Judicial independence in South Africa : a constitutional perspective.

This dissertation seeks to explore the judiciary as an independent and separate arm of government. In doing so, this dissertation attempts to provide a holistic analysis of the constitutional and legislative framework that has been established to protect both individual and institutional independence of the judiciary in South Africa. The question that will be asked is whether such mechanisms are consistent with the section 165 of the Constitution. Central to this analysis is whether the system of court administration that was inherited from apartheid is appropriate for the purposes that courts now have to perform under South Africa‟s constitutional democracy. Chapter one lays the foundation by providing an introduction to the topic under discussion. In doing so, this chapter also provides the research question, literature review, and an explanation of the research methodology. Lastly, this chapter attempts to trace the historical foundation of the principle of judicial independence. It is concluded that judicial independence is linked with the development of the rule of law and seeks to counter unfettered power. In an attempt to provide a conceptual definition for judicial independence, chapter two draws from international law instruments. This definition focuses on the distinction between independence and impartiality; individual and institutional independence. It is then concluded that judicial independence is vital for good governance, administration, accountability and the protection of the public from the arbitrary and abusive exercise of power by the state. Chapter three focuses on the independence of judges in South Africa, in other words, individual independence. This chapter contains an analysis of legislative mechanisms adopted in South Africa to protect the judges from improper influence in their adjudicatory tasks. Further, this chapter also analyses jurisprudence relating to impartiality and bias. It is concluded that the constitutional and legislative framework adopted in South Africa sufficiently insulates judges from improper influence. As far as impartiality is concerned, it is concluded that in terms of South African jurisprudence, the presumption is that judges are impartial. The burden of proof falls on the party alleging bias. Chapter four focuses on court administration. This chapter gives an overview of the structure of courts and the current system of court administration in South Africa. Further, this section discusses how the doctrine of separation of powers relates to court administration. This section also discusses reforms to the current system of court administration that have been proposed by the Department of Justice and Constitutional Development. It is concluded that the current system of court administration is inconsistent with the Constitution and the doctrine of separation of powers as it permits the executive to encroach upon the independent functioning of the courts. Chapter five seeks to discuss some of the challenges that threaten judicial independence in South Africa. This…