STUDY UNIT 10: JUDICIAL

AUTHORITY:

7.1 DEFINITION OF JUDICIAL AUTHORITY:

- Section 165: Judicial authority vested in the courts.

- Judiciary: Performs adjudicatory function. The exercise of judicial authority occurs when a
court/tribunal is involved through the application of law, in solving disputes between subjects.
- What is constitutional adjudication: - Judiciary interprets and applies legal rules to concrete legal
disputes, enforcing legal rules, imposing necessary sanctions.
- Function would be useless without ubi ius ubi remedium: where there is a right there is a remedy.
- Independent, unbiased body to impose relevant sanctions after interpretation of the law and application
to the facts of the case.

ACTIVITY 50: pg 191:

Read the following scenario:

Jedi is a student at Unisa. Whilst walking in Sunnyside he is arrested and taken to the Sunnyside police
station. Jedi has no knowledge of why he is being arrested and the policemen have not informed him of
the charges against him, nor have they informed him of the right to remain silent or that he is entitled to
obtain the services of an attorney. You are an intern at the law school and, as part of your training, you
have been sent to the police station to assist another accused. Jedi sees you and asks you for advice.

Now answer the following question:

Advise Jedi of the legal steps that he can take against the policemen who effected the arrest.

To answer this question, you have to be familiar with the Criminal Procedure Act of 1977. Why?
Because this piece of legislation was enacted by Parliament to regulate inter alia the conduct of the police
in effecting an arrest. [This is the enactment phase.]

Remember that members of the police force form part of the broader category of the executive and are
bound to adhere to the provisions of the Act. For example, in terms of the said Act, a policeman is under
a legal duty to inform you of the reason for your arrest and to tell you that you have the right to remain
silent. [This is the implementation or enforcement phase.]

If a police officer fails to comply with the provisions of the Act, a victim such as Jedi can institute action
against the Minister for Safety and Security and against the individual policeman for unlawful arrest and
detention.

If Jedi decides to take the matter to court, the presiding officer who hears the dispute will look at the
provisions of the Act and determine whether the police officer was in violation of certain of its
provisions. If the police officer was in breach of the provisions of the Act, then the presiding officer
is empowered to impose an appropriate sanction. [This is the interpretation and application phase.]
10.2 JUDICIARY IN HISTORICAL CONTEXT: 10.3 THE ROLE OF THE JUDICIARY UNDER THE
1996 CONSTITUTION:

The Judiciary: Historical Context The Judiciary: 1996

1910 – 1993: - In a country where constitutional democracy is

Parliamentary sovereignty. entrenched, necessary the judiciary is given constitutional
No body could place limitations on Parliament. functions.
The implications of this system were; - Judiciary now plays pivotal role in maintaining &
upholding the Constitution.
Judiciary subordinate - Judiciary has the following functions;
- Couldn’t intervene apartheid ideologies.
Preserve human rights
- Courts promote values underlying an open, democratic
Viewed with distrust society based on freedom and equality by hearing cases
- Being an organ of state; effectively shared the involved in alleged violation of Chapter 2 rights.
responsibility for implementing and promoting - Baloro & Others v University of Bophuthatswana and
segregation. Others. 1995
Instrument of oppression
- Enforced the oppressive ideology. Power to test constitutionality of legislation
- All laws passed by Parliament and provincial legislature.
No power to test Legislative
- Despite attempts, Second Harris case, courts had no Watchdog function
power to test the legislative and did not compare to the - Ensures executive adheres to the norms, values and
power wielded by Parliament. principles of the Constitution.
- Absence of a Bill of Rights.
Adaption legislation
Test for Procedure - Courts not only interpret legislation but engage in
- The courts could only test an Act of the legislature for generating new laws where existing law is unjust,
manner and form provisions or procedure in which it was ambiguous or inefficient.
enacted.

Demographic
- Courts staffed by conservative, elite, white males.
- A few black Magistrates in the homelands but could not
influence the legal culture.

