The concept of judicial independence arguably forms the basis of the relationship between the
legislature, the executive and the judiciary. It is also an integral part of the functioning of the
courts and therefore requires some protection.
This paper looks at the relationship between the political braches, being the legislature and the
executive on the one hand, and the judiciary on the other. In order to explore the concept of
judicial independence, the doctrine of the separation of powers ought to be discussed. The
introductory part of this paper will be dedicated to uncovering the origins of the doctrine of the
separation of powers along with its modern day application within South Africa and other
jurisdictions across the world.
The core of this paper analyses whether there are any political pressures or influences on the
judiciary and on judges when they make decisions. In order to assist with the above, five
judgments ofthe Constitutional Court and the Supreme Court of Appeal will be discussed and an
assessment of the reasoning of the courts' decisions will be made. As will be discussed, although
the decisions appear legally justiciable, politics arguably remains an underlying factor in the
judicial decisioncmaking process and as will be argued the courts have over the years created
mechanisms of protecting their institutional security.
The latter part of this paper focuses on the Judicial Service Commission and the consequences of
the involvement of the political branches within the judicial appointment-making process. An
assessment of the present relationship between the political branches and the judiciary will also
be made in this paper with a particular focus on the relationship between the executive and the
judiciary. Recent case law and public discussions will be used to illustrate where this relationship
may stand and whether it is possibly strained. This paper is centered around the principle of
judicial independence and how courts are able to maintain their institutional security along with
their relationship with the political branches.
Mini Dissertation (LLM)--University of Pretoria, 2016.