It is believed that all legislations must be interpreted by the courts in line with the fundamental rights entrenched in the constitution (Bill of Rights). The constitutional interpretation is known as the authoritative interpretative of the supreme law (constitution) by the judiciary throughout the judicial appraisal and/or evaluation of the constitutionality of the legislation and the government action. Before any interpretation can take place, the following questions must be taken into consideration; • What has to be done with the fundamental values of the constitution? • Are these values purely of a high-sounding and remarkable references to human dignity and justice, which are used as the ethical/or moral detail for case law? • From whose view point are these tenets recognised and
Government sovereignty; the rule of law and the separation of powers govern the public law and with it, the relationship between the state and the individuals that comprise it. According to AV Dicey, the rule of law can be subsumed into three pillars. Firstly everyone, regardless of status, race or heritage, is equal in the eyes of the law and hence should be treated the same with respect to criminal law. Secondly, that the principles of British law come from ordinary, judge-made law, which bind individuals with certain rights and obligations. Finally, the law must be preferred to an arbitrary power, which forms its opinions on a subjective standpoint alone.
Where the Constitution provides foundation for the importance of judicial independence and the publications of the era provide context and analytical guidance, cases before the High Court have since then expounded upon the importance of judicial independence by discussing it in contexts beyond that of life tenure or compensation. Bradley v. Fisher allowed the Court to discuss judicial independence in the context of judicial immunity, stating that judges being free to act upon their own convictions without apprehension of consequences to themselves is "a general principle of the highest importance to the proper administration of justice. . ." Although the context is one regarding the immunity of judges against liability, the message is merely
The judgment of a judge can fall into two categories: the ratio decidendi and the obiter dicta. The ratio decidendi of a case is the principle of law on which the case is based. This is considered the heart of the doctrine and is the only aspect of the court’s ruling that is binding on the future courts in the hierarchy. This means that a lower court is bound to follow the judgments of a higher court in the same jurisdiction. When a judge delivers the judgment of a case, he outlines the facts which have been proven through the evidence presented on a case.
It helps to recognise the rights and freedoms of citizens through a bill of rights, which works both to protect citizens and to confine the power of the state. A constitution whether it is written or unwritten will share common features which is they will identify the key institutions of the state which
Lord Chief Justice Coke said that “The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King". 3. The Secretary-General of the United Nations prescribes the rule of law as: A rule of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, procedures to ensure devotion to the principles of supremacy of law, equality before the law, answerability to the law, fairness in the appliance of the law, separation of powers, contribution in decision-making, legal certainty, avoidance of unpredictability and procedural and legal transparency. 4.
The Judicial branch composes of the court judges whether actions violate laws and where laws violate constitution" This shows that the separation of powers allows for the branches to constantly check each other and to ensure a fair and equal government. In conclusion, the separation of powers helps control the government and prevent them from breaking the rules of the constitution and how they should govern. The Separation of powers allows for each of the branches of the government to check each other and ensure they all follow the rules and laws set by the constitution. Separation of powers is a key factor in our government
The doctrine of binding precedent is restricted to common law legal systems, yet is integral to their operation. Being that body of law found in the decisions of the courts, common law depends for its application and development upon the ability of judges to locate and follow the decisions reached by courts in previous cases sharing the same material facts as those of the cases currently before them. The doctrine of binding precedent operates by reference to the hierarchy of the courts,' which generally means that courts are obliged to follow relevant decisions of those courts which sit above them in the court hierarchy. It is important to note that while taken for granted within common law systems, binding precedent is alien to civil law jurisdictions.
Another aspect within the spheres of government is the Judiciary. The Judiciary is an independent function of the South African government, consisting of a board of national judges and magistrates from the Constitutional and Supreme Court, with the role to uphold and interpret implemented laws of the country. By interpret, they have the power to regulate and develop civil law within their own preferences. 3. Law vs.