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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Courts: the weakest link in the democratic system in South Africa: a power perspective
Author:De Vries, I.D.
Year:2006
Periodical:Politeia: Journal for Political Science and Public Administration
Volume:25
Issue:1
Pages:41-56
Language:English
Geographic term:South Africa
Subjects:courts
judicial power
separation of powers
Abstract:This article draws attention to aspects of the democratic transformation of the South African political system, with a focus on the position of the courts of law. It reflects on criticisms levelled at the old apartheid courts for implementing what were seen to be unjust laws and therefore not securing peace in the sense of social justice. The author argues that the ineffective way in which the courts dealt substantially with conflict in the past and in the present is due, amongst others, to structural problems which are not of the judiciary's own making. One reason for this state of affairs can be traced to a contradiction in Montesquieu's thinking on the power which the judiciary should have vis--vis the other two members of the trias politica. From a conceptual point of view, the doctrine of the separation of powers is as much about the concept of power as it is about the concept of separation between the executive, the legislature and the judiciary. Although there is a general sentiment in South Africa that the judiciary seems to be separate from the other two branches of government, the judiciary holds no real power and therefore is unable truly to fulfill its function as originally intended by Montesquieu, namely the securing of individual freedom from abuse by the other two branches. The article concludes that special new measures might be necessary to strengthen the position of the courts in order for the judiciary to play a more powerful role in South African politics in the future. Bibliogr., sum. [Journal abstract]
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