The Constitution is clear on the transformation of the legal system: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed,” And it gives the job of considering to the Judicial Service Commission (JSC), which tries very hard to fill vacant posts with black candidates, and women.
It doesn’t always have an easy time of it. As the chairperson of the General Council of the Bar, Norman Arendse, has pointed out, many senior black legal practitioners, who did their bit for the cause in struggle firms and township practices, are now getting briefs which give them the opportunity to work at the top of the profession, and to earn good money. Many don’t want to go to the bench just yet.
Nevertheless, the demographic composition of the judiciary is changing.
So why does pressure seem to be building for an expanded government role in both transformation and the oversight of the judiciary? It is hard to avoid the impression that the drive for change is pushing to the limits the constitutional vision that underpins our democracy.
When the African National Congress’s national executive council (NEC) warned in its January 8 statement that the judicary’s failure to identify with the aspirations of the masses would “inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole”, it was widely interpreted as threatening the independence of the courts.
That charge was quickly denied. But the language of the statement clearly reflected ambivalence in the ANC over whether the constitutional mandate for judicial transformation gave adequate expression to the courts’ role in social development. It also showed the frustration of some NEC members over what they perceive as the readiness of the courts to dictate to the executive.
Minister of Health Manto Tshabalala-Msimang put the position clearly in 2002 after the Constitutional Court struck down her appeal against a judgement compelling the government to provide Nevirapine to HIV-positive pregnant women. “It’s not that we are against protecting babies from HIV. It’s just that we think the judge went too far: this judgement amounts to a position that policy should be in the hands of judges.”
The Constitutional Court rejected the claims of judicial trespass: “All arms of government should be sensitive to, and respect, the separation of powers, but this does not mean courts cannot or should not make orders that have an impact on policy.”
In this context, the suggestion from the Ministry of Justice and Constitutional Development that the JSC has allowed racism on the bench and at the bar to “fester”, and that judges need continuing education to bring their mindsets more closely into line with the aspirations of “the masses”, is genuinely worrying. So is the department’s apparent sympathy with the approach of Cape Judge President John Hlophe, whose high-profile campaign against the Cape Bar, and his colleagues on the Bench, has turned a well-liked and respected African head-of-court into a figure of fear and ridicule.
Minister of Justice and Constitutional Development Brigitte Mabandla should push her department to complete long-awaited legislation to improve the way courts govern themselves. She should also bring more resources to bear in improving the quality of justice in magistrate’s courts, where most South Africans interface with the legal system. As for the rest, she must allow the courts — and the JSC — to do the job the Constitution has given them.
Not a refuge for the powerful
Plea-bargaining is a relatively new practice in our judicial system, but already it has the stench of special treatment for a favoured few.
If you had mentioned the phrase a week ago, the two cases that would have come to mind would have been that of Mark Thatcher, who got off with hardly a scratch to his piggy bank after confessing to aiding a coup attempt, and Travelgate, where MPs alleged to have defrauded Parliament were offered a chance to strike a deal that might save their political skins.
This week produced two more examples. Former ANC chief whip Tony Yengeni claimed that in 2003 he pleaded guilty to defrauding Parliament (sound familiar?) only because then-justice minister Penuell Maduna and then-prosecutions boss Bulelani Ngcuka had agreed to drop more serious corruption charges and have prosecutors argue for a R5 000 fine.
The other is our story on a Sasol subsidiary being given a R100 000 fine — small change for the R55-billion petrochemical giant — after a plea bargain on a chemical weapons contravention saw a lower court dispose of the matter with minimal publicity.
Plea-bargaining may be a useful mechanism to optimise prosecutorial resources. But the arguing happens behind closed doors rather than in open court, meaning the public is deprived of an oversight role. It can be abused. The Yengeni case is instructive. Whether or not Ngcuka indeed agreed to a R5 000 fine — he denies it — a deal of some kind was struck, and Yengeni feels hard done by because the court imposed a much stiffer penalty of four years in jail.
The fact that Yengeni got more than he bargained for shows that sentences agreed during the bargaining process are often too light.
Let plea-bargaining not become the refuge of our publicity-shy elites!