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1-I a Critical Evaluation of the Independence of the Office of the Chief Justice and Its Role in Promoting Judicial Transformati

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1-I a Critical Evaluation of the Independence of the Office of the Chief Justice and Its Role in Promoting Judicial Transformati A critical evaluation of the independence of the Office of the Chief Justice and its role in promoting judicial transformation in South Africa By Rebaone Jeremia Phatshwane Student No. 46443193 Submitted in accordance with the requirements for the degree of MASTER OF LAWS With specialisation in Human Rights Law at the University of South Africa Supervisor: Dr Boitumelo Mmusinyane DATE: July 2018 1-i Declaration Name: Rebaone Jeremia Phatshwane Student Number: 46443193 Degree: Master of Laws (with specialisation in Human Rights) A critical evaluation of the independence of the Office of the Chief Justice and its role in promoting judicial transformation in South Africa: I declare that the above dissertation is my own work and that all the sources that I have used or quoted have been indicated and acknowledged by means of complete references. ______________________ DATE: August 2018 Signature: R J Phatshwane 1-ii Summary The legislative supremacy of Parliament has dominated the constitutional law of South Africa for a very long time. In the pre-constitutional era, the judiciary had no power to question the deeds of Parliament. Despite the need for the judiciary to be independent from the two other governmental branches to execute its function effectively, it was surely dependent on them. However, the creation of the Office of the Chief Justice (OCJ) as a separate governmental department by the Constitutional Seventeenth Amendment Act, read together with Superior Court Act, mandated by the requirements of a supreme Constitution (and not Parliament), changed things so that the judiciary is no longer dependent on government for its day-to-day administration. This thesis examines the independence of the OCJ and its role in promoting judicial transformation in the new South Africa. 1-iii Acknowledgements I am sincerely grateful to my supervisor, Dr Boitumelo Mmusinyane, whose detailed criticism of my earlier draft work made a valuable contribution to the views expressed therein because of error(s) committed due to my inputs and submission. His wisdom and wise counsel served as a motivating factor that encouraged me on my learning jaunt to pursue excellence through commitment and dedication. I am eternally appreciative to my colleague, Tshireletso Mabula, for his help throughout my research. I am also indebted to my wife, Lesego, my son Remmogo, and my parents for their unequivocal support throughout my academic journey. Last, but by no means the least, our Heavenly Father who granted me the ability to complete this study in a supportive environment. 1-iv Key terms South African judiciary; Judiciary department; Office of the Chief Justice; Administration of the judiciary; Post-establishment of the OCJ; Parliamentary supremacy; Constitutional supremacy; Judicial independence; Separation of powers; Transformation. 1-v Abbreviations ANC African National Congress CC Constitutional Court CJ Chief Justice CSAA Constitution Seventeenth Amendment Act DA Democratic Alliance DCJ Deputy Chief Justice DoJ&CD Department of Justice and Constitutional Development EFF Economic Freedom Fighters ICC International Criminal Court IC Interim Constitution ICCPR International Covenant on Civil and Political Rights JSC Judicial Service Commission MJCD Minister of Justice and Constitutional Development MP Members of Parliament MTSF Medium-term Expenditure Framework OCJ Office of the Chief Justice PFMA Public Finance Management Act SAHRC South African Human Rights Commission SCA Supreme Court of Appeal TRC Truth and Reconciliation Commission UN United Nations USA United States of America 1-vi Table of contents Content Page No. Declaration .............................................................................................................. 1-ii Acknowledgements ................................................................................................ 1-iv Key terms ................................................................................................................ 1-v Abbreviations ......................................................................................................... 1-vi Chapter 1 1 Introduction ...................................................................................... 1-1 1.1 Background of the study ............................................................................. 1-1 1.2 Problem statement ..................................................................................... 1-7 1.2.1 Historical perspective ........................................................................... 1-7 1.2.2 Previous dispensation 1994-2012 (Prior to the establishment of the (OCJ)) .................................................................................................. 1-9 1.2.3 Establishment of the OCJ .................................................................. 1-13 1.2.4 Transformation of the judiciary ........................................................... 1-15 1.2.5 The South African judiciary’s 21-year transformation journey ............ 1-17 1.3 Research aims and objectives .................................................................. 1-21 1.3.1 Research aim ..................................................................................... 1-21 1.3.2 Research objectives ........................................................................... 1-21 1.4 Research methodology ............................................................................. 1-21 1.5 Hypothesis of the study ............................................................................ 1-21 1.6 Rationale and the importance of the study ............................................... 1-23 1.7 Limitations of the study ............................................................................. 1-23 1.8 Conclusion ................................................................................................ 1-24 Chapter 2 2 Historical backdrop of judicial independence, examining the role of the judiciary pre-1994 .................................................................................................. 2-25 2.1 Introduction ............................................................................................... 2-25 2.2 The judiciary ............................................................................................. 2-25 1-vii 2.3 Development of judicial independence in South Africa ............................. 2-26 2.3.1 The relationship between three branches of government pre-Union .. 2-28 2.3.2 Period between 1910 and 1961 ......................................................... 2-29 2.3.3 The Republic of South Africa under the 1961 Constitution ................. 2-30 2.4 The South African constitutional system as a Westminster system .......... 2-30 2.4.1 A Westminster Constitution ................................................................ 2-30 2.4.2 The effect of parliamentary supremacy on the courts ........................ 2-31 2.5 Role of the judiciary prior to democratic Constitutions .............................. 2-32 2.5.1 The doctrine of separation of powers (the trias politica) ..................... 2-32 2.5.1 (a) The meaning, significance and importance of the independence of judiciary .......................................................................................... 2-33 2.5.1 (b) The attributes of judicial independence .......................................... 2-34 2.5.2 The exercise of independence by the apartheid judiciary .................. 2-34 2.5.2 (a) Appointment ................................................................................... 2-34 2.5.2 (b) The judicial oath ............................................................................. 2-35 2.5.2 (c) Security of tenure ........................................................................... 2-35 2.5.2 (d) Financial security ........................................................................... 2-36 2.5.2 (e) Limitation of civil liabilities .............................................................. 2-37 2.5.2 (f) The rule against bias ...................................................................... 2-38 2.5.2 (g) Offices of profit ............................................................................... 2-39 2.6 Conclusion ................................................................................................ 2-39 Chapter 3 3 Evaluation of the independence of the Office of the Chief Justice and its transformation in post-apartheid South Africa ................................................... 3-41 3.1 Introduction ............................................................................................... 3-41 3.2 Independence of the judiciary in a democratic South Africa ..................... 3-41 3.2.1 Independence of the South African judiciary post-1994 (prior to the establishment of the OCJ) .................................................................. 3-42 3.2.2 International and regional recognition of independence of the judiciary .... 3-43 3.2.3 Dimensions of judicial independence ................................................. 3-45 1-viii 3.2.3 (a) Langa v Hlope ................................................................................ 3-50 3.2.3 (b) Glenister v President of South Africa II .......................................... 3-51 3.2.3 (c) Justice Alliance of South Africa v President of the Republic of South Africa and Others ..........................................................................
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