1993 & 1996 Constitutions

- Constitutional supremacy, promotion of democratic
objectives.
- Removed the constraints imposed on the courts.
ACTIVITY 51 : pg 193-194

1) Define judicial authority. (3)

2) Draw a diagram in which you
- Differentiate between the three organs of state.
- Explain what each of these organs is responsible for. (6)

3) Read the following passage:

The new Constitution establishes a fundamentally different order to that which previously existed.
Parliament can no longer claim supreme power subject to limitations imposed by the
Constitution; it is subject in all respects to the provisions of the Constitution and has only the
powers vested in it by the Constitution expressly or by necessary implication [per Chaskalson P
(as he was then) in Executive Council,Western Cape Legislature & Others v President of the
Republic of South Africa & Others].

Now answer the following questions:

a) Identify and set out the content of the provisions in the Constitution which confirms that
Parliament is no longer supreme. (5)
b) Do you agree with the views expressed by Chaskalson P (as he then was) above? If you do,
evaluate the effect that this metamorphosis has had on the capacity and the role of the judiciary. (15)

To answer question (a), you have to do the following:

Refer to sections 1 and 2 of the Constitution.

To answer question (b), you have to consider the following points when formulating your answer:
This is a mini essay. Your answer needs to be logical and coherent.
Start with an introduction.
Determine which branch of government is responsible for applying and interpreting the law.
Make certain you understand the meaning of the word ``metamorphosis''.
Determine the role of the judiciary prior to 1993.
Determine the status of the judiciary after 1993.
Refer to section 1 and section 165 of the Constitution.
Draw your own conclusions based on the above analysis.
10.4 STRUCTURE OF THE JUDICIAL SYSTEM:

Prior 1993:

Appellate Division
Highest court of appeal.
Hears appeals from provincial & local division of the
Supreme Court.

The Supreme Court

Subdivision of Appellate Division.
Provincial & Local Divisions of Provinces.

The Lower Courts

Magistrates Courts –
divided into regional and
district courts.

Separate African Courts

Made up of Chiefs & Headmans’ Courts.
Petty civil & criminal matters.
Judgments in terms of customary law.
Commissioners courts – more serious
offences.

After 1996:

The Constitutional Court

Highest court in constitutional matters.
Hears appeals in constitutional matters.

The Supreme Court of Appeal

Highest court in non-constitutional matters.
Hears appeals in constitutional & non-
constitutional matters.

The High Courts

Can hear constitutional Any High Court of Appeal that may
matters. be established by an act of
Parliament.
To hear appeals from High Courts.
The
Magistrates
Courts

Any other
court
established by
an Act of
Parliament.
 10.5 JURISDICTION OF THE COURTS:

- In a constitutional state; disputes take one of two forms;

1. Government body
|
Individual

The individual feels the government body has not acted in accordance with the Constitution.
e.g. Parliament passes a law where only men are allowed to perform military action.
Violation of the equality clause s 9

2. Government body -- Government body

A conflict between the distribution and exercise of government authority.

e.g. The executive of one province claims there has been an improper delegation of legislative
authority to another body.

- It is important that disputes are resolved in the correct forum. (thrown out of court).
- Jurisdiction is the power or competence of a court to adjudicate on, determine or dispose of a dispute.
- The ability of a court to hear a matter: determined by;
* Geographical delineation; Causes of action; Amount of the claim; Some other ground.
- The SCA, HC & court with a similar status to that of the HC can enquire into the validity of
legislation/conduct of the President. However the order of invalidity will have no effect unless confirm
by the CC.
- Satchwell v The President of RSA and Another 2002: CC confirmed the order of Transvaal Provincial
Division of HC that sections 8&9 of the Judges Remuneration and Condition of Service Act was
unconstitutional as it effected the benefits of judges’ same sex partners and not spouses.

