Student name: Makina Boitumelo

Due date: 25 October 2022

1.1. Judicial impartiality is the presumption that the law should not be and is not
too concentrated in one side while the other is left unattended. Judicial
impartiality presupposes that the law must be applied in a just manner that is
arbitrary or detrimental to the other party in any way whatever the arising
circumstances, it presupposes that the law is without sides and favours.
Therefore, in applying and interpreting the law the judges responsible or any
other judicial officer in charges of a certain case are required by virtue of
judicial impartiality to be neutral and balance the scales of justice so that they
don’t tip, the balance is maintained by not picking sides of either the parties
instead the side of justice is the one that is picked in this process to ensure
the continued balance of the scales.
Paying due-regard to judicial impartiality all the personal issues and the
personal interests of a judge on a case are set aside and whatever view that
is not of judicial nature that the judge may hover against either of the parties is
also set aside and once the wheels of justice are set in motion, it should be
borne in mind that only the interests of justice and those of the public and of
the parties involved in the instance of a case involving only private parties, are
of paramount importance not the anger or hatred a judge may hold against
one of the parties involved.
1.2. A litigant if he/she feels that a judge is not impartial, he/she may in his or her
capacity (and since the case involves his best interests and having a judge
that is impartial poses a risk of them being contravened), ask the judge to
recuse himself from deciding his/her case or from hearing his/her matter.
1.3. The test for impartiality is determined objectively and it is applied on a case-
by-case basis. To reach a working decision that would be fair for both the
parties involved and the society and not the judicial officer involved, the
judges must take decisions based on the training they and and not forgetting
that they are also incumbent to office like other officials and they are duty
bound to act according to the guidelines they are given and also what gives
them authority to take certain decisions within the judiciary therefore, justice
as mentioned earlier on that it should be administered without no favours and
fears, but rather be administered for the greater good of the society and its
people. The test for impartiality presupposes that only legal opinions and the
decisions are the only factors taken into account and not what the judges
perceives the issue to be or what personal hurdle they hold against the
litigants.
1.4. The test was employed in a manner similar to that one of the reasonable
person test. It was employed and applied objectively based on the factual
background rather than the subjective view where a party instead imposes
their own views and upon those act in a manner, they deem appropriate. A
person in their right wits in trying to apprehend that a judge has been partial or
he/she has a reason to believe that a judge is being partial at any case, there
are certain factors ought to be taken into account before it could be said that a
judge has been partial thereof. According to Chaskalson the reasonableness
of the apprehension must be assed in light of the oath they have taken the
day they were sworn into the office of the judiciary that obliges them to
 administer in a just manner without no fear and no favours of any sort in that
case, according to this statement to ensure that a judge has been impartial
the latter must be upheld in any instance irrespective of the circumstances
that arise.
Any personal belief or any predisposition that the judge may have regarding a
case should be of no concern as it is assumed that they would disregard them
and focus on justly adjudicating the case and lastly act as duty directed, and
in showing that they truly are impartial as it is their everyday job to be, then
they should not have any problems if ever it happens that they were asked to
recuse themselves from a certain case they are presiding at the instance of
the litigant they are presiding over his/her case on the basis that the present
judge may be impartial or has been impartial during the passing of decision or
during the hearing.
1.5. No in this case the judge was not impartial he was instead too partial not to be
understood, the judge in this case let his religious beliefs and personal views
on the issue of homosexuality cloud his judgement and his understanding of
the law, here is to why it had to be like this, this case according to the factual
background given this case involved child custody rights and access to
children after divorce proceedings, after the conclusion of the divorce in this
case the mother went on and got into a same-sex relationship and the judge
who was presiding over this case did not like relationships of such a nature,
he even went as far as referring to it as abnormal and with that view that he
strongly held decided on what he thought were in the best interests of the
children.
The judge here was not convinced of the normality of homosexuality, nor was
he convinced that even though the mother had entered into a homosexual
relationship, would still be a mother and a role model to her children instead
he chose to say he will leave it to God to decide. Instead of using the training
he had and the right procedures to be followed by judges when passing a
decision, he chose to get personal in a situation that needed judicial insights
and full understanding and application of the relevant applicable law, he even
went as far as employing biblical thoughts instead of applying relevant legal
provisions to help the course.
