This dissertation seeks to explore the judiciary as an independent and separate arm of government. In doing so, this dissertation attempts to provide a holistic analysis of the constitutional and legislative framework that has been established to protect both individual and institutional independence of the judiciary in South Africa. The question that will be asked is whether such mechanisms are consistent with the section 165 of the Constitution. Central to this analysis is whether the system of court administration that was inherited from apartheid is appropriate for the purposes that courts now have to perform under South Africa‟s constitutional democracy. Chapter one lays the foundation by providing an introduction to the topic under discussion. In doing so, this chapter also provides the research question, literature review, and an explanation of the research methodology. Lastly, this chapter attempts to trace the historical foundation of the principle of judicial independence. It is concluded that judicial independence is linked with the development of the rule of law and seeks to counter unfettered power. In an attempt to provide a conceptual definition for judicial independence, chapter two draws from international law instruments. This definition focuses on the distinction between independence and impartiality; individual and institutional independence. It is then concluded that judicial independence is vital for good governance, administration, accountability and the protection of the public from the arbitrary and abusive exercise of power by the state. Chapter three focuses on the independence of judges in South Africa, in other words, individual independence. This chapter contains an analysis of legislative mechanisms adopted in South Africa to protect the judges from improper influence in their adjudicatory tasks. Further, this chapter also analyses jurisprudence relating to impartiality and bias. It is concluded that the constitutional and legislative framework adopted in South Africa sufficiently insulates judges from improper influence. As far as impartiality is concerned, it is concluded that in terms of South African jurisprudence, the presumption is that judges are impartial. The burden of proof falls on the party alleging bias. Chapter four focuses on court administration. This chapter gives an overview of the structure of courts and the current system of court administration in South Africa. Further, this section discusses how the doctrine of separation of powers relates to court administration. This section also discusses reforms to the current system of court administration that have been proposed by the Department of Justice and Constitutional Development. It is concluded that the current system of court administration is inconsistent with the Constitution and the doctrine of separation of powers as it permits the executive to encroach upon the independent functioning of the courts. Chapter five seeks to discuss some of the challenges that threaten judicial independence in South Africa. This chapter begins by providing a cursory overview of some of the main incidents which have threatened the independence of South Africa‟s judiciary. The main focus of this chapter is the alleged attempt by the Cape Judge President Hlophe to improperly influence judges of the Constitutional court in their adjudicatory tasks. Moreover, this chapter discusses the manner in which the complaint against Judge Hlophe was dealt with by the Judicial Service Commission. It is concluded that in dismissing the complaint against Judge Hlophe without a thorough examination, the Judicial Service Commission abdicated its constitutional duty. It is also concluded that the unresolved complaint against Judge Hlophe casts a shadow of doubt over the impartiality and independent functioning of the judiciary in South Africa. The main conclusion in chapter six is that the protection of independence in South Africa suffers from contradictory elements which leave the judiciary under executive control, which constitutes an insidious erosion of the doctrine of separation of powers. Therefore the status of the judiciary as an equal arm of government in South Africa is weak. Thus, while South Africa's judiciary is impartial and contains strong elements of individual independence, it is not independent. The essence of the recommendations relate to the functioning of the Judicial Service Commission, the application of section 175 (2) of the Constitution, the tenure of judges, the administration of courts, the complaint against Judge Hlophe and the Superior Courts Bill. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2012.

