MADLANGA J
autonomy-protecting features is important to determining whether it has the requisite
degree of independence”.122
[88]
Admittedly, many of this Court’s judgments regarding independence deal with
inspectorates and other institutions, and not with the independence of Judges. One case
where focus was on judicial officers is Van Rooyen where Chaskalson CJ said:
“In De Lange v Smuts N.O. and Others, Ackermann J referred to the views of the
Canadian Supreme Court in The Queen in Right of Canada v Beauregard, Valente v
The Queen and R v Généreux on the question of what constitutes an independent and
impartial court, describing them as being ‘instructive’. In this context, he mentioned
the following summary of the essence of judicial independence given by Dickson CJC
in Beauregard’s case:
‘Historically, the generally accepted core of the principle of judicial
independence has been the complete liberty of individual judges to
hear and decide the cases that come before them; no outsider – be it
government, pressure group, individual or even another judge – should
interfere in fact, or attempt to interfere, with the way in which a judge
conducts his or her case and makes his or her decision. This core
continues to be central to the principle of judicial independence.’
This requires judicial officers to act independently and impartially in dealing with cases
that come before them, and at an institutional level it requires structures to protect
courts and judicial officers against external interference.”123
[89]
It is generally expected and accepted that Judges act independently, impartially
and fairly, without bias or prejudice.124 This is supported by the burdensome onus on
122
Id at para 207. Addressing the Cape Law Society Chaskalson CJ noted that:
“Judicial independence is a requirement demanded by the Constitution, not in the personal
interests of the Judiciary, but in the public interest, for without that protection judges may not
be, or be seen by the public to be, able to perform their duties without fear or favour. This is
necessary in the best of times, and crucial at times of stress.” (Justice Chaskalson on the future
of the profession at the Cape Law Society AGM [2013] De Rebus 10).
123
S v Van Rooyen (General Council of the Bar of South Africa Intervening) [2002] ZACC 8; 2002 (5) SA 246
(CC); 2002 (8) BCLR 8210 (CC) at para 19.
124
According to Cowen SC, the express requirements of the Constitution allow for the identification of five
qualities relating to fitness and propriety for judicial office: independence, impartiality, integrity, judicial
50