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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
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
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:
t SC BA Hons LLB (Witwatersrand) Hon LLD (Pennsylvania, Delhi, Natal and Wit-
watersrand), Honorary Professor of Law, University of the Witwatersrand, Johannesburg.

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