No law shall have the aim or effect of circumventing the final authority of the courts.

OVERVIEW

The separation of powers doctrine is a critical requirement of a rechtsstaat (a state under law). The courts must be functionally independent, which is the independence that emerges from the knowledge that there is no extra-judicial authority that can interfere with the conduct of their affairs. The judiciary must also be individually independent, which is the independence that flows from the certain knowledge that whatever judgment is delivered (and whoever may be disadvantaged thereby) there will be no adverse personal repercussions for the judge. This requirement also embraces the illusive quality of impartiality, or objectivity.

ELEMENTS OF THE IMPERATIVE

Circumvention – Administrative tribunals, commissions of inquiry, and regulatory commissions have been established to do work which is properly within the purview of the judicial arm of government. These tribunals frequently lack the essential requirement of impartiality and their determinations are therefore suspect. Government also has a democratic obligation toward the citizens to ensure the courts are properly resourced.

Final authority of the courts – The courts are responsible for settling disputes between the citizens, and between citizens and the State, and between different organs of state. In the process of adjudication, the courts interpret the law according to the facts presented and found to have been proved. An important part of this process involves the interpretation of law. This requires a knowledge and expertise which only comes with years of training.

RELEVANT JURISPRUDENCE

Core – Sections 41(e), 41(f), 41(g), 165(1), 165(3) of the Constitution.

Supporting – Sections 2, 8(3), 34, 35, 38, 39, 40, 165(2), 165(5) of the Constitution.

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The Rule of Law Project is an initiative of the Free Market Foundation (www.freemarketfoundation.com) and is dedicated to giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides for the supremacy of the Constitution and the Rule of Law.