The government is planning a radical overhaul of the governance and administration of the courts, on the grounds that existing oversight mechanisms have failed to achieve thorough transformation.
Minister of Justice and Constitutional Development Brigitte Mabandla announced this week that a ”concept paper” on the transformation of the judicial system would be tabled before Cabinet in April this year.
It would deal with the separation of powers, judicial accountability and the rationalisation of the courts, she said.
The Judicial Service Commission (JSC) has long called for improved legislation to govern disciplinary procedures within the legal system. But any attempt by the government to redefine the separation of powers, or to move oversight of the courts out of the judiciary’s hands, is likely to be enormously controversial.
Shadrack Gutto, special adviser to Mabandla on transformation, said:  ”We still have a very archaic structure, an apartheid and colonial arrangement where you have judge presidents in charge of high courts, and the Supreme Court of Appeal, alongside the JSC.
”Judges and the legal profession currently regulate themselves, and these structures should be reviewed urgently so that we have a modernised system of justice where the judiciary is subject to review like any other branch of the state.”
Gutto said his role would be ”to initiate dialogue, starting with the chief justice, the heads of court, and judges”.
His remarks come against the backdrop of persistent controversy over racial tensions in the court system, the demographic composition of the Bench, and the independence of the judiciary.
A report by Judge President of the Cape Division of the High Court John Hlophe, leaked this week, alleges that advocates at the Cape Bar ”despise” black judges, and that white judges in the division undermine their black colleagues. It rekindled a public battle muted by the intervention last October of Deputy Chief Justice Pius Langa.
Representatives of the legal profession hit back at Hlophe, with General Council of the Bar chairperson Norman Arendse suggesting that problems in the Cape division might reflect Hlophe’s leadership style.
Gutto said he sympathised with Hlophe’s frustrations because the established avenues for dealing with such issues — the JSC and heads of court — were inadequate. But he added that Mabandla had decided the report on the judiciary should be dealt with by the heads of court rather than the ministry, to ensure that there was no perception of executive interference.
”It is important to keep the separation of powers — the JSC should deal with the appointment of judges, and any improper behaviour. But this is a temporary measure. The JSC has not been able to get its house in order in terms of complaints and procedures for dealing with these issues. It has been discussed ad nauseam since 1994, but things have been left to fester.”
Mabandla said judges wanted the grey areas clarified, while insisting that the government recognised the separation of powers between the judiciary and the executive. ”We would argue that we are not threatening them at all. It would be good for the judges’ honour and intergrity if ordinary people respect their work,” she said.
Her comments echo the African National Congress’s controversial January 8 statement, which warned that too many judges were out of touch with the aspirations of ”the masses”.
”If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole,” said the party’s national executive committee.
Gutto said thorough change was needed to improve the quality of justice throughout the court system, particularly in criminal matters.
He also said that race and gender demographics matter. ”But we must go beyond that and see whether the judiciary is really prepared to improve the quality of justice people get. Unless we do that, we are sitting with a nice Constitution that has no substance in terms of the way it touches people’s lives.”
Asked whether there was a perception in the government that the judiciary was needlessly adversarial and limited the executive’s scope for action, Gutto said there was normal, institutional tension.
”It’s the normal checks and balances working, and getting tested, and sometimes that is quite tough — this isn’t just a theoretical idea, it’s a living constitutional state. But it is not out of hand.”