Lisa Draga: Recent Episodes
Lisa Draga
The 34 constutional principles in the interim Constitution and the creation of the Constitutional Court to have the final say on certification.
What was the multi-party negotiating process & what compromises were reached out of that process.
The 1983 Constitution and the creation of the Tricameral Parliament. Prime Minister PW Botha's unsuccessful political reform strategy.
The entrenchment of an extreme form of parliamentary supremacy, the creation of the homelands under legislation & the manipulation of the role of the chiefs
A discussion of the Harris and Collins decisions and how the National Party government succeeded in removing Coloured people from the voters' roll in the Cape.
How the post Anglo Boer war negotiations led to the 1910 Union Constitution. The governance structure under the new Union.
How indigenous structures operated loosely. What was the chief's role in the chief domain, how did the hierarchal structure work, how did the chief remain accountable to the people. Debates on continued relevance of indigenous governance structures in SA's modern constitutional state. Colonial influence on indigenous governance structures
The original of the doctoring of parliamentary supremacy and how it took route in the Cape.
A discussion on the concepts of direct democracy, representative democracy, participatory democracy and constitutional democracy.
Understanding the concepts of Universal Adult Suffrage, the National Common Voters Roll and a Multi Party Democracy with regular elections.
What is Constitutional Supremacy? How does it empower the judiciary? What implications does the supremacy of the Constitution have for other areas of law?
What does the separation of powers doctrine entail and why does this doctrine exists in a constitutional state?
Benefits and drawbacks of digitalisation of the law in the South African context. Also, will "robots" replace lawyers.
What is meant by colonisation and decolonisation and is South Africa's Constitution decolonised?
What are some of the biggest obstacles standing in the way of transformative constitutionalism.
Shifting South Africa's legal culture from authoritarianism to justification based and the infusion of constitutional values into the law.
Can the intended purpose (stated justification) be realised without limiting the right. Is there a less restrictive means available to achieve the intended purpose.
Examing the strength of the causal link between the harm done (limitation) and the benefit designed to be achieve through the harm (justifcation) .
What type of limitation is involved and what is the actual impact on the affected group. Does this group occupy a vulnerable position in society?
The two step process involved in examining the importance of the purpose of the limitation.
What is meant by the nature of the right. How does the purpose of the right and the history surrounding the right come into play here?
How are rights in the Bill of Rights limited? What is meant by an internal limitation? A law of general application? Who bears burden of proving justification and how does the general limitation process work?
An example of when the Constitutional Court relied purely on the violation of the right to human dignity when deciding a case.
Example of when the right to human dignity was pleaded together with other human rights.
What does the right to human dignity entail and why do we say that it is directly enforceable.
The various ways in which the value of human dignity receives special recognition in the South African Constitution.
When can one argue discrimination on an unlisted ground. How to establish whether discrimination is fair.
Distinguishing between mere differentiation, discrimination and unfair discrimination. Discussing the prohibition against the state and individuals not to unfairly discriminate against anyone. Discussing how unfair discrimination on the basis of a listed ground works. The Hugo case.
A brief journey into the Bill of Rights and an exploration of the globalization and digitalisation of law.
Functions and purposes of the Cultural, Religious and Linguistic Commission. Rights in the Bill of Rights this Commission has a special obligation to protect and advance.
How do these Bills make their way through parliament, what are the required majorities in the two Houses of Parliament and when and how can the National Assembly override the NCOP in the passing of these Bills.
The obligation on the National Assembly and National Council of Provinces to facilitate public involvement in law making. Discussing Doctors for Life v Speaker of National Assembly and Others.
The composition and principal functions of the National Assembly as the one House of Parliament.
A brief history of South Africa's Constitution and its predecessors (previous constitutions).
What does the concept of separation of powers entail and why is this concept important.
What does the principle of the rule of law entail and why is it such an important principle
Section 1 of the Constitution sets out the values of our Constitution. What are these values and why are they important.
Understanding the difference between written and unwritten constitutions, flexible and inflexible constitutions, unitary or federal constitutions and whether a Constitution is subordinate or supreme.