Constitutional Court: The Supreme Court of Appeal:

- Final instance of appeal in constitutional matters. - s 168: The SCA can hear any matter.
- Concurrent & exclusive jurisdiction. - Can decide on constitutional issue except those which fall in
- s 167 (4): Matters where CC has exclusive jurisdiction. the exclusive jurisdiction of the CC
- Same constitutional jurisdiction as the HC
President of the RSA v SARFU 1999: The CC held that - Final court of appeal in non- constitutional matters.
constitutional matters include;

1. Allegation of bias – judicial officers. The High Courts:

2. All aspects of the exercise of public power. - s 171:
3. Interpretation/application of rights in the Bill of Rights. - Can decide on constitutional issue except those which fall in
4. The development/failure to develop the common law. the exclusive jurisdiction of the CC
5. Matter concerning the nature/ambit of the powers of the HC - Same constitutional jurisdiction as the SCA
- Decide on disputes conferred on them by statute.
- The HC may entertain matters because of the residual power
The Magistrates Court: conferred upon them by virtue of s 173.
- s 170:
- Can not decide on constitutional matters, this does not mean
they can never hear constitutional issues.
- s 170: States Parliament may enact legislation giving the MC
jurisdiction to hear constitutional matters.
- However, these courts will not be allowed to enquire into the
validity of legislation / conduct of the President.
- Same constitutional jurisdiction as the HC
- Final court of appeal in non- constitutional matters.
ACTIVITY 53: pg 199:

1) List the matters over which the Constitutional Court has exclusive jurisdiction. (6)

2) Do the following courts have jurisdiction to hear constitutional matters, and if so,
to what extent? Discuss.
a) the Supreme Court of Appeal (SCA)
b) the High Courts (HC)
c) Magistrate's Courts
d) the Labour Appeals Court (12)

3) What has to happen before an order of the Supreme Court of Appeal or High Courts
concerning the constitutional validity of an Act of Parliament, Provincial Act or the
conduct of the President acquiresthe force of law? (3)

4) Which court[s] have jurisdiction to decide the following constitutional matters?

Give reasons for your answers.
a) A dispute between the President and the Premier of Mpumalanga concerning the
power of the Mpumalanga government to perform certain functions.
b) A dispute between the Premier of Mpumalanga and the Nelspruit Municipal Council
concerning the power of the municipality to perform certain functions.
c) An application for an order to declare section 49 of the Criminal Procedure Act
(an Act of Parliament) unconstitutional.
d) An application for an order to declare a provision in the Western Cape Schools Act
unconstitutional.
e) An application for an order to declare a municipal bylaw unconstitutional.
f) An application to certify the Constitution of the Limpopo Province. (12)

10.6 APPOINTMENT OF JUDGES:

- Contentious issues during negotiations, fear new government would appoint their supporters as judges,
compromising the integrity of the judiciary. However, there was a need for transformation that is
representative in terms of race and gender.

- 1993 Constitution: Created Judicial Service Commission (JSC) [Members of the judiciary and legal
profession & politicians]. Purpose: To restrict the executive and ensure judicial independence.
- JSC: Advise the government on matters relating the judiciary. Make recommendations re: appointment
& removal from office, terms of office and tenure of judges.

- 1996 Constitution: JSC: Appointment of judges and other matters relating to the judiciary.

Section 178: NB For exam *****

Section 167 (1) & (2): Composition of the CC.

Section 168 (2) & (2): Composition of the SCA.

 Section 174 (3):
- The President appoints the Chief Justice and Dpty. Chief Justice of the CC after consultation with the
JSC and parties leaders of the NA.
- President makes appointment in capacity as head of national executive. (Act together with Cabinet).
- President makes appointment after consultation with JSC and leaders. – Not bound but obliged to
consult with in good faith.

Section 174: Appointment of judicial officers.

You must also study the provisions dealing with the appointment of

. the other nine judges of the Constitutional Court (s 174(4))

. the Chief Justice and Deputy Chief Justice (s 174(3))
. judges of the other courts, for example the Supreme Court of Appeal, the High Courts, the Labour
Appeals Court (s 174(6))
. other judicial officers, for example magistrates (s 174(7))

Section 174(1) and (2) sets out the considerations that must be taken into account when judicial
appointments are being made. These include:

. that the candidate must be a South African citizen

. that the candidate must be a fit and proper person
. that the appointments must reflect the racial and gender composition of South Africa

Section 174(5) provides that at all times, at least four members of the Constitutional Court must be
persons who were judges at the time they were appointed to the Constitutional Court.

