Controversial draft legislation aimed at overhauling the structure of the judiciary has been shelved after the intervention of President Thabo Mbeki.
Senior government and parliamentary officials, as well as judges familiar with the intense lobbying that has surrounded the Superior Courts Bill and the draft Constitution 14th Amendment Bill, say formal consideration of the proposed laws has been suspended, and will not begin again until they are redrafted, which will probably not happen until next year.
The proposed constitutional changes are likely to be scrapped entirely.
The legislation appears to have been put on hold following the direct intervention of Mbeki, who, according to four people close to the process, first gave instructions that the period for public comment be extended, and then told Minister of Justice and Constitutional Development Brigitte Mabandla to come up with proposals more acceptable to the judiciary.
Those moves have put justice deputy minister Johnny de Lange at odds with both Mbeki and Mabandla, and sharpened tensions in Parliament over the extent to which executive pressure is brought to bear on processes in the National Assembly.
The Bills are central to the package of measures devised by the justice ministry and Parliament’s justice committee, ostensibly to improve access to justice and accelerate the transformation of the judiciary.
While plans to rationalise the structure of the courts were generally welcomed, constitutional changes to hand full control of administrative functions to the justice minister, and to give the president an expanded role in the appointment of senior judicial officers were widely seen as undermining the independence of the judiciary.
“It is important, particularly in a constitutional state, that the executive should not control how a court functions. It can have a say, but not control,” former chief justice Arthur Chaskalson told the General Council of the Bar at a February conference on the Bills.
When, at the same conference, Chief Justice Pius Langa criticised the legislation but was reluctant to pronounce on whether it would pass constitutional muster — something he might be called on to determine in court — advocate George Bizos stepped in to suggest that it could violate the founding principles of the Constitution, and might not withstand legal challenge.
The proposed constitutional amendments, however, are now in legislative limbo: they were approved by Cabinet and gazetted for public comment on December 14 last year, but amid a storm of protest from judges and the legal community, were never formally introduced in Parliament. This crucial detail was never made public.
The portfolio committee issued statements about the deadline for comment, but so much time has now elapsed that in terms of rules governing constitutional amendments the Department of Justice and Constitutional Development would need to restart the entire process if it wanted legislators to consider the changes.
That seems unlikely. The view now being punted by those in the government who support a compromise on the legislation is that constitutional changes may not be necessary to achieve the objectives contemplated in the Superior Courts Bill, and in planned companion laws such as the Judicial Conduct Tribunal Bill, the Judicial Service Commission Amendment Bill and the South African National Justice College Training Bill.
Bar Council chairperson Norman Arendse cautiously welcomed the news: “If your information is correct, we are particularly pleased that the constitutional Bill is off the table. It is something that could have been avoided with appropriate consultation.”
However, he said it would be a pity if urgently needed proposals in the Superior Courts Bill and related legislation were delayed.
“There are important aspects, particularly the consolidation of the courts, requirements for the disclosure of judges’ interests, mechanisms to address the conduct of judges that shouldn’t be shelved along with more controversial issues. I can’t see why those shouldn’t be dealt with this year, especially if there is common cause that these things need to be done.”
The Superior Courts Bill, however, has also been allowed to slip quietly off the parliamentary schedule. In May, after initially extending the deadline for comment by nearly three months, committee chairperson Fatima Chohan reluctantly extended it indefinitely.
The question of how to introduce reforms in the functioning of the justice system without undermining the separation of powers will now be considered in the ANC and will probably not return to Parliament until after the party’s December policy conference.
“We are very pleased that the legislation has been postponed,” said Democratic Alliance justice spokesperson Sheila Camerer. “We have always argued that it needs to accommodate the very real concerns of the judiciary.”
The move is a major setback for De Lange, who, as justice committee chairperson before the 2004 elections, played a leading role in formulating the legislation and arguing that it should be considered as a package.
De Lange has repeatedly insisted that the proposals pose no threat to the separation of powers, and simply reflect a long-overdue clarification of roles.
He was furious about the impact that the judges’ lobbying was having on Mbeki and Mabandla and the extent to which it slowed down the legislative process.
Chohan seemed to back his views, suggesting in the committee that Parliament’s independence was being undermined, and responding to criticism about limited consultation on the Bills in a lengthy press statement detailing their gestation under three justice ministers and two committee chairs.
Some critics of the legislation argue that it was necessary to approach Mbeki and Mabandla because the Bills were unlikely to receive unbiased treatment in the parliamentary committee. They point out that Chohan declined to hold public hearings and has a close personal relationship with De Lange. That relationship, they believed, could incline her towards his views. De Lange refused to comment, and Mbeki’s office referred queries to Mabandla.
However, a network of tensions among the judiciary, justice department and portfolio committee, and the National Assembly with the Presidency are clearly reflected in the bizarre saga of car allowances for magistrates.
The allowances were recommended by the Independent Commission for the Remuneration of Public Office Bearers, headed by Deputy Chief Justice Dikgang Moseneke. They added R157-million to the magistrates’ salary bill, and were approved by Mbeki after an apparently flawed and truncated parliamentary process.
Chohan, however, intervened to set up hearings of her committee and the Select Committee on Security and Constitutional Affairs, which allowed the justice department to air its concerns about the salary determination. This culminated in a report whose recommendations implicitly criticised Moseneke’s conduct, as well as Speaker of Parliament Baleka Mbete’s apparent decision to bypass the committee.
According to Independent Newspapers, Moseneke hit back in a letter to Mbete and National Council of Provinces chairperson Johannes Mahlangu, saying the report should be withdrawn to “avoid embarrassment” to Parliament. The committee will now reconsider it.
“We are glad it is coming back, we would have voted for the report with reservations, but there are sections we were very uncomfortable with,” Camerer told the Mail & Guardian.
The question of just how separate the powers of the executive, legislature and judiciary are in current practice seems unlikely to die with the Constitution 14th Amendment Bill.