Judges across the racial spectrum remain unanimously opposed to a draft law aimed at restructuring the judiciary and hope that Minister of Justice and Constitutional Development Brigitte Mabandla’s ”amenable nature” will save the day when the heads of court and government meet next week.
The meeting, set for Thursday February 2, will revolve around the 14th Constitution Amendment Bill, which would strip the judges of their administrative functions, empower the president to appoint judge presidents after consulting the chief justice, and place the Constitutional Court at the apex of the court system.
Judges fear it will compromise the independence of the judiciary. The current approach is for judge presidents to be appointed by the independent Judicial Service Commission (JSC), while the judges argue that vesting administration of the courts, and therefore control of the purse strings, in the Ministry of Justice violates the principle of the separation of powers.
The Constitutional Court is currently the highest arbiter of constitutional matters, with the Supreme Court of Appeal being court of last instance in criminal and civil matters. There are concerns that the Constitutional Court does not have the expertise to deal with everyday ”black letter” law, including criminal and commercial matters.
In off-the-record interviews this week, five judges who spoke to the Mail & Guardian said progress had been made since the Bill was published last year and amendments made following a judges’ colloquium in April, but, there was unanimous agreement that areas of grave concern remain.
At the heart of their consternation lies the executive’s apparent determination to press ahead with a law rejected by those most directly affected — the judges themselves.
After the colloquium, senior judges including Chief Justice Pius Langa; the president of the Transvaal division, Judge Bernard Ngoepe; Eastern Cape Judge President Cecil Somyalo; and KwaZulu-Natal Judge President Vuka Tshabalala endorsed memoranda voicing displeasure over the amendments. By so doing, they dispelled the notion that the judiciary was divided on the legislation along racial lines.
Former chief justice Arthur Chaskalson and his successor Judge Langa have urged the executive to seek consensus instead of using strong-arm tactics when dealing with another branch of the government.
After the colloquium, Mabandla withdrew Bills affecting the judiciary already before Parliament and called for further discussions.
Judges hope that she will now follow that precedent.
This week Judge Tshabalala, who last year told the M&G that judges intended to quit if the amendments became law, said: ”They [the amendments] don’t look like they did the last time but problems remain.”
Another judge said there had been ”almost 100% agreement [within the judiciary] that the manner in which these amendments had been steamrollered was undemocratic, to say the least”.
The view is that the executive wanted to push ahead with the constitutional amendments because if the laws pertaining to working conditions of judges were enacted within the current constitutional framework, they would be clearly unconstitutional.
A senior legal professional said problems affecting the administration of justice could be reduced to three points. These were the need for more black and women judicial officers, developing satisfactory jurisprudence and making access to justice more efficient.
”These problems cannot be solved by amending the Constitution. The answer lies in properly resourcing the courts,” he said.
A judge said resistance to the Gautrain project showed the importance of giving all stakeholders enough time to think issues through. ”But when we want to create an apex court, we do it over the holiday period. It is ridiculous.”
Advocate Patric Mtshaulana, spokesperson for the Duma Nokwe group lobbying for transformation within the advocates’ profession, said that while much change was needed in the legal fraternity, some proposed changes to the Constitution were ”a bridge too far”. He warned against changing the Constitution for short-term goals.
”Today we may seem to need a more interventionist approach from the president and the executive because the profession is not helpful. But that can come back to bite us in 10 to 15 years.
”We must adopt constitutional changes that look far into the future instead of allowing ourselves to be blinded by the difficulties we face today.”
Mtshaulana said the legal profession had wrongly adopted a view that the government was inherently recalcitrant and would not budge even when shown good sense.
Some of the problems with the proposed legislation were so glaring that it is not impossible for concerned citizens to speak against them with one voice. A government that sought to get the vote of the electorate would not bulldoze its views through, said Mtshaulana.
However, in the final analysis, the ball was in the government and Parliament’s court.
Said a judge: ”We cannot stop them making the law. If we were a trade union, we would contemplate going on a strike, but we are not. But we have to make a protest, at the very least.”