ACTIVITY 54: pg 201:

1) Tick the relevant box to indicate the person(s) or bodies that must be consulted in the process of
appointment of the various judges within the court structure. (10)
2) Which factors must be taken into account when judicial officers are being appointed? (4)
3) Discuss the role of the Judicial Service Commission in the appointment of judges.
Is the President bound to follow the advice of the JSC, or can he ignore it? (5)
 10.7 JUDICIAL INDEPENDENCE:

Introduction:
- Are there mechanisms in place to ensure judiciary acts in an impartial, independent manner w/o fear / prejudice?
- Counter-majoritarian dilemma: Questions the legitimacy of judges on the grounds they have been appointed and not elected.

Meaning of judicial independence:

- Trias politica doctrine firmly in Constitution – one consequence is judicial independence.
- The courts subject only to the law, no person/institution.
- Judicial independence vital to constitutional state to prevent the abuse of power.
- Constitution contains both general [guarantees the principles of judicial independence] & specific provisions [relating to the
appointment, salaries, removal]

Rautenbach & Malherbe distinguish between functional and personal independence.

Functional independence: Personal independence:

- Refers to the way courts operate within the framework of - Known as institutional independence: Making sure
a constitutional state. [Primarily a consequence of the judicial officers are satisfied with their conditions of
separation of powers doctrine] service and will not derogate from performing their core
- Judicial power may not be usurped by the legislature, the functions.
executive / other institutions. - Personal independence is determined by;
- 1950’s Parliament attempted to set up a HC of Parliament
which would have the power to set aside the decisions of - Manner in which they are appointed;
the courts. JSC plays important role in the appointment of judges,
- HC Parliament set aside a decision that confirmed the makes it more difficult for the President to merely
unconstitutionality to remove coloured voters from the appoint political figures.
common voters role by the SCA.
- Minister of the interior v Harris: Argued that Parliament - Their terms of office;
was usurping the powers of the courts - Cape Prov. Div. s 176: CC judges non-renewable terms of 12 yrs. Must
accepted this as did Appellate Div. who state the HC retire 70 yrs (others 75 yrs) / until discharged i.t.o an Act.
Parliament was not a court of law, merely Parliament in a (Enjoy security of tenure – no need to seek political
different disguise. favour to be re-appointed).
- Section 165 of the Constitution ** NB For EXAM **
(1) Judicial authority is vested in the courts, - Their security of tenure;
(2) Recognises the independence of the courts, Constitution makes it difficult to dismiss judges
(3) No person/ organ of state may interfere with the arbitrarily. s 177: Conditions were compelled to vacate
functioning of the courts. position.
(4) Obliges organs of state to assist, protect, ensure the President may remove if grossly incompetent
independence, impartiality, dignity, accessibility and /misconduct and NA has called for removal with 2/3
effectiveness of the courts. majority.
- Another factor contributing to functional independence is
that judicial officers enjoy immunity against civil actions - Their conditions of service;
& contempt of court order. s 176 (3): Salaries, allowances & other benefits may not
be reduced. Politicians should not be in a position to
determine salaries arbitrarily.

Impartiality of judges:

- Refers to the state of mind/attitude of judges in relation to the issue/party involved. Judges undertake to administer justice to all w/o
any distinctions/external pressures being made
- Not allowed any other occupation/official function not compatible with judiciary.
- SARFU case: CC formulated a test for bias: whether a reasonable person would, on the correct facts, apprehend that the judge will not
bring an impartial mind, one open to persuasion of evidence.
- General rule that the presiding officer must on request/voluntarily recuse herself from proceedings if there is a reasonable apprehension
the judgment will not be delivered in accordance with the law.
ACTIVITY 55: pg 204

1) Briefly explain what you understand by the phrase ``judicial independence''. (5)
2) Read the following passage:

Suppose that Parliament passes an Act in terms of which it (Parliament) has the power
to test the validity of a judgment of the Constitutional Court.

Now answer the following question:

Would this Act be constitutional? Discuss. (10)

To answer this question, you have to do the following:

Identify the doctrine that has been violated.
State what this doctrine says.
Determine what you understand by the concept of functional independence.
Refer to section 165 of the 1996 Constitution.
Refer to the two Harris cases.

