Kevin Hopkins
2022 Obiter  
An interesting question for constitutional lawyers arises around the legality of some of the so-called "independent tribunals" or forums that are established to make quasi-judicial decisions. Sometimes the tribunals are designed to only perform administrative functions and other times they are designed to perform purely judicial functions – perhaps on issues of compensation or to make decisions that resolve disputes. The point of this note is not to examine the legality of any specific tribunal
more » ... but rather to discuss some general considerations that ought to drive any debate on the legality thereof. It sometimes happens that, for reasons of control, the state envisages creating a tribunal that will be part of the executive arm of government. The consequence of this may be that decisions taken by the tribunal effectively remove the resolution of a dispute referred to that tribunal from the judiciary and place it instead in the hands of the executive. This kind of arrangement immediately raises at least two significant constitutional concerns:(a) First, the separation of powers doctrine, given that the Constitution requires a functional divide between executive and judiciary; and (b) Second, the right of access to a court of law that all people have in terms of section 34 of the Constitution.
doi:10.17159/obiter.v27i1.14429 fatcat:nv4jed3kejfjbc2iucgsg4jpz4