It is befitting that we today publish the discussion document on the transformation of the judicial system and the role of the judiciary in the developmental south african state in remembrance and celebration of the 15th anniversary of this supreme law of the republic that positively changed the course of the south africa s history. Pdf african customary marriages in south africa and the. The childrens court also takes care of children who are in need of care and protection and makes decisions about children who are abandoned, neglected or abused. Review of the structure of the legal system and courts of south africa.
Overall, the study found that being held in custody awaiting trial was the norm in the three courts. In south africa, we have a democratic system of government. Subsequent to the proclamation of the ocj as a national department, the minister for public service and administration. In south africa, the courts have to follow these precedents. The role and impact of the judiciary in the lawmaking. The constitution the constitution is the supreme highest law of south africa. The south african judiciary under apartheid provides a warning for those who think that the establishment of the structures, functions, and even the tradition of a judiciary that objectively appears to be committed to the rule of law will automati. The south african court system is organized in a clear hierarchically by chapter 8 of the constitution of the republic of south africa, specifically s166, and consists of from lowest to highest legal authority.
The courts position in the justice system south african. Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental south african state 4. Every magistrates court in south africa is a childrens court. Ellison kahn the rules of precedent applied in south african courts 1967. Pdf ubuntu and the law in south africa researchgate. African customary law was marginalised in the courts, distorted by policy makers, and largely labelled as. Section 165 says the judicial authority of south africa is vested in the courts, which are independent and subject only to the constitution and the law.
Transformation of the judicial system in south africa, 201220 jonathan klaaren abstract in a twoyear period, four distinct policy initiatives regarding the place of the judiciary in south african governance were operative, cumulatively holding the potential for significant change in the existing policy on the judiciary. Consequently, the purpose of the manual is to provide all involved in the criminal justice system with the necessary information about court and case flow management cfm so that they can design and implement cfm plans. This guide is published for general information purposes and is not intended to constitute legal advice. The development of the common law of south africa is made possible by the fact that the south african courts follow the system of legal precedent or stare decisis.
Doing business in south africa is an annual publication. They apply the law of south africa and are established under the constitution of south africa or under acts of the parliament of south africa despite south africa s division into nine provinces, the country has a single national court system. This means that our courts can now look at laws made outside of south. While constitutional court judges must be citizens of south africa, n23 ordinary high court judges need not be citizens. The doctrine of precedent and the value of s 392 of the. Chapter 8 of the final constitution, entitled courts and administration of justice, sets out the structure of south africa s court system and defines the role of each court. Assessing the performance of south africas constitution. The constitution is the supreme law of the country and binds all legislative, executive and judicial organs of state at all levels of government. According to brand 12 this integrated south african federal system exhibits the following characteristics. Doing business in south africa cliffe dekker hofmeyr. The publication is updated once a year and not as and when legal developments occur. Much of south african law is based on common law, and there is a great reliance on common law in south africa. The structure of the namibian judicial system and its.
The office of the chief justice ocj is a newly established national department proclaimed by the president of the republic of south africa on 23 august 2010. Some experts say that, after decolonisation, west african states inherited the poor status and meagre resources of the judiciary in france prior to 1960. All laws and state actions must be in line with the constitution. The essence of the recommendations relate to the functioning of the judicial. Therepublic of south africa is one, sovereign, democratic state founded on the following values. The history of south african law and its romandutch roots. All law may not conflict with the south african constitution. Inthe judiciary in francophone west africa the judicial system was structured under colonisation to mirror the french system. History of south african law seite 1 a introduction south african law is neither a classical roman, nor a romandutch law nor an english common law and certainly not a traditional african law. African customary marriages in south africa and the intricacies of a mixed legal system. A childrens court is a special court which deals with issues affecting children. Review of the structure of the legal system and courts of. The south african criminal justice system has six main parts. South africa has what is known as an uncodified legal system consisting of various sources of law, including the constitution, legislation including statutory laws issued by national and provincial legislative bodies and subsidiary legislation, judicial precedent, customary law, common law romandutch and english law, and international law.
