Democracy


South Africa's judiciary

South Africa has an independent judiciary, subject only to the Constitution and the law.

The Constitution is the supreme law of the country and binds all legislative, executive and judicial organs of state at all levels of government.

No person or organ of state may interfere with the functioning of the courts, and an order or decision of a court binds all organs of state and people to whom it applies.

The Constitution provides for the following courts:

  • Constitutional Court
  • Supreme Court of Appeal (SCA)
  • high courts
  • magistrate's courts
  • any other court established or recognised in terms of an Act of Parliament

There are also special income tax courts, the Labour Court and the Labour Appeal Court, the Land Claims Court, the Competition Appeal Court, the Electoral Court, divorce courts, small claims courts, "military courts", and equality courts.

The Constitutional Court, Supreme Court of Appeal and High Courts have the power to protect and regulate their own processes, and to develop the common law.

The courts are also required to declare any law or conduct that is inconsistent with the Constitution to be invalid, and develop common law that is consistent with the values of the Constitution, and the spirit and purpose of the Bill of Rights.

How are judges appointed?

Judges in the various courts are appointed by the President in consultation with the Judicial Service Commission, the leaders of parties represented in National Assembly, and, where relevant, the President of the Constitutional Court.

The Judicial Service Commission includes the Chief Justice, the President of the Constitutional Court and the Minister of Justice. It is a widely representative body, with the transformation of the judiciary remaining one of government's key priorities.

Legal system

South African law is a combination of different legal systems, with its origin in Europe and Great Britain. Its foundation lies in Roman-Dutch law, which is itself a blend of indigenous Dutch customary law and Roman law. The legal system that prevailed in Holland during the 17th and 18th centuries was introduced to South Africa after the Cape was settled by the Dutch in the 1600s.

When the Cape was occupied by the British at the end of the 18th century, Roman- Dutch law was retained and confirmed as the common law of the country. English became the language of the courts and English legal procedures and the English law of evidence in both criminal and civil matters were introduced.

As with any other country, the common law has been augmented by statutory law and many of the cases before the court are now concerned with their interpretation and application.

Because of the unique heritage of South African law, and the constitutional imperative to regard comparative law, foreign law is frequently consulted, not as binding but as persuasive authority.

Judicial decisions are themselves a source of law. The decisions of the court are binding on all lower courts.

The Department of Justice and Constitutional Development is responsible for ensuring an accessible justice system that promotes and protects social justice, fundamental human rights and freedoms, thus providing a transparent, responsive and accountable justice for all.

SAinfo reporter, incorporating material from the South African Yearbook

Reviewed: February 2014

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South Africa's Constitutional Court South Africa's Constitutional Court building on Constitution Hill (Image: Constitution Hill)
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"Historical enemies succeeded in negotiating a peaceful transition from apartheid to democracy exactly because we were prepared to accept the inherent capacity for goodness in the other. My wish is that South Africans never give up on the belief in goodness, that they cherish that faith in human beings as a cornerstone of our democracy." Nelson Mandela

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