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Thread: Judicial review!

  1. #1
    Diamond Member Vanash Naick's Avatar
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    Judicial review!

    In my humble opinion when you reach a juncture at which any state for that matter of fact starts talking about “judicial review,” there’s rightful reason for concern. Our constitution, the Constitution of 1996 is the supreme law of our land. Any law or conduct that is inconsistent with the Constitution is invalid. Constitutionalism as a concept is simply a government that conducts itself in accordance with the Constitution and promotes it’s tenets.
    There is a valid reason why jurist only refer to the Constitution as “the Constitution of 1996.” Let me explain, initially it was referred to as the “Constitution Act 108 of 1996.” To explain further, just by way of contrast, the criminal procedure act is very rightfully referred to as “The Criminal Procedure Act 51 of 1977.” This is so because is an act of parliament BUT the Constitution is not an act of parliament! The Constitution after much protracted debate was formulated by the Constitutional Assembly(CA), an organ completely separate from parliament.
    The Trias Politica doctrine(The separation of powers)
    1. A character by the name of Montesquieu postulated this concept of separation of power. He believed that you can never really have freedom when one party makes the laws, enforces them and then also sits as judge on matters of dispute;
    2. A true separation of powers as it stands as at today’s date here in South Africa(without any review) is the separation completely of the Legislature(those 400 people in parliament that make the actual laws e.g Companies Act 71 of 2008) and the Executive(for practical purposes the police force who enforce the laws and the JUDICIARY(in essence the courts);
    3. There are many constitutions benchmarks if you will but most notably separation of staff in these 3 branches, you can’t have a situation where a captain in the police force also has a part time job as a court manager; freedom of the media(the minute you attempt to curtail this body you headed for dictatorship);

    So that’s just my 2 cents on this concept of “judicial review!”
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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  2. #2
    Site Caretaker Dave A's Avatar
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    Pierre de Vos makes a pretty lengthy comment on this judicial review here.

    Of all the points, I think this is the most telling:

    This conceptual confusion probably flows from the fact that the government of the day is retreating slightly from its position taken in November last year about the need for a serious review of Constitutional Court decisions. This retreat might have been caused by the public outcry about the perceived intention of the government to interfere with the powers of the courts to review and set aside acts by the other branches of government.

    It might also be animated by the sinking realisation that both the proposed review of the Constitutional Court and any possible amendments to its powers will be impossible to implement. After all, who will actually be able to peruse all the documents before the Constitutional Court in every single case ever heard by that court to make a sensible assessment of its performance? And in the absence of such a wide ranging perusal of all relevant documents, any review of the Court will be nonsensical and meaningless as it will not tell us anything about whether the court fulfilled its mandate (or whether it was, for example, hampered in its task by the tardiness of the lawyers who appeared before it or the dismal quality of the papers before it).
    The only way the government (or should that be the ANC a.k.a "the ruling party") could muster a committee with adequate* credentials to perform a review of the Constitutional Court's performance was if that assessment was based on political performance and not legal performance. Which I suspect is what they had in mind when the notion was conceived.

    Of course "government" can't admit to that as it is contrary to the seperation of powers provisions of the Consitution, and a gratious withdrawal from the corner they've painted themselves in seems unlikely. So I guess one way or another we're in for a bit of a farce.

    And no doubt the circus will make the most of the opportunity to divert attention from their own performance...

    *"adequate" in this instance being defined by whatever faction happens to hold sway over the ANC at any given moment - so not a particularly consistent ideological rock, methinks.
    The trouble with opportunity is it normally comes dressed up as work.

  3. #3
    Platinum Member sterne.law@gmail.com's Avatar
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    The most laughable point for me, is the good president saying or asking: how can a judgement be handed down where not all the judges agree!!!!!!!!!! Is he for real?

    perhaps the fact that JZ has had 6 cases/issues before the ConCourt...and lost all 6 is a pointer as to what the real issue is.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    Diamond Member Vanash Naick's Avatar
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    Clearly he's not familiar with minority judgement and majority judgement!
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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  6. Thanks given for this post:

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