RVW UNIT 2.1

Justiciability

the ability of courts to adjudicate legal disputes and enforce constitutional principles

du plessis on justiciability

conditions under which courts can exercise judicial authority over const matters

effect of justiciability on const governance

upholds const supremacy, prevents judges overstepping, protects integrity of const governance

S165(5)

an order/decision issued by a court binds all persons to whom and organs of the state to which it applies

S165(2)

 the courts are independent and subject only to the const and law, which they must apply impartially without fear, favour or prejudice

S165(3)

no person/organ of state may interfere with the functioning of the courts

s167(3) (b)

the CC may decide on const matters

s167(5)

the CC make the final decision on if an Act of Parliament, Provincial Act or Presidential conduct is const. It must confirm any order of invalidity made by the HC/SCA before that order has any force.

168(3)(b)

the SCA can hear any other matter referred to it`

S169(1) (a)

The HC can hear any const matters except those assigned to a court of similar status or those in exclusive competence of CC and matters heard directly based on 167(6)

S172(1)

A court must declare any law or conduct that is inconsistent with the Constitution invalid to the extent of its inconsistency

magistrates’ courts and constitutional matters

Courts at lower levels have jurisdiction in constitutional matters to the extent that it has been assigned to them by an Act of Parliament so lower courts cannot rule on the constitutionality of legislation

judicial restraint

Constitutional review must be exercised with circumspection

aspects of judicial restraint

no unnecessary interference with legislating, only invalid laws when they are clearly unconstitutional, adjudicative and not legislative

S v Mhlungu

where possible to decide any case (civil/criminal) without reaching a constitutional issue, that is the course to be followed

trias politica

ensures a balance between  legislative power (makes laws), executive(enforces laws) and judicial power (interprets and applies law) in a democratic state

interpretive nature of the const as a normative law text

const supremacy, Guidance for interpretations, Fundamental norms

countermajoritarian difficulty

An unelected judge may invalidate any law adopted by a democratically elected majority, deliberative legislature and strike it down where it is found to be unconstitutional creating a tension between legislative power and judicial authority

implications of countermajoritarian difficulty on democracy and constitutionalism (1)

Modern democracy balances and limits the majority rule with constitutionalism; govt derives powers from written constitution and exercise only those, courts enforce following const while respecting legislature, constitution is the supreme law of the Republic but not an overarching all-encompassing super law, courts must strike down discriminatory law to uphold const rights

subsidiarity

obliges a more encompassing, superordinate body to refrain from taking on legal disputes that a more particular subordinate body can appropriately take care of , only ecslating to higher levels when necessary

jurisdictional subsidiarity

assigns responsibility to the appropriate forum that should hear a case

adjudicative subsidiarity

enjoin (prompts/restricts) one and the same forum to prefer a non-constitutional mode of adjudicating an issue over a constitutional mode when the legal question that is at issue allows for the non-constitutional model

Zantsi v Council of State, Ciskei

adjudicative subsidiarity can allow the law to develop incrementally which is desirable based on the far-reach consequences attached to constitutional decisions

how does subsidiarity maintain the balance between supremacy and legislation and judiciary(1)

it helps to keep the spheres of legislature and judiciary separate as constitutional over-adjudication (when reviewing legislation) can deprive the legislature of the chance to deal with an issue on its own

how does subsidiarity maintain the balance between supremacy and legislation and judiciary(2)

govt powers exercised at right level, preventing national overreach, respecting autonomy of spheres + preventing judicial overreach

limitations of adjudicative subsidiarity

it is limited where there are: fundamental const rights, national interests that require const intervention, significant legal issues that cannot be resolved at lower levels

adjudicative subsidiarity + constitution

This principle has to yield to const supremacy when: core const principles are at stake

Amod v Multilateral Motor Vehicle accident fund

the court held that the SCA is the more appropriate forum of appeal to develop common law as envisioned in S35(3) of the IC and S39(2) of the 1996 Constitution

S39(2)

when interpreting any legislation, and when developing the common law, every court, tribunal or forum must promote the spirit, purport and objects of the BOR

Pharmaceutical Manufacturers Association of SA

The court ruled that the judiciary must respect the role of the legislative and executive branches. They must only intervene when const rights are clearly violated

S v Mhlungu GCT notes

this addressed if the CC should hear a case already considered by lower courts. The CC should only intervene where necessary

constitutional law

constitution has been supreme law taking precedence over all other laws

Parliamentary legislation

the highest legislative power over the whole SA that legislates on national matters (e.g., foreign policy), takes precedence over all other legislation (to the extent that it deals with matters which the constitution does not allocate to any other legislature)

Legislature in the provincial and local spheres

cannot make laws on matters over which the constitution has not expressly given them the authority to do so

Local legislation

subordinate to provincial and national laws. They have legislative power over matters in schedules 4 and 5 allocated to them by national/provincial laws e.g., community affairs and municipal services

Schedule 5 of the Constitution

gives provincial legislatures exclusive authority in certain matters e.g. liquor licenses, provincial sport, provincial road and traffic

Schedule 4 of the Constitution

matters over which the national and provincial legislature have concurrent authority e.g., environment, health services, education

Conflict between provincial and parliamentary legislation

where conflict arises in schedule 4 matters, national legislation (NL) (in certain circumstances) takes priority over legislation of the provinces

where does NL take over provincial legislation (S146 of the const)

NL deals with matter that cannot be regulated by individual provinces; NL deals with issue needing national uniformity; NL used to prevent unreasonable action by province

cases outside of S146

provincial legislation takes precedence over and is superior/superordinate to parliamentary legislation

provincial vs national legislation in Schedule 5

NL only prevails where parliament intervenes by passing legislation for functional areas in Schedule 5 (according to S44(2))

S149

suspends the operation of (does not nullify/invalidate) subordinate legislation in conflict with original legislation for as long as the conflict remains

federalist principles

granting provinces and municipalities autonomy over certain matters

Centralist principles

making sure national legislation prevails in key areas maintaining national unity