Essay Example on Judiciary in South Africa

7 pages
1846 words
University of California, Santa Barbara
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A properly working judiciary is a very significant element of civil society. This is the only adjudicator way above the political, social and even economic aspects. The judiciary in most nations in Africa tends to suffer from backlogs, delay and also corrupt practices. In nations like South Africa, quicker resolutions of these disputes are getting way too elusive. However, many African nations do have the provisions of their constitution to work against delays, identify congestions, local culture of the legal systems and corrupt practices. These factors are what cause the delay which extends to many African Courts. In South Africa, for instance, the average duration for the start and completion of litigation is between six to even ten years. In some severe instances, the litigation process may go for longer periods. In S.A, even if there are several programs and also projects that have been placed to offer solutions to these problems, justice administration delays are still experienced. In the appraisal of the issue, Maduna addressed the National Judges Symposium that even the public has been perturbed considering the huge backlogs present throughout the criminal courts and concluding the prosecutions. Given the rise in such issues, mainly in consideration of the level, nature, and cause of the delays, this paper seeks to find potential solutions. South Africa is the country under study since its judicial system experiences delays in passing judicial proceedings.

Chapter 1: Introduction

The continued prolongation in the court proceedings in South Africa and other African nations has since started posing problems to the judiciaries concerned. It further affects the whole system of justice and administration. The troubles caused by these legal insecurity and social discontents especially in the modern times involve nations starting to find ways of ending it. This discussion attempts to identify the nature, level and major causes of these delays. It would further compare South Africa with other nations then finally draw some recommendations on how to eradicate these delays.

Every good government seeks to attain its peoples wellbeing and happiness. Despite the presence of other programs, institutions and even mechanisms for accomplishing this feat, there should be the urge of attaining vibrancy and efficient systems for administering justice. This is the foremost responsibility of S.As judiciary (Dixon & Issacharoff, 2016). The judiciary attempts to conduct this responsibility given the provisions present in governing their constitution and several other applicable regulations by adjudicating the existing disputes. Apparently, disputes would arise between people, the people and the government and even between the arms of government themselves.

The judiciary in South Africa ranks amongst the essential position respected by the government. This is because of the great role that they play in sustaining their fledgling democracy. The judiciary lately occupies a role of stabilizing the polity, transforms the social aspect and enforces the primary rights of the people. The constitution provides that all occupants who hold these offices in the judiciary must work through the courts. The courts are the ones that form the judiciary. The judiciary seeks to explain the circumstances involved in the adopting the constitution. It seeks to heal up the divisions present from the past. It further establishes a great society that is based on values of democracy, human rights, and social justice. The seminar that was conducted by the World Jurist Association in Cape Town focused on the responsibility of the judiciary in changing our continent. It organized the address and provided solutions necessary for judicial and legal practice all across Africa. S.As judiciary seeks to achieve peace and harmony through enhancing and enforcing the full rights and obligations of the citizens. The impediments that were present in the constitution have been removed as it seeks to stand in the right way without limiting the power of the court. This has been achieved through the legislative and executive arm of the government.

When Apartheid ended in S.A, the Interim Constitution of 1993 came into play. It created a huge legal platform that welcomed democracy. Democracy subsisted right till it was overtaken by a permanent constitution three years later. The constitution further brought in a system of supremacy right over the laws of the land. These laws had bound the legislature, executive and judiciary arms of the government. They also brought into light the rule of law which is very important to the people. Through the consideration of the tough experience that the constitution targeted to correct, it was very important that such policies were rendered applicable in this duration. All these were created to uplift the government system and the legalized the principles of suffrage for adults (Bonthuys, 2015). It ended up being very conducive to implement a believable structure that was accepted by most of the citizens of South Africa. S.A constitution offered support to a government system that had all the three arms of executive, legislative and judicial system. There are checks and balances that govern each arm such that they are limited apparently by the law. While finding out the limits of every organ, there is no global model that is available for reference. Every countries constitution seeks to create the boundary for each of these organs. In S.A, the case of Buzani Dodo v The State was explained to have an element of Constitutional Court upholding the provisions of the constitution in a separation of power that was not strict as a whole.