3) Study the hypothetical scenarios described below and indicate, in each case,
whether or not the independence of the courts has been compromised. Substantiate
your answers.

a) A public outburst that certain political parties are trying to take control of the
courts through judicial appointments. (3)
b) The arrest and detention of a magistrate simply because the finding of the
magistrate was not favourable to one of the parties involved in the legal dispute. (3)
c) The arrest, detention and charging of a judge on allegations of corruption. (3)
d) The arrest and detention of a judge who has made a ruling against the Minister
of Transport for contempt of court. (3)
e) The issuing of death threats to a judicial officer and his or her family, to the
effect that an adverse judgment will result in the judge and his family suffering
unspecified bodily harm. (3)

ACTIVITY 56: pg 206

1) Briefly discuss the mechanisms that are in place to ensure that the independence of
the courts are protected against the laws emanating from Parliament and against
unscrupulous conduct. (10)
ACTIVITY 57: pg 207

Read the following passage:

Parliament passes an Act in terms of which it is possible to establish special investigating units to
investigate serious maladministration or malpractice in the administration of state institutions. Pursuant
to this Act, the President establishes an investigatory unit and appoints a judge to head the investigations
into the conduct of attorneys in the lodgement of claims and payment received from the Road Accident
Fund.

Now answer the following question:

Critically evaluate whether the appointment of a judge as head of a special investigating unit is
constitutional. (15)

To answer this question, you have to do the following:

Determine in whom judicial authority in the Republic is vested.
Determine the core functions of the judiciary in any democratic society.
Determine whether a judicial officer can engage in more than one occupation.
If a judicial officer cannot engage in more than one occupation, work out the rationale behind this
general rule.

Refer to the case of SA Association of Personal Injury Lawyers v Heath 2001 (1) BCLR 77 (CC) which
is in your Reader.

10.8 CONTROL OVER JUDICIAL BODIES:

-- Control
Control implies
implies degree
degree of
of subordination.
subordination. Fear
Fear that judicial control may compromise the independence of the
courts.
courts.
-- Mechanisms
Mechanisms exist
exist through
through which
which aa judge
judge can
can be
be held
held accountable.
accountable.

1.
1. Judicial
Judicial control:
control:
Decisions
Decisions may
may be
be taken
taken on
on review
review // appeal
appeal to
to higher
higher courts
courts encourages
encourages judicial
judicial officers
officers to
to apply
apply their
their
mind to the matter & furnish reasons for decisions.
mind to the matter & furnish reasons for decisions.

2.
2. Appointment:
Appointment: JSCJSC involvement
involvement makes
makes process
process more
more transparent
transparent (candidates
(candidates interviewed
interviewed during
during public
public
hearing).
hearing). Can
Can instil
instil greater
greater accountability
accountability for
for judges.
judges.

3.
3. Removal
Removal from
from office:
office: Section
Section 177.
177.

4.
4. Public
Public debate
debate && criticism:
criticism: Freedom
Freedom ofof speech
speech and
and press
press help
help create
create environment
environment where
where judicial
judicial decisions
decisions
subject to public debate & criticism. Helps judges realise their responsibility towards the public.
subject to public debate & criticism. Helps judges realise their responsibility towards the public.
Contempt
Contempt of
of court
court must
must bebe constructed
constructed in
in aa restrictive
restrictive manner
manner to
to allow
allow fairly
fairly vigorous
vigorous debate.
debate.

5.
5. Civil
Civil liability:
liability: Normally
Normally enjoy
enjoy immunity
immunity from
from civil
civil actions
actions arising
arising from
from their
their decisions.
decisions. However,
However, aa judge
judge who
who
has
has acted
acted mala
mala fide
fide will
will not
not escape
escape liability.
liability.
ACTIVITY 58: pg 208

Read the following passage:

On 13 October 1999, the chairperson of the parliamentary portfolio committee on justice announced that
it would summon Foxcroft J to appear before it to answer questions relating to a judgment in a rape
case delivered by him. This was after Foxcroft J, a judge of the Cape High Court, had sentenced a rapist
to a sentence of seven years imprisonment. The judgment caused a public outcry, as it was felt
that the sentence was too light. The judge was accused of having ignored the minimum sentences
prescribed by legislation. He was also reported as saying that it was a mitigating factor that the accused
had raped his own daughter, and that there was little danger that the crime would be repeated. Feminists
and anti-rape groups were appalled by what they saw as a statement that it is okay to rape one's own
daughter.

