oa Comparative and International Law Journal of Southern Africa - Independence of the judiciary, prospects and limitations of judicial review in terms of the United States model in a new South African order: towards an alternative judicial structure

Volume 24, Issue 3
  • ISSN : 0010-4051



The purpose of this study is to investigate the notion and practice of judicial review in Anglo-American constitutional systems and to consider its potential and possible pitfalls in a new South African order. The discussion is approached from a comparative perspective and an attempt is made to benefit from the trials and errors of judicial review in other nations - particularly independent African countries. The questions to be addressed include the reasons advanced for, and the different scope of judicial review. Independence of the judiciary is an important clement in protection against arbitrary action on the part of officials of the state. The composition and historical role of the present South African judiciary is investigated to highlight the potential problems that judicial review in terms of the Anglo-American model pose for a new South Africa. The challenge for a future South Africa is not merely to replace the present judiciary (appointed by the apartheid order) with a new set of judges appointed by the new order, but rather to devise an alternate, more democratic judicial structure, better suited to the realities of the South African situation. The article will provide a model judicial struction and define the scope of judicial review based on the European models which, it will be argued, are better suited to the realities of South African society.

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