The objective of this thesis is to assess the impact and influence of South Africa's Constitutional Court in the first two years of our democracy. To achieve this objective, some of the definitive and controversial cases already decided by the Court have been selected and analysed in an attempt to glean some jurisprudential perspectives of the Court. It focuses on the work of the Court over the past two years. It deals with the evolution of South Africa into a democracy, and analyzes the South African legal system prior to the beginning of the process of transformation. It briefly surveys the evolution of our constitutional system, dating back from the pre-1910 colonial period and provides a broad outline of the legal system in the post-April 1994 period of transformation. It analyzes the Court from the point of view of, inter alia, its composition, jurisdiction and powers. The Court is also contrasted with courts in other jurisdictions which exercise full judicial review. The Court's emerging jurisprudence is examined. A review is made, inter alia, of the Court's understanding of, and approach to, the questions of the values underpinning the post-apartheid society and its constitutional system, and constitutional interpretation. The right against self-incrimination and South African company law and the two relevant Constitutional Court cases are discussed. The collection of evidence by the State and the constitutionality of provisions relating to search and seizure and the taking of fingerprints are looked into. The Court's approach to statutory presumptions and criminal prosecutions; some aspects of our appeals procedures; an accused's right to be assisted by a lawyer at state expense; the question of a fair trial and access to information; capital punishment; corporal punishment; committal to prison for debt; and the certification of constitutions is analyzed. Two of the cases in which the provinces clashed with the national government on the distribution of posers between provinces and the national government are discussed. The conclusion is that the Court has, overall, hitherto acquitted itself well in the handling of particularly the controversial quasi-political questions that arose in the cases it has decided. / Constitutional, International and Indigenous Law / L.L. D. (Law)

In the interplay between protection of rights and majoritarianism, the court is the arena. This research focuses on the conflicting role of the court within a constitutional democracy and a contestation of the counter-majoritarian dilemma that emerges from such a role. The counter-majoritarian dilemma centres on the idea that judges overturning decisions of the legislature through judicial review undermines democracy by thwarting the will of the majority through a subjective reading of abstract constitutional principles. As a point of departure, the counter-majoritarian dilemma is contested by revealing that the court can be seen as a democratically consistent institution if democracy can be reconceptualised. The examination of the South African jurisprudential climate and the adjudicative guidelines followed by the court suggests a rejection of such anti-democratic contention. The court upholds the commitments consented to at the time of the Constitution’s adoption and adjudication is reflective of the values undertaken by the country in reaction to its past. Within these values, minority rights can find a lifeline. Thus minority rights can exist through the implications of majoritarian consent. This research further identifies, in response to the counter-majoritarian dilemma, a constraining self-consciousness on the part of the court and an acute awareness of the court’s precarious role within a democratic infancy. The core of the counter-majoritarian dilemma is the view that interpretative indeterminacy of the Constitution means that the will of the people could be substituted for judicial preference. Through the examination of the court’s interpretative strategies and judicial subjectivity, this research suggests that within judicial subjectivity, adjudication continues to be reflective of the will of the people. Far from a constraining and mechanistic interpretation to avoid judicial subjectivity, the research reveals that open and non-formalist interpretative strategies are necessary to effectuate democratic conciliation within the judicial mandate. The results of this research suggest that, far from being a democratically deviant institution, the court in the current South African jurisprudential context, is the most suited to uphold the concept of democracy. / Jurisprudence / LL. M.

Since the advent of the new democratic order established under the 1996 Constitution, South Africa has been plagued with many new challenges .One of the facts that our new democratic state could not ignore was the rapid increase in both national and international, organized criminal activity .The South African Legislature realizing the desire to combat serious criminal activities, introduced into South African Law, the Prevention of Organized Crime Act 121 of 1998. The Act recognizes that conventional criminal penalties are inadequate as measures of deterrence when organized crime leaders are able to retain the considerable gains derived from organized crime, even on those occasions when they are brought to justice. It strives to strip sophisticated criminals of the proceeds of their criminal conduct. The Courts, in applying this legislation, has also created a new field of law that had until the advent of the Act, not existed in South African Law, namely organized crime law. A field, distinct from the ordinary principles of criminal law. The bulk of jurisprudence created over the past decade or more, however seems to be threatened to be undone by the recent judgment concerning the constitutionality of certain provisions of the Act. The confirmation of this judgment is being considered by the Constitutional Court and the purpose of this thesis is to argue against the confirmation of this judgment / Public, Constitutional and International Law / LL. M.

The dissertation called "Flaws of the legislative procedure and the legislation itself" aims to describe the main problems and flaws of the legislative procedure and the current condition of the legislature. It deals with the question of the cause of the current unintelligible and disorganized law. The paper analyses the situation in the Czech Republic, Germany and Austria. The thesis deals with four main questions. First, what kind of law the legislator should create. The question is answered by the description of the formal attributes of the law. Subsequently, it is put into question how the legislator should create such law. The duties of the legislator are described as those which were deduced by the German Federal Constitutional Court. In the chapter which deals with the question of how the legislator creates such law in reality, the particular safety measures and particular flaws of the legislative procedure are described. Finally, the last question analyses what kind of law is created by the legislator in reality, i. e. it deals with the problems of the current legislature which are specifically caused by the so called flood of laws. In conclusion, the thesis answers the question whether there is a connection between the particular flaws of the legislative procedure and the particular flaws...