• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

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

Extracts from this document...

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.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Marked by a teacher

    Judicial precedent.

    3 star(s)

    by a full court of five judges) he is bound to follow the later decision. As an appeal court or review court; the divisional courts are each located within the three divisions of the High Court and hear appeals from courts and tribunals below them in the hierarchy.

  2. Does Hart's theory differ to the 'gunman writ large' situation?

    It follows from the above discussion that Hart may well have attempted to resolve the problems so obvious with the Austinian model, however, as Raz in particular is keen to point out, Hart's theory appears to collapse into the same type of command theory, if a little different.

  1. Criminal Law (Offences against the person) - revision notes

    He didn't know it was wrong in law * If ANY of the 4 tests fail, they all fail Criticisms of insanity 1. It is very unpopular as a defence - people don't like it. Criminal procedure (insanity and unfitness to plead)

  2. Contact orders

    It seems to me that it is a fine balancing act that the court must take. In Re: P (wardship: care and control)10 Butler-Sloss LJ stated "In all family cases it is the duty of the court to listen to the children, ascertain their wishes and feelings and then make

  1. The Role of the ICJ

    those who are in agreement of the conditions that are laid down. Due to the ICJ having nominal enforcement powers, Article 94 of the Charter states that each party of the UN must "comply with the decision of the ...

  2. Should Capital Punishment be enforced

    Romans chapter thirteen verses one to four states "Let every person be subjected to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists what God has appointed, and those who resist will incur judgment...

  1. The Law Relating to Negotiable Instruments

    Such payment is called payment for honor. Declaration: The person paying for honor or his agent must declare before a notary public the party for party for whose honor he is paying. The notary public most record the declaration. (Sec. 113). Right of payer for honor: Any person paying for honor is entitled to all the rights

  2. Comparative Constitutionalism

    In Santiago, the court analogized the lease contracts to adhesion contracts--contracts between a weaker and a stronger party whereby the stronger party, by virtue of its substantially superior bargaining power, dictates the terms of the agreement. Similarly, while most public housing residents may not relish the idea of giving the

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work