Waiver of the Right to Judicial Impartiality: Comparative Analysis of South African and Commonwealth Jurisprudence

Abstract

This paper investigates whether judicial independence and impartiality entrenched in written constitutions and recognised by the common law as fundamental requirements of fair administration of justice can be subjected to the private law principles of waiver, estoppel or acquiescence. In an attempt to answer this question, the paper suggests that the starting point should be the interrogation of whether the right alleged to be waived emanates from the constitution or administrative law. At common law, a right can be waived, insofar as the party involved had knowledge of the right and failed to assert it. Similarly, a party who had represented a state of affairs upon which the other relied to his detriment is, in equity, estopped from going back on that understanding. However, the problem is that a waiver of a constitutional right is not easily presumed nor is the defence of estoppel readily permissible. Obviously, the individual’s prerogative is limited if the right in question is in the interest of the public because an individual cannot waive a right entrenched in the Constitution or statute for the protection of the public. This paper considers the jurisprudence dealing with this limitation that emanates from several commonwealth jurisdictions. In conclusion, it posits the question whether the introduction of the concept of ‘interest of justice’ by the South African Constitutional Court in Bernert v ABSA Bank Ltd 2011 3 SA 92 (CC) is the saving grace, and whether, as a stand-alone concept, it can effectively substitute for waiver, estoppel or acquiescence in either the constitutional or administrative law context.