SOME THOUGHTS ON THE CONSTITUTIONALITY OF “INDEPENDENT” TRIBUNALS ESTABLISHED BY THE STATE

Abstract

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 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.