Now do the following:

Write a short essay in which you advance arguments both in favour of and against the proposition that
Parliament may call a judge to account. What are your own views on the matter? Refer to the relevant
sections of the Constitution in your answer. (15)

To write this short essay, you have to:

Determine whether there is a tension between the principles of judicial independence and the need to
control the judges.
Determine whether Parliament is allowed to call the judiciary to account since they are not the elected
members.
Determine whether Parliament's conduct constitutes a violation of the separation of powers doctrine.
Determine whether there are other ways in which the judiciary may be called to account for its conduct.

10.9: THE POWERS OF THE COURTS IN CONSTITUTIONAL MATTERS:

SS 172
172 (1)
(1) (a):
(a): Competent
Competent court
court power
power toto declare
declare any
any law
law or
or conduct
conduct inconsistent
inconsistent with
with Constitution
Constitution –– invalid.
invalid.
This
This has
has consequences
consequences for
for existing
existing relationships
relationships && administration
administration due
due to;
to;

Retrospective:
Retrospective: Normally
Normally the
the invalidity
invalidity has
has retrospective
retrospective effect.
effect. Legislation
Legislation &
& any
any action
action taken
taken under
under the
the
legislation
legislation is invalidated from the moment the rule/Constitution came into operation and not from the
is invalidated from the moment the rule/Constitution came into operation and not from the moment
moment of
of
the
the court’s
court’s order.
order.

Re-write
Re-write legislation:
legislation: It
It is
is not
not the
the task
task of
of the
the courts
courts to
to re-write
re-write the
the invalidated
invalidated legislation/rule.
legislation/rule. It
It takes
takes time
time to
to
rectify
rectify unconstitutional
unconstitutional legislation
legislation –– this
this may
may give
give rise
rise to
to serious
serious disruptions
disruptions in in the
the running
running of
of the
the country
country if
if aa law
law
has
has been
been invalidated
invalidated with
with immediate
immediate effect
effect and
and nothing
nothing has
has been
been put
put in
in its
its place.
place.

Rautenbach
Rautenbach &
& Malherbe:
Malherbe: Following
Following techniques
techniques aa court
court can
can adopt
adopt to
to avoid/limit
avoid/limit the
the effect/extent
effect/extent of
of the
the invalidity.
invalidity.

1.
1. Court
Court should
should decide
decide aa case
case on
on another
another ground
ground if
if possible.
possible. This
This principle
principle was
was endorsed
endorsed in;
in;
SS vv varmaas,
varmaas, SS vv Du
Du Plessis:
Plessis: Judge
Judge laid
laid down
down general
general principle,
principle, that
that where
where possible,
possible, aa constitutional
constitutional
issue
issue should
should be be avoided.
avoided.

2.
2. Interpret
Interpret provision
provision where
where possible
possible as
as not
not to
to conflict
conflict with
with Constitution.
Constitution. Adopt
Adopt that
that meaning.
meaning.

3.
3. Declare
Declare invalid
invalid only
only to
to the
the extent
extent of
of the
the inconsistency
inconsistency rather
rather than
than the
the whole
whole law.
law. Attempt
Attempt to
to sever
sever from
from law.
law.

4.
4. A
A court
court may
may limit
limit the
the retrospective
retrospective effect
effect of
of aa declaration
declaration of
of invalidity.
invalidity. ss 172
172 (1)(b)(i).
(1)(b)(i).

5.
5. A
A court
court may
may suspend
suspend aa declaration
declaration for
for any
any period/on
period/on any
any conditions
conditions to
to allow
allow the
the competent
competent body
body to
to rectify
rectify the
the
defect.
defect. ss 172
172 (1)(b)(ii)
(1)(b)(ii)
ACTIVITY 59: pg 210:

1) Discuss the ways in which a declaration of invalidity can be avoided. (6)

2) Discuss the ways in which the extent and effect of a declaration of invalidity
can be limited. (4)

10.10 COMMON MISTAKES:

- Judicial authority is vested in the courts and not the legislature, executive / JSC.

