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Judicial Authority - Coggle Diagram

- - - - Section 35(2) of the Constitution provides for legal representation in criminal matters:
        “Everyone who is detained, including every sentenced prisoner, has the right [...]
        b. to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
        c. to have a legal practitioner assigned to the detained person by the state and at state expense, if
        substantial injustice would otherwise result, and to be informed of this right promptly [...]
        
        Civil disputes-
        
        Land Claims Court- Nkuzi
        
        case right of access to court equates to more than bringing a case to court.
        
        Adversarial system - judges do not assist the litigants as they do in inquisitorial systems.
- - - - 1993 Interim Constitution created a specialized Constitutional Court
        
        new Constitution should be adjudicated by the ordinary courts (eg the High Court and Supreme Court of Appeal)
        
        judges were generally too positivist in their approach and too executive-minded to be entrusted with constitutional adjudication.
        
        -Section 166 also refers to High Courts, which were created from the old provincial and local divisions of the Supreme Court and the Supreme Courts of the former TBVC states.
  - - - SA has justiciable Constitution
        
        Justiciable means that a matter is justiciable if courts can apply the Constitution to the factual or legal dispute and can declare invalid action in conflict with the Constitution
        
        s172:
        1) declare it unconstitutional
        2) the extent of it
        3) Make an order which is just and equitable
        
        constitutional disputes may take one of two forms
        
        1) between an individual and a government body
        
        2) between government bodies themselves about the distribution and exercise of government authority.
    - - South Africa the Constitutional Court is the highest court in the land.
        prior to Constitution Seventeenth Amendment Act, 2012 (CSAA)
        
        highest court in the land only for constitutional matters
        
        Section 167(7) of the Constitution states that “constitutional matter includes any issue involving the interpretation, protection or enforcement of the Constitution”.
        including:
        
        Allegations of bias on the part of judicial officers
        
        All aspects of the exercise of public power
        
        The interpretation and application of laws that give effect to a right in the Bill of
        Rights e.g. PAJA, PAIA, PEPUDA, Restitution Act.
        
        The development or failure to develop the common law
        
        Any matter concerning the nature and ambit of the powers of the High Courts.
        
        Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development, and Others (the DPP case)
        
        courts are bound by the Bill of Rights according to s 8(1) of the Constitution, they cannot enforce an unconstitutional law.
        
        Non-constitutional matters
        
        Now, the CC’s jurisdiction extends beyond constitutional matters
        
        section 167(3) of the Constitution reads:
        “The Constitutional Court—
        (a) is the highest court of the Republic; and
        (b) may decide —
        (i) constitutional matters; and
        (ii) any other matter if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court; and
        (c) makes the final decision whether a matter is within its jurisdiction. (emphasis added)
        
        The Constitutional Court’s jurisdiction is divided into 4 types of competencies (functions):
        
        1) First instance – exclusive jurisdiction
        
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        2) Direct access (s167(6)(a)).
        
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        3) Appeals in constitutional and non-constitutional matters (s167(3)(a) and (b))
        
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        4) Concurrent jurisdiction with the SCA and High Courts
        
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      - 6.3.2. The jurisdiction of the Supreme Court of Appeal
        
        Section 169
        
        court of first instance as well as a court of appeal.
        
        wide constitutional powers and may decide any constitutional matter except those that fall within section 167(4) of the Constitution or any matter that has been allocated to another court of a similar status to that of the High Court.
        
        Apart from constitutional jurisdiction, the High Court can decide other disputes that have been conferred on them by statute.
        
        may entertain matters because of the inherent or residual powers conferred on them by virtue of section 173 of the Constitution.
        
        Section 168
        
        hear and decide constitutional issues,
        
        **same breadth of constitutional jurisdiction as
        the High Courts;**
        
        Supreme Court is **no longer the final court of appeal in nonconstitutional
        matters**
        
        Supreme Court of Appeal has both constitutional and non-constitutional jurisdiction
- - - - Constitutional supremacy
      - ‘watchdog’ function over the executive
        
        adheres to the norms, values and principles
      - preserve and foster basic human rights created under a constitutional state.
        
        Baloro and Others v University of Bophuthatswana and Others
        
        social engineers and, indeed, social and legal philosophers.
      - engage in the more creative activity of generating new laws