LESSON 2
INDEPENDENCE OF THE JUDICIARY
The Constitution guarantees the independence and autonomy of the courts and
mandates other organs of state to support the courts in fulfilling their functions.
Judicial independence and impartiality is implicit in the rule of law and
separation of powers, which are demanded by the Constitution.
The Constitutional Court recognises both an individual and an institutional component
to judicial independence. In Van Rooyen at para 19, the Constitutional Court stated
that the Constitution “requires judicial officers to act independently and impartially in
dealing with cases that come before them, and at an institutional level it requires
structures to protect courts and judicial officers against external influence” –.
Institutional independence: section 165(2) and (3) of the Constitution
Courts shouldn’t be influenced by other Courts, government, public interest
groups or politicians
Courts should avoid being tainted by external factors
To ensure a legitimate judiciary
Courts stand by their judgments/decisions
Individual independence: section 165(2) and (3) of the Constitution
, Judges must exercise free thinking
Exercise impartiality
Judges shouldn’t be influenced by ideologies, interest groups, politics, personal
background
Judges must show objectivity* when adjudicating matters
No biasness
Test for judicial independence – Van Rooyen v S [2002] ZACC 8; 2002 (5) SA 246
(CC); 2002 (8) BCLR 810 (CC):
Judicial independence = individuality in adjudicating matters, no interference
in a way a judge conducts her/his case, individuality in decision making, block
out external interference
Independence on a court-by-court basis (ties with jurisdiction*) – the court
accepted that the Constitution differentiates between different courts and that
the independence of the courts may be protected in different ways [para 21-27]
Objective test [para 32]:
Whether the court or tribunal “from the objective standpoint of a reasonable and
informed person, will be perceived as enjoying the essential conditions of
independence”.
This test is applied on a balanced view of all material information and expects
that the reasonable and informed person is sensitive to the country’s complex
realities, knows the country’s constitutional development and is guided by the
Constitution when making their observation.
To note: the test for judicial independence (in red) is the test you should refer to and
apply whenever you’re asked about judicial independence in a test question.
Always refer to the relevant section(s) of the Constitution, as well as the test for
judicial independence to support your argument in a test question. These are your
legal principles! You state the legal principles (as clearly as you can) and then apply
them to make an argument and then you conclude.
STRUCTURAL SAFEGUARDS
There are structural safeguards in the Constitution to ensure the structural
independence of the judiciary and judges. In Van Rooyen, the Constitutional Court
identified the key elements of judicial independence as being security of tenure,
financial security, institutional independence and control over administrative
decisions. They are provided for in the following factors
APPOINTMENT OF JUDGES
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