The Supreme Court and the State Courts

Validity of Procedure. In the summer of 1925 the appellate division of the supreme court of New York held that the City Home Rule Amendment of 1923 had not been legally adopted and was invalid. In the case of Browne v. City of New York the court of appeals reversed this decision and held the amendment valid. The chief ground of attack on the amendment was, it is believed, unique. It may be stated as follows: The New York constitution requires an amendment to be proposed by one legislature, approved by the legislature chosen at the next election of senators, and then ratified by the voters. The City Home Rule Amendment was proposed by the legislature of 1922, approved by that of 1923, and ratified at the polls in 1923. It was an amendment to Article XII. But the legislature of 1922 had also approved an amendment to Article XII, relatively trivial in nature, which had originated in the legislature of 1920. This amendment was ratified in November, 1922, and went into effect in January, 1923, before the second legislative approval of the City Home Rule Amendment. In other words Article XII, which the City Home Rule Amendment changed, was not the same when the amendment passed the legislature for the first time as when it passed the second time. The appellate division held not only that the amendment must be the same when passed by the two legislatures but that the provision amended must also be the same.

Download Full-text

Breard and Treaty-Based Rights Under the Consular Convention

The American Journal of International Law ◽

10.2307/2998132 ◽

1998 ◽

Vol 92 (4) ◽

pp. 691-697

Author(s):

Jordan J. Paust

Keyword(s):

Supreme Court ◽

Death Penalty ◽

The State ◽

State Courts ◽

Vienna Convention ◽

The Supreme Court ◽

The Individual

Article 36(1) of the Vienna Convention on Consular Relations provides that (a) “[nationals . . . shall have the same freedom with respect to communication with and access to consular officers,” and that (b) “[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” In Breard v. Greene, the Supreme Court nearly recognized that, under the Convention, the individual petitioner had actionable rights that had been violated. The Court concluded, however, that the rights were “defaulted” when not pursued in the state courts, that the errors would not be prejudicial, and that the subsequendy enacted federal Antiterrorism and Effective Death Penalty Act limited the petitioner’s “ability to obtain relief based on violations of the Vienna Convention.”

Download Full-text

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

Southern African Public Law ◽

10.25159/2522-6800/4027 ◽

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.

Download Full-text

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

Southern African Public Law ◽

10.25159/2522-6800/3531 ◽

2017 ◽

Vol 30 (1) ◽

pp. 112-121

Author(s):

Shamier Ebrahim

Keyword(s):

Supreme Court ◽

Waiting Lists ◽

The State ◽

Waiting List ◽

Allocation Process ◽

The Supreme Court ◽

The Right ◽

The Impact ◽

Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

Download Full-text

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

JURNAL HUKUM DAN PERADILAN ◽

10.25216/jhp.7.2.2018.213-236 ◽

2018 ◽

Vol 7 (2) ◽

pp. 213

Author(s):

Budi Suhariyanto

Keyword(s):

Supreme Court ◽

Criminal Law ◽

Administrative Law ◽

The State ◽

Government Officials ◽

Criminal Process ◽

The Supreme Court ◽

State Finance ◽

The Law ◽

To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

Download Full-text