The new year promises to be important for our legal system. For starters, Jacob Zuma faces two trials that are likely to test the mettle of the presiding officers.
The rape trial appears to be a he-said-she-said case in which the credibility of the protagonists will determine the outcome.
The corruption trial will traverse territory over which Judge Hilary Squires journeyed last year when he convicted Schabir Shaik. The complexity of the evidence will not prevent the press or the public from forming opinions about the performance of the presiding judge.
This trial will thus raise questions about the judiciary and its ability to shepherd the country into a stable era of constitutional democracy. In the past there was a tradition that the senior judge in the province presided in such cases, and it may be worthwhile considering this now. Judge President Vuka Tshabalala or his deputy, Judge Thabani Jali, could preside, thereby putting paid to speculation about why judge X or Y was allocated the case.
In addition, the introduction of the 14th Constitution Amendment Bill will raise the judicial temperature.
The Bill proposes a number of changes to the constitutional organisation of the judiciary. The Bill makes the minister of justice responsible for court administration and budgets.
Once introduced, the Bill will place the control of the means of carrying out the judicial function in the hands of the executive.
The argument for the amendment rests on the need for the judiciary’s funding to be controlled by someone other than the recipients themselves. But if the chief justice puts a budget to Parliament, why can Parliament not approve a budget for which the chief justice’s office is not accountable? Why the need for executive control of the judicial operation?
More importantly, why the need for a constitutional change — unless the executive considers that legislation it wishes to introduce to control judicial conditions is, at present, unconstitutional?
Another area of potential controversy concerns the appointment of judge president. At present they are appointed after the Judicial Service Commission (JSC) recommends nominations to the president. Now the JSC is to be cut out of this loop. The president will only be required to consult the chief justice and the minister of justice.
Why the rather secretive method of appointment of judge president? Can an inference be drawn that the present system has not produced the judge president the government feels are suitable for leading the high court?
A third change is to extend the jurisdiction of the Constitutional Court to hear matters other than constitutional disputes, on the grounds that the interests of justice so require that the matter be heard by the court. It will be able to expand its jurisdiction without engaging in constitutional gymnastics. Is this the beginning of the end of the system of two apex courts? Will there be one apex court, the Constitutional Court, for all appeals?
Between the controversy of the Zuma litigation and the heat over these constitutional amendments, 2006 will be an interesting year.