scholarly journals THE “DEFERENCE” OF JUDICIAL AUTHORITY TO THE STATE*

Obiter ◽  
2021 ◽  
Vol 33 (1) ◽  
Author(s):  
Nomthandazo Ntlama
Keyword(s):  
South Africa ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The State ◽  
Constitutional Court ◽  
Main Function ◽  
Checks And Balances ◽  
New Process ◽  
State Authority ◽  
The Republic

The adoption of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”), provided an opportune moment for the courts, especially the Constitutional Court to ensure an appropriate balance in the development of the principles and values of the doctrine of separation of powers vis-à-vis those of judicial review. The Constitution is framed in a manner that entrenches a system of checks and balances (this is deduced from the manner in which the various chapters of the Constitution are structured, dealing with the roles of the legislature, executive and the judiciary). This system gives the general public a legislative and executive authority that is accountable to them subject to judicial review by an independent judiciary. The system of checks and balances affirms the limited power of the legislative and executive authorities which is confined within the constraints of constitutional values and principles. The importance of checks and balances is similarly endorsed by Edwards as a system that has ushered in a new process of the regulation of state authority in the new dawn of democracy. This system envisages a move away from a culture of authority of the apartheid rule to one of justification of the new constitutional dispensation. He substantiates his argument by pointing out that the new process of regulating state authority has enabled the courts to educate other branches of government through principled and robust articulations of the foundational and constitutional values of the Constitution in a democratic society. Against this background, the purpose of this note is to provide a brief overview of the Merafong Demarcation Forum v President of the Republic of South Africa (2008 (10) BCLR 968, hereinafter “Merafong”) judgment. The particular emphasis on this judgment is its potential to defer the judicialauthority (which the author refer to as a “political doctrine”) to the state. The objective is to analyse this doctrine and evaluate it against the development of substantive principles of judicial review. This purpose is motivated by Chaskalson CJ’s argument in Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa (2000 (3) BCLR 241). Chaskalson CJ in this case held that the Constitutional Court cannot allow itself to be diverted from its main function as the final andindependent arbiter in the contest between the state and its citizens. In Merafong, the court created an impression of having misconstrued this purpose and the objectives it has to fulfil. This note is limited to the “political approach” which the court emphasisedwithout much thought, and attempt to address the question of public involvement in legislative processes raised in this case. It alsoacknowledges that the court has affirmed its independence as the guardian of the Constitution in the regulation of state authority and advancement of the principles of judicial review, but its lack of consistency in its adopted approach is a worrying factor and a causefor concern for the regulation of state authority.

scholarly journals Modderklip Revisited: Can Courts Compel the State to Expropriate Property where the Eviction of Unlawful Occupiers is not Just and Equitable?

2018 ◽  
Vol 21 ◽  
pp. 1-21
Author(s):  
Jackie Dugard
Keyword(s):  
South Africa ◽  
Separation Of Powers ◽  
The State ◽  
Court Case ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Western Cape ◽  
The Supreme Court ◽  
Constitutional Right ◽  
The Republic

This article examines whether, to give effect to the section 26 constitutional right to adequate housing, courts can (or should) compel the state to expropriate property in instances when it is not just and equitable to evict unlawful occupiers from privately-owned land (unfeasible eviction). This question was first raised in the Modderklip case, where both the Supreme Court of Appeal (Modder East Squatters v Modderklip Boerdery (Pty) Ltd; President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2004 3 All SA 169 (SCA)) and Constitutional Court (President of the Republic of South Africa v Modderklip Boerdery (Pty) Ltd 2005 5 SA 3 (CC)). dodged the question, opting instead to award constitutional damages to the property owner for the long-term occupation of its property by unlawful occupiers. It is clear from cases such as Ekurhuleni Municipality v Dada 2009 4 SA 463 (SCA), that, mindful of separation of powers concerns, courts have until very recently been unwilling to order the state to expropriate property in such circumstances. At the same time, it is increasingly evident that the state has failed to fulfil its constitutional obligations to provide alternative accommodation for poor communities. In this context, this article argues that there is a growing need for the judiciary to consider, as part of its role to craft effective remedies for constitutional rights violations, the issue of judicial expropriation. It does so, first, through an analysis of the relevant jurisprudence on evictions sought by private landowners and, second, through an in-depth engagement of the recent Western Cape High Court case, Fischer v Persons Listed on Annexure X to the Notice of Motion and those Persons whose Identity are Unknown to the Applicant and who are Unlawfully Occupying or Attempting to Occupy Erf 150 (Remaining Extent) Phillipi, Cape Division, Province of the Western Cape; Stock v Persons Unlawfully Occupying Erven 145, 152, 156, 418, 3107, Phillipi & Portion 0 Farm 597, Cape Rd; Copper Moon Trading 203 (Pty) Ltd v Persons whose Identities are to the Applicant Unknown and who are Unlawfully Occupying Remainder Erf 149, Phillipi, Cape Town 2018 2 SA 228 (WCC).    

