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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title: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
Author:Motala, Ziyad
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
Subjects:judicial power
judicial system
Abstract:In almost all liberal constitutional options mooted for a postapartheid South Africa the tendency is to accord the judiciary a central position along the lines of the US constitutional system. 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 addressed include the reasons advanced for, and the different scope of judicial review. 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 poses for a new South Africa. The conclusion is that an alternate judicial structure based on the continental European system of appointment of judges to the special constitutional court and which recognizes the implicit political ramifications of many decisions is a more viable option. Notes, ref.