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An Investigation into the Public Policy making Role of the Judiciary: Case of South Africa

Nothing is fundamental to the quality of life than the process of public policymaking. It is an indispensable public management function which the South African government is duly-bound to perform so as to alleviate the complex array of its development problems. The paramount idea behind the study was to investigate whether the judiciary as an organ of the South African government is playing a role in public policy making under the current 1996 Constitution of the country. The inquiry is the direct repercussion of the formidable gauntlet of divergent and conflicting ideas that include but not limited to the claim that the judiciary does not play a role in public policymaking because of the theory of separation of powers – a theory propounded by Charles Montesquieu, the French philosopher of the yesteryears.

The country-specific case study on the South African judiciary and public policymaking was carried out in rigorous adherence to prescribed formalities pertinent to conducting case study research. Primary and secondary data for prosecution of the study were gathered by in-depth interview of key informants and from, inter alia, concomitant documentary sources as were found available. The study departs from a historical perspective, giving attention to whether the South African Judiciary did ever play a role in public policymaking prior to the advent of democracy that is thriving under the current Constitution. The historical analysis is flanked by a comparative outlook into whether the judiciary does play a role in public policymaking under foreign jurisdictions comparable to South Africa, notably, the United States of America.

Guided by the operational definition of public policymaking as laid down for the study, the investigation culminated into the finding that inferior courts as the lower echelon of the South African judiciary did not play a role in public policymaking prior to democracy in the country, and continue not to do so under the current Constitution. Conversely, superior courts as the upper echelon of the South African judiciary were found to be playing an extensive role in public policymaking under the present Constitution in radical departure from their limited role prior to the advent of democracy. The study ends with an elaborate set of recommendations bearing on inter alia: the judiciary and the management of justice as well as the paradigm within which to view judicial policymaking.

Full Name
Dr Life Reuben Maluleke