The liability in delict of judges for wrongs committed in the course of judicial proceedings : an historical analysis of the relative immunity of the South African judiciary

• Main Author: Van Hülsen, Johann-Dietrich
• Other Authors: Hutchison, Dale
• Format: Dissertation
• Language: English
• Published: University of Cape Town 2016
• Subjects: Public Law
• Online Access: http://hdl.handle.net/11427/17507

Bibliography: p. xix-lvii. === The focus of this thesis is on an aspect of judicial accountability that has not hitherto attracted much attention in South African law: the civil liability of the judiciary for wrongs committed in the course of judicial proceedings. More particularly, the thesis examines to what extent a South African judicial officer may be held liable in delict for infringing the proprietary or personality rights of another - almost invariably a litigant appearing before the judicial officer. The wrongful conduct in question is usually the giving of a judgement without a proper legal foundation (wrong judgement), but it may take a variety of other forms, for example defamation, insult or, less commonly, physical assault. Since judicial liability is not an invention of the modem constitutional state, but has deep and ancient roots, the investigation is inevitably and essentially an historical one. The thesis traces the development of such liability in Roman law, in early medieval law, in the ius commune (i.e., the Italian school of the Glossators and the Commentators), in Roman-Dutch law, in English law, and finally, in the South African usus hodiernus. The assessment of the modem South African law is a critical one. The question is asked whether the narrow scope of judicial liability that is presently recognised is an adequate safeguard against abuse of the judicial office, and whether it is compatible with the new constitutional order in South Africa. The topicality and controversial nature of the subject is evident from the submissions made by the judiciary to the Truth and Reconciliation Commission in October 1997. It is apparent that the judges are suspicious of attempts to make them more accountable for their actions, regarding these as encroachments on their traditional independence. Significantly, it also appears that the threat of civil liability is not one that is taken seriously. The approach adopted in this thesis is that a proper balance needs to be struck between judicial independence and judicial accountability; and that, as history teaches us, civil liability is an essential component of such accountability.