Delegates to last week’s ANC policy conference considered a discussion document entitled Transformation of the Judicial System. It describes the present position, followed by assertions of the need for change and, finally, questions for delegates – the answers to which are provided in the assertions.
For example, a powerful case is made for the Constitutional Court to assume the status in law of the highest court for all cases, relegating the Supreme Court of Appeal (SCA) to an intermediate court of appeal. Then delegates are asked what status the two courts should have in a new judicial system!
Taken as a whole the document suggests that the justice ministry is determined to assert the legislative scheme of which it sought unsuccessfully to persuade the judiciary and to ensure that the ANC gives it more support then it received from the judges.
Much of the document makes sense. Take the roles of the Constitutional Court and SCA. In practice the former is already the apex court, so long as a constitutional angle can be found. A clear illustration is that of its majority judgement in the Charlene Smith case dealing with privacy rights of persons infected with HIV. This judgement did not develop a constitutional right nor is it based on a right it sought to refine. Expressed simply, the Constitutional Court acted as the apex court without regard to the fact that, in theory, the SCA is the apex court for non-constitutional matters.
So the ANC proposal is hardly likely to produce a radical change and there appears to be great support for this move. Sadly, it appears to have been given priority over an arguably more important part of the document: improving legal representation for the poor and accessibility to the courts.
The controversial recommendations that caused so much heat between the ministry and judiciary remain on the agenda. For example, court budgets must remain the ultimate responsibility of the minister, even though this colonially based idea is now the subject of intense exchanges between government and judiciary in the United Kingdom. The rules that form the core of procedures employed by courts in their daily operation must, says the discussion document, be a legislative competence.
These assertions go to the heart of a key question raised in the document: the nature and meaning of separation of powers. The document’s curiosity with this principle is ominous. After all, the Constitutional Court has carefully analysed this concept, particularly in relation to socioeconomic rights, and has been exquisitely careful to demarcate a modest role for the courts, and a far more active role for the other arms of government in distributional decisions.
So, why the keen interest revealed in this constitutional principle?
One answer is to be found in the document’s recommendations: there is a desire to guarantee a judiciary that will be as cooperative with the government as possible, and that will produce a body of law as deferential as is constitutionally permissible.
Doubtless this conclusion will be contested, but when senior government figures start requiring clarification about separation of powers, it is reasonable to infer that they do not approve of the status quo.
The sudden insistence in examining this issue is reflective of another area of debate: the transformation of the bench. If “transformation” means that the legal system becomes responsive to ordinary citizens, then there can be no quarrel. This goal clearly requires a judiciary that is drawn fairly from our demography. Here there has been great progress. Within just over a decade of democracy, nearly 50% of judges are black, as are all but two heads of court. And this process gains momentum at with every series of new appointments. The notable weakness is that only 16% of judges are women. If that is why there is comment about the lack of transformation, then Amen to that.
Yet while “transformation of the judiciary” received much attention at the conference, it appears to have an unarticulated meaning. If it means that the judiciary remains too white, why does the way in which impressive change has taken place over the past decade not remain the route to follow?
The implications of these discussions are potentially critical to our progress as a nation. There should be a great deal of public scrutiny before some of these assertions become law.