The south african law of succession provides an excellent example of the mixed nature of the south african legal system because the interplay of romandutch law and english law has had a particular historical dynamism in this branch of south african private law 2 romandutch law and south africa s mixed legal system. Before the dawn of democracy in south africa, the judicial system functioned as part of. Historically, the judiciary has always claimed that. This means that we all can contribute to making the law for our country. Access to justice in south africa clark d cunningham. Development of its laws and constitution london, 1960 at 2935.
Separation of powers, independence of the judiciary, and. Chapter 8 of the constitution of south africa defines the structure of the south african judicial system. The sources of law where the law comes from in south africa are. Erwin schwella 78 constitutionally, powers are divided among the three spheres of government, namely central, provincial and local government. South african democracy, conducted through 27 moderated focus groups convened between june and october 20 that included south africans from all racial and income groups and from rural as well as urban areas. This is the lowest level in the court system of south africa and also courts for first instance in most cases except a few most serious crimes. The constitution statute law common law customary law court decisions.
The constitution of the republic of south africa, 1996, is the supreme law of the country and binds all legislative, executive and judicial organs of state at all levels of government. The police the south african police service or saps prevent crime, investigate crime, and catch suspected criminals the prosecution service officially know as the national prosecuting authority decide whether or not to prosecute someone who is suspected of having committed a crime the presiding officer. A practical guide court and case flow management in the south african lower court division vii t c mabas o c hief magistrate, durban chairperson of the judicial lower court management subcommittee on court and case flow management, south africa the initial court and case flow management guidelines published in 2006 was a. It affects all sectors of society and does not discriminate on grounds of race, gender, religion, political affiliation or economic status. It merged however, as the following essay will show, in its long andexciting history elements of all mentioned laws to a specific south african law. Not all law is contained in acts passed by parliament. The criminal justice system and you page 6 of 29 the south african criminal justice system and you crime is a constant and increasing blot on the landscape of the relatively new south african democracy. When an indigent south african is arrested, however, the cogs of the court system turn incredibly slowly, and seemingly not much heed is. The voice of the cc as the guide to the sca and the various high courts is needed.
Cabinet has agreed on a set of changes that are required to establish a new, modernized, efficient and transformed criminal justice system. The south african chapter of the international association of women judges saciawj held its national conference from 8 to 10 august 2014 at the university of. The judicial authority in south africa is vested in the courts, which are independent and subject only to the constitution and the law. Today, south africa retains a plural legal system, with customary law remaining a legal system for those who wish to be subject to it. Eric pelser is a senior researcher in the crime and justice programme at the institute for security studies. Pdf judicial independence is fundamental to democracy. Firstly, a number of magistrates courts both smaller regional and larger district secondly, a single high court with multiple divisions across the country, both. The judiciary interprets the law of south africa, using as the basis of its interpretation the laws enacted by the south african parliament as well as explanatory statements made in the legislature during the enactment. The constitutional, the supreme and the high courts make for the superior courts in south africa.
Twenty years of south african democracy freedom house. Commission, the board for sheriffs, the legal aid board and the south african law. The first unit of study for business law 101 is an introduction to the subject. Section 392 has had a difficult journey within the south african jurisprudence, from its inception its interface with judicial precedent has made the journey all the more complex. South africa has an independent judiciary, subject only to the constitution and the law. There exists a lacuna in our legal system, the role of the judiciary in the lawmaking process is not well defined. Study unit 1 introduction to south african law tristan. The courts of south africa are the civil and criminal courts responsible for the administration of justice in south africa. Yet court decisions can only effectively be a source of law if they.
In his february 2008 stateofthenation address concerning the south african criminal justice system cjs the president said. Separation of powers, independence of the judiciary, and good governance in african union member states. The structure of the namibian judicial system 70 proclamations on the judicial and legal systems of south west africa was that the decisions of the supreme court of south africa and the romandutch law developed by the south african courts became binding on the courts of namibia until independence. Chief justice of south africa welcome to the south. Conference paper pdf available may 2012 with 620 reads. The role and impact of the judiciary in the lawmaking process in south africa pdf 37. Government communication and information system 2015. An introduction to south african law reports and reporters, 1828 to 1910 jp van niekerk 1 background judicial decisions, as any first year law student knows, are one of the fundamental sources of our law. South africans take their human rights for granted and retain faith in the democratic system. Section 166 of the constitution of the republic which deals with the judicial system establishes the following courts.
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