Contemporary South Africa by Anthony Butler

Author:Anthony Butler [Butler, Anthony]
Language: eng
Format: epub
Tags: African, Political Ideologies, Political Science, World, General
ISBN: 9781137373380
Google: xa4sDwAAQBAJ
Goodreads: 722932
Publisher: Palgrave Macmillan
Published: 2004-03-04T00:00:00+00:00

The Judiciary

The third branch of government, the judiciary, is concerned with the application of the law. Laws are binding decisions that are made into rules and enforced by the state. In South Africa there is formal equality before the law: any law, in theory at least, is enforced equally on all regardless of position. Yet, the sources of law are not as clear-cut as one might expect. Law originates primarily in the legislatures, including ‘delegated’ legislation in different spheres of government. The Constitution sets out a clear hierarchy, in which the Constitution is supreme; below it are arrayed the national, then the provincial, and then the municipal spheres. Law can also originate in statutes promulgated by the executive or in ‘delegated legislation’. In addition, the courts themselves make new law in their interpretation and application of existing laws. ‘Common law’, ‘customary law’, law established through the practice of ‘traditional’ courts, and Muslim family law are also recognised in South Africa, but are at the same time subject to the Constitution (implying that ultimately they will move into line with it).

The application of law is inevitably conflict-ridden. The courts must adjudge whether a right has been infringed, a legal offence committed, what the nature of the infringement might be, what exactly the law says, and how precisely the law ought to be applied. The system through which such judgments are made in South Africa involves a number of different types of court. Magistrates, appointed by the minister of justice, may serve in either district or (higher) regional courts, and deal with the overwhelming majority of cases. High courts, whose judges are appointed by the president, concurrently with the Judicial Services Commission, deal with appeals from lower courts but also with many constitutional issues. The Supreme Court of Appeal has been the highest court of appeal in all but constitutional matters.

The Constitutional Court is at the apex of the judiciary. All laws and state actions are supposed to be consistent with the Constitution (including its bill of rights). The Constitutional Court is a special and specialised court, which interprets, protects, and enforces the Constitution. It is ‘independent’, in that the Judicial Services Commission – a representative body comprising, in roughly equal measure, senior judges, parliamentarians, and acting lawyers – submits a list from which the court’s judges must be chosen. The president and Cabinet then make appointments in consultation with party leaders in the NA. The key areas of jurisdiction of the court include the consistency of legislation with the Constitution, and disputes between spheres of government. The court also rules on the constitutionality of constitutional amendments (in which cases there are complex rules for different kinds of amendment) and on the consistency of government actions with the Constitution, including the bill of rights.

One key issue that has arisen in South Africa with regard to the role of the Constitutional Court is whether the courts are genuinely ‘independent’, given that a state president, or his party, can indirectly influence appointments. In addition,

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