There exists a lacuna in our legal system, the role of the judiciary in the lawmaking process is not well defined. 'Historically, the judiciary has always claimed that its duty was merely to interpret and apply the law and that it was not within its province to legislate.' Custom and practice on the other hand has revealed that. to some extent, this is not entirely true. Because through precedents and pronouncements of statutes unconstitutional and therefore, null and void, the former in that sense makes laws and is practically involved in the law-making process. • Judicial discretion is another means at the disposal of the judiciary by which the latter legislates." Therefore, the notion that the province of the judiciary is only confined to the interpretation and application of the law is overwhelmingly misleading. The role of the judiciary in the law making process has to be clearly defined and not just to be inferred so that there is left no middle ground or grey area between its involvement and non-involvement. Once this is done, the problem of uncertainty and inconsistency in so far as the judicial process is concerned will be remedied. Since it is indeed the judiciary that decides the cases before them, from these cases it is respectfully submitted that the interpretative process they adopt in arriving at their decision itself amounts to law-making. It is trite law that when courts interpret the law. they also make the law in that process. This reasoning has long been accepted in our legal order and in foreign jurisdictions. The former President of the United States of America, Roosevelt. precisely pointed out in his message to the Congress of the United States on the 8th December 1908, thus: The Chief lawmakers in our country may be. and often are, the judges. because they are the final seat of authority. Every time they interpret contract. property, vested rights, due process of the law. liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental. they give direction to all lawmaking. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions. 1 Even though the above quote was said in the last century, it is still applicable today because judges still do the job of interpreting and applying the law. In doing so they are involved in the law-making process. It has become manifest, as this study will reveal, that Ihe judiciary is involved in the law-making process even though this has proven somewhat irksome to 1 PresidenlTheodore Roosevelt, Message to the Congress of the United States, 8th December 1908, 43rd Congressional Record ,Part 1, p.21 . accept and appreciate, bearing in mind the overriding democratic principles such as seoaration of DOwers and the independence of the judiciary .. Therefore this study endeavours to interrogate the manner by which the South African judiciary has been involved in the law-making process both during the previous apartheid regime and in the present democratic dispensation. Futhermore, this study also attempts to answer the question as to how the judiciary will continue to legislate in the present judicial transformation process without upsetting the imperatives of the doctrine of separation of powers and the independence of the judiciary. / Thesis (LLM)--North-West University, Mafikeng Campus, 2006.

There exists a lacuna in our legal system, the role of the judiciary in the law-making process is not well defined. 'Historically, the judiciary has always claimed that its duty was merely to interpret and apply the law and that it was not within its province to legislate.' Custom and practice on the other hand has revealed that to some extent, this is not entirely true. Because through precedents and pronouncements of statutes unconstitutional and therefore, null and void, the former in that sense makes laws and is practically involved in the law-making process. "Judicial discretion is another means at the disposal of the judiciary by which the latter legislates." Therefore, the notion that the province of the judiciary is only confined to the interpretation and application of the law is overwhelmingly misleading. The role of the judiciary in the law making process has to be clearly defined and not just to be inferred so that there is left no middle ground or grey area between its involvement and non-involvement. Once this is done, the problem of uncertainty and inconsistency in so far as the judicial process is concerned will be remedied. Since it is indeed the judiciary that decides the cases before them, from these cases it is respectfully submitted that the interpretative process they adopt in arriving at their decision itself amounts to law-making. It is trite law that when courts interpret the law, they also make the law in that process. This reasoning has long been accepted in our legal order and in foreign jurisdictions. The former President of the United States of America, Roosevelt, precisely pointed out in his message to the Congress of the United States on the 8th December 1908, thus: The Chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. Every time they interpret contract, property, vested rights, due process of the law, liberty, they necessarily enact into law parts of a system of social philosophy; and as such interpretation is fundamental, they give direction to all law-making. The decisions of the courts on economic and social questions depend upon their economic and social philosophy; and for the peaceful progress of our people during the twentieth century we shall owe most to those judges who hold to a twentieth century economic and social philosophy and not to a long outgrown philosophy, which was itself the product of primitive economic conditions. Even though the above quote was said in the last century, it is still applicable today because judges still do the job of interpreting and applying the law. In doing so they are involved in the law-making process. It has become manifest, as this study will reveal, that the judiciary is involved in the law-making process even though this has proven somewhat irksome to "President Theodore Roosevelt, Message to the Congress of the United States, 8th December 1908, 43rd Congressional Record ,Part 1, p.21" accept and appreciate, bearing in mind the overriding democratic principles such as separation of powers and the independence of the judiciary .. Therefore this study endeavours to interrogate the manner by which the South African judiciary has been involved in the law-making process both during the previous apartheid regime and in the present democratic dispensation. Furthermore, this study also attempts to answer the question as to how the judiciary will continue to legislate in the present judicial transformation process without upsetting the imperatives of the doctrine of separation of powers and the independence of the judiciary. / (LLM) North-West University, Mafikeng Campus, 2006

