The Africanisation Of South African Civil Procedure: The Way Forward

Civil procedure enforces the rules and provisions of civil law. The law of civil procedure involves the issuing, service and filing of documents to initiate court proceedings in the superior courts and lower courts. Indeed, notice of legal proceedings is given to every person to ensure compliance with the audi alteram partem maxim (“hear the other side”). There are various rules and legislation that regulate these court proceedings such as inter alia, the Superior Courts Act, 2013, Uniform Rules of Court, Constitution Seventeenth Amendment Act, 2012 and the Magistrates’ Courts Act of 1944. The rules of court are binding on a court by virtue of their nature. The purpose of these rules is to facilitate inexpensive and efficient legislation. However, civil procedure does not only depend on statutory provisions and the rules of court. Common law also plays a role. Superior Courts are said to exercise inherent jurisdiction in that its jurisdiction is derived from common law. It is noteworthy that whilst our rules of court and statutes are largely based on the English law, Roman-Dutch law also has an impact on our procedural law. The question thus arises, how can our law of civil procedure transform to accommodate elements of Africanisation as we are part and parcel of the African continent/diaspora? In this regard, the article examines the origins of Western-based civil procedure, our formal court systems, the impact of the Constitution on traditional civil procedure, the use of dispute resolution mechanisms in Western legal systems and African culture, an overview of the Traditional Courts Bill of 2012 and the advent of the Traditional Courts Bill of 2017. The article also examines how the contentious Traditional Courts Bills of 2012 and 2017 will transform or complement the law of civil procedure and apply in practice once it is passed into law.

Senate Electoral Responsiveness under Indirect and Direct Election

This chapter integrates findings on indirect elections with current scholarship on the impact of the adoption of the Seventeenth Amendment and onset of direct elections. It constructs a comprehensive counterfactual analysis that helps demonstrate what the political outcomes would have been with direct elections in place since the founding, and in contrast, what Senate elections would look like after 1913 if indirect elections were still in place. It also addresses the question of whether U.S. senators represented states as units and responded to state governmental concerns more under the indirect system than they do under direct elections. It argues that indirect election had little impact on the Senate's overall partisan composition prior to 1913. Contrary to widespread belief, had direct election been in effect during the years immediately preceding the Seventeenth Amendment's passage, Republicans, not Democrats, would have benefited.

Electing the Senate

From 1789 to 1913, U.S. senators were not directly elected by the people—instead the Constitution mandated that they be chosen by state legislators. This radically changed in 1913, when the Seventeenth Amendment to the Constitution was ratified, giving the public a direct vote. This book investigates the electoral connections among constituents, state legislators, political parties, and U.S. senators during the age of indirect elections. The book finds that even though parties controlled the partisan affiliation of the winning candidate for Senate, they had much less control over the universe of candidates who competed for votes in Senate elections and the parties did not always succeed in resolving internal conflict among their rank and file. Party politics, money, and personal ambition dominated the election process, in a system originally designed to insulate the Senate from public pressure. The book uses an original data set of all the roll call votes cast by state legislators for U.S. senators from 1871 to 1913 and all state legislators who served during this time. Newspaper and biographical accounts uncover vivid stories of the political maneuvering, corruption, and partisanship—played out by elite political actors, from elected officials, to party machine bosses, to wealthy business owners—that dominated the indirect Senate elections process. The book raises important questions about the effectiveness of Constitutional reforms, such as the Seventeenth Amendment, that promised to produce a more responsive and accountable government.

Introduction

This introductory chapter sets out the book's purpose, which is to examine the dynamics of indirect elections and assess the consequences of the switch to direct elections with the adoption of the Seventeenth Amendment. In the broadest terms, it aims to assess the extent to which the goals of the Seventeenth Amendment—empowering voters in the choice of U.S. senators, and reducing the corrosive effects of money and party machine power—have been met. In so doing, it provides a new opportunity to understand electoral design, legislatures, parties, and political ambition. In particular, the book examines the election of U.S. senators from 1871 to 1913 based on where those elections occurred: the state legislatures. An overview of the subsequent chapters is also presented.

