The judiciary is made up of courts, judges and magistrates. They make decisions in cases that are referred to the courts based on the laws made by the legislature and carried out by the executive. These decisions then help to define how laws should be applied. The courts also ensure that laws made by the legislature do not go against the Constitution. The Constitutional Court has the power to declare a law invalid if the judges find that it goes against the Constitution. In this way, the judiciary acts as a watchdog over the legislature and the executive – and holds them accountable to the Constitution and the laws they have passed.

People can take cases to court if they believe the actions of the executive go against the law or the Constitution. In this way, the courts act as a check on the work of the executive.

The judiciary must be independent of the executive and the legislature. In this way it can make decisions that are fair, even if this goes against what the legislature and executive want. Cases are often between different spheres of government, e.g. a municipality and a province. The judiciary interprets law only and must apply it neutrally. An independent body called the Judicial Services Commission appoints judges so these judges are independent of the government in power.

Example:

1. Parliament (the legislature) writes a new law that says all children at school must get a free meal. The minister of education (the executive) gives the education department instructions to carry out the new law. But when Thokozile goes to school she doesn’t get a free lunch. The school refuses to give a free meal to any of the students. Thokozile’s father and mother go to court to demand that the school give the students lunch. The court tells the school to do this because this is what the law says.

2. Parliament (the legislature) passes a law that says doctors who are Rastafarians cannot work in state hospitals. The Department of Health (the executive) gives instructions to all hospitals to dismiss all Rastafarian doctors. These doctors go to court and say that this law is invalid because it discriminates against people on grounds of their religion and it goes against their rights in the Constitution. The court agrees with the doctors and declares the law invalid.