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.