Praxis Of Judicial Independence In South Africa: An Imminent Constitutional Recourse

Ramaru, Gundo Keith

Praxis Of Judicial Independence In South Africa: An Imminent Constitutional Recourse

Thesis / Dissertation

2023

Abstract

In recent years, South African case law has given significant attention to the meaning and implications of the principle of judicial independence. Judicial independence, which includes both individual and institutional or structural independence, includes the independence of specific judges. It encompasses topics such as tenure security, a minimal level of financial security as well as the institutional independence of the court which the particular judge presides over. It indicates that judges must be able to carry out their duties free from interference of any kind and from any source, and that the courts must maintain their independence from the legislature and the executive. The drafters of the Constitution went to tremendous lengths to ensure the independence of the judiciary. To put it bluntly, section 165(2) of the Constitution provides that “the courts are subject only to the Constitution and the law, which they are required to apply impartially and without fear, favour or prejudice.” In terms of section 165(4) of the Constitution “organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”. These five characteristics significantly overlap and imply one another, are tightly related, and are interdependent in many more ways. The impartiality, dignity, efficacy, and accessibility of the courts would typically be greatly enhanced if judicial independence were to be established or present. The courts are responsible for upholding the Constitution in general and the Bill of Rights in particular, with the Constitutional Court serving as the apex court. They have the authority to invalidate any law or conduct that is inconsistent with the constitution. This dissertation explores the extent to which the Office of the Chief Justice (OCJ) supports judicial independence in South Africa. It is widely believed that judicial independence is safeguarded by security of tenure, financial independence, and administrative independence—three attributes designed to support both the institution of the judiciary as a whole and the independence of individual judges. This thesis explores in greater detail the judiciary's structure and the role of the OCJ within it. Furthermore, the OCJ's institutional independence and governance (budget, administration, and tenure security) is discussed in depth, as are the OCJ's role in appointing judges

Keywords

Constitutional Law And Administrative Law

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