Judicial Authority in South Africa Lecture Notes

Practice flashcards covering Judicial Authority in South Africa, focusing on the history of Parliamentary Sovereignty, the transition to Constitutional Democracy, court hierarchy, and the concept of jurisdiction.

What are the three main sub-topics covered under the study of Judicial Authority?

1. The Judiciary and South Africa’s History, 2. Judicial Authority in the New Democratic Dispensation, and 3. Jurisdiction and Composition of Superior Courts.

What does the term "pre-democratic dispensation" refer to in South African history?

The system of government that existed before democracy, primarily referring to the apartheid era.

What was the core meaning of Parliamentary Sovereignty in South Africa?

Parliament had the highest law-making power and could make laws that the courts had limited power to challenge.

In the pre-democratic era, what was Parliament considered in terms of legislative authority?

Parliament was considered the sovereign legislative authority.

What is the definition of "limited judicial review of legislative action"?

The courts could review certain legal matters, but their power to challenge laws made by Parliament was restricted.

Which specific legal provision from 1961 established that Parliament was the sovereign legislative authority?

Section 59(1) of the 1961 Constitution.

Why was Parliamentary Sovereignty considered a violation of the principle of separation of powers?

Because Parliament was extremely powerful and the Judiciary could not properly act as a check on its authority.

What does the term "statutory discretion" mean?

A power given to someone by legislation to choose between different lawful options, such as a Minister's power to issue orders.

According to the transcript, what is the definition of "contempt of court"?

Disobeying or disrespecting the authority of a court in a way that the law recognises as contempt.

What does the "complicity of the Judiciary" refer to regarding the apartheid era?

The criticism that some judges and courts helped maintain the apartheid legal system by applying unjust laws instead of challenging them.

Name the four features of judicial independence that existed during the apartheid era.

1. Access to courts, 2. Security of tenure of judges, 3. Fixed remuneration, and 4. Formal process of removal.

What was the primary concern regarding the appointment of judges during the apartheid era?

Appointment was based on political inference.

What was the composition of the judiciary in 1994 regarding the total number of judges?

There were $166$ judges.

What was the demographic breakdown of judges in South Africa in 1994?

$161$ White male, $3$ Black male, $2$ White female, and $0$ Black female judges.

By 2026, what percentage of the judiciary was represented by Black judges according to the lecture data?

$58$% ($52$ judges).

What were the three types of lower courts in the structure prior to 1994?

Magistrate Court, District Court, and Regional Court.

What are the three main roles of the Judiciary in a Constitutional Democracy?

Enforcing the Constitution, protecting individual rights, and acting as a check on the powers of the legislature and executive.

What is meant by the judicial approach being "restrained but principled"?

Courts should not unnecessarily interfere with other branches of government (restrained) but must still follow legal principles and the Constitution (principled).

List the top two courts in the hierarchy under the 1996 Constitution.

1. Constitutional Court and 2. Supreme Court of Appeal.

Name four types of lower courts identified in the judicial hierarchy.

1. Magistrate Courts (District and Regional), 2. Small Claims Courts, 3. Children's Courts, and 4. Traditional Courts.

What is the legal definition of "jurisdiction"?

The legal power of a court to hear and decide a case.

What is the legal effect of a judgment made by a court that lacks jurisdiction?

The judgment is null and void and has no legal effect.

Define "original jurisdiction".

The power of a court to hear a matter for the first time.

Define "appellate jurisdiction".

The power of a higher court to hear and review an appeal from a lower court.

What is a "remedy" in the context of judicial authority?

What the court can provide to fix a legal problem, such as ordering a payment or requiring a specific action.

How many judges make up the Constitutional Court of South Africa?

$11$ judges.

Which two specific roles are mentioned as part of the 11-judge Constitutional Court?

The Chief Justice and the Deputy Chief Justice.

What is the primary function of the Constitutional Court?

It makes final decisions about whether legislation or conduct is consistent with the Constitution.

What does it mean to seek "direct access" to the Constitutional Court?

Asking the Constitutional Court to hear a matter directly without following the normal route through lower courts.

What are three factors considered by the Constitutional Court when granting leave to appeal?

Urgency, important constitutional issues, and reasonable prospects of success.