scholarly journals SEPARATION OF POWERS, CHECKS AND BALANCES AND JUDICIAL EXERCISE OF SELF- RESTRAINT: AN ANALYSIS OF CASE LAW

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Magabe T Thabo ◽  
Kola O Odeku
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
State Power ◽  
Case Law ◽  
The State ◽  
The Other ◽  
Judicial Power ◽  
Checks And Balances ◽  
The Republic

The Constitution of the Republic of South Africa, 1996 creates a system in which there is a separation of the powers exercised by the different branches of the State. It also creates a system of checks and balances. The exercise of a power by one arm of state is checked by another to ensure that there is no abuse of state power. Organs of state ought to respect each other and the powers allocated to them by the Constitution. To this end, no organ of state should encroach upon the domain of the other organs. However, the courts wield enormous power because they are the ultimate guardians and custodians of the Constitution in South Africa. Courts have the power to declare any law or conduct unconstitutional. Where decisions have been taken by other arms of the State on matters falling within their exclusive domain and such decisions violate the Constitution, courts have a duty to intervene in order to make organs of state act within constitutional bounds. However, courts should not be overzealous and should not encroach upon the powers of the other arms of the State when exercising their judicial power and authority. Against this backdrop, this article analyses how the South African courts have cautioned themselves to exercise self-restraint in order not to usurp or encroach upon the powers of the other arms of the State while exercising their judicial authority and power.

scholarly journals The Position of Constitutional Complaint in the Constitutional Court of the Republic of Indonesia

2021 ◽  
Vol 2 (1) ◽  
pp. 61-78
Author(s):  
Agsel Awanisa ◽  
Yusdianto Yusdianto ◽  
Siti Khoiriah
Keyword(s):  
South Africa ◽  
South Korea ◽  
Judicial Review ◽  
Research Method ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Republic ◽  
Case Number

The purpose of this research is to determine the constitutional complaint mechanism based on comparisons in other countries, practices, and adaptation of constitutional complaints under the authority of the Constitutional Court of the Republic of Indonesia. Many cases with constitutional complaint substance have been submitted to the Constitutional Court of the Republic of Indonesia even though they don’t have this authority. This research uses a normative legal research method using a statutory approach, a conceptual approach, a comparative approach, and a case approach. This research indicates that the constitutional complaint mechanism in Germany, South Korea, and South Africa has been well implemented. In practice, cases with constitutional complaint substance are filed to the Constitutional Court of the Republic of Indonesia by changing the form by using the legal means of a judicial review, such as case number 16/PUU-VI/ 2008, case number 140/PUU-XIII/2015 and case number 102/PUU-VII/2009. Due to the consideration of the structure, substance, and culture of law, adaptation of constitutional complaint within the authority of the Constitutional Court of the Republic of Indonesia needs to be carried out by amending Law Number 24 of 2003 jo. Law Number 7 of 2020 concerning the Constitutional Court.

scholarly journals Relevansi Putusan Uji Materi oleh Mahkamah Konstitusi terhadap Sistem Checks and Balances dalam Pembentukan Undang-Undang

2020 ◽  
Vol 2 (2) ◽  
pp. 353-379
Author(s):  
Despan Heryansyah ◽  
Harry Setya Nugraha
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
House Of Representatives ◽  
Constitutional Court ◽  
Checks And Balances ◽  
The Rule Of Law ◽  
State Institutions ◽  
The Republic

