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110 Cards in this Set
- Front
- Back
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What is law? |
-Law is the only body of rules and regulations -governing human conduct -that is recognised as binding by the state, and which -the state, will if necessary, enforce. |
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Describe the relationship between law and morality? |
-a law is still ‘law’ even if it is morally repugnant, i.e. apartheid laws -many laws are morally ‘neutral’, i.e. duty to obey speed limit -many laws are based on community conceptions of right and wrong: duty to support family; prohibition of marriage between certain relatives -laws can change as community morals change |
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Name the different branches of government and what they do: |
1. Legislature -parliament -makes laws 2. Executive -president; ministers; administration; police -implements and enforces laws 3. Judiciary -courts -applies laws |
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Explain the hierarchy of the court structure. |
1. Constitutional court - highest/ most powerful court 2. Supreme court of appeal 3. High courts 4. Magistrates courts 5. Specialist courts @ tribunals & ombud offices |
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Explain the jurisdiction of the constitutional court |
-based in Johannesburg -constitutional + general public importance -whole SA -First instance & appeal |
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Explain jurisdiction of Supreme court of appeal |
-based in bloemfontein -civil and criminal and constitutional -whole SA -appeal only |
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Explain jurisdiction of high court |
-9 provisional divisions + 6 local seats -civil and criminal and constitutional -provinces -first instance and appeal |
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Explain jurisdiction of the magistrates court |
-400+ -regional and district -civil and criminal -local areas (municipalities) -first instance only |
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Explain purpose of constitutional court |
The Constitutional Court is the highest court of the Republic. It may decide constitutional matters, and Any other matter, which raises an arguable point of law of general public importance. |
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In which cities are the main seats of the high courts located in SA? |
Eastern Cape division - grahamstown Free State division - Bloemfontein Gauteng division - Pretoria KwaZulu-Natal division - Pietermaritzburg Limpopo division - Polokwane Mpumalanga division - Nelspruit Northern Cape division - Kimberley North West division - Mahikeng Western Cape division - Cape Town |
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Explain the purpose of specialist courts or tribunals? |
Takes small claims, civil claims up to R20000 |
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Name different courts under the category of specialist courts or tribunals in South Africa |
-Commercial Court -Commission for Conciliation -Mediation and Arbitration -Labour Appeal Court -Tax Courts -Water Courts -Land Claims Tribunal -Competition Tribunal and Appeal Court -Rental Housing Tribunal -Consumer Tribunal -Pension Funds Adjudicator -Tax Ombud -Ombud for long-term insurance |
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What are the binding sources of SA Law? |
1. Constitution 2. Legislation 3. Roman Dutch Law 4. African Customary Law/ Indigenous Law 5. Custom 6. Customary International Law 7. Judicial Precedent (Case Law) |
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Explain shortly what the Constitution is. |
The Constitution is the supreme law |
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Explain shortly what the Constitution is. |
The Constitution is the supreme law |
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Can the Constitution be invalid? |
No. Any law or conduct in conflict with the Constitution is invalid |
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Can the Constitution be invalid? |
No. Any law or conduct in conflict with the Constitution is invalid |
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What are the three basic rights in the Constitution? |
-Equality -Human dignity -Life |
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What is the Bill of Rights (BoR) |
-Cornerstone of Democracy -equality; human dignity; life -rights in BoR may be limited if reasonable and justifiable |
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What is the Bill of Rights (BoR) |
-Cornerstone of Democracy -equality; human dignity; life -rights in BoR may be limited if reasonable and justifiable |
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Explain purpose of bill of rights? |
Courts have a duty to interpret laws and develop legal principles in a way that aligns with the values and rights enshrined in the bill of rights |
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Explain original Legislation |
Original Legislation: -refers to laws created directly by the legislative body, typically a parliament or congress. -These laws are usually enacted in the form of acts, statutes, laws. -Authority comes from constitution. -Original legislation can be set aside if found unconstitutional, and may be declared invalid and unenforceable. |
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Explain delegated legislation: |
Delegated legislation: -refers to laws that are not created directly by legislative body, but instead by an existing piece of original legislation. -Aka secondary or subordinate legislation. -The authority comes from the original legislation that grants certain entities the power to create regulations within a specific scope. -Regulations passed by government ministers or agencies are examples of delegated legislation. -These regulations provide detailed rules and guidelines to implement broader provisions of orginal law. -Can be set aside if found unconstitutional or ultra vires, which means the delegated law goes beyond scope of authority granted by original legislation. |
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Explain african customary/indigenous law. |
-refers to legal traditions, customs, practices that have been developed by african cultures over generations. -encompasses laws that regulate aspects of life such as marriage, inheritance, land tenure, community traditions. -customary law holds deep cultural significance: reflects their values, traditions. -application of customary law must not violate principles of constitution. -courts must consider legislation that specifically addresses issues related to customary law. |
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Explain the term ‘custom’ |
-its the practice or behaviour that has developed over time within a particular community and is considered of legal significance. -custom must be clear, certain, specific -custom must be reasonable - shouldnt be arbitrary or discriminatory -customs should be uniformly observed- should be consistently followed by members of community. |
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What is customary international law? |
It refers to the body of legal principles and norms that have developed over time through consistent state practice and acceptance as binding legal obligations among nations. -reflects widely accepted standards of behaviour -CIL is recognised in SA unless it conflicts with SA’s constitution or the laws passed by the Parliament. |
