JUDICIAL LAW MAKING

Question 1

FACTORS LIMITING JUDICIAL LAW MAKING FUNCTION

Answer 1

• DEMOCRACY
• SEPARATION OF POWERS
• COMMON LAW PRESUMPTION THAT LEGISLATURE DOES NOT INTEND TO CHANGE EXISTING LAW MORE THAN NECESSARY
• RULE OF LAW
• PENAL OR RESTRICITVE PROVISIONS IN LEGISLATION
• COMMON LAW PRESUMPTION AGAINST THE INFRINGEMENT OF EXISTING RIGHTS

Question 2

FACTORS SUPPORTING JUDICIAL LAW MAKING FUNCTION

Answer 2

• Corrective techniques
• common law presumption that the legislature does not intend futile, nugatory or meaningless legislation
• section 39(2) of the constitution
• section 7 and 8(1)
• section 2 -supremacy
• section 165(2) of the constitution

Question 3

WHAT IS THE CONCRETISATION PHASE?

Answer 3

-it is the last stage in the interpretation process when the facts of the case and relevant legislation are harmonised with the purpose of the legislation in conformity with the constitution