This article discusses the relevance of the judicial review decision by the Constitutional Court to the checks and balances system in law legislation in Indonesia. In the framework of checks and balances between state institutions, the existence of the authority of the Constitutional Court to examine laws against the Constitution can be seen as a limitation for the legislators. This is because the discretion of legislators, namely the President and the House of Representatives, in carrying out the legislation function can be limited by the interpretation of the Constitution carried out by the Constitutional Court. This article concludes, the checks and balances mechanism regulated in the 1945 Constitution of the Republic of Indonesia is realized with the principle of power limited by power. Therefore, the authority and decision of the judicial review by the Constitutional Court is not an intervention on the authority of lawmakers so that it isi assumed to pass the checks and belances principle. The authority and decision of the judicial review by the Constitutional Court actually confirms the manifestation of the principle of power limited by power and affirming the supremacy of the Constitution. Thus, the principle of supremacy of the Constitution in the context of the rule of law places the Constitution as the highest law. Abstrak Artikel ini membahas relevansi putusan uji materi oleh Mahkamah Konstitusi terhadap sistem checks and balances dalam pembentukan hukum berupa undang-undang di Indonesia. Dalam kerangka checks and balances antar lembaga negara, adanya kewenangan Mahkamah Konstitusi menguji undang-undang terhadap Konstitusi dapat dipandang sebagai suatu pembatasan bagi pembentuk undang-undang. Sebab, keleluasaan pembentuk undang-undang, yaitu Presiden dan Dewan Perwakilan Rakyat, dalam menjalankan fungsi legislasi bisa dibatasi oleh adanya tafsir Konstitusi yang dilakukan oleh Mahkamah Konstitusi. Artikel ini menyimpulkan, mekanisme checks and balances yang diatur dalam Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 diwujudkan dengan prinsip kekuasaan dibatasi oleh kekuasaan. Karena itu, kewenangan dan putusan uji materi oleh Mahkamah Konstitusi bukanlah wujud intervensi terhadap kewenangan pembentuk undang-undang dan melampaui prinsip checks and balances. Kewenangan dan putusan uji materi oleh Mahkamah Konstitusi justru menegaskan wujud dari prinsip kekuasaan dibatasi kekuasaan dan meneguhkan supremasi Konstitusi. Demikianlah, prinsip supremasi Konstitusi dalam konteks negara hukum yang menempatkan Konstitusi sebagai hukum tertinggi.

scholarly journals Judicial Preview on the Bill on International Treaty Ratification

2017 ◽  
Vol 3 (1) ◽  
pp. 24
Author(s):  
Noor Sidharta ◽  
Sudarsono Sudarsono ◽  
I Nyoman Nurjaya ◽  
Bambang Sugiri
Keyword(s):  
International Law ◽  
Judicial Review ◽  
The State ◽  
Constitutional Court ◽  
International Treaty ◽  
State Institutions ◽  
Treaty Ratification ◽  
Administrative Practice ◽  
State Administration ◽  
The Republic

This research is aimed to find and introduce a new idea on the state administration, which has implications on the international treaty ratification procedure followed by Indonesia and additional authorizations of the Constitutional Court of the Republic of Indonesia. The judicial preview in this research is an international treaty examination procedure by the Constitutional Court before an international treaty is transformed into a law, i.e. such international treaty is a Bill. The judicial preview shall have different terms in each country, such as Review ex ante, abstract review, judicial review. This procedure is applied when an international treaty has not been validated as a country’s national law. The benefits of a judicial preview shall be a solution to connect an ambiguity between the state administrative law and international law. The judicial preview is also the inter-state institutions real check and balance on the international treaty. Out of benchmarking results of four countries following the monism doctrine, i.e. Russia, Germany, France, and Italty and two countries following the dualism doctrine, i.e. Hungary and Ecuador, several additional authorizations of the Constitutional Court shall be summarized, i.e. via the Amendment of 1945 Constitution of the Republic of Indonesia and/or regulations via laws. If both manners are not possible, the Constitutional Court may apply the judicial preview as a state administrative practice. An international treaty draft, which has passed through the judicial preview, may not be submitted to the Constitutional Court to be performed a judicial review, unless 5 (five) year-period has passed since the bill is enacted as a law.

