INTRODUCTION
Pages 202-256 De Vos
Cabinet/
Passes Executive
legislation & Interprets and
oversees applies the law
national impartially
executive
Parliament/
Legislature Judiciary
CHAPTER 9 INSTITUTIONS
, THE INDEPENDENCE OF SUPERIOR COURTS
• The independence of the judiciary is a distinctive
feature of a constitutional democracy.
• The independence of the judiciary refers to two ideals
related to the functioning of the courts as it pertains to
the relationship between the courts and other state
organs, the organisation of the courts as well as
aspects regarding the legal position of individual
members of the judiciary.
• The first ideal is that judges should interpret and
enforce the law impartially and without any bias.
• Judges should approach cases with open minds,
without taking into account their own personal views,
ideological commitments or party political beliefs.
, THE INDEPENDENCE OF SUPERIOR COURTS
• Impartiality relates to the ability of each individual
judge to apply the law without fear or favour in
accordance with the law, oath of office and with his or
her own sense of justice without submitting to any kind
of pressure or being swayed by his or her own views
on political, social and economic matters.
• This notion of impartiality presupposes that a judges
can banish from his or her mind all personal views and
prejudices and can interpret a legal text and apply it to
a set of facts without being swayed by political and
other personal commitments.
, THE INDEPENDENCE OF SUPERIOR COURTS
• De Vos notes that it is not clear if judges can do so,
especially as far as the interpretation of the open- ended
and general language of the Constitution is concerned.
• Often a text (like the Constitution containing general
language) will not have one objective meaning and a judge
may be required to interpret that text.
• Interpretation requires a judge to refer to considerations
outside the text itself to help give a meaning to the text.
See example of case of S v Makwanyane page 226 of the
textbook.
• Despite the challenges with interpretation, the ideal of
impartial adjudication remains a cornerstone of an
independent judiciary.
• Test for independence- see case of S and Others v Van
Rooyen and Others page 227 of the textbook
Pages 202-256 De Vos
Cabinet/
Passes Executive
legislation & Interprets and
oversees applies the law
national impartially
executive
Parliament/
Legislature Judiciary
CHAPTER 9 INSTITUTIONS
, THE INDEPENDENCE OF SUPERIOR COURTS
• The independence of the judiciary is a distinctive
feature of a constitutional democracy.
• The independence of the judiciary refers to two ideals
related to the functioning of the courts as it pertains to
the relationship between the courts and other state
organs, the organisation of the courts as well as
aspects regarding the legal position of individual
members of the judiciary.
• The first ideal is that judges should interpret and
enforce the law impartially and without any bias.
• Judges should approach cases with open minds,
without taking into account their own personal views,
ideological commitments or party political beliefs.
, THE INDEPENDENCE OF SUPERIOR COURTS
• Impartiality relates to the ability of each individual
judge to apply the law without fear or favour in
accordance with the law, oath of office and with his or
her own sense of justice without submitting to any kind
of pressure or being swayed by his or her own views
on political, social and economic matters.
• This notion of impartiality presupposes that a judges
can banish from his or her mind all personal views and
prejudices and can interpret a legal text and apply it to
a set of facts without being swayed by political and
other personal commitments.
, THE INDEPENDENCE OF SUPERIOR COURTS
• De Vos notes that it is not clear if judges can do so,
especially as far as the interpretation of the open- ended
and general language of the Constitution is concerned.
• Often a text (like the Constitution containing general
language) will not have one objective meaning and a judge
may be required to interpret that text.
• Interpretation requires a judge to refer to considerations
outside the text itself to help give a meaning to the text.
See example of case of S v Makwanyane page 226 of the
textbook.
• Despite the challenges with interpretation, the ideal of
impartial adjudication remains a cornerstone of an
independent judiciary.
• Test for independence- see case of S and Others v Van
Rooyen and Others page 227 of the textbook
