Reflections on the prospects and challenges of the South African judiciary in achieving its constitutional objective
Abstract
The objective of this research study is to discuss and analyse the constitutional
framework of the judiciary in South Africa. It is common knowledge that pre-colonial
societies in South Africa had a judicial system. It is for this reason, amongst others,
that this research study should cast light on the landscape of the pre-colonial court
structures, with particular reference to the role of traditional leaders in the settlement
of disputes and maintenance of law and order. The successive colonial
governments also introduced a judicial system and court structure which were
somehow foreign to majority of the colonised.
The colonial system of the judiciary was fundamentally different from the pre-colonial
model of traditional courts. Subsequent to colonial rule, a system of apartheid was
introduced in ·1948. The apartheid government inherited the system of the colonial
structure, albeit with some modifications and approaches. It is in this context that the
research study examines and explores the terrain of both colonial and apartheid
models of judicial systems. The implications of both the interim and final
Constitutions of the Republic of South Africa on the terrain of the judiciary are also
highlighted.
It is common cause that the new constitutional dispensation accord the
Constitutional Court with the power to strike down as invalid any· legislation by
Parliament or provincial legislation, and any pronouncement by any organ of state or
the incumbent thereof, if it is contrary to the Constitution. This research study
explores the constitutional powers and functions of the courts with a view to
highlighting their mandates. Since the new constitutional dispensation, the judiciary
has accomplished various successes, although there are still challenges to be
addressed. This research study gives an exposition of the impediments and
prospects of the judiciary in the new South Africa; various pieces of legislation with a
direct or indirect influence on the judiciary are discussed. It is submitted that the
judicial system should be a separate department headed by the Chief Justice with
separate administrative functions from the Department of Justice and Correctional
Services.
The research study indicates the current situation regarding the establishment of the
office of the Chief Justice of South Africa and the programmes put in place for this
office to attain its institutional independence, the delay in achieving the full
institutional independence being one of the issues currently raised. Benjamin4 wrote
an article expressing concern that despite the importance of judicial independence,
the office of Chief Justice remains a mere executive programme after 20 years of the
new constitutional dispensation.
The institutional independence of the judiciary, as mentioned above, is one of the
remaining challenges, as are the delays in finalisation of cases and misconduct of
judicial officers. It is in this context that this research study highlights possible
solutions and recommendations towards addressing the challenges facing judicial
system.
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- Law [826]