EXTRA-JUDICIAL SERVICE ON THE PART OF JUDGES: CONSTITUTIONAL IMPEDIMENTS IN AUSTRALIA AND SOUTH AFRICA

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Abstract:

The separation of judicial power is constitutionally entrenched in both Australia and South Africa. In deciding whether extra-judicial service on the part of judges is in breach of the separation between the judiciary and the other arms of government the Constitutional Court of South Africa has followed the approach of the High Court of Australia. The test used is whether the function performed by the judge is incompatible with his or her judicial functions or with the proper discharge by the judiciary of its responsibilities as an institution exercising judicial power. In this paper the author criticizes the incompatibility approach, arguing that a blanket ban on the performance of non-judicial functions by judges would better serve the interests which underlie the separation of judicial power.

Document Type: Research Article

Publication date: January 1, 2003

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