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What is customary international law? |
It refers to the body of legal principles and norms that have developed over time through consistent state practice and acceptance as binding legal obligations among nations. -reflects widely accepted standards of behaviour -CIL is recognised in SA unless it conflicts with SA’s constitution or the laws passed by the Parliament. |
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What are peremptory norms? |
Universally recognised laws/principles; fundamental laws to international legal order which cannot be violated -aka jus cogens norms -principle includes slavery; torture; genocide |
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Define judivial precedent |
-refers to the practice of courts using previous legal decisions as authoritative guidance when deciding current cases with similar legal issues -ensures consistency and predictability of law. -aka case law or stare decisis |
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Define judivial precedent |
-refers to the practice of courts using previous legal decisions as authoritative guidance when deciding current cases with similar legal issues -ensures consistency and predictability of law. -aka case law or stare decisis |
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Does courts have the power to create new laws under the constitution? |
No. Courts do not have authority to make laws directly. |
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Define judivial precedent |
-refers to the practice of courts using previous legal decisions as authoritative guidance when deciding current cases with similar legal issues -ensures consistency and predictability of law. -aka case law or stare decisis |
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Does courts have the power to create new laws under the constitution? |
No. Courts do not have authority to make laws directly. |
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How do courts ‘make’ law? |
Interpretation and Development -they interpret, develop and apply existing laws including legislation, common law and customary law. -Courts play a crucial role in determining how laws apply in specific cases. Stare Decisis -“let the decision stand” -encapsulates principle that courts should follow previous decisions, particularly thise from higher courts when deciding similar cases. -this doctrine is cornerstone of common law system and contributes to legal consistency |
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Define ratio decidendi |
-legal principle or reasoning that forms basis of a court’s decision -it is part of the judgement that establishes the legal precedent for future cases When a court is bound by an earlier decision, it is bound by the ratio decidendi. Not by the entirety of the judgement. |
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Define ratio decidendi |
-legal principle or reasoning that forms basis of a court’s decision -it is part of the judgement that establishes the legal precedent for future cases When a court is bound by an earlier decision, it is bound by the ratio decidendi. Not by the entirety of the judgement. |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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Which courts are bound by the ratio decidendi of the Constitutional Court? |
All other courts |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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Which courts are bound by the ratio decidendi of the Constitutional Court? |
All other courts |
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Which court is bound by the ratio decidendi of the Supreme Court of Appeal? |
-all other courts including SPA except CC |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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Which courts are bound by the ratio decidendi of the Constitutional Court? |
All other courts |
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Which court is bound by the ratio decidendi of the Supreme Court of Appeal? |
-all other courts including SPA except CC |
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Which courts are bound by the ratio decidendi of the High Courts? |
-HC of equal or lower standing in the same province -Magistrate courts in the same province or sometimes in other provinces |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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Which courts are bound by the ratio decidendi of Magistrate courts? |
None |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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Which courts are bound by the ratio decidendi of the Constitutional Court? |
All other courts |
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Which court is bound by the ratio decidendi of the Supreme Court of Appeal? |
-all other courts including SPA except CC |
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Which courts are bound by the ratio decidendi of the High Courts? |
-HC of equal or lower standing in the same province -Magistrate courts in the same province or sometimes in other provinces |
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In what legal system is stare decisis a fundamental principle? |
In common law legal systems |
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Which courts are bound by the ratio decidendi of Magistrate courts? |
None |
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When is a court of equal standing not bound by the ratio decidendi of another court? |
-not bound if the satisfied earlier decision is wrong in Law |
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When is the current court obligated to apply the same legal reasoning and principles as established in a previous decision? |
-when the court is presented with a similar case to the one which has been decided in the past -by a court of the same level or a higher level within the legal hierarchy |
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What does stare decisis promote? |
-consistency & predictability |
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Define the term Provisos: |
-conditions, stipulations, clauses within legal or contractual context -that modiy, limit or add exceptions -to a particular rule, requirement, or provision |
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When are Provisos used? |
-used when needed to clarify the application of a rule -to address specific circumstances where the rule may not fully apply |
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Where are Provisos commonly found? |
-statutes, contracts, legal agreements, court judgments |
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Explain the two elements of Proviso |
1. Bound only by certain parts of a judgement -ratio decidendi 2. Bound only by ratio decidendi of certain court’s decisions -courts unequal in authority -courts only bound by equal authority and lower |
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Which courts are bound by the ratio decidendi of the Constitutional Court? |
All other courts |
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Which court is bound by the ratio decidendi of the Supreme Court of Appeal? |
-all other courts including SPA except CC |
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Which courts are bound by the ratio decidendi of the High Courts? |
-HC of equal or lower standing in the same province -Magistrate courts in the same province or sometimes in other provinces |
