The media might have fabricated fears reportedly expressed by judges about pending constitutional amendments affecting the court system, Deputy Minister of Justice and Constitutional Development Johnny de Lange intimated on Tuesday.
”I must be honest, I don’t trust the media. I don’t know if a real judge went to them and complained,” he told Parliament’s security and constitutional affairs select committee.
”On these people that are anonymous and hide behind secrecy and so on, I really do not know who they are. I cannot tell you if they’re real, and I definitely cannot tell you if their arguments are valid.”
No judges ever ”raised those things in public”, the deputy minister told the committee. ”We read a lot of articles about judges who are unhappy about something, but it is anonymous. You don’t know. I don’t know.
”I know the vast majority of [media] articles are never checked up. Our comments are never asked on it.”
De Lange then proceeded to outline some issues about which he said judges have expressed concern.
One involves responsibility for court resources, which he said ”have in this country always been the preserve of the executive”.
”It has nothing to do with the independence of the judiciary. Let me be conservative and say that in 90% to 95% of countries in the world, the resources of courts are dealt with by the executive.”
All judicial functions, including the assignment of cases, will remain the sole preserve of the judiciary. ”We made a clear distinction between judicial functions, which are the preserve of the judiciary, and resources of the courts, which we say are the preserve of the executive.”
The executive, not the judiciary, is responsible for accounting to the citizenry and must therefore be in charge of court budgets, De Lange said. ”It is an issue of policy choices, and we must debate those. But the problem is we are not having the debate at the moment; everything is being obfuscated behind terminology.”
On the appointment of judges president and their deputies, he said the leadership of the judiciary all over the world is appointed by the executive authority, ”or it plays the major role”.
But a compromise has been reached, in terms of which the president will make such appointments from a shortlist provided by the Judicial Services Commission.
On criticism of a proposed amendment preventing courts from suspending the commencement of a law, De Lange said the Constitution provides for only two conditions under which the legislative process can be interrupted.
Either the president or 30% of parliamentarians can refer a pending law to the Constitutional Court.
The proposed amendment merely seeks to give clarity, De Lange said. Courts must be able to intervene in legislation, but only from the moment it has legal effect. If not, ”a huge constitutional crisis” could arise.
Many processes are being delayed pending the constitutional amendments being passing by Parliament, De Lange added. These include the creation of high courts for Mpumalanga and Limpopo.
On the accountability of judges, De Lange underscored the importance of having complaints and disciplinary measures and an asset register. Legislation to this end does not ”in any way infringe on our Constitution, our international obligations, or undermine the separation of powers or independence of the judiciary,” he told the committee. ”Every decent country in the world has a complaints mechanism against judges.”
The executive will play no role in the system, except for providing resources.
The deputy minister lamented the state of the existing disciplinary system for magistrates, run by the Magistrates’ Commission. Magistrates involved in ”unacceptable behaviour” get off scot-free because the commission handles their cases incorrectly.
Examples of such behaviour include magistrates having sex with young girls in cars, committing robbery, and in one case a man exposing himself to a colleague, said De Lange. He described the system as a ”real mess”.
”What does it do for the legitimacy of [the legal system] if we don’t do things properly and get rid of these bad apples?”
Huge problems exist within the magistracy, and many ”don’t care less how they operate”, De Lange said. — Sapa