Judicial Accountability in South Africa (original) (raw)
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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 2013
www.timeslive.co.za). 'influenced by what's happening and influenced by you guys (the media)', and was 38 Chaskalson 2012 www.timeslive.co.za. 39 Chaskalson pointed out that comparatively few judges from the apartheid era still held office, and that about 60 percent of the judiciary were black, including the Chief Justice, the Deputy Chief Justice, the President of the Supreme Court of Appeal, the Deputy President of the Supreme Court of Appeal, and all of the judges president of the high court, as well as eight of the eleven
The greatest challenge facing the contemporary South African society and its arguably promising constitutional democracy is that of securing greater levels of equality, socioeconomic and political justice amongst its citizens, especially the black majority. Approximately 20 years subsequent to the end of the apartheid system of racial injustices, the majority in contemporary South African society still remain excluded from the beneficial mainstream and the bill of rights expressed in the interim constitution. This paper seeks to review the role played by the constitution vis-à-vis the Constitutional Court in redressing the past imbalances created by the apartheid regime. Through an analysis of the relevant constitutional law jurisprudence and related legislations including case law, the paper will show that whilst progress had been initially made in addressing the past imbalances brought by apartheid, there is greater need to strengthen the legislative and judicial arms of government, including the courts' attitude towards improving the recognition of the rights contained in the bill of rights for the benefit of all South Africans.
Per Potchefstroomse Elektroniese Regsblad, 2012
www.timeslive.co.za). 'influenced by what's happening and influenced by you guys (the media)', and was 38 Chaskalson 2012 www.timeslive.co.za. 39 Chaskalson pointed out that comparatively few judges from the apartheid era still held office, and that about 60 percent of the judiciary were black, including the Chief Justice, the Deputy Chief Justice, the President of the Supreme Court of Appeal, the Deputy President of the Supreme Court of Appeal, and all of the judges president of the high court, as well as eight of the eleven
2007
Background to the study 1 1.2 Statement of the research problem 3 1.3 Significance of the study 1.4 Objectives of the study 3 1.5 Assumptions 1.6 Methodology 4 1.7 Limitations of the study 1.8 Overview of chapters 4 CHAPTER 2: CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW 2.1 Introduction 2.2 Origin and meaning of judicial activism 2.2.1 Origin of judicial activism 5 2.2.2 Meaning of Judicial activism 6 2.2 Review of the Literature 9 2.3.1 Divergent opinions 2.3.2 Integrated approach 11 2.4 Judicial activism versus judicial review 12 2.4.1 Two broad categories 12 2.5 Classifications of judicial activism 13 2.5.1 Procedural judicial activism 13 2.5.2 Socio-political judicial activism 14 2.5.3 Human rights judicial activism 15 vi 2.5.4 Progressive versus regressive judicial activism 15 2.6 Meaning of judicial legitimacy 15 2.7 Conclusion 17 CHAPTER 3: JUDICIAL ACTIVISM IN POST-APARTHEID SOUTH AFRICA 4.3.6 A final argument 42 4.4 Conclusion 43 BIBLIOGRAPHY 45 judicial review is an implicit expression of distrust for elected representatives and a precaution against elected representatives' abuse of the electorates' trust. 7 Together with the above paradox, criticisms of judicial activism have made courts ultra-sensitive to the fine line between executing their constitutional mandate and 'legislating from the bench.' 8 In the words of Lord Steyn: (I)n construing statutes, courts have no law-making role. On the other hand, in the exposition of the Common Law, the courts have a creative role … it is necessary for courts, when developing the Common Law, to proceed with caution lest they undermine confidence in their judgments. 9 Underlying the above sensitivity is the judiciary's desire to maintain legitimacy by refraining from excessive unpopular pronouncements. This desire requires a balancing act voiced by Justice Albie Sachs thus: '[u]ndue judicial adventurism can be as damaging as excessive judicial timidity.' 10 On the other side of the divide, scholars like Peabody 11 and Sathe 12 argue for robust judicial creativity. On 1 December 2005, the South African Constitutional Court ruled section 30(1) of the South African Marriage Act 13 unconstitutional, for non-recognition of gay couples' right to marry. 14 It ordered Parliament to remedy the Common Law before 1 December 2006, to avoid an automatic inclusion of the words 'or spouse' after the words 'or husband' in section 30(1) of the Marriage Act. On 30 November 2006, Parliament enacted the Civil Union Act, which basically accorded legal recognition to gay unions. The Act was greeted with hostility by many South African citizens. 15 7 As above 8
Judging the Judges: Towards an Appropriate Role for the Judiciary in South Africa's Transformation
In this article I draw on John Dugard’s criticism of apartheid judges to initiate a discussion of the role and functioning of judges in the post-apartheid era. Using John’s critique of the limits of judicial interpretation in an illegitimate order, I extend the analysis to review the record of the Constitutional Court in adjudicating socioeconomic rights cases post-1994. In doing so I propose a radical interpretation of the Court’s role in society and an activist functioning of judges in South Africa’s constitutional democracy. I conclude that, notwithstanding the momentous changes in the SouthAfrican legal order since 1994, John’s critique of the judiciary retains much value and applicability today.
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