Tackling transformation of the judiciary

The Mail & Guardian‘s Sello S Alcock speaks to Justice Minister Jeff Radebe about transformation in the