The Judicial authority of the Republic of South Africa is vested in the courts. These provisions are contained in Section 165 of the Constitution of the Republic of South Africa, 1996.
The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
No person or organ of state may interfere with the functioning of the courts. Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartially, dignity, accessibility and effectiveness of the courts. An order or decision issued by a court binds all persons to whom and organs of state to which it applies.
The courts are:
The Constitutional Court
The Supreme Court of Appeal
The High Courts, including any high court of appeal that may be established by an Act of Parliament to hear appeals from High Courts
The Magistrates’ Courts and 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
Relevant Court Rulings
The following Constitutional Court cases dealt with the independence of the judiciary, the separation of powers between the three branches of the state and the role of the judiciary in the administration of justice. As such they bear direct relevance to the operations of the OCJ.
The Constitutional Court has on various occasions considered the doctrine of separation of powers and the independence of the judiciary. The Court has highlighted that this constitutional doctrine would evolve over time and requires a delicate balancing of the boundaries between the different branches of government so as facilitate the workings of the state.
>> In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) (First Certification judgment) at paragraphs 112 and 113
In terms of the Constitution of the Republic of South Africa 200 of 1993 the Constitutional Court was tasked to consider, evaluate and certify whether the new constitutional text was aligned to the constitutional principles as contained in the 1993 Constitution. With respect to the doctrine of separation of powers the court stated inter alia that:
1. In democratic systems of government where checks and balances impose restraints by one branch of government on another, there is no separation of powers that is
2. The South African model of separation of powers should reflect the history of our country’s constitutional development.
3. An essential part of the separation of powers is an independent Judiciary that functions independently of the Legislature and the Executive, and enforces the
Constitution and the law impartially.
>> De Lange v Smuts 1998 (3) SA 785 (CC) at paragraph 59.
The Constitutional Court indicated that judicial independence is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law.
The Court considered and referred to the leading Canadian case of R v Valente (1986) 24 DLR (4th) 161 (SCC), which defined the content of judicial independence. The Canadian Court held that there were three essential conditions of judicial independence, namely security of tenure, financial security and institutional independence. The Canadian Court held further that institutional independence would necessarily include judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function.
>> S v Dodo 2001 (3) SA 382 (CC) at paragraph 16
The Constitutional Court discussed the nature of the interaction between the three branches of government and in this regard said the following:
“anticipates the necessary or unavoidable intrusion of one branch on the terrain of another; this engenders interaction, but does so in a way which avoids diffusing power so completely that government is unable to take timely measures in the public interest.”
>> Van Rooyen and Others v The State and others 2002 (8) BCLR 810 (CC) at paragraph 29
In the Van Rooyen case, the Constitutional Court held that the notion of institutional judicial independence is not subject to any limitation. The Court also drew attention to other key aspects of judicial independence mentioned in Valente's case. They are, in particular, the requirements that judicial officers have security of tenure, a basic degree of financial security, and institutional independence concerning matters that relate directly to the exercise of the judicial function, as well as judicial control over administrative decisions ‘that bear directly and immediately on the exercise of the judicial function’.
At a minimum the Constitutional Court has held that judicial independence requires that the Judiciary be, and be seen to be, institutionally, financially and administratively independent. In his speech delivered at Stellenbosch University, for the 2013 Annual Human Rights Lecture, Chief Justice Mogoeng wa Mogoeng emphasised the above principles of judicial independence as outlined by the Constitutional Court and stated that:
“Institutional independence concerns the day to day operations of courts and is required to ensure that they are not directly or indirectly controlled or seen to be
controlled by other arms of government. It is to this end that the phased transformation of court administration is directed, and this underscores the urgency and critical importance of judicial self-governance.”