10.11 SELF ASSESSMENT:

1) What do you understand by the term ``jurisdiction''? (2)

2) What is the main function of the third branch of government? (3)

3) In order of hierarchy, list the categories of courts that make up our legal system. (5)

4) Read section 167(3) of the Constitution. What does it say about the functions of the
Constitutional Court? (6)

5) The Constitutional Court exercises exclusive jurisdiction over certain matters, that is,
only the Constitutional Court may hear these matters. List the matters over which the
Constitutional Court exercises sole authority. (12)

See section 167(4) of the Constitution.

6) Do the Supreme Court of Appeal, the High Courts and Other Courts have jurisdiction
to hear constitutional matters, or is this power restricted to the Constitutional Court only? (6)
See sections 168-170 of the Constitution.

7) Discuss how the independence of the judiciary is secured through the entrenchment of
appointment measures in our new Constitution. In your answer, discuss the manner in
which the different judges are appointed. (15)
Study sections 167(1) and (2), 168(1) and (2) and section 174 of the Constitution.

8) If the independence of the judiciary is fundamental to a constitutional state, what

mechanisms would have to exist for this independence to be maintained and promoted?
Make sure that you distinguish between personal and functional independence. (15)

9) Discuss your understanding of the term ``control''. Also discuss all the mechanisms that
exist to ensure that the judges perform their functions without undue interference. (12)
10) Discuss the five techniques that courts employ to avoid or limit the effect and extent of a
declaration of invalidity. (10)

10.12 CONCLUSION:

In all democratic states, judicial control is the most effective way to ensure that the executive and
legislative organs of state adhere to the law, as embodied in the Constitution and the other sources of
law. The executive and the legislature are constitutionally mandated to promote and preserve the
independence of the court. But who controls the judiciary? Think about it!

==========================================================================

CASE LIST:

1. South African Association of Personal Injury

Lawyers v Heath and Others 2001

==========================================================================

SECTIONS OF THE CONSTITUTION FOR THIS CHAPTER:

CHAPTER 8
COURTS AND ADMINISTRATION OF JUSTICE (ss 165-180)

165 Judicial authority

(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must
apply impartially and without fear, favour or prejudice.
(3) No person or organ of state may interfere with the functioning of the courts.
(4) 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.
(5) An order or decision issued by a court binds all persons to whom and organs of state to
which it applies.

166 Judicial system

The courts are-
(a) the Constitutional Court;
(b) the Supreme Court of Appeal;
(c) the High Courts, including any high court of appeal that may be established by an Act of
Parliament to hear appeals from High Courts;
(d) the Magistrates' Courts; and
(e) any other court established or recognised in terms of an Act of Parliament, including any
court of a status similar to either the High Courts or the Magistrates' Courts.

167 Constitutional Court

(1) The Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief
Justice and nine other judges.
 [Sub-s. (1) substituted by s. 11 of the Constitution Sixth Amendment Act of 2001.]
(2) A matter before the Constitutional Court must be heard by at least eight judges.
(3) The Constitutional Court-
(a) is the highest court in all constitutional matters;
(b) may decide only constitutional matters, and issues connected with decisions on
constitutional matters; and
(c) makes the final decision whether a matter is a constitutional matter or whether an
issue is connected with a decision on a constitutional matter.
(4) Only the constitutional Court may
(a) decide disputes between organs of state in the national or provincial sphere
concerning the constitutional status, powers or functions of any of
those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but
may do so only in the circumstances anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional
obligation; or
(f) certify a provincial constitution in terms of section 144.
(5) The Constitutional Court makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is constitutional, and must confirm any order of invalidity
made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that
order has any force.
(6) National legislation or the rules of the Constitutional Court must allow a person, when it is
in the interests of justice and with leave of the Constitutional Court-
(a) to bring a matter directly to the Constitutional Court; or
(b) to appeal directly to the Constitutional Court from any other court.
(7) A constitutional matter includes any issue involving the interpretation, protection or
enforcement of the Constitution.