The judges through the process of the courts have the mandate and responsibility to make decisions on the important issues necessary for public policy. This is a domain that in most cases is reserved for the representatives who are elected by the people. As per S.E Oxner, the identification of economic significance of these courts is important in stating to their investors who try to care for their investments. These people try to invest in the nations that function well within the judiciary. A lot of emphases could be put into the desire for the courts to stabilize the democracy and grow the economy. The World Bank readily supports such reforms of the judiciary through offering monetary support to these reforms. Apparently, the rise in appreciation of the manner in which the court systems adopt this jurisdiction enhances or impedes the creation of a proper environment needed for exercising judicial roles. This is a clear explanation of the constant reorganization of structures of the court made available by the government. It creates a basis that allows for the study of nature. There has been a move for reorganizing and restructuring the legal system. The court structures in most nations to have developed majorly over the last few years. The developments in the judicial arm work as a direct response to the desire for improvement enhanced by smooth justice dispensations. Developments may not be downplayed. Particular alterations have been given regarding the structures of the court in most countries irrespective of their constitutions (Decker & Marteache, 2017).

Civil and criminal proceedings

This study attempts to study the structures of the court in the S.A legal system which seems not to be creative. However, if the materials may abound to the court systems in different jurisdictions, then this would affect the composition of the court and the applicable regulations. In many instances, the system has no analysis for the strengths and even the weaknesses hampering the courts. Justice delivery may be enhanced if the recommendations provided would be adopted by the court systems. The social, political and event he legal scholars has reached an agreement that there are significant functions that can be done by the judicial system involved in the democratic system (Dugard, 2015). These functions have been done through the courts that have been intertwined and centered on conflict resolution, the creation of the laws and social controls. The judicial system has constantly developed right from an authority of dispute resolution to a major institution within the society that plays a major role as a branch of the government. The roles of the court have been reiterated by the former Justice Mohamed through his statement that provided that change is a process that is inevitable as a process to the government. He continues to say that if it occurs, it tends to precipitate an element of necessity and structural change to the government institutions such as the courts. As seen in the case of Columbia who adopted their thirteenth post-poll constitution through the alteration of the present structure of the court that brought in central constitutional systems of the court.

In reality, the globalization dynamics brought in additional changes which have not been without difficulties whatsoever. Such changes have altered the systems of the court by growing the worldly aspect of developing as well developed nations. As seen in developing nations across Africa, there has been evidence that major transformations in the structures of the court have emerged since these nations seek to reinvent the public institutions to attain the needs and even respond to the aspect of globalization. In addition to the response of globalization, there has been some evidence in regard to the nations that reinvent the court systems in ways that project strange demands. Globalization in some aspect need not bear a constant system across all courts in the boundaries of a nation. The major question though that since being into play involves the relation of the court systems whether it is operational fully of a court structure in a nation or it presupposes a different kind of implementation system. This tends to operate a wholly different legal system.

The successful execution of the judicial rules works best in different legal systems. If the court structure in S.A were adopted in another nation, the constitutional court would be mooted in that country. However, that which succeeds in South Africa may fail in another nation given the unique contexts present in different operative jurisdictions. The concept of importing with no regard to the local context can be reversed by the existing gains (Neubauer & Fradella, 2015). This adoption of the court structure buy South Africa may offer credence to different other factors including the salient distinction between legal systems that are operational in countries. The nations attain this reverse by raising the standards that are present in the structure of the court.

Possible solutions

The major challenges of any functional court structure involve polity and delay in the administration of justice. Additionally, the litigation costs and jurisdictional spread of these courts may offer an element of qualification to officers of the court. The presence of mechanisms of enhancing administration and justice works against the delays in court cases. It further erodes the confidence that the South African populations would have in accessing justice. This has warranted a deep analysis of the troubles that face the current system of the court in finding out the blueprint structure that may enhance a smoother dispensation of justice across the country.

The colonial heritage in the law of South Africa is common law. During the colonial era, the colonial master rule and regulations were utilized in different colonies that turne...

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