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.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nwu/oai:dspace.nwu.ac.za:10394/3119 |
| Date | January 2006 |
| Creators | Ngandwe, Phazha Jimmy |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
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