Institutional independence and the constitutionality of legislation establishing lower courts and tribunals: Part II

Abstract

The first part of this article dealt with the constitutional origins and principles of judicial independence.Those principles form the bases upon which the constitutionality of certain legislative schemes were tested. In that regard, we discussed case law where legislation establishing administrative agencies; the Court Martial; and the regional authority courts presided over by lay traditional chiefs, was challenged for unconstitutionality. The second part of this article examines the hotly-contested question of the constitutionality of the legislative framework under which Regional Magistrates Courts in South Africa were established against the backdrop of the constitutional guarantee of judicial independence. The case for discussion is Van Rooyen & Others v State & Others (General Council of the Bar of South Africa Intervening) where the Constitutional Court, unlike the trial judge, applied a purposive approach to the interpretation of the constitutional questions posed.