scholarly journals CONFIDENTIALITY GUARANTEE OF TAX INFORMATION AGAINST THE PROPERTY OF TAXPAYER IN MANAGEMENT EXAMINATION AND THE STATE FINANCIAL RESPONSIBILITIES WHICH CONDUCTED BY THE AUDIT BOARD

2017 ◽  
Vol 1 (1) ◽  
pp. 133-148
Author(s):  
Johannes Johny Koynja
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Judicial Review ◽  
The State ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Principles ◽  
The Third ◽  
The Republic ◽  
Research Analysis

This research analysis meant to find out legal consideration used byConstitution judge, whether in accordance or not to legal principles, moral andsocial justice. Therefore,this article tend to place problems that linked to conflict of norm in term of The Audit Board (BPK) authorities over a good and compliance Taxpayerl,and progressive related The Constitutional Court decision of The Audit Board(BPK) authorities of a good and compliance taxpayer in the context of The 1945Constitution of The Republic of Indonesia at its proportion in order tostraightening the consistency of rule of law in Indonesia’s legal system, for theshake of completion of logical degree of optimal norm.Intrinsically, decision in the case of petition for Judicial Review of the Act Number 28 of 2007 on the Third Amendment to the Act Number 6 of 1983 on the General Taxation Provisions and Procedures against the 1945 Constitution of the Republic of Indonesia, can be made guidance (stelling) to the happening ofopaqueness norm or obscurity norm (vague van normen) which flange at thehappening conflict of norm (geschiljd van normen) related existence of twoimportance of law between The Audit Board (BPK) and Taxpayers which both ofthe same owning of rights which under the aegis of Constitution.

The Republic of France

2021 ◽  
pp. 157-188
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
French Revolution ◽  
Judicial Review ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Power ◽  
Checks And Balances ◽  
Fifth Republic ◽  
National Assembly ◽  
The Republic

This chapter looks at French judicial review. From the French Revolution of 1789 up until the adoption in 1958 of the Constitution of the Fifth Republic, the Republic of France refused to tolerate any kind of judicial review of the constitutionality of legislation. The traditional French view was that judicial power is oligarchic, opposed to progressive causes, and should be contained as much as possible. The 1958 French Constitution provides an elaborate system of checks and balances with its bicameral legislature consisting of the National Assembly and the Senate; with its division of the executive power between the president and the prime minister (who can be from opposite political parties); and with its increasing focus on decentralization. As such, just as federalism umpiring helped to give rise to judicial review in the United States, Canada, Australia, Switzerland, and India, so too did separation of powers umpiring help to give rise to judicial review in France. Judicial review in France was hugely expanded in 1971, for rights from wrongs reasons; in 1974, for insurance and commitment reasons; and in 2008, for borrowing reasons.

The Republic of South Africa

2021 ◽  
pp. 337-362
Author(s):  
Steven Gow Calabresi
Keyword(s):  
South Africa ◽  
South African ◽  
Judicial Review ◽  
African National Congress ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
South Africans ◽  
Nelson Mandela ◽  
Basic Law ◽  
The Republic

This chapter explores the origins and growth of judicial review in South Africa. Judicial review originated in South Africa in 1994 for rights from wrongs reasons. The great moral wrongs of racist Afrikaner and British imperial rule could only be overcome with a new Democratic Constitution, accepted by blacks and whites, with a very generous Bill of Rights that is enforced by a very powerful Constitutional Court. The African National Congress (ANC) party, led by Nelson Mandela, had called for a Bill of Rights and judicial review ever since the 1950s. In the 1990’s, the ANC got its wish. South African judicial review also result, in part, from borrowing. South Africans borrowed heavily from the Canadian Charter of Rights and Freedoms of 1982 and from the German Basic Law of 1949. South Africa particularly borrowed from Germany the idea of creating one very powerful Constitutional Court, which alone has the power of judicial review in South Africa.

