4 political & social movements, usually associated with lib democ. 2
aspects of usefulness: 1) gradual extension after WW2 2 include basic civ & political R’s & later socio-econ Rs, as result of
work of International Commission of Jurists. 2) endorsement of basic lvl of ROL meaning, gov rules by law & not arbitrary
abuse of power.
Generational Rs: 3 gens = typified by colour & include short descriptor.
1st = blue Rs - civ/political - fundamental = R 2 vote
2nd = red Rs - socio-econ - colour associated with socialism/com. SA Const achieved codification of socio-econ Rs
3rd = green Rs - primarily environmental, also some nebulous Rs inter alia R to human development - in S 24 & 18 Const.
Law & justice relationship: 1958, Hart-Fuller debate, law & morality. Pos v Nat law. Certain min features something claiming
2 b law must have 2 qualify as law - formal rather than substantial features, less focus on provisions of law & more on manner
law adopted. Manner public notified about enactment, how imposed & enforced. Hart: positivistic, if law codified & enacted =
law. Fuller: determined existence of law by law’s inner morality, 8 requirements: 1) generality, 2) promulgation, citizens
informed law enacted, 3) non-retroactivity, 4) clarity, 5) Non-contradictory, 6) possibility of compliance, 7) consistency through
time, 8) Congruence between official action & declared rules, admin of law must coincide with declared law. Hart had 2
concede there was fair overlap between law & justice but Fuller’s argument suggests overlap bigger.
Wacks & Dugard debate: 1984 in SALJ. Prof Wacks: lecture in Durbs, argument relied on Dworkin - serving as SA judges =
participating in evil legal syst. All should resign. Dugard: disagreed. Judges make choices & if all judges seeking justice during
Apartheid resigned, syst would b more punitive - wouldn’t collapse but continue operating 2 detriment of ppl & b harsher.
Martin Chanock - Making of SALC 1902-1936
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,By 1910, SA was unstable due 2: 1902 SA War (Afrikaner Republics v Brit), 1906 Zulu Rebellion, Transvaal worker strikes
1905-1907 & general civ unrest which culminated in attempt at rev in 1922. Against this backdrop, Union of SA was attempting
2 find its feet. Exec, legislature & judiciary struggling 2 sep their powers. Following aims 2 show development of 2 priv law
systs. Chanock paints bleak pic of SA pub law.
Enoch Mgijima’s trial: was leader of settlement of ±700 on piece of land near Bullhoek. Were living during syst of “Glen
Grey” land ownership & forcibly evicted when gov passed Natives Land Act - natives only allowed 2 occupy certain locations in
country, Bullhoek not being one. Mgijima refused 2 move. Gov took armed action, killing 100s of settlers, leaving 140 2 go 2
trial for sedition. Court mocked Mgijima’s plight. Threw aside his defence as illegitimate & down-played his sorrow. Judge was
incredibly critical of exec action in situation. He would’ve had exec take much stronger action much earlier cuz, had they done
so, incident would’ve been avoided.
Taffy Long’s Execution: was ordered 2 kill shopkeeper thought 2 b gov spy during a revolt. Case came 2 a special court at
which he argued he was merely acting under official orders. Bench couldn’t decide. 2nd bench sentenced him 2 execution but
wrote letter 2 Pres Smuts pleading for Long’s exoneration. Smuts refused, saying if Long not executed entire cabinet would
resign. Exec flexed its muscle at judiciary, breaking sep of p’s doc. Const fell at exec’s feet, exec firmly placed at supreme
power in country. Was gov by law, not gov under law.
Mapenduka & com law: Mapenduka bought maize from W man, Ashington, but couldn’t pay back in agreed time. Ashington
sold cattle he had seized from Mapenduka as deposit. Mapenduka sues for £51. Court decides ACL doesn’t apply in cases
such as this. Instead went back 2 obscure & irrelevant Roman principles Mapenduka would never understand & awarded case
2 Ashington. Euro law given pre-eminence in SA courts priv law that would have knock on effects to pub law.
Ghandi: an uncommon lawyer. Fought for Rs of Indians in SA. Struck deal with Pres Smuts that if he could get followers 2
voluntarily register in Union, Smuts would repeal Black Act 4 Indians. Ghandi held his end, but Smuts didn’t. Black people had
some form of relief 2 fall back on in their syst of ACL, Indians & Coloureds had no CL to sup them. Were subject 2 law of land
that was prejudicial towards them. Gov was reluctant 2 include them in W law.
Most cases below concur with miserable realities of these cases, but some will bring light to situation.
Dugard - HRs & SA Legal Order
Chpt 11 - summary of book, focuses on role of judiciary in law making. Split into 3 broad areas:
1) Judges make law: Judges have important role in society to interp political instruments, exercise judicial review in respect
of legislative & administrative action & 2 develop com law. Main point of criticism against judges in SA = they have refused 2
acknowledge role making law, albeit interstitially. Law often vague & needs interp. By interpreting & developing precedent,
judges make way 4 future cases of similar nature = make law. During Apartheid they didn’t recognise this. Maybe didn’t want 2
b associated with immorality of Apartheid law & wished 2 personally absolve themselves from responsibility. Couldn’t make
laws or decisions wholly inconsistent with exec or Parliamentary policy as would infringe on sep of p’s doc, but was room for
manoeuvre. Today, judiciary bound in same way 2 Const. All decisions must b made in light of Constitutional provisions & in
particular BORs. So, when judges interpret stats, they do so in accordance with own predetermined prejudices & social
conditioning - Dugard calls inarticulate premise. Stats can b interpreted in many ways: Literally: reading leg word 4 word;
Restrictively: narrowing defs of each word based on contxt of case; Extensively: looking at all possible interps of each word
& phrase; Contextually: amending, highlighting or deleting certain words 2 make sense in particular case at court.
