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Constitutionalism is a body of theory which prescribes what the constitution must do. The

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Introduction

Constitutionalism is a body of theory which prescribes what the constitution must do. The judiciary works to solve disputes between parties and the disputes may come either as criminal cases or civil cases. The judiciary works as the over-site to the executive and the legislature. It gives orders to parties in disputes found wrong in order to represent communities basic values. The judiciary is set up in a form of a hierarchy of courts and it is within these courts that the judiciary exercises its authority. The hierarchy starts with the Constitutional Court, which is the court of final instance in relation to constitutional matters. The Supreme Court Of Appeal which functions as the appellate court in respect of non-constitutional matters and matters involving the developing of the common law. It also has jurisdiction to hear and decide constitutional cases but deals with appeals only. The High Courts have jurisdiction over constitutional cases except matters exclusive within the jurisdiction of Constitutional Courts. This is also respective to the High Courts and Supreme Court of Appeals in non-constitutional matters. ...read more.

Middle

SA 391 (cc) is an example of how the judiciary interprets and tests the constitution against itself and the judgement of the previous courts. Two men accused and covicted of murder in the Witswaterand Local Division were sentenced to death. They appealed to the Appeallate Division against the death sentence. The court found S277(1)(a) of the criminal procedure Act 51 of 1997, was in conflict with the constitution of the Republic Of South Africa Act 200 of 1993, under section11 which states, "Everyone has the right to life." The court also based their judgement on section 9 which says, "Everyone is equal before the law and has the right to equal protection and benefit of the law." , hence, section 277(1)(a) of the criminal procedure Act 51 of 1997 was deemed invalid. A case which illustrates the courts ability to interpret the law against the constitution and giving a fair judgement is S v Mhlungu and Others 1995 (3) SA 867. The accused had been charged in the Circuit Local Division of the Supreme Court with murder and other crimes, and an indictment served in Afrikaans on the 11th March 1994. ...read more.

Conclusion

to the executive body and legislature, applying law within the courts, making sure every law is consistent with the constitution and that the constitution does not contradict itself. It also has the authority to declare a law invalid and unenforceable but can not strike laws done. It also has a duty to extend the law where it must, which is usually the common law and does so effectively through judicial precedent. It has a duty to make a fair judgement in all cases without any discrimination or fear. It serves as an aid to the legislature to see if laws it has passed in its statutes can be applied in practical law. It works to solve disputes between parties or merely translates the law for ordinary people's understanding. It serves as a body of protection for all people and punishes those in the wrong. It places order within society through effective usage of the law and all concepts of South African constitutionalism affect or are affected by it including itself. Its systems have generally worked well and it is a true change from Apartheid times.. ...read more.

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