23 - Judges and non-judicial functions in South Africa

Summary

The core function of the judiciary in any jurisdiction, it has been suggested, consists in the ‘determination of matters in court by the delivery of judgments enforceable by process of law’. Chapter 8 of the South African Constitution affirms this view by associating ‘judicial’ matters with the business of the courts. Section 165(1) of the Constitution vests the ‘judicial authority of the Republic’ in ‘the courts’, and s. 166 indicates that the ‘judicial system’ consists of the various courts. Tellingly, too, ss. 174 and 175 deal with the appointment of judges and acting judges not in the abstract but as members of particular courts.

Such provisions add colour to the concept of judicial functions, but without necessarily preventing judges from undertaking non-judicial functions in addition to their core activities. South African judges have in fact always performed extraneous functions, and in this country there is a long and notable tradition of depending on judges to chair governmental commissions of inquiry – often, if erroneously, referred to as ‘judicial commissions’.