Private international law, Jurisprudence, Legal Interpretation, Comparative Law & Legal History.
What is Property Law, Law of Succession & Law of Obligations (Contractual Law & Law of Delict).
Learning about the law of evidence and the laws of civil procedure and criminal procedure.
Distinguishing between customary International law, International conventions and bilateral and multilateral treaties.
Written and unwritten customary law and the development of customary law under section 39(2) of the Constitution.
The Court's obligation to develop the common law under section 39(2) of the Constitution.
The hierarchy of the courts, the binding influence of certain judgments and the distinction between the ratio decidendi and obiter dicta in a judgment.
When is legislation no longer in force. Discussing repealing of laws, judicial review and sunset clauses.
How are laws created and when does parliament create new laws/amend existing legislation.
The powers invested in the judicial branch of government under section 172 of the Constitution.
What is the Bill of Rights? What is its purpose? And what are first, second and third generational rights and how do these differ?
Understanding concepts such as codified, uncodified, binding, non-binding, primary and secondary sources of law.
The establishment of the Interim Constitution, the 1996 Constitutional and their transformative impact.
Apartheid was held up by an intricate system of racially oppressive laws. How was this achieved, what are some of these laws and what were these laws characterised by.
What is Roman-Dutch Law, who were the great Dutch Jurists and why are they still relevant in South African law.
Who were the Glossators and how did they contribute to the spread of Roman Law throughout Western Europe.
The important role played by the emperor Justinian in the codification of Roman Law. Looking at the Corpus Jurus Civilis.
What were the structures of government in the Roman Republic and how did law develop in this era of Roman history.
Prior to the arrival of the colonists indignienous people in South Africa already had their own legal systems in place.
Why is legal certainty important in law? How does the role of language, shifting societal values and judicial discretion impact on legal certainty.
Distributive justice, corrective justice, substantive law and procedural law. What do these concepts entail.
John Stuart Mill's principle of harm, 'dwarf tossing' and the artificial insemination of a 62 year old grandmother.
Understanding the Audi Alteram Partem and Nemo iudex in sua causation principles of natural justice.
Section 35(5) of the Constitution and the inadmissibilty of unconstitutionally obtained evidence.
What are these two forms of evidence, how do they differ and which carries more weight.
What is bail, does an accused have a right to bail and what factors will the court consider when deciding whether to grant bail.
Who decides when to prosecute? How are these decisions made? What are private prosecutions.
What happens at the investigation stage of the criminal process for brining am accused person to trial.
The state must prove the element of unlawfulness to successfully prosecute a person for a crime. What does this mean and what defences exclude unlawfulness?
South African sources of criminal law, the court's imperative to develoo the Common Law & the creation of statutory defences
What is the differences between accusatorial and inquisitorial legal systems and how would we characterise the SA legal system.
International and regionally treaties seek to establish uniformity in the law of contract.
What are the essentialia of a contract and what are the consequences if such a term is missing from what contract
Were all persons considered natural persons under apartheid? How does the concept of natural persons work in customary law?
Does receiving school meal under school feeding scheme whether at school or when learners are away from school form a component of the right to basic education
The minimum norms and standards for school infrastructure requires government to ensure all schools have access to certain physical resources.
Section 29(1)(a) places both a positive and negative duty on the state to realise the right to a basic education
Are there less restrictive means to achieve the objectives of the challenged provision?
Is there a rational relationship between the challenged provision and the purpose it is designed to serve
The court examined how severe the limitation impacted those affected and how badly it limited the right
The court had a look at the content and scope of S17 and the meaning and effecf of the challenged provision to determine if S17 had been violated.
15 members of the Social Justice Coalition chained themselves to the city of Cape Town entrance stair railings. This is what happened next.
Can government repress protests on the basis that the timing of the protest is unsuitable and it should occur at a more suitable time.
Governments often try to regulate and suppress speech on the basis of 'security and order' and 'threats to the state'
Speech used in certain spaces for purposes of protesting can be forbidden on the basis of where that protest is to take place
Sometimes the speech itself can be prohibited and thus a limitation on freedom of assembly
Ours is a never again society says the Constitutional Court. How so in the context of the right to freedom of assembly.