168 Supreme Court of Appeal

(3) The Supreme Court of Appeal may decide appeals in any matter. It is the highest court of
appeal except in constitutional matters, and may decide only-
(a) appeals;
(b) issues connected with appeals; and
(c) any other matter that may be referred to it in circumstances defined by an
Act of Parliament.

169 High Courts

A High Court may decide-
(a) any constitutional matter except a matter that-
(i) only the Constitutional Court may decide; or
(ii) is assigned by an Act of Parliament to another court of a status
similar to a High Court; and
(b) any other matter not assigned to another court by an Act of Parliament.
170 Magistrates' Courts and other courts
Magistrates' Courts and all other courts may decide any matter determined by an
Act of Parliament, but a court of a status lower than a High Court may not enquire into or
rule on the constitutionality of any legislation or any conduct of the President.

172 Powers of courts in constitutional matters

(1) When deciding a constitutional matter within its power, a court-
(a) must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.
(2) (a) The Supreme Court of Appeal, a High Court or a court of similar status
may make an order concerning the constitutional validity of an Act of Parliament, a
provincial Act or any conduct of the President, but an order of constitutional invalidity
has no force unless it is confirmed by the Constitutional Court.

174 Appointment of judicial officers

(1) Any appropriately qualified woman or man who is a fit and proper person may be appointed
as a judicial officer. Any person to be appointed to the Constitutional Court must also be a
South African citizen.
(2) The need for the judiciary to reflect broadly the racial and gender composition of South
Africa must be considered when judicial officers are appointed.
(3) The President as head of the national executive, after consulting the Judicial Service
Commission and the leader of parties represented in the National Assembly, appoints the
Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service
Commission, appoints the President and Deputy President of the Supreme Court of Appeal.
[Sub-s. (3) substituted by s. 13 of the Constitution Sixth Amendment Act of 2001.]
(4) The other judges of the Constitutional Court are appointed by the President, as head of the
national executive, after consulting the Chief Justice and the leaders of parties represented in
the National Assembly, in accordance with the following procedure:
(7) Other judicial officers must be appointed in terms of an Act of Parliament which must ensure
that the appointment, promotion, transfer or dismissal of, or disciplinary steps against, these
judicial officers take place without favour or prejudice.
(8) Before judicial officers begin to perform their functions, they must take an oath or affirm, in
accordance with Schedule 2, that they will uphold and protect the Constitution.

176 Terms of office and remuneration

(1) A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or
she attains the age of 70, whichever occurs first, except where an Act of Parliament extends
the term of office of a Constitutional Court judge.
[Sub-s. (1) substituted by s. 15 of the Constitution Sixth Amendment Act of 2001.]
(2) Other judges hold office until they are discharged from active service in terms of an Act of
Parliament.
(3) The salaries, allowances and benefits of judges may not be reduced.
177 Removal
(1) A judge may be removed from office only if-
(a) the Judicial Service Commission funds that the judge suffers from an incapacity, is grossly
incompetent or is guilty of gross misconduct; and
(b) the National Assembly calls for that judge to be removed, by a resolution adopted with a
supporting vote of at least two thirds of its members.

180 Other matters concerning administration of justice

National legislation may provide for any matter concerning the administration of justice that is not
dealt with in the Constitution, including-
(a) training programmes for judicial officers;
(b) procedures for dealing with complaints about judicial officers; and
(c) the participation of people other than judicial officers in court decisions.

==========================================================================

AIMS OF THE STUDY UNIT:

1) Define judicial authority.

2) Outline a brief history of judicial authority in South Africa.

3) Illustrate why an independent judiciary is indispensable or vital in a constitutional state.

4) Distinguish between the three branches of government.

5) Explain the hierarchy of the court structure in South Africa.

6) Distinguish between the terms ‘judicial power’ and ‘jurisdiction’ of the courts.

7) Discuss the jurisdiction of the various courts to hear constitutional matters.

8) Review the procedure for the appointment of judicial officers.

9) Examine whether the judiciary is truly independent.

10) Evaluate whether control over the judiciary can be reconciled with the notion of judicial
independence.

11) Discuss the powers of the court in constitutional matters.

12) Apply the general principle of judicial authority to a concrete set of facts.