The under-representation of women in the senior appellate judiciary in common law jurisdictions remains an enduring problem. Much has been written about the lack of women’s participation in the judiciary and what strategies, if any, should be undertaken in order to resolve this persistent problem. However, this thesis takes a step back to ask a broader question: what impact does gender diversity have upon judicial decision making in appellate courts? It seeks to answer this question by engaging feminist standpoint theory to assess the experiences of men and women judges from three common law jurisdictions: England, South Africa and Australia. Through a series of interviews conducted with members of the senior judiciary in these jurisdictions in 2012 and 2013, this thesis explores the extent that interviewees consider that gendered experiences impact upon their own judging, and judging within the dynamics of collegiate appellate courts. This thesis concludes that while it is not possible to pinpoint one particular ‘contribution’ or ‘impact’ that gendered experiences have upon judging, it is nonetheless generally considered by those interviewed to be an important part of the judicial decision making process in several subtle, yet important, ways. Because of the considerable role that diverse gendered experiences play in judicial decision making, appointments processes should be sensitised to the need for diversity of experience and alive to the danger of ostensibly neutral appointment criteria devaluing diverse experiences, particularly the experiences of women in the law.

Richard Feetham was Judge President of the Natal Provincial Division from 1 May 1930 to 18 July 1939. He succeeded Dove Wilson who was an able but not a very learned or dynamic Judge President. Thus, at the time of his appointment the Natal Court and its judgments were treated with little respect by the other provincial divisions. Feetham JP, unlike his predecessor, was not only a scholar with a towering intellect but a man endowed with outstanding leadership qualities. He was thus ideally suited to bring about a change for the better in the status of the Natal Court. He did this by taking a dynamic lead and presided over and delivered a high proportion of the courts' judgments. He also set his brethren an excellent example by the high standard he set for himself and his court and which they emulated. This thesis thus also covers the careers of these puisne and acting puisne judges and their contribution towards the better administration of justice in Natal. In 1930 there existed in Natal a disinct system of dual practice with a de facto Bar. This system had been a vexed question in the minds of Natal lawyers for two decades but when Feetham JP was confronted with it he immediately addressed the controversial issue and brought about the necessary reforms to divide the legal profession and bring Natal into line with the rest of South Africa. This reform raised the quality of pleading and manner in which the law was presented. It also provided the Natal Bench with able personnel for the future from within Natal. Accordingly this thesis also assesses the careers of the main legal practitioners of that period and their contribution towards the development of the administration of justice in Natal. In less than ten years Feetham JP thus transformed the Natal Provincial Division from being weak and ineffectual to a position where it became a division respected for its Bench, judgments and legal profession. During the course of time history has confirmed the overall significance of Richard Feetham's Judge Presidency. / Thesis (LL.M.)-University of Natal, Durban, 1988.

