About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

115 S. African L.J. 111 (1998)
The Role of the Judiciary in a Constitutional State - Address at the First Orientation Course for New Judges

handle is hein.journals/soaf115 and id is 129 raw text is: THE ROLE OF THE JUDICIARY IN A CONSTITUTIONAL STATE ADDRESS AT THE FIRST ORIENTATION COURSE FOR NEW JUDGES* THE HON I MAHOMED- ChiefJustice of the Supreme Court of Appeal Section 165(2) of the South African Constitution provides that 'the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice'. Three basic quesions arise from the provision. First, why is it necessary to constitutionalize the independence of the court? Second, what does that independence mean? And third, what is needed to secure and nurture that independence? The first question impacts on the very essence of what the state is in modem civilization. It is a collective association of human beings who have chosen to regulate their relations with one another, individually and collectively, through the instrument and the rule of objective laws equally binding on them. This necessarily carries with it a legislative function to make such laws, an executive and administrative function to give effect to the laws, and a judicial function to adjudicate disputes which arise in consequence of these functions. Ever-expanding and increasingly complex disputes arise from the exercise of legislative or executive or administrative functions by the state itself. It would therefore be clearly unacceptable for the legislature or the executive itself to determine whether or not it has been guilty of acting unlawfully against the individual who feels aggrieved by its conduct. The legislature and the executive would correctly not be perceived to have either the objectivity or the skills necessary to make such an adjudication. It is for this reason, among many others, that all democratic societies insist that disputes should be adjudicated by an independent arm of the state, in the form of a judiciary, with a capacity for impartiality and skills special to the resolution and adjudication of conflicting interests and forces. * Held at Magaliesberg on 21 July 1997. I am indebted to the Hon MrJustice Ian G Farlam for arranging for the manuscript to be available for publication in the South African Law Journal: Editor. t SC BA Hons LLB (Witwatersrand) Hon LLD (Pennsylvania, Delhi, Natal and Wit- watersrand), Honorary Professor of Law, University of the Witwatersrand, Johannesburg. 111

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most