rulings. Given by order of significance, there is the constitution, legislation, judicial
precedent, common law and custom. Judicial precedent, is the courts judgements in
current cases, from information of past cases with the same legal values, and the ruling is
known to be binding as law. So the judiciary not only interprets the law but also at times
extends it, such as common law.
The judiciary interprets the law and commits itself to checking whether laws are
consistent with the constitution or the constitution does not conflict with itself. The best
way the judiciary upholds communities basic values is by making sure that no law
violates the Bill Of Rights. If the conduct of the other branches of state is unconstitutional
they can be brought to court and ordered to stop such conduct. If laws are not consistent
with the constitution the judiciary can deem them invalid and unenforceable. The courts
are independent and subject only to the constitution, and law which they must apply
impartially and without fear, favour or prejudice. No person or organ of state may
interfere with the functions of the court. The effectiveness of the role of the judiciary
within the South African concept of constitutionalism is tested mainly through its court
cases.
The case of S v Makwanyane 1995 (3) SA 391 (cc) is an example of how the judiciary
interprets and tests the constitution against itself and the judgement of the previous
courts. Two men accused and covicted of murder in the Witswaterand Local Division
were sentenced to death. They appealed to the Appeallate Division against the death
sentence. The court found S277(1)(a) of the criminal procedure Act 51 of 1997, was in
conflict with the constitution of the Republic Of South Africa Act 200 of 1993, under
section11 which states, “Everyone has the right to life.” The court also based their
judgement on section 9 which says, “Everyone is equal before the law and has the right
to equal protection and benefit of the law.” , hence, section 277(1)(a) of the criminal
procedure Act 51 of 1997 was deemed invalid.
A case which illustrates the courts ability to interpret the law against the constitution and
giving a fair judgement is S v Mhlungu and Others 1995 (3) SA 867. The accused had
been charged in the Circuit Local Division of the Supreme Court with murder and other
crimes, and an indictment served in Afrikaans on the 11th March 1994. At their request
an English indictment was served on the 11th May and 18th May 1994, the accused
pleaded not guilty. The courts decision for their conviction relied upon their earlier
confessions and presumption in section 217(1)(B)(11), of the criminal procedure Act 51
of 1977.Counsel informed the court that they would contend that section 217(1)(b)(11)
was on conflict with section 25 in chapter 3 of the constitution Act 200 of 1993. Court
quo suspended the proceedings in terms of section 102 (2) of the constitution and reffered
the following questions to the constitutional court in terms of section 102(1), whether the
proceedings could be said to have been “pending” immediately before the
commencement of the constitution. The second, whether the light of provisions of section
241(8) of the constitution was applicable to the trial, and the third, whether the
provisions of section 217(1)(b)(11) of the criminal procedure Act were in conflict waith
the constitution.
The courts ruling was that “all proceedings which immediately before the
commencement of this constitution were pending ….shall be dealt with as if this had not
been passed. Hence nothing changed from the previous judgements before at the aspect
of being.
The judiciary as evident within the examples of the cases above has done an effective job
making decisions that are consistent with “the basic values and representative of
community values.” It protects the communities through the aid of the Bill Of Rights and
is fair in its judgement. Within these examples it has also conveyed and enforced the
concept of Constitutional Supremacy in which South Africa’s law is based upon. In my
essay I have discussed the role of the judiciary as that of interpreting the law, working as
an over-site to the executive body and legislature, applying law within the courts, making
sure every law is consistent with the constitution and that the constitution does not
contradict itself. It also has the authority to declare a law invalid and unenforceable but
can not strike laws done. It also has a duty to extend the law where it must, which is
usually the common law and does so effectively through judicial precedent. It has a duty
to make a fair judgement in all cases without any discrimination or fear. It serves as an
aid to the legislature to see if laws it has passed in its statutes can be applied in practical
law. It works to solve disputes between parties or merely translates the law for ordinary
people’s understanding. It serves as a body of protection for all people and punishes those
in the wrong. It places order within society through effective usage of the law and all
concepts of South African constitutionalism affect or are affected by it including itself.
Its systems have generally worked well and it is a true change from Apartheid times..
BIBLIOGRAPHY
1. The New Constitutional and Administrative law-volume 1-Lain Currie and Johan de Waal-Juta
2. The Constitution of the Republic of South Africa-1996-Act 108 of 1996
Surname : Khumalo
Name : Ndabezulu .T.
Student Number : 0514425Y
Due Date : 24th March 2005
Lecturer : Prof V Nmehielle
Topic : What is the role of the judiciary within the South African concept of constitutionalism? Discuss.