Deep changes to the judicial system are urgently needed. Just about no one disputes that.
Too many relics of the apartheid and colonial past persist in the structure of provincial divisions. And the absence of rigorous, credible and transparent mechanisms to hold judges accountable for their conduct is proving increasingly problematic for the administration of justice.
MPs, Cabinet ministers and civil servants are required to disclose their interests. There is no reason why judges should not do the same. On the contrary, fresh evidence emerges regularly that suggests they should, and that, like their counterparts in the executive and legislative branches, they should be subject to appropriate disciplinary procedures.
Cape Judge President John Hlophe’s receipt of payments from the Oasis group seems, on the face of it, to represent an egregious conflict of interests, given that he gave the company leave to sue Judge Siraj Desai for defamation. The bursary his son received from one of the country’s most prominent law firms will hardly lend confidence to attorneys who go up against Smith, Tabata, Buchanan, Boyes in his courtroom.
That Desai — who is also under investigation following a complaint to the Judicial Service Commission by Oasis — and his boss can continue to work together defies reason.
But the case of Hlophe, whose signal virtue is his ability to crystallise the most extreme positions in the debate about the judiciary, is only the most obvious example of the problem.
No doubt there are also inadequacies in the management of courts, from the maintenance of rolls to the maintenance of buildings, and in the capacity of some judges to understand the circumstances in which many South Africans live.
So justice ministers from Dullah Omar to Brigitte Mabandla have not been incorrect in their diagnosis of the problems. Where they have erred is in their solutions.
As we have all heard at some length over the past year, proposals championed by Deputy Minister of Justice Johnny de Lange to pass a package of legislation dealing with these issues threatened to make deep inroads into the separation of powers between the executive and the judiciary.
The General Council of the Bar and a bevy of sitting and retired judges have pointed out that the most serious problems reside in the Constitution 14th Amendment Bill, which, among other things, makes the minister of justice responsible for the administration of the courts. It is not hard to see how that kind of control could be used to put pressure on judicial officers. Practical matters — the maintenance of plumbing, the effectiveness of air conditioning, the length of working hours — can clearly have a substantive effect on the work of courts. Control of these seemingly basic things could readily be abused by a minister bent on making his or her wishes known to a judge.
The apparent demise of the constitutional amendments in their current form is to be welcomed, and the developing view in government that they are unnecessary is to be encouraged.
The strange handling of this issue in Parliament, or rather between Parliament and the executive, is worrying, however. There is little trust among the judges that they will get a fair hearing at the legislature, and it is far from clear that parliamentary and committee officials believe that they can do their jobs free of executive interference. A bit of tension between the branches of government is healthy, but it can play itself out democratically only if their separation is clear and real.
The sting is in the detail
The decision to retain the Directorate of Special Operations (DSO) — the Scorpions — as an independent investigative unit is to be welcomed.
South Africa has always been a frontier society, but the intensification of Wild West-style competition for access to resources and power highlights the need for a straight-shooting sheriff.
The devil, however, is in the detail of the Khampepe commission recommendations and how they are to be implemented. The bulk of the criticism directed at the unit has been over the independence of its decisions on who and who not to investigate. Tied up with that is the vagueness of the accountability provisions affecting the DSO, including the ministerial committee that was supposed to exercise oversight.
It is a pity that Judge Sisi Khampepe has ignored proposals for an independent board to exercise oversight — as in some other countries — and has opted instead to propose a beefed-up ministerial committee, supported by officials with the “authority to deal with operational issues”. This is likely to result in increased pressure to interfere in operational decisions — where politicians really have no business.
The proposal to split the political reporting line is also likely to cause confusion. Prosecutors attached to the DSO will continue to report to the national director of public prosecutions, who will in turn continue to report to the minister of justice. But it is proposed that political oversight for what is called “the law enforcement component” of the DSO is moved to the minister of safety and security. It is a recipe for conflict, notwithstanding pious declarations of commitment to greater cooperation and coordination with police and intelligence agencies.
A National Security Council committee still has to come up with proposals of how to implement the recommendations, a potentially protracted process. The battle over the future of the Scorpions is far from over.