The controversial African National Congress statement on the transformation of the judiciary reflects an unresolved debate on the judiciary in the ANC leadership, with one important faction under Minister of Health Manto Tshabalala-Msimang believing that judges are thwarting the government’s will.
A senior ANC official told the Mail & Guardian the statement was the product of an effort to juggle competing views within the national executive council of the ANC.
One group — identified with Tshabalala-Msimang — felt the judiciary was too independent and an obstacle to the will of the executive. Tshabalala-Msimang has suffered a number of setbacks in the courts, most recently when the Supreme Court of Appeal threw out regulations governing the pricing of medicines.
Another, the officials said, is concerned primarily with what it saw as that slow pace of change in the racial composition of the judiciary, particularly in the lower courts.
A third body of opinion maintained the more traditional ANC line that a lack of transformation manifested itself as a lack of access to justice for the poor, and the failure of too many judges to demonstrate empathy for people who lived in circumstances alien to them. This group essentially believed that only through more thorough transformation could constitutional values be more fully realised.
”There was some deliberate ambivalence [in the statement] aimed at pleasing all three of these groups,” said the official.
A three-paragraph section of the statement, released last Saturday at the ANC’s 93rd anniversary celebrations in Umtata, called the transformation of the ”collective mindset of the judiciary to bring it into consonance with the visions and aspirations of the millions who engaged in struggle to liberate our country from white minority domination”. It went on to complain that too many judges failed to see themselves as accountable to these ”masses”.
Judges, analysts and political parties offered competing interpretations of the statement. One judge, who asked not to be named, described it as ”astonishing”, pointing out that it was the Constitution to which the judiciary was accountable, not ”the masses”. He suggested that calling for accountability to the masses was very close to calling for accountability to those who purport to represent them — namely the ruling party.
Others were more sanguine, arguing that the ANC was right to stress the importance of a deeper understanding of the concerns of the poor, or suggesting that the party simply lacked the means to influence judges.
”An impression has been created that the ANC [as a political party] has the power to do anything about sitting judges. It doesn’t,” said a judge who spoke on condition of anonymity. ”There was threat-sounding language in the statement, but so what?” one of them said.
In a statement released on Wednesday, Chief Justice Arthur Chaskalson appears to concur with the third ANC grouping, insisting on the centrality of the Constitution to any debate over transformation: ”In [the relevant section of the January 8 statement] the Constitution is affirmed, as is the importance of the fundamental rights and freedoms entrenched in it, and the importance of giving effect to those rights and freedoms including the socio-economic rights to housing, health care, food, water and social security,” Chaskalson said.
”One of the tasks assigned to the judiciary by the Constitution is to ensure that these rights are respected and upheld. On assuming office judicial officers commit themselves to doing so. Their obligation under the Constitution is to administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law. In so doing, as the Constitutional Court has stressed on more than one occasion, they must give effect to the values of the Constitution. It is these values clearly articulated as they are in the Constitution which must inform the decisions made by judges.”
The senior ANC official remarked that the chief justice ”has basically come out and said ‘this is what the statement means’, which was really necessary”.
”There may be some truth in what the Manto group, and the ‘more black judges’ group say, but it is crucial to have a transformed judiciary that is also robust and independent, anything else would be very dangerous for our democracy,” he added.
Several judges agreed, saying the questions of judicial independence and transformation should not be conflated.
Some commentators — including the Democratic Alliance — have argued that the ANC’s statement was timed to cow the Constitutional Court ahead of the Department of Health’s appeal against the Supreme Court of Appeal decision striking down drug price regulations. The department’s application to have the case heard comes before the court on March 15.
But Russel Madlanga, SC, who had a stint as a judge at the Constitutional Court before returning to private practice, said: ”Any suggestion that the Constitutional Court favours the government is absolute nonsense. Its judgements are objective and impartial to any reasonable observer.”
The numbers game
Though there seems to be growing agreement that the transformation is not only about filling the Bench with more blacks and women, but also about adding diversity of thought and outlook, the numbers game is still the most visible benchmark of the work that needs to be done.
According to the Department of Justice’s latest statistics, there are currently 210 judges in South Africa. Of these 114 are white males, with their black/African counterparts adding 47 to the figure.
There are 13 white women on the Bench and eight black/African women. Of the 10 coloured judges, eight are men and two are women. There are 18 Indian judges, comprising 13 men and five women.
In 1990 all judges were white. Matters improved slightly in 1994. In her maiden budget speech as Minister of Justice, Brigitte Mabandla said of the 166 judges in 1994, 161 were white men, two were white women and three were black men.
”From being less than 2% black in 1994, the judiciary is now 34% black. More importantly, of the 53 new judges appointed since 1994, 89% are black and the magistracy is now nearly 50% black and 30% female,” Mabandla said. — Fikile-Ntsikelelo Moya