The relationship between the political branches and the judiciary with reference to the principle of judicial independence

Abstract

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.