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FSAL Second Semester Summaries: Lectures, Cases and Readings
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- University Of Cape Town (UCT)
Summaries of FSAL Lectures, Cases and Readings, taught by Fatima Essop.
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FSAL 2ND SEMESTER READING AND CASE SUMMARY NOTES FROM PROFMATHABO BAASE’S SECTION
JUDICIAL POLICY AND JUDICIAL LAW MAKING:
Judicial Law Making
· Apparent contradiction: parliament/ legislature make laws but so do judges?
· Previous understanding that judges merely give expression to will of law
maker
So how do they make the Law?
● make sense of ambiguous (more than one meaning) and unclear use of
language, in this case mainly the English language.
● interpretative role in giving expression to the will of parliament through the
law, and
● giving expression to the rules of the common law (note the difference
between common law and statutory law) in both those tasks the judges
are actually making the law.
● NOTE the doctrine of precedent. The decision of a judge may be binding other courts
throughout the country. Therefore, it could be said that judges DO in fact make the law,
because the common law is a binding source of law.
●
● They do not start with a clean slate.
● Judges situate their law making task within the language that they are
interpreting.
3 Types according to Lord Devlin (English Judge 1970s):
1. Judicial Passivism
● Simply: “This is the language that parliament used, this is the ordinary use of the
word and so we are just going to take the worlds of parliament and we are not
going to scratch beneath the surface and try to discover parliament's intent, we
will just apply the law as is that law.”
● Traditional judicial role.
● English CJ 1964 Lord Reid: we no longer believe in the Aladdin’s-cave theory of
judging – that judges are the ones who have the secret .
● Nothing of their preferences, prejudices translated itself into the interpretation of
the law.
, 2. Judicial Activism
● Legitimate use of the judicial power or authority by a judge to scratch beneath the
surface and ask – why do you think parliament would use that particular word?
3. Judicial Dynamism (started existing post 1990)
● (dynamic/ progressiveness).
● Judges do not wait for parliament or if parliament changes a particular law they
push back on the changes made or the reason for those changes.
● Deeply threatens the doctrine of the separation of powers.
● Judges are taking over the parliamentary role.
● Should only happen in relation to the court process.
● In areas that are peculiarly the expertise of the courts or the judges Devlin said it
was okay to be dynamic as a judge to say parliament hasn’t foreseen this
particular circumstance we are going to fill the gaps, even under a system of
parliamentary sovereignty as exists in Britain today and as existed in South
Africa until 1994.
Judicial Policy:
● Normally determined ex post facto – retrospectively
● The judicial policy or politics is often identified during an analysis of judgments.
● Not driven by any command by the chief justice (head of the judiciary) or from
the judge president but because of legal culture.
● Unwritten
READING 1: Martin Chanock The Making of South African
Legal Culture 1902-1936 (2001), 1-19.
● Fear, Favour and Prejudice. Judge’s oath: To judge impartially without fear,
favour or prejudice.
● CHANNOCK’S POINT: making of South African legal culture is all about fear,
favour and prejudice – not without it.
● Why 1902-1936: End of the Angloe Boere Oorlog/ South African war. When
Britain finally conquered by military force and concentration camps established
political hegemony over the boundaries of the state that we now know as the
, Republic of South Africa.1936= black African people were removed from the
voters role in South Africa
1) Whether/ what extent RoL was observed
2) What is idea of SA legal culture
o What r ole does law play in the governance of society? Positives And negatives
o What relationship is there between law on the one hand and justice on the other
hand?
o What r ole, particularly, can lawyers play and law students play in a system which
is unjust?
Chanock’s remarks about the state of South Africa in 1902-1936:
● Seminal formational period in terms of the (unstable) South African political state
due to three things
1. Bambatha rebellion or the Zulu rebellion.
2. Secondly the strikes on the gold mining & the diamond mining but particularly the
gold mining industry
3. Afrikaner republican rebellion during WW1.
All challenges for the state.
1. Create a defence force out of the former Boere forces and the British
forces
2. Create a police force as a means of bringing some order to the country
after a situation of war that had ended only 8 years before.
● NB: judges saw it as their role to start creating a legal culture which would reduce
the instability by bringing together mainly white people (in the form of the Dutch
speaking/ Afrikaans speaking people) and the English speaking people who had
been engaged in war 8/10 years before that.
STORY ONE: ENOCH DJIJIMA
FACTS:
, Took place in Bulluck. Mr Djijima was tried in Queens Town. Enoch was the leader of a
group of people that styled themselves as the Israelites, they were all black South
Africans. They had been forced by law off their land and concentrated in a very small
area. By permission of the natives affairs department they were allowed to stay on the
land. There was an attempt to negotiate and they started by registering the structures
that were erected (unlawfully). Initially the executive (the government through Mr Barrat
who was the head of department) tried to engage with people. After the negotiations
ended unsuccessfully, prohibitions were enforced through the barrel of a gun. Kernel
Truter, the head of police, moved in and opened fire on all the people settled on the
land. Approximately 200 were killed and 140 survivors including Mr Djijima appeared in
court in charges of sedition (sedition is just a little bit less serious than high treason for
which the penalty was capital punishment or the death penalty at that stage).
● Glen Grey Act 1894 (referenced)
● One of the ways through which black African people in the Cape province (East,
West, Northern Cape) could own land.
● Purpose: to bring order to land ownership by black African citizens of South
Africa
● Reality: intended to create surplus labour for the mines and other industries.
● Emphasised individual land ownership/ land tenure not collective land ownership.
And much of the land owned by black South Africans in the Cape province was
collective land ownership.
● What do the people do who are no longer able to live on the land? They must go
and seek wage employment.
TO NOTE: So these 140 people appear in court, They did not have proper legal
representation. The judge bent the rules and allowed an attorney to appear in the high
court and the judge was the judge president of the Eastern Cape. NOTE: inequality.
They were not adequately defended by the legal council whereas the state had a whole
group of really experienced lawyers leading the prosecution, the defence (140 people
criminally accused of sedition) had a single attorney to represent them.
● Difference between treatment of officials: Head of the native affairs department
was dismissed from his job, the one who attempted to negotiate, whereas the
police officer, who has order the police to open fire, was appointed to be the
national commissioner of South African police after that incident.
● Judge president Grey was a no nonsense no negotiation judge. And ironically we
see the executive person being cast as the weakling in the judgment.
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