2) Judges can exercise degree of choice (however narrow): Presumption of stat interp is that when piece of leg restricts
Rs&Fs of an individual, court must interp it as narrowly as possible to protect individual. Wasn’t done 2 great extent in
Apartheid. Many judges positively reinforced power of exec & merely applied law word 4 word, seldom restricting meanings of
phrases. Interpreting legislature’s intention when drafting stat was important practice. Legislature could never possibly have
thought of every situation to which their leg applies. They were forced 2 make it vague & general so courts could apply 2
specific set of facts. Chipman Gray says: it is only words that legislature utters; it is 4 the courts to say what those words
mean. Often court decided that their intention expressly 2 limit & marginalise Rs of those whom law prejudiced. Was no
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, attempt 2 protect the individual most of time. Was due to legal positivism: law that is uttered is valid & must be enforced.
Judges had no power to declare what law ought to be, merely to enforce what law is. This rejects legal Vs & creates enviro
where stat interp becomes mechanical operation in which V judgments play no part.
3) Making these choices, judges affected by inarticulate premise: Dug argues not even this approach to law erases
effects of judges’ inarticulate premise: As long as judicial function is entrusted to men, subconscious prejudices will never b
completely removed from judicial process. Dug cites Judge Jerome Frank who believed judicial process is seldom “find laws,
make judgment”, rather “make judgment & find laws to supp it.” Decision is judicial hunch heavily prejudiced by social
conditioning after which leg is interpreted 2 supp judgment. (SA judges were all W males. LC effect?) Justice F.N. Broome:
judge’s mental make-up must necessarily influence his judgment. Nearly ever judge can b placed in 1 or other of 2 categories,
the category of those who lean towards Rs of State & category of those who lean towards Rs of individual. All SA judges
different = subconscious stimuli brought 2 bear on each decision will b diff. May work itself out in, eg., what interpretative
approach judge decides 2 adopt, or which cases judge decides 2 use as precedent. Not all decision allowed judicial sway.
Some cases = leg was so B&W & facts so obvious that only 1 decision possible. In these cases, judges couldn’t let their
inarticulate premises get in way of judgment, 4 better or for worse. Judge couldn’t change or (to large extent although not
completely), question leg. If faced with case in which he has no choice but 2 decide towards gross injustice of an individual’s
Rs, he must apply law or resign.
Another option: Judge could choose middle ground as Sir James Rose Innes did. Moller v Keimos School Committee:
suggested law didn’t make adequate provision for schooling of blck kids. Krohn v Minister of Defense: made plea 4 Parlia 2
replace arbitrary piece of martial law. Shidiak v Union Government: drew attention 2 dangerous prevailing tendency to oust
jurisdiction of courts in favour of administrative officials. Judges could, if committed 2 finding loopholes, look 4 discrepancies in
leg 2 decide case in favour of individual. Not always easy, but possible. This was middle ground between silence/blind
enforcement & resignation & was critical to morality of SA judiciary. Dugard writes conclusions: pict of SA judiciary that
emerges from this study isn’t altogether flattering. But not whole pic. In countless decisions handed down each day by mag &
SC judges, courts uphold best traditions of SA law. On other occasions, they have faltered. Judge Hand warned: A society so
riven that spirit of moderation is gone, no court can save. Judge Frank replied: Judge Hand thinks it folly 2 believe that courts
can save democ. Of course they can’t. But seems to me that here, most uncharacteristically, Judge Hand indulges in judgment
far to0 sweeping, which rests on too sharp either-or, all or nothing dichotomy. Obviously courts can’t do whole job. But, just as
obviously, they can sometimes help 2 arrest evil popular trends in their inception.
H Corder - Crowbars & Cobwebs: Exec Autocracy & Law in SA
Legal & political contxt of Apartheid pointed towards exec having extraordinarily wide discretionary powers 2 do what desired
& pass any leg it needed 2 achieve goals.Judiciary abdicated its role as check & balance 2 exec power, which meant courts
had become institution that merely reinforced exec’s whims. State Pres, particularly under certain Acts that conferred upon him
necessary power, had ability 2 give far-reaching orders 2 police, eg. 2 carry out almost anything desired, provided he had
applied his mind & acted bona fide. Eg. Internal Security Act, General Laws Amendment Act & Terrorism Act allowed Pres 2
issue instructions 2 police 2 use whatever means needed (usually under some form of administrative action) to protect exec
autocracy (parliamentary sov). Some courts & judges did use judicial review of administrative action to curb the exec’s power.
This implies 3 premises on which argument based: 1) should b some form of control over exec power. 2) Law is 1 form of
control over exec power. 3) Law isn’t, & can’t b neutral. Must work towards some social harmony. On these 3 premises, Corder
shows how law hadn’t been used to curb exec power, but rather in many ways, bolstered it. 1983 Const provided exec with
wide discretionary powers which, on surface, were for country’s benefit, but were really to protect & preserve Apartheid gov’s
power. State Pres & Prime Minister were indistinguishable, became same person; an immensely powerful individual who could
dismiss cabinet membs at will, classify bills as own or general affairs & 2 assign, delegate or transfer his Ministers’
administrative powers, duties & functions. State Security laws were characteristically vague & granted wide discretionary
power to exec. Public Safety Act of 1953 allowed exec to declare states of emerg across nation or in specific locations (such
as geographically limited state of emerg in July 1985). Homeland Acts gave exec tight control over movements & locations of
blck ppl. Racial discrimination ensured ruling minority safely &securely on top. Econ control of Reserve bank meant exec
controlled country’s econ development & growth. Was no control over extent of their power over Reserve Bank. Against this
backdrop of Parliamentary sov, where did courts feature? Exec appointed judges, so was some form of buy-in or loyalty to
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