Question 02
2.1. According to St Thomas Acquinas the law must be promulgated under the
influence of natural law, the natural law should be the umbrella on the formation of
the law, and that law should not be one to be detrimental to men as a whole but
rather should be the one to bring an order the world populace, this includes the
regulation of human conduct and human life on the basis that it should be formulated
based on the foundational elements of God’s eternal law, the monomer of the natural
law. He argues that the law makers take their authority to legislate from God, natural
law gets its validity and existence from God, it derives its power from God and God’s
divine law. As he articulates that God is the source of all good in men. The main aim
of the law as he intimates is to provide for the common good of men, any law
inconsistent with what God has laid down as the divine law must not be considered
the law. He argues that the effect of the law is to make men good on the ground that
Natural law is from the supreme being, and is the first law to exist, therefore positive
law and any law preceding after should conform to the standards of the natural, they
should be rooted in making men good and ensure that men conduct themselves in
an appropriate manner that is considered good.
Thus men a created in the image of God therefore they should represent what he
stands for and what he considers to be the best for the vast majority of man
populace.
2.2. Jean Paul Satre is one of the critiques of natural law, on the grounds that to him
the existence of natural means the existence of God, he wo is referred to as the
divine legislator of natural law. He is against the view that the effect of natural law is
to make men good, he is an atheist of some sort, as believes that God does not
exist, and since according to him he does not exist then natural law does not exist,
as its existence precedes the existence of God, and it is born of the divine being who
is the supreme being and the higher power.
2.3. The natural law is built on ten essential tenets and by the look of things it seems
the essential tenets of the latter are somewhat related to the essential elements of
the traditional African jurisprudence. The natural law theory is of the view that there
are two laws that rest entirely and absolutely on human authority which is the
positive law and the other originating from the nature, the divine or natural law. On
the essential elements of the African traditional jurisprudence there is a concurrence
with the fact that there is a world or a realm beyond where God the divine and
supreme being decrees morality and a physical world where the morals enforced are
that of the community and its values thereof.
With the second tenet of the natural law it is stated that the natural law is the
supreme law and reigns supreme over man-made law and the man-made law in
order for it to be validated and exist as law and it must go hand in hand and in line
with the standards of the natural law. This accords with the traditional worldview of
the traditional African peoples that God is the supreme and the ultimate guardian of
all human morality, him being supreme so are his moral decrees. God in their belief
is the ones who dispenses justice. As a result of the communal sense of the fear and
respect of God, the supreme being everything they do must conform to the rules and
the standards of the rules believed to have been promulgated by the supreme being.
Natural law fully developed as a result of a man’s ability to reason thus it is referred
to as a law of reason, but a man’s ability to reason was not the only factor that led to
the full development of such a law, factors such as intuition, revelations and
observance of nature reason being an African is referred to as a keen observer of
nature. African proverbs play an essential role in the development of the law like the
famous African proverb that goes, “” A man who has one finger pointing at another
has three pointing towards himself.”’ This is considered a statement of natural law,
how so? One may ask, it is so because it attempts to intimate certain intricacies and
manifestations of nature by observations. It is a metaphorical term that the elders
use to talk about certain aspects of nature, the natural law and everyday life
situations that we may find ourselves in. It simply explains the term and situation that
when we accuse others, we can be fully aware of our responsibilities as humans, not
forgetting to religiously remind ourselves we too are culprits as we are equally
responsible for our communities, in a nutshell it may be articulated that its main
purpose is to subconsciously raise awareness about the lives we are leading every
day. It in some ways shows that what happens in our society through the fingers it
shows that they are our responsibilities as the three fingers are pointing at us, this
includes the injustices of life in our communities and the deficiencies of our society.
Another tenet proposes that the obligations that arise from natural law come from
within the human being, as part of their nature as a rational being, who can think
before taking any action and appreciate the consequences that may or will result
from their actions as human beings and from that they will either choose to defer
from making any choice or choose to reconcile himself with what may result. The
mentioned tenet also applies to the African view that a man has the capacity and
ability to differentiate between what is right and what is wrong not only that but can
also tell what is just and what is not.
