Why the Stability of the Judiciary Matters in Defending the Rule of Law in South Africa

By: Lizzy Ofusori

Introduction

The Republic of South Africa comprises three arms of government: the Judiciary, the Legislature, and the Executive, each of which has separate and lucidly identified authorities, functions, and responsibilities. The Constitution provides for this principle of division of powers by bestowing legislative independence in the Legislature, the Executive independence in the Executive, and the judicial power in the courts. This principle distinguishes the functional autonomy of arms of government which checks and balances to avoid the arms of the government taking over authority from one another. An indispensable section of the division of powers is thus an autonomous Judiciary that performs separately from the Legislature and the Executive.

Judiciary

The Judiciary of South Africa is made up of judges as well as magistrates who preside over the courts in South Africa. The Judiciary is an autonomous arm of the government which is administered through the Constitution of the Republic of South Africa and its laws. The Judiciary interprets the South African Law through its parliament’s ratified laws and expounding statements made in the parliament during ratification. The Judiciary’s responsibility is to interpret, adjudicate, and arbitrate in agreement with the law. It is the legitimate privilege of the superior courts to decide whether the law is in line with fairness and justice; otherwise, interpretation should be made in accordance with equity and justice. This enormous authority bestowed on the courts and the Judiciary, by extension, permits them to make orders to aid the punishment of offenders by enforcing a fine, restrictions, or being out rightly put in jail. The stability of the Judiciary is primarily hinged on its autonomy so that there is no interference in the justice process from any angle to discharge its duty without fear or favour. Judicial autonomy is the principle that the Judiciary, which is the arm of government that interprets and applies the law, ought to be autonomous from the other arms of government. Furthermore, the Judiciary must not be exposed to unacceptable pressure from influential citizens, whether government or private. The Republic of South Africa’s Constitution sets up an autonomous judiciary that is subject only to the Constitution and the Law, which the Judiciary must work on objectively and without trepidation, favour, or discrimination. In upholding the principle of the separation of powers, the state must help by giving adequate protection to the courts to guarantee their autonomy, objectivity, dignity, ease of access, and efficiency. This is a responsibility to be performed by any government department in any area of government. It is also a task of any individual or establishment exercising authority or carrying out a role that has to do with the Constitution or any legislation.

The Rule of Law

The Rule of Law is simply the belief that no individual is higher than the law. It stems from the idea that truth, and by extension law, is hinged on deep-seated principles which are discoverable. However, they cannot be formed simply by a person’s will. The most significant relevance of the Rule of Law is the principle that governmental power is lawfully utilized only in agreement with written and openly divulged laws. These laws are accepted and enforced in line with recognized formal procedures known as due process. The rule of law is depicted as the authority and control of law in the society, particularly when observed as an obligation on the citizen and organizational performance; the belief whereby all parts of the society are recognized in the same way and subjected to publicly revealed lawful codes and processes. There are numerous qualities and expectations that characterize the rule of law; among them are; independence, fairness, accountability, and equality before the law. It also encourages legal self-reliance, support in the decision-making process, separation of powers, and transparency. Since the rule of law means that no one, together with the government, is higher than the law, the laws safeguard fundamental privileges, and justice is easily reached by all. This means there is a set of general standards for action, defined by law and enforced in practice by means of procedures and responsibility mechanisms for trustworthiness and proper administration through law. Rule of Law is one of the main measures which verifies the quality and good governance of any country.

Consequently, the rule of law encompasses the following principles: the government and its officials, as well as representatives, are answerable under the law; the laws are transparent, in the public domain, established, unbiased, and defend fundamental privileges. These privileges include the protection of people and possessions, the procedure by which laws are ratified, administered, and implemented being available and easily reached, and justice being delivered by proficient, principled, and independent representatives. These representatives must be adequate in number, have sufficient resources, and mirror the structure of the societies they serve. Certain international principles characterize the rule of law, as discussed below;

First and foremost is restricted government authorities, which measure if authority is properly distributed, either by official rules or by principle, to guarantee that no particular government department or institution can utilize unrestricted authority. It is made up of the following; that government authorities are well stated in the law; that these authorities are well restricted by the Legislature; that they are well restricted by the Judiciary; that they are efficiently restricted by independence auditing and evaluation; that government workers are sanctioned for misdemeanors; that government authorities are passed through non-governmental checks, and changeover of power is based on the law.

Secondly is indispensable human privileges which take into consideration the safeguarding of fundamental human rights. It comprises of the following main rudiments: the same manner of handling without any form of favoritism; effectual assurances to the privilege of existence as well as protection of anyone; formal procedure of law and privilege of the accused; efficient assurance of liberty of view and communication; successful reassurance of liberty of faith and religious conviction; independence from random intrusion on privacy; well-assured gathering and relationship as well as fundamental labour privileges. It encompasses a comparatively reserved set of choices of human rights that are resolutely recognized in international laws and are most directly associated with the rule of law and excellent governance concerns.

Thirdly is regulation implementation, which determines the degree to which regulations are reasonably, successfully implemented, and enforced. It takes into consideration the areas of regulation that most, if not all, countries tend to regulate to some extent. These include; community wellbeing, workplace security, environmental security, and business dealings. The main basics are; whether or not government regulations are successfully enforced and implemented; also whether government regulations are carried out and executed without unnecessary pressure; as well as whether administrative events are carried out with no irrational hindrance; it also determines if due process is valued in those proceedings, and the government does not appropriate without suitable reparation.

Lastly, Civil Justice determines if ordinary citizens can settle their grievances efficiently through the civil justice system, which calls for the system to be easily reached, efficient, unbiased, ethnically proficient, and within your means. The main rudiments encompass the following;

• Whether citizens can have an easy way in and meet the expense of civil justice.
• Whether civil justice is not laden with favoritism.
• Whether civil justice is devoid of corruption.
• Whether civil justice is devoid of unacceptable government pressure
• Whether civil justice does not encounter insensible hindrance or administrative bottleneck.
• Whether civil justice is efficiently imposed; and
• Whether optional disagreement resolution avenues are available, unbiased, and efficient.

Conclusion

The importance of the rule of law is that it checks subjective judgments, safeguards justice, and prevents dictatorship and subjugation. It also restricts the power of individuals with authority. This implies that the government should first control the citizens. Thereafter, it should be obliged to control itself as well. The stability of the Judiciary, which is primarily hinged on its autonomy, is therefore essential in defending the rule of law in South Africa. This stability assists in ensuring adherence to the ideas of the sovereignty of law, objectivity before the legislation, accountability to the law, equality in the administration of the law, the separation of powers, support in decision-making, legal dignity, delay of uncertainty as well as procedural and legal transparency.

Dr. Lizzy Oluwatoyin Ofusori is a postdoctoral research fellow at the School of Management, IT and Governance, University of KwaZulu Natal, Durban. She writes in her capacity.