Oliver Tambo Institute of Governance and Policy Studies / MPM

Text in Afrikaans / Die penologiese perspektief rakende die ontwikkeling/ doel en funksionering van leke-assessore is die onderwerp van hierdie verhandeling. Leke-deelname in die regsplegingstelsel kan terug­ gevoer word na 1657. Deur die latere oorname van Engelse regsbeginsels1 word die juriestelsel in die Suid-Afrikaanse reg geinkorporeer. Na die afskaffing van die juriestelsel in 1969 berus die beantwoording van sowel feite- as regsvrae slegs by die voorsittende beampte. Hierdie situasie is as onaan­ vaarbaar beskou en grater leke-deelname word bepleit. Dit is egter eers in 1991 dat die aanwending van leke-assessore in die Suid-Afrikaanse regstelsel 'n realiteit word. Een van die voorvereistes vir die aanstel van assessore is dat die aanstelling dienstig vir die regspleging moet wees. Die vraag waarmee penoloe en juriste worstel, is of die aanwending van assessore tans wel bevorderlik vir gesonde regspleging is. Uit empiriese navorsing het dit geblyk nie die geval te wees nie. Derhalwe word 'n opleidingsprogram vir assessore voorgestel / The subject of perspective on tioning of lay justice. this dissertation is a penological the development/ purpose and tunc­ assessors in the administration of The use of lay assessors can be traced back as far as 1657. As a result of the adoption of the British law principles/ the jury system was incorporated in South African law. After the abolition of the jury in 1969/ the answering of factual and judicial questions resides in the presiding officer. This situation was unacceptable and lay participation was advocated. The use of lay assessors became a reality in 1991. The prerequisite for the appointment of an assessor is that it should be expedient for the administration of justice. But are the use of lay assessors beneficial at this stage? From the empirical research it is evident that it is not beneficial at all and therefore the researcher recommends a training programme for lay assessors. / Penology / M.A. (Penologie)

No description available.

Text in Afrikaans / Die penologiese perspektief rakende die ontwikkeling/ doel en funksionering van leke-assessore is die onderwerp van hierdie verhandeling. Leke-deelname in die regsplegingstelsel kan terug­ gevoer word na 1657. Deur die latere oorname van Engelse regsbeginsels1 word die juriestelsel in die Suid-Afrikaanse reg geinkorporeer. Na die afskaffing van die juriestelsel in 1969 berus die beantwoording van sowel feite- as regsvrae slegs by die voorsittende beampte. Hierdie situasie is as onaan­ vaarbaar beskou en grater leke-deelname word bepleit. Dit is egter eers in 1991 dat die aanwending van leke-assessore in die Suid-Afrikaanse regstelsel 'n realiteit word. Een van die voorvereistes vir die aanstel van assessore is dat die aanstelling dienstig vir die regspleging moet wees. Die vraag waarmee penoloe en juriste worstel, is of die aanwending van assessore tans wel bevorderlik vir gesonde regspleging is. Uit empiriese navorsing het dit geblyk nie die geval te wees nie. Derhalwe word 'n opleidingsprogram vir assessore voorgestel / The subject of perspective on tioning of lay justice. this dissertation is a penological the development/ purpose and tunc­ assessors in the administration of The use of lay assessors can be traced back as far as 1657. As a result of the adoption of the British law principles/ the jury system was incorporated in South African law. After the abolition of the jury in 1969/ the answering of factual and judicial questions resides in the presiding officer. This situation was unacceptable and lay participation was advocated. The use of lay assessors became a reality in 1991. The prerequisite for the appointment of an assessor is that it should be expedient for the administration of justice. But are the use of lay assessors beneficial at this stage? From the empirical research it is evident that it is not beneficial at all and therefore the researcher recommends a training programme for lay assessors. / Penology / M.A. (Penologie)

This study demonstrates the negative effect of stereotypes in the progression of women in the legal profession in South Africa and the laws, policies and measures that reinforce gender and sex stereotypes are discriminatory on the basis of gender and sex. This notwithstanding, it considers whether gender equality can be achieved where the measures adopted for gender transformation are premised on gender or sex stereotypes. The study analyses the Cape Bar Maternity Policy in concluding that this approach is justifiable and necessary to achieve substantive gender equality. In addition, this study provides recommendations for the legal profession to achieve substantive gender equality that include: special measures to ensure that the working environment is cognisant of the lived realities of women; requiring practitioners to confront their individual bias by holding them accountable for habits and attitudes that maintain gender inequality; and linking the career advancement of legal professionals to a demonstrable commitment to gender transformation. / Jurisprudence / LL. M. (Human Rights Law)