Judiciary of South Africa
Encyclopedia
The judiciary of South Africa is the body of judges and magistrates who sit in the courts of South Africa. The judiciary is an independent branch of the government, subject only to the Constitution of South Africa
and the laws of the country. The Judiciary interprets the law of South Africa
, using as the basis of its interpretation the laws enacted by the South African Parliament as well as explanatory statements made in the legislature during the enactment.
Chapter 8 of the Constitution of South Africa
defines the structure of the South African judicial system. This chapter also guarantees the independence of the courts and requires other organs of the state to assist and protect the courts in order to ensure their "independence, impartiality, dignity, accessibility and effectiveness". In addition, Chapter 2 of the Constitution guarantees every person the right to have a dispute or trial heard by a fair, impartial and independent court.
The judiciary of South Africa consists of:
Permanent judges in the higher courts are appointed by the President of South Africa
, in consultation with the Judicial Service Commission as well as the leaders of the political parties represented in South African National Assembly. The appointment of magistrates fall under the separate Magistrates' Commission
There is also a single national prosecuting authority that is responsible for the institution of criminal proceedings on behalf of the state.
The Judicial Service Commission's membership include:
When considering matters related to a specific High Court
, the following additional members are included:
When the matter before the Commission does not concern the appointment of a judge, the members from the National Assembly and the National Council of Provinces are excluded.
, who is appointed by the President. The Constitution of South Africa states that legislation enacted by the South African Parliament must ensure that the NPA performs its functions without fear, favor or prejudice.
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
and the laws of the country. The Judiciary interprets the law of South Africa
Law of South Africa
South Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans...
, using as the basis of its interpretation the laws enacted by the South African Parliament as well as explanatory statements made in the legislature during the enactment.
Chapter 8 of the Constitution of South Africa
Constitution of South Africa
The Constitution of South Africa is the supreme law of the country of South Africa. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. The current constitution, the country's fifth, was...
defines the structure of the South African judicial system. This chapter also guarantees the independence of the courts and requires other organs of the state to assist and protect the courts in order to ensure their "independence, impartiality, dignity, accessibility and effectiveness". In addition, Chapter 2 of the Constitution guarantees every person the right to have a dispute or trial heard by a fair, impartial and independent court.
The judiciary of South Africa consists of:
- The Chief Justice of South AfricaChief Justice of South AfricaThe Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
, the Deputy Chief JusticeDeputy Chief Justice of South AfricaThe Deputy Chief Justice of South Africa is a judge in the Constitutional Court of South Africa and the second-highest judicial post in the Republic of South Africa, after the Chief Justice...
and the other judges of the Constitutional CourtConstitutional Court of South AfricaThe Constitutional Court of South Africa was established in 1994 by South Africa's first democratic constitution: the Interim Constitution of 1993. In terms of the 1996 Constitution the Constitutional Court established in 1994 continues to hold office. The court began its first sessions in February... - The President, Deputy President and other judges of the Supreme Court of AppealSupreme Court of Appeal of South AfricaThe Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
- The Judge-President, Deputy Judges-President and other judges of each of the High CourtsHigh Court of South AfricaThe High Courts are superior courts of law in South Africa. The courts were created in 1996 on the adoption of the Constitution of South Africa, and inherited the jurisdiction of the provincial and local divisions of the former Supreme Court of South Africa...
- Regional and district magistrates of the Magistrates' Courts
- The judges of other courts established by Act of ParliamentParliament of South AfricaThe Parliament of South Africa is South Africa's legislature and under the country's current Constitution is composed of the National Assembly and the National Council of Provinces....
.
Permanent judges in the higher courts are appointed by the President of South Africa
President of South Africa
The President of the Republic of South Africa is the head of state and head of government under South Africa's Constitution. From 1961 to 1994, the head of state was called the State President....
, in consultation with the Judicial Service Commission as well as the leaders of the political parties represented in South African National Assembly. The appointment of magistrates fall under the separate Magistrates' Commission
There is also a single national prosecuting authority that is responsible for the institution of criminal proceedings on behalf of the state.