The other tenet of the natural law presupposes that the natural law is the monomer
of truth and justice and there is affirmation of this conclusion in the traditional African
jurisprudential thinking.
As it stands out that through observation it has been seen that in African culture
God, the creator of all forms of line and non-form of life this according to the bible,
the knower of everything and the one who decrees morality, God is described as the
truth, or as the doer of truth or the one who knows the truths, as per note taken that
the majority of African societies God is the one who metes out justice. There is an
equivalency in the fact that God is the promulgator of natural law and he lays the
foundation of the truth and justice.
The fundamental tenet of the natural law theory presupposes that its purpose is the
common good of all the mankind. The thought is also used in the traditional African
jurisprudential thinking that the African universe is rooted in morality and religion,
God’s main concern is morality because of his concern over human concern and
welfare and therefore since he is the creator of a human being and a good God,
therefore his creations should be indifferent from him and what he stands for and in
this school of thought evil is punished to ensure that goodness in humans is
conserved and preserved at all times.
Natural law is unaltered it remains the same throughout irrespective of how time and
the world has evolved overtime it remains active and valid throughout the world, and
it bears no exception as to whom it applies, it applies to everyone. Traditional
Africans believe in the saying that God is always the same he is also immutable, he
is today what he was yesterday and the day before, what he is does not change with
time, everything may change through the process of evolution, but he remains
unchanged, not by weather or any condition that one may think of. He does not
change so does everything that comes with him this includes his law, moral decrees
and rules they remain valid at all times like he is.
Natural law proponents and theorists believe propose and suppose that for it to be
fully valid some of the elements it has satisfied are inclusive of the most important
one being morality and the law is in whatever way when it is being promulgated
should morally conform with the standards of the communities. Traditional African
jurisprudence took note of that and duly took note of that because laws in this school
of thought were proposed and enacted to essentially promote moral welfare of the
communities.
Question 03
Legal positivism is a what I would like to refer to as the practical oriented and
observation-oriented school of law. It’s a school of thought that is more interested
with knowing how certain things came to being and how others came to happen
more especially in the legal field.
It rejects the idea proposed by the naturalists that natural law is metaphysical, and
thus legal positivists regard it as a mere thought and a speculation nothing else. In
positive law there are certain aspects that the positive law is concerned with, things
that can be positively and directly observed instead of making assumptions that
there are rules that allegedly exist and how they came about is unknown. The main
concern in here is reality and not assumptions, facts are the aspects to be dealt with
in legal positivism.
Legal positivism is built on three main ideas first being that values should not be
confused with law or fused with, therefore there should be a difference and a
complete separation between the two aspects, this goes against what natural law
presupposes one may observe. Legal positivism asserts that the law is not based on
never changing set of rules and therefore judges should upon deciding cases and
delivering judgements take consideration of the facts arising instead of the moral
issues involved. They further intimate that there is difference in meaning on rights
and duties in law and morality.
If positive law assigns a meaning to a term therefore the only meaning the term
should bear is the one assigned to it by the legal positivists. An example of the
differences the positivists put out to the world, can be seen from the grounds
different, being that one may be confronted with the morality of respect, failure to do
so may get one punished, it can be observed from the family values that a child
should respect their parents failure to do leads to punishment which may even go as
far as corporal one, while on the one hand may be confronted with the obligation to
follow the rules and the laws of their country and failure to do so may lead to there
being criminal charges laid against such a person or better yet, there may be
sanctions to be imposed against him. The difference can be drawn between the
moral duty to respect and the legal duty placed on a person to conduct themselves in
a certain manner prescribed by the law.
The second idea is concerned with social agreement which presupposes contrary to
what natural law asserts, is man-made. Positive law results from agreements made
between people in the society based on the agreement of what they refer to as right
and just for their society. Social control here takes center stage.
Legal positivism and its law is open to critics by others because it is not made
supreme like natural law is done, this law can be wrong and be corrected by the
society.
The last idea presupposes that legal positivism is commanding in nature, this is
referred to as the command theory which is based on the command-obey system
between the sovereign and the minority. Positivist in here disagree indirectly as it
stae sthat it does not only impose the law on people it also gives them an opportunity
and the voice and power to alter and or change it.