Challenges to judicial independence in South Africa

South Africa has a robust and supreme justiciable Constitution. Since 1994 South Africa has made significant progress in terms of how the judiciary dispenses justice and the Constitutional Court in particular has consistently stood firm in promoting and protecting the rule of law and human rights in South Africa. Acknowledging that a constitutional commitment to judicial independence may provide the climate for genuine democracy, political stability and respect for the rule of law, the fundamental question that has arisen in South Africa is whether the independence of the judiciary is being undermined and/or compromised. Current events in South Africa have brought into sharp focus challenges to judicial independence in South Africa. The theoretical framework within which the challenges to the independence of the judiciary will be analysed is under the broad remit of the independence of the judiciary generally, but six specific contentious issues will be investigated with specific focus on the appointment process. These six contentious issues are the [problematic and overtly political] composition of the Judicial Service Commission (JSC), which is the constitutionally-established body created to uphold the integrity and independence of the judiciary ; the President’s pronounced role in the appointment of the Chief Justice, the Deputy Chief Justice of the Constitutional Court ; the lack of transparency in the appointment of the judiciary ; the modus operandi of the JSC ; the executive’s attacks on the judiciary ; and the government’s threats not to implement decisions and/or tardiness even when they do implement. It is these challenges to the independence of the judiciary which will be explored in order to assess whether Constitutional Law in South Africa is making advances or whether the not-so-subtle erosions of the independence of the judiciary are cause for concern.

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Lee Stone

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