Judicial Service Commission
The South African Judicial Service Commission plays an important role in the appointment of judges and also advises the country's national government on any matters relating to the judiciary and the administration of justice. It is a body established in the Constitution of South Africa "to advise the national government on any matter relating to the judiciary or the administration of justice" and for which separate legislation has been enacted.The Judicial Service Commission's membership include:
- The Chief Justice of South AfricaChief Justice of South AfricaThe Chief Justice of South Africa is the head of the judiciary of South Africa, who exercises final authority over the functioning and management of all the courts...
, who presides over its meetings - The President of the Supreme Court of AppealSupreme Court of Appeal of South AfricaThe Supreme Court of Appeal is an appellate court in South Africa; it is the highest appeal court except in constitutional matters, which are ultimately decided by the Constitutional Court...
- One Judge President designated by the Judges President
- The Minister of Justice and Constitutional Development, or his/her designated alternate
- Two practicing advocateAdvocateAn advocate is a term for a professional lawyer used in several different legal systems. These include Scotland, South Africa, India, Scandinavian jurisdictions, Israel, and the British Crown dependencies of Jersey, Guernsey and the Isle of Man...
s nominated from within the advocates' profession - Two practicing attorneysLawyerA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
nominated from within the attorneys' profession - One teacher of law, designated by the teachers of law at South African universities (typically the DeanDean (education)In academic administration, a dean is a person with significant authority over a specific academic unit, or over a specific area of concern, or both...
of one of the Faculties of Law) - Six members from the National AssemblyNational Assembly of South AfricaThe National Assembly is the lower house of the Parliament of South Africa, located in Cape Town, Western Cape Province. It consists of no fewer than 350 and no more than 400 members...
(including three from opposition parties) - Four members from the National Council of ProvincesNational Council of ProvincesThe National Council of Provinces is the upper house of the Parliament of South Africa under the constitution which came into full effect in 1997...
- Four more persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly
When considering matters related to a specific High Court
High Court
The term High Court usually refers to the superior court of a country or state. In some countries, it is the highest court . In others, it is positioned lower in the hierarchy of courts The term High Court usually refers to the superior court (or supreme court) of a country or state. In some...
, the following additional members are included:
- The Judge President of that court, or his designated alternate
- The PremierPremier (South Africa)In South Africa, a Premier is the head of government of one of South Africa's nine provinces. The Premier of a province plays for that province a role similar to that played by the President for the country as a whole.-Election:...
of the province concerned, or his/her designated alternate
When the matter before the Commission does not concern the appointment of a judge, the members from the National Assembly and the National Council of Provinces are excluded.
National Prosecuting Authority
The National Prosecuting Authority (NPA) is responsible for the institution of criminal proceedings on behalf of the state. The NPA is headed by the Director of Public ProsecutionsDirector of Public Prosecutions
The Director of Public Prosecutions is the officer charged with the prosecution of criminal offences in several criminal jurisdictions around the world...
, who is appointed by the President. The Constitution of South Africa states that legislation enacted by the South African Parliament must ensure that the NPA performs its functions without fear, favor or prejudice.
See also
- Government of South AfricaGovernment of South AfricaThe Republic of South Africa is a constitutional democracy with a three-tier system of government and an independent judiciary, operating in a nearly unique system that combines aspects of parliamentary and presidential systems. Legislative authority is held by the Parliament of South Africa...
- Department of Justice and Constitutional DevelopmentDepartment of Justice and Constitutional DevelopmentThe Department of Justice and Constitutional Development is the justice ministry of the South African government. The department provides administrative and financial support to the court system and the judiciary , oversees the National Prosecuting Authority, provides legal advice and...
- Law of South AfricaLaw of South AfricaSouth Africa has a 'hybrid' or 'mixed' legal system, made of the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law system inherited from indigenous Africans...
- Courts of South Africa