Removal of the National Director of Public Prosecution: A Critique of Emerging Constitutional Jurisprudence

2021 ◽  
Vol 35 (2) ◽  
Author(s):  
Mtendeweka Mhango
Keyword(s):  
South Africa ◽  
South African ◽  
Separation Of Powers ◽  
Constitutional Court ◽  
Court Order ◽  
High Court ◽  
The Republic ◽  
South African Constitution ◽  
National Director ◽  
Constitutional Jurisprudence

In this article, I critically examine the constitutional provisions governing the removal of the National Director of Public Prosecutions. This examination is undertaken in the context of recent decisions by the High Court in Corruption Watch (RF) NPC and Another v President of the Republic of South Africa and Others; Council for the Advancement of the South African Constitution v President of the Republic of South Africa and Others [2018] 1 All SA 471 (GP); 2018 (1) SACR 317 (GP) and the Constitutional Court in Corruption Watch NPC and Others v President of the Republic of South Africa and Others [2018] ZACC 23, which found certain provisions of the National Prosecuting Authority Act 32 of 1998, which governs the removal of the National Director, unconstitutional. The article is critical of these two court decisions for their failure to properly justify the order to invalidate the provisions of the National Prosecuting Authority Act and to provide a proper account of the different separation of powers imperatives involved in the cases. The article is also critical of the Constitutional Court’s approach to the abstract review of the sections in the National Prosecuting Authority Act, and of its suspension of the order of invalidity in a manner which took no due regard to established jurisprudence. Lastly, the article is critical of the Constitutional Court’s omission to address the High Court order that the Deputy President should appoint the National Director, which runs counter to the text of the Constitution.

scholarly journals Die dialektiek in die waardes van die 1996 Grondwet

2017 ◽  
Vol 1 (1) ◽  
pp. 110
Author(s):  
Jan Swanepoel
Keyword(s):  
South Africa ◽  
The State ◽  
The Other ◽  
Constitutional Court ◽  
Blank Space ◽  
Social Democratic ◽  
Constitutional State ◽  
The Social ◽  
The Republic ◽  
State Of Affairs

In his paper The Dialectics in the Values of the 1996 Constitution Jan Swanepoel discusses various value statements in the 1996 Constitution of the Republic of South Africa and focuses the attention on indications of a lack of coherence as far as these value statements are concerned. He does this against the background of some introductory perspectives on the 1996 Constitution. In this regard he points out that the 1996 Constitution, as successor to the 1993 Constitution with its set of thirty four constitutional principles, can be regarded as a document of political and ideological compromise. He points out that constitutions (and in particular the value statements in Bills of Rights) generally tend to be formulated rather broadly in order to promote flexibility and adaptability. He also focuses the attention on the fact that such a dialectic of values point to the variety of interests that has to be harmonized in a modern state, something which is unmistakably the case in South Africa with its heterogeneous society. The 1996 Constitution contains a variety of "value terms". A closer study of these terms does, however, indicate that these terms (value, principle, foundation, and the like) are not used in a very systematic or technical fashion. The problems regarding the value statements are, however, not only of a terminological nature. There are also some substantive problems, as becomes clear from a discussion of value terms in the Preamble and in Sections 1 and 7 of the 1996 Constitution. Swanepoel indicates that a tension exists between what can be called the "process" formulation in section 1(a) and the "state of affairs" formulation of the values in section 7(1). . While section 1(a) speaks of "the achievement of equality" and "the advancement of human rights and freedoms", section 7(1) simply makes mention of "equality" and "freedom". The dialectic between these twoformulations is discussed with reference to other relevant sections of the 1996 Constitution. The discussion is placed against the background of a so-called blank space in the1996 Constitution. While the 1993 Constitution characterized South Africa as a "constitutional state", the 1996 does not contain such a characterization. It is argued in this paper that the process phrasing in section 1 (a) ties in with a social democratic view of the state as an institution bringing about social change. The "state of affairs" phrasing of section 7(1) is, on the other hand, more in line with a liberal notion of a Rechtsstaat. The issue concerning what type of state South Africa is under the 1996 Constitution, will depend on which of the two poles in the above-mentioned dialectic the primary emphasis will be placed. Since the 1996 Constitution has been ratified by the Constitutional Court, it is regarded as extremely unlikely that the above-mentioned terminological problem will be rectified in future. Swanepoel provides a diagrammatic representation of the principle, values and objectives mentioned in the 1996 Constitution. Further research is envisaged concerning the possibility of developing a juridical model of reconciling the social-democratic and Rechtsstaat tendencies in the 1996 Constitution within the framework of a broader vision on the state’s task in bringing about justice. 

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