Why do you think there is controversy over the Bill?
It is about ideologies, what the role of the judiciary should be. Some people expect us to take the judges’ submission and put them in the Bill. We felt there were policy issues on which we (the judges and the government) have not agreed.
What is the policy? And why is there such suspicion about it?
Transformation. We are a country in transition, and it is not inconceivable that within the judiciary there are people who are still trying to understand the government and its leadership.
What do you make of the concerns expressed over empowering the president to appoint judge presidents?
In the greater scheme of things, it should not be criticised. The judge president’s role will be given more prominence going forward. The irony of the debate is that this is exactly how Constitutional Court judges are appointed. The Judicial Services Commission [JSC] interviews and then presents three or four candidates to the president saying, ”all these are employable”, and the president chooses one. This will also enable the president, where transformation is found wanting, to give effect to it.
Why sneak the draft legislation through during the Christmas period?
We didn’t. With respect to the judiciary, they knew what was going on and what version we would gazette. We had discussions with them. Remember that the Bill had been to Parliament’s justice committee, but that the Minister [Brigitte Mabandla] felt there was a need for more consultation. Ideally, it should have gone to Parliament but she felt it needed more consultation and arranged a colloquium. We had task teams looking at the issues, but some of these things were policy decisions and we agreed to disagree. What would further consultation do?
Another thing people fail to appreciate was that we had time constraints [if we wanted to get the Bill enacted this year]. We had to comply with parliamentary rules.
What do you want to achieve by amending the Constitution?
The Constitution tells us there is a chief justice but does not say what his role is. It is important that we make it clear in the Constitution. There are currently two centres of power, in the Constitutional Court and in the Supreme Court of Appeal [SCA]. We need to make it clear that even the president of the Appeal Court is led by the chief justice. We need to recognise the chief justice’s role and his responsibilities as head of the judiciary.
The Bill seeks to do away with the Labour Court and create SCA circuit courts. Why?
Why must everyone go to Braamfontein [seat of the labour court] or to Bloemfontein [seat of the SCA]? Why not go to Grahamstown or where you can have the matter heard within your jurisdiction? Also, judges of the labour court are not appointed through the JSC process and therefore do not have security of tenure. We want to give them that.
Why do you want to stop lower courts suspending Acts of Parliament or of provincial legislatures until the Constitutional Court has ruled on their constitutionality?
Life must go on. Constitutionality is made an issue in every case — if we allowed [for the suspension] we would have a framework where everyone challenges every piece of legislation and that would paralyse government.
Why do you want to take adminis-trative functions from the heads of court?
What are the core functions of a judge or a magistrate? What are they hired to do? The competency test is whether one is a good lawyer; that you have experience managing a company is irrelevant. It goes further than that: suppose there is a labour dispute; who gets taken to the Commission for Conciliation, Arbitration and Mediation? If there was an auditing query and Parliament’s public accounts committee said [to a judge] come and explain this, where would that leave the independence of the judiciary?
There is a historical problem that magistrates were always public servants and therefore involved in administrative work. There are currently about 100 magistrates doing administrative duties. We are saying that if they want to remain as public servants they must come back to the department and be public servants.
Have there been examples of heads of court failing in their administrative functions?
Yes. I am not going to mention names, but we had a judge who contracted a company to fix his air conditioning. The company billed the Department of Justice, saying they had been given the job by a judge. All this happened while the Department of Public Works had already been engaged to fix the problem. The judges say that was a once-off, but it illustrates why these things are important. Judges and magistrates should not be worried about toilets working when there are case backlogs. You cannot say that the best person to run a hospital is a doctor.