The Judiciary in South Africa: Independence or Illusion?

Abstract

In this chapter I explore judicial independence and legal transformation in South Africa. My central thesis is that judicial independence is one of the key ingredients to ensuring that the transformative possibilities embodied in the Constitution become a reality for the majority of South Africans. Despite widespread approval of the principle of judicial review amongst legal scholars, many have warned that an unelected body sitting in judgment of the powers and functions of elected representatives may erode the basic tenets of democracy. This is particularly so in the case of economic or social policy where courts in their judgments may be at odds with the executive, the legislature and popular sentiment on these matters. Two issues that come to mind are the death penalty and procedural rights for the criminally accused, where evidence suggests that the Court's judgments are not viewed favorably by significant sections of the population. I argue that because of the lingering effects of authoritarianism, racism, sexism, and other forms of prejudice - cultural by-products of colonialism and apartheid - an independent judiciary may rise above these sentiments and ensure that South Africa remains committed to the promises of rights embodied in the Constitution. But my thesis also considers judicial independence in light of the racial and gender transformation of the judiciary. I argue that although thus far the courts, and particularly the Constitutional Court, has demonstrated an impressive independence, the political and racial loyalties of some sectors of the public to the governing party may pose a threat to judicial independence.