Myth and Reality of the Seventeenth Amendment

This chapter summarizes the book's findings and reflects more broadly on the quality and context of Senate representation under two different electoral systems. In doing so, it addresses several key questions about institutional representation in the U.S. democracy. Are U.S. senators more responsive today to the needs and opinions of their constituents than under indirect elections? Did state legislators actually serve as good trustees in choosing their U.S. senators on behalf of their states' voters? Finally, if the Tea Party and other advocates for the repeal of the Seventeenth Amendment get their wish, will the U.S. Senate be a fundamentally different institution?

Constitutional Court 1995 – 2012: How did the Cases reach the Court, Why did the Court refuse to consider Some of Them, and How Often did the Court Invalidate Laws and Actions?

The purpose of this article is to contribute data for the purposes of debates on how effectively the Constitutional Court performed its functions between 1995 and 2012. The cut-off date of 31 December 2012 has no other significance than that it was the last date before the beginning of the year in which this article was written. However, it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters. The figures contained in this article could at a later stage be used to determine what effect this amendment might have had on the functioning of the Court. it is envisaged that the Constitution Seventeenth Amendment Act of 2012, which expressly provides that the Constitutional Court will after its commencement have jurisdiction to hear applications on non-constitutional matters, will commence in the course of the second half of 2013. The figures contained in this article could at a later stage also be used to determine what effect this amendment might have had on the functioning of the Court. Between 1995 and the end of 2012, the Constitutional Court considered 464 applications for review. The ways in which these 464 applications reached the Court were as follows: 35 referrals in terms of the interim Constitution;21 applications and referrals on matters within the exclusive jurisdiction of the Court;78 applications for confirmations of parliamentary or provincial laws and actions of the President;45 applications for direct access to the Constitutional Court;101 applications for leave to appeal against judgments of the Supreme Court of Appeal;150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court refused to consider applications in 103 instances and considered the merits of applications in 361 instances. The number of refusals per category is as follows: 7 refusals in respect of 35 referrals in terms of the interim Constitution;no refusals in respect of 21 applications and referrals on matters within the exclusive jurisdiction of the Court;7 refusals in respect of 78 applications for confirmations of parliamentary of provincial laws and actions of the President;34 refusals in respect of 45 applications for direct access to the Constitutional Court;21 refusals in respect of 101 applications for leave to appeal against judgments of the Supreme Court of Appeal;34 refusals in respect of 150 applications for leave to appeal against judgments of other Courts;34 applications concerning previous judgments of the Court and other matters. The Constitutional Court invalidated in 192 instances legal rules and actions of organs of state and individuals. These invalidations were done in respect of 464 applications for review in all the categories and they were done in respect of 361 instances in which the Court reviewed the merits of applications. 41.39% of the 464 applications received were invalidated. 53.18% of the applications of the merits were considered, was invalidated. The invalidations in the different categories rules and action were as follows. In respects of: Draft constitutional texts – 3 refusals to certify out of 5 texts considered (60%);Constitutional amendments – 1 invalidation out of 6 considered (16.66%);Acts of Parliament – 85 invalidations out of 165 considered (51.51%);Bills of Parliament – 0 invalidations out of 2 considered (0%);Acts of Provinces – 6 invalidations out of 11 considered (54.54%);Bills of Provinces – 1 invalidations out of 2 considered (50%);Local government legislative measures – 2 invalidations out of 5 considered (40%);Common law and customary law – 8 invalidations out of 11 considered (72.72%);Administrative and executive action – 45 invalidations out of 71 considered (63,38%);Court discretionary action – 14 out of 35 considered (40%);Action in respect of delict and contract – 7 invalidations out of 14 considered (50%).