Justiciability

1966 ◽  
Vol 1 (1) ◽  
pp. 40-59 ◽  
Author(s):  
Alfred Witkon
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
The State ◽  
High Court ◽  
Law And Politics ◽  
Court Of Justice ◽  
Starting Point ◽  
The Supreme Court ◽  
Do So

The purpose of this article is to discuss the problem of drawing a line between law and politics, as it presented itself to courts in Israel. Any such discussion must take as its starting point the judgment of the late President of the Supreme Court of Israel, Dr. M. Smoira, in Jabotinsky v. Weizmann So far as I know, it was here that the term “justiciable” was first used in this context in Israel. This was a case concerning the formation of a new government. The former government, headed by Mr. Ben-Gurion, had received a vote of non-confidence and resigned. The President of the State, after consulting the parties, asked Mr. Ben-Gurion to form a new government and, upon his refusal, had let the matter rest. The petitioner's complaint was that the President should have called upon each and every one of all the 120 members of the Knesset until one was found who succeeded in forming a new government. He applied to the Supreme Court, sitting in its original jurisdiction as a High Court of Justice, for a writ of mandamus against the President ordering him to do so. Two points were submitted by the Attorney General in opposing the grant of an order nisi. His first submission was that the Court should assume no jurisdiction over the President of the State. In this submission he failed, but he succeeded on his second ground, which concerns us here, namely that the matter, being “political”, was not justiciable.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02

2007 ◽  
Vol 101 (2) ◽  
pp. 459-465 ◽  
Author(s):  
Daniel Bodansky ◽  
Orna Ben-Naftali ◽  
Keren Michaeli
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Armed Conflicts ◽  
Direct Part ◽  
Customary International Law ◽  
High Court ◽  
Additional Protocol ◽  
Court Of Justice ◽  
The Supreme Court

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:The result of the examination is not that such strikes are always permissible or that they are always forbidden. The approach of customary international law applying to armed conflicts of an international nature is that civilians are protected from attacks by the army. However, that protection does not exist regarding those civilians “for such time as they take a direct part in hostilities” (§51(3) of [Additional Protocol I]). Harming such civilians, even if the result is death, is permitted, on the condition that there is no less harmful means, and on the condition that innocent civilians are not harmed. Harm to the latter must be proportional. (Para. 60)

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

scholarly journals Disclosure in Centre for Child Law v the Governing Body of Hoërskool Fochville

2017 ◽  
Vol 20 ◽  
pp. 1-20
Author(s):  
Michael Tsele
Keyword(s):  
Supreme Court ◽  
Public Interest ◽  
High Court ◽  
Governing Body ◽  
Foreign Law ◽  
The Supreme Court ◽  
Children's Interests ◽  
Court Of Appeal ◽  
Do So

When a party refers to evidentiary material in the course of litigation, ordinarily this party is under an obligation to make this evidence available to his opponent, particularly when called upon to do so. However, over the years various principles have developed which make this obligation subject to certain limitations. The Fochville cases dealt with a situation where a party to litigation sought to withhold certain information from its adversary, notwithstanding the fact that the material had been relied upon as a ground for the institution of the litigation. This note critiques the judgments of the High Court and in particular the Supreme Court of Appeal in this dispute. In so doing, it draws on useful foreign law to argue that the Supreme Court of Appeal's judgment was an unfortunate one in that the court failed to clarify with reasonable precision the circumstances in which a party to litigation involving children's interests may legitimately resist disclosing evidence to his adversary, in which the party resisting disclosure invokes the principle of public interest immunity. In this regard, the note concludes that the High Court's overall approach to the issue is to be preferred.       

Leading Decisions of the Supreme Court of Israel and Extracts of the Judgment

1998 ◽  
Vol 32 (1) ◽  
pp. 139-178
Author(s):  
Omi Morgenstern Leissner
Keyword(s):  
Affirmative Action ◽  
Supreme Court ◽  
Board Of Directors ◽  
The State ◽  
Oil Refinery ◽  
Single Woman ◽  
Court Of Justice ◽  
The Supreme Court ◽  
The Board Of Directors ◽  
The Government

Israel Women's Network v. The Government of Israel (1994) 48(v) P.D. 501The petitioner, the Israel Women's Network, petitioned the Supreme Court of Justice against the appointment of a new member to the Ports and Railways Council and against the appointment of two new directors on behalf of the State to the board of directors of the State-controlled Oil Refinery. All three of the new appointees were men, such that neither of the two councils included a single woman in their composition. The petitioner disputed the constitutionality of these appointments arguing that in the particular circumstances and in line with sec. 18A of the Government Companies Law, the appointees ought to have been women. By a majority decision the Supreme Court held that the respondent did not fulfill the duty of affirmative action required by sec. 18A of the Law, and that the cancellation of the appointments made was justified.