Disgruntled members of the National Assembly can still challenge a Bill once it becomes law provided certain circumstances are met.
Understanding the concurrent (Schedule 4) and exclusive competencies of the legislatures
Who has the power to initiate Bills on the floor of the national assembly? What about money bills?
The system of proportional representation also has some disadvantages. A few of these are discussed here.
South African legislature runs on a system of party governance. How so? What does strict party discipline mean?
What is meant by the democratic link and how has the New Nation Movement case changed the game?
As South Africans we recognise the injustices of our past... The preamble assists in interpretating fundamental rights, how so
Can information generated at the drafting of the Constitution process be used to interpret fundamental rights, interpretation requires an holistic textual interpretation
Fundamental rights must be interpreted in a purposive way, as generously as possible and within its historical context.
The state has a duty not to interfere with your rights. It also has a duty under to protect your rights. The starting point for interpretation is the text.
The Constitution places an obligation on judges to interpret the law in line with the values of the Constitution. Some judges do and some don't.
In certain instances private and juristic persons our bound to uphold the Bill of Rights.
Section 9(2) is the most famous, the most controversial of provisions in the Comstitution. It is popularly referred to as the affirmative action provision.
The transformative nature of the Constitution can be seen in the provisions which allow for public governance.
Under apartheid indigenous languages were devalued. The state now has an obligation to take steps to advance these languages
The Constitution itself lays in a historical context of transformation. We learn a bit more about this
Karl Klaaren describes how law can be used as a tool for large scale social change to help transform society.
Some academics use the analogy of a bridge to explain transformative constitutionalism, others reject this and interpret it as a society in constant change. Make up your own mind.
What is appropriate relief, what would it look like and what is meant by reading in conformity.
Who can come to court claiming that their rights in the Bill of Rights have been violated?
Making sense of the direct application of the Bill of Rights, vertical direct, horizontal direct
Sometimes everyone is protected by the Bill of Rights but sometimes the Bill restricts its beneficiaries to certain individual's. . .
The Constitutional Court has set very narrow grounds of legal standing to challenge a law on the basis of public involvement. Here we explore what these legal grounds of standing are and why they have been set so narrowly
This segment explores the consequences that flow from a law being declared invalid and unconstitutional for failure to facilitate public involvement
This segment explores when and why the National Council of provinces can delegate their responsibility to conduct public hearings in the provinces to the provincial legislatures.
Holding public hearings or calling for submissions on the bill is not a "tick the box exercise" . Nor, does it mean that the public should have a final say in what laws are ultimately produced. We discuss these issues here
The quality of the public hearings on a particular Bill is a relevant factor, where applicable, for applying the reasonableness standard. Here we explore how so.
Parliament and provincial legislatures are required provide the public with adequate notice of opportunities to participate. Here we discuss the meaning of adequate notice
What is reasonable in terms of facilitating public involvement may turn on what is practical. This segment explores what this means.
The Constitutional Court has said that in determining whether parliament or provincial legislatures have acted reasonably, much importance will be placed on what Parliament itself thought was best. In this episode we explore why this is so.
In determining reasonableness the court will consider relevant whether the legislature made promises to the public that they would be given opportunities to be involved. Here we explain how so.
Here we explain why the level of public interest in participating in the making of a law is relevant to the reasonableness enquiry.
The peculiarities of the group most affected by the Bill and the degree to which they are to be affected may require the legislature to do more to involve this group. We explore how this factor is relevant to the reasonableness enquiry here.
The Constitutional Court has explained that whether parliament has acted reasonably will depend on factors such as the nature and importance of legislature & the intensity of its impact. Here we explore the meaning of this factor
In Doctor's for Life the Constitutional Court explains that the duty to facilitate public participation imposes two requirements on Parliament. Here we explore these requirements.
Why would the drafters of South Africa's Constitution have obliged the legislature to involve the public in law making?
SA's democracy has both representative and participatory elements. These elements work together to strengthen democratic governance.