Chapter 8 of the Constitution defines the structure and power of the judiciary, with section 165 of the Constitution conferring the judicial authority to the courts. Judicial authority empowers the courts to interpret and apply the law when considering legal cases before them.

The head of the judiciary is the Chief Justice. There are various courts, each with a different status such as the Constitutional Court, the Supreme Court of Appeal, High Courts and Magistrates’ Courts. 

The courts are subject only to the Constitution and must be independent and impartial. This means that when deciding cases, judges must act without fear or favour or prejudice. Organs of state must, through legislative and other measures, assist and protect the courts in order to ensure their independence, impartiality, dignity, accessibility and effectiveness.

The Supreme Court of Appeal and the High Courts can make a finding on the unconstitutionality of a law. However, only the Constitutional Court can confirm that it is indeed unconstitutional and therefore invalid.

This chapter also provides for a Judicial Services Commission (JSC), which is responsible for preparing a list of nominees to various judicial positions for the President to choose from when filling a judicial vacancy. The President must appoint the Chief Justice and Deputy Chief Justice of the Constitutional Court after consulting with the JSC.

The JSC is made up of the Chief Justice, one Judge President, the Minister of Justice, two practising advocates, two practising attorneys, one legal academic, six National Assembly members, four members of the National Council of the Provinces, and four people designated by the President. If the matter concerns a province, its Premier may also sit on the JSC.