Analysis

ANC: Judicial independence crucial to democracy

John Jeffery

The ANC government, in particular under the Zuma presidency, has strengthened the judiciary's independence, and findings otherwise are not factual.

Attempts to peddle a perception that the government of President Jacob Zuma is seeking to undermine the independence of the courts have no factual basis. (Gallo)

The late chief justice Ismael Mahomed once remarked that "the ultimate power of the courts must rest on the esteem in which the judiciary is held within the psyche and soul of a nation and in the confidence it enjoys within the hearts and the minds of potential litigants".

For people to have confidence in the judiciary – and ultimately in our courts, in the justice system and in the rule of law – it is fundamental that the judiciary is independent. There are differing views on what exactly is meant by judicial independence, but at the very least it means delivering justice without fear, favour or prejudice and being free from undue ­influence, interference or control.

Yet there is this perception that the ANC is not doing enough to uphold the independence of the judiciary. Last year, the Institute for Security Studies referred to a Human Sciences Research Council (HSRC) report that analysed trends in the levels of trust citizens placed in the courts, and blamed declining confidence on "attacks on the courts".

Findings such as these are based on perception, not fact. Attempts to peddle a perception that the government of President Jacob Zuma is seeking to undermine the independence of the courts have no factual basis.

The truth of the matter is that the ANC government, since 1994, but in particular under the Zuma presidency, has strengthened the independence of the judiciary. When we change the Constitution, we do so to strengthen the independence of the courts, not to detract from it.

Pillars of constitutional order
The ANC has in national conference after national conference highlighted the importance of an independent judiciary. In the ANC's 2012 policy discussion document it clearly states that "the independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored". In its 53rd conference resolutions, the ANC reaffirmed the position that the branches of the state are coequal parties entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa. Each branch of the state must therefore observe the inherent constitutional limitations regarding its power and authority and no branch should undermine the others when exercising its constitutional mandate.

The Constitution Seventeenth Amendment Act came into effect last year. It further entrenches the independence of the courts and acknow-ledges the chief justice as the head of the judiciary, who exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts. It is in this context that the chief justice must now develop such norms and standards.

In addition, the Constitutional Court may now, over and above constitutional matters, decide on any other matter if it grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance that ought to be considered by that court.

The Superior Courts Act, which came into effect last year, not only rationalises and consolidates the laws relating to the Constitutional Court, the Supreme Court of Appeal and the high courts of South Africa, it also recognises the desirability of a uniform framework for the judicial management of all courts. This includes the magistrates' courts.

Under this Act, the judge president of a division is responsible for the co-ordination of the judicial functions of all magistrates' courts in that division regarding any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts.

But despite our best efforts in passing legislation to strengthen the independence of the judiciary, in the eyes of some the ANC government can do no right. Anthea Jeffery of the South African Institute of Race Relations has said that, although these Acts are "better" than previous judiciary Bills, they "still give the minister of justice and constitutional development significant control over court budgets and administration".

Government's responsibility
Judges cannot be accountable to the electorate as they are independent. They are not elected by the public or subject to recall. The Constitution itself refers to a minister responsible for the administration of justice. Someone has to be accountable. The ANC government under Zuma has accepted the responsibility of the judiciary to play an active role in court administration and established the office of the chief justice for this purpose.

Legislation to determine the precise role of the judiciary and the minister still has to be finalised and a number of issues debated. Some say, for example, that the administration of the courts should be the sole responsibility of the judiciary. But this approach ignores that there is a political responsibility to all South Africans for the administration of justice that independent and unelected judges cannot exercise.

The new legislation confirms the chief justice as the head of the judiciary, to strengthen its independence further. But Jeffery has criticised the appointment of the chief justice and said that "he who controls the chief justice in effect controls the judiciary". But commentators have argued to the contrary.

Professor David Bilchitz of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law told the Mail & Guardian in 2012 that some may have regarded the chief justice's appointment as "controversial", but there was no evidence to suggest any weakening of the court's independence and integrity.

I would argue that the impressive constitutional jurisprudence of our courts has shown a judiciary not afraid to take on other arms of government. Surely that is a hallmark of a truly independent judiciary?

Only the privileged have adequate access to justice?
In the HSRC report, 44% said the courts were more likely to find people guilty if they were black and 51% if they were poor. So perhaps the real reason behind lower confidence in the judicial system is that citizens still believe only the privileged have adequate access to justice. Perhaps it has more to do with the fact that our middle and working classes, across all race groups, believe that they cannot afford the services of lawyers.

These issues, along with the question of how to make justice accessible to all South Africans, rich and poor, should be the real focus of debates instead of continuous attempts to perpetuate a false perception.

John Jeffery is deputy minister of justice and constitutional development

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