Chieftaincy jurisdication and the muddle of constitutional interpretation in Ghana

1998 ◽  
Vol 42 (1) ◽  
pp. 37-63 ◽  
Author(s):  
A. K. P. Kludze
Keyword(s):  
Supreme Court ◽  
Attorney General ◽  
Constitutional Interpretation ◽  
High Court ◽  
The Supreme Court ◽  
Bar Association ◽  
Court Of Appeal

The Supreme Court of Ghana, in The Ghana Bar Association v. The Attorney General, has unanimously decided that, even under the 1992 Constitution, High Court and the Court of Appeal have no jurisdiction in chieftaincy matters. Even if this decision itself is correct, it is nevertheless premised on highly questionable legal propositions and dicta which strike at the foundations of several otherwise settled principles and canons of construction.

scholarly journals EFFICIENCY IN THE FINANCIAL MANAGEMENT IN THE SUPREME COURT OF JUSTICE IN THE STATE OF TAMAULIPAS, MÉXICO

2015 ◽  
Vol 7 (1) ◽  
pp. 48-67
Author(s):  
David Ortiz González ◽  
Mónica Lorena Sánchez ◽  
Yesenia Sánchez Tovar
Keyword(s):  
Supreme Court ◽  
Financial Management ◽  
The State ◽  
Court Of Justice ◽  
The Supreme Court

The influence of the jurisdiction over the legislation on the fields of civil and commercial law in 2018 in Republic of Bulgaria

2020 ◽  
Vol 15 (1-3) ◽  
pp. 12-34
Author(s):  
Polya Goleva
Keyword(s):  
Supreme Court ◽  
Final Analysis ◽  
The State ◽  
Commercial Law ◽  
Concrete Case ◽  
Legislative Power ◽  
Court Of Justice ◽  
The Supreme Court

The Article researches the interaction between the jurisdiction and the legislative power in Republic of Bulgaria in 2018. On the basis of investigation of concrete acts of the parliament and decisions of interpre­tation, issued by the General Assemble of the Civil and the Commercial Colleges the influence of the laws over the decisions of the Supreme Court of Justice and concrete decisions issued by the court are revealed and the influence of concrete cases over the development of law. The two powers of the state are fighting for predominance in particular in the year of 2018 and in par­ticular on the field of the civil and com­mercial law. In some directions the legis­lative power is stronger than the court, but in other directions the court predominates the parliament. The interaction ends in the final analysis with the victory of the court when it makes decision by a concrete case.

Enforcement of Divorce Judgments in Jewish Courts in Israel: The Interaction Between Religious and Constitutional Law

2012 ◽  
Vol 4 (1) ◽  
pp. 1-68 ◽  
Author(s):  
Yehiel S. Kaplan
Keyword(s):  
Policy Analysis ◽  
Supreme Court ◽  
Human Dignity ◽  
Constitutional Law ◽  
The State ◽  
Coercive Measures ◽  
Basic Law ◽  
The Supreme Court ◽  
State Of Israel ◽  
Do So

In the State of Israel, Rabbinical courts are granted sole jurisdiction in the adjudication of marriage and divorce of Jews. In these courts, the husband presents the divorce writ of Jews, the get, to his wife on the occasion of their divorce at the end of the adjudication process. When Jews sue for divorce in Rabbinical courts, the courts occasionally determine that the man should grant his wife a get or that the wife should accept the get granted by her husband. Sometimes one spouse disobeys the ruling. Although the Rabbinical courts occasionally impose sanctions in an attempt to enforce divorce judgments, they are generally reluctant to do so. The implementation of inappropriate measures can lead to the conclusion that a given divorce is in fact a legally ineffectual coerced divorce. Consequently, the Jewish courts occasionally delay the imposition of these sanctions out of concern that inappropriate coercive measures invalidate the get, rendering the couple still legally married. The Supreme Court of Israel has ruled, though, that the Rabbinical courts in Israel should act in light of the constitutional principles in Basic Law: Human Dignity and Freedom. However, the Supreme Court of Israel has not clearly or specifically addressed the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, neither before nor after the enactment of the of the two important constitutional Basic Laws enacted in 1992. A detailed policy analysis of the sanctions against recalcitrant spouses in Rabbinical courts in Israel—in light of the principles of Jewish and constitutional law in the country—has not yet been undertaken. The aim of this essay is therefore to present the appropriate formula pertaining to the imposition of sanctions against recalcitrant spouses given the principles of Jewish and constitutional law. The formula is presented in light of constitutional law in Israel. However, it is also applicable in other countries with similar constitutional legislation, such as Canada, where legislation sometimes allows for the civil enforcement of Jewish divorce.

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