1 JUDICIAL INDEPENDCE IN SOUTH AFRICA: A CONSTITUTIONAL PERSPECTIVE by Lunga Khanya Siyo (209509051) Submitted in part fulfilment of the requirements for the degree of Master of Laws in Constitutional Litigation (LLM) in the School of Law at the University of KwaZulu Natal Supervisor: Professor John C Mubangizi December 2012 2 DECLARATION I, Lunga Khanya Siyo, registration number 209509051, hereby declare that the dissertation entitled “Judicial Independence in South Africa: A Constitutional Perspective” is the result of my own unaided research and has not been previously submitted in part or in full for any other degree or to any other University. Signature: ………………………… Date: ……………………………… 3 DEDICATION This dissertation is dedicated to my parents, Milile Mpambaniso and Ncedeka Siyo. 4 ACKNOWLEDGEMENTS I am indebted to a number of people who have directly and indirectly assisted me in writing this dissertation. I‟d like to thank my parents, who taught me that there is no substitution for hard work and dedication. I thank them for their wisdom, guidance and support. I am nothing without them. This dissertation would not have been possible without the supervision of Professor John C Mubangizi. I am indebted to him for affording me the privilege of working with him during the course of this year. I‟d like to thank him for his advice and invaluable lessons. Most importantly, I am indebted to him for his incisive comments and contributions. My sincere gratitude goes to Ms Marelie Martiz from the School of Law. Although she did not have any involvement in writing this dissertation, she has assisted me in many other academic endeavours. I‟d like to thank her for her encouragement and constructive criticism. Lastly, I‟d like to thank the School of Law, under the leadership of Professor Managay Reddi, for the privilege of allowing me to be part of this wonderful family. It has been an enriching experience. 5 SUMMARY This dissertation seeks to explore the judiciary as an independent and separate arm of government. In doing so, this dissertation attempts to provide a holistic analysis of the constitutional and legislative framework that has been established to protect both individual and institutional independence of the judiciary in South Africa. The question that will be asked is whether such mechanisms are consistent with the section 165 of the Constitution. Central to this analysis is whether the system of court administration that was inherited from apartheid is appropriate for the purposes that courts now have to perform under South Africa‟s constitutional democracy. Chapter one lays the foundation by providing an introduction to the topic under discussion. In doing so, this chapter also provides the research question, literature review, and an explanation of the research methodology. Lastly, this chapter attempts to trace the historical foundation of the principle of judicial independence. It is concluded that judicial independence is linked with the development of the rule of law and seeks to counter unfettered power. In an attempt to provide a conceptual definition for judicial independence, chapter two draws from international law instruments. This definition focuses on the distinction between independence and impartiality; individual and institutional independence. It is then concluded that judicial independence is vital for good governance, administration, accountability and the protection of the public from the arbitrary and abusive exercise of power by the state. Chapter three focuses on the independence of judges in South Africa, in other words, individual independence. This chapter contains an analysis of legislative mechanisms adopted in South Africa to protect the judges from improper influence in their adjudicatory tasks. Further, this chapter also analyses jurisprudence relating to impartiality and bias. It is concluded that the constitutional and legislative framework adopted in South Africa sufficiently insulates judges from improper influence. As far as impartiality is concerned, it is concluded that in terms of South African jurisprudence, the presumption is that judges are impartial. The burden of proof falls on the party alleging bias. 6 Chapter four focuses on court administration. This chapter gives an overview of the structure of courts and the current system of court administration in South Africa. Further, this section discusses how the doctrine of separation of powers relates to court administration. This section also discusses reforms to the current system of court administration that have been proposed by the Department of Justice and Constitutional Development. It is concluded that the current system of court administration is inconsistent with the Constitution and the doctrine of separation of powers as it permits the executive to encroach upon the independent functioning of the courts. Chapter five seeks to discuss some of the challenges that threaten judicial independence in South Africa. This chapter begins by providing a cursory overview of some of the main incidents which have threatened the independence of South Africa‟s judiciary. The main focus of this chapter is the alleged attempt by the Cape Judge President Hlophe to improperly influence judges of the Constitutional court in their adjudicatory tasks. Moreover, this chapter discusses the manner in which the complaint against Judge Hlophe was dealt with by the Judicial Service Commission. It is concluded that in dismissing the complaint against Judge Hlophe without a thorough examination, the Judicial Service Commission abdicated its constitutional duty. It is also concluded that the unresolved complaint against Judge Hlophe casts a shadow of doubt over the impartiality and independent functioning of the judiciary in South Africa. The main conclusion in chapter six is that the protection of independence in South Africa suffers from contradictory elements which leave the judiciary under executive control, which constitutes an insidious erosion of the doctrine of separation of powers. Therefore the status of the judiciary as an equal arm of government in South Africa is weak. Thus, while South Africa‟s judiciary is impartial and contains strong elements of individual independence, it is not independent. The essence of the recommendations relate to the functioning of the Judicial Service Cmmission, the application of section 175 (2) of the Constitution, the tenure of judges, the administration of courts, the complaint against Judge Hlophe and the Superior Courts Bill. 7 CONTENTS DECLARATION ......................................................................................................................................... 2 DEDICATION ............................................................................................................................................ 3 ACKNOWLEDGEMENTS ........................................................................................................................... 4 SUMMARY ............................................................................................................................................... 5 Chapter 1: Introduction and background ............................................................................................. 10 1.1 Research Question .......................................................................................................... 11 1.2 Literature Review ........................................................................................................... 13 1.3 Research Methodology ................................................................................................... 14 1.4 History of Judicial Independence ................................................................................... 15 Chapter 2: International Law Perspectives: Judicial Independence defined ........................................ 19 2.1 Independence and Impartiality ....................................................................................... 26 2.2 Institutional Independence ............................................................................................. 27 2.2.1 Administrative Independence .............................................................................................. 28 2.2.2 Financial Independence ....................................................................................................... 29 2.3 Individual Independence ................................................................................................ 29 2.3.1 Appointment ........................................................................................................................ 30 2.3.2. Security of Tenure ............................................................................................................... 31 2.3.3. Disciplinary Proceeding against Judges .............................................................................. 32 2.4 Conclusion ...................................................................................................................... 35 Chapter 3: Independence of Judges ..................................................................................................... 36 3.1 Impartiality ..................................................................................................................... 36 3.2. Judicial Appointments ................................................................................................... 38 3.3 Security of tenure ..........................................................................................................