Transformation of the Judiciary – WHAT THE CONSTITUTION DEMANDS (cont.)
There can be no rational South African of any political persuasion who does not regard it appropriate to have a court system which is accessible, efficient and legitimate. It is a cause for concern that the judiciary as constituted at present does not always function at high levels of accessibility, efficiency and legitimacy.
Last year, during the parliamentary debate concerning the demise of the Scorpions, the then Deputy Minister of Justice, Johnny de Lange, conceded that the criminal justice system in South Africa is "dysfunctional". When awaiting trial prisoners are detained for up to ten years, prosecutions fail for want of proper investigation and police dockets or court files disappear with monotonous regularity it is plain that this concession is well made. It is also a cause for concern when valuable court time is lost because prisoners are not brought to court on time, interpreters are not available and counsel are not properly prepared to proceed for want of instructions from prisoners to whom they have had inadequate access. Postponements occasioned by circumstances such as these are wasteful of time and resources in the criminal justice system. The frequency of postponements of cases, both criminal and civil, ought to be reduced in the interests of efficiency, not to speak of the often dire personal consequences for those directly involved. It is comforting that Justice Sandile Ngcobo, nominated by President Zuma to be the next Chief Justice, is reported to regard this as a priority. Justice delayed is justice denied.
As far as civil litigation is concerned, it has become the preserve of the very poor, who qualify for Legal Aid or pro bono assistance, and the very rich, those able to afford the fees and charges that are involved. The delays in getting disputes to adjudication are excessive as court rolls are clogged with matters, many of which are not ripe for hearing. The existing system of appeals is open to abuse by those so-called "professional litigants" who are never satisfied with any outcome adverse to them. Increasingly, civil litigation is between citizens and state agencies rather than between citizens themselves. As levels of service delivery continue to decline, this trend can be expected to continue. Those burning tyres in townships today could become the litigious activists of tomorrow.
In these circumstances it is appropriate that careful consideration be given to the reform of the court system so as to improve matters. The Constitution itself requires that organs of state (defined to exclude courts and judicial officers) "assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts". Mindful of this injunction, the Department of Justice is in the process of preparing a policy document on what it calls "the transformation of the judiciary" and it is expected that pursuant to the policy positions taken up in that document, draft legislation aimed at bringing about changes in the status quo will follow the publication of the policy document. This is sure to elicit a vigorous debate as there are many and varied opinions as to how to fix what is broken and whether to smash what is arguably not broken.
This is an important debate and it is one which is necessary if we are to have a system which is effective, efficient and affordable. It is equally important that the debate be informed by facts rather than perceptions and that it be conducted within the framework established by the principles of our Constitution. In this regard it is encouraging to note that the new Minister of Justice, Jeff Radebe, does not intend to change the Constitution in the scope of the legislative measures our new executive has in mind. This is a step forward from the position taken up during the Mbeki years when some radical amendments to the Constitution were proposed. They were subsequently withdrawn after an outcry in which they were criticized by every living Chief Justice and many in civil society and the legal professions who were concerned by the direction in which the proposals would take the administration of justice.
It is accordingly encouraging that the new Minister has foreshadowed a legislative programme that does not include tinkering with the Constitution. The value of this lies in the centrality of an independent judiciary to our constitutional order and its founding principles. The rule of law and the supremacy of the Constitution (both founding principles) can hardly be maintained if we do not respect the doctrine of the separation of powers between the legislature, executive and judiciary. The checks and balances on the exercise of power in our Constitution can only be properly implemented if the equilibrium is adjudicated by a truly independent judiciary. Elements in the old South African judiciary who were executive minded, brought shame and disrepute upon the institution in which they served. Our new constitutional dispensation ensures that this ought never to occur again. As Chief Justice Mohamed put it in the famous De Lille case:
"… the Constitution … is Supreme - not Parliament. It is the ultimate source of all lawful authority in the country. No Parliament, however bona fide or eminent its membership, no President, however formidable be his reputation or scholarship, and no official, however efficient or well-meaning, can make any law or perform any act which is not sanctioned by the Constitution. Section 2 of the Constitution expressly provides that law or conduct inconsistent with the Constitution is invalid and the obligations imposed by it must be fulfilled. It follows that any citizen adversely affected by any decree, order or action of any official or body, which is not properly authorised by the Constitution is entitled to the protection of the Courts. No Parliament, no official and no institution is immune from Judicial scrutiny in such circumstances."
The changes are fundamental improvements in the legal order according to which all in the country now live and they are central to the liberation of the country from the shackles of its apartheid past. The introduction of a justiciable Bill of Rights in Chapter 2 of the Constitution is also a refreshing break with our oppressive past. The Bill of Rights obliges the state to respect, protect, promote and fulfill the various rights and freedoms guaranteed to all. These guarantees can only be meaningful if there is an independent judiciary to which those who wish to claim their rights can turn. The track record of the Constitutional Court in putting flesh on the bones of the rights contained in the Bill of Rights is exemplary and certainly not executive minded.
It also needs to be borne in mind that the judiciary is not a party-political actor in its functioning, even though court decisions sometimes have broadly political consequences. The role of the Courts is to adjudicate disputes. The Constitution puts it this way:
"The courts are independent and subject only to the Constitution and the law, which they must apply impartially and with fear, favour or prejudice."
The judicial authority in the land is vested in the courts and the most senior judge in the country is the Chief Justice, who, with the Deputy Chief Justice and nine other judges make up the Constitution Court. Four vacancies in that Court, brought about by the conclusion of the 15 year limited term which constitutional judges serve, will have to be filled by October through the selection processes of the Judicial Service Commission which seeks out appropriately qualified, fit and proper persons from among those who have applied.
"Transformation" in the administration of justice is not only about changing the demographics of those on the Bench. A clear and consistent track record of commitment to the values of the Constitution in an applicant is, at this stage, arguably more important. If the framework and principles of the Constitution are given due recognition in the processes of effecting changes both to the applicable laws and in respect of new judges, it can be anticipated that a legitimate, efficient and accessible Court system will emerge with the help of the long overdue reforms under contemplation.
Hugh Corder
(Professor and former Dean of Law at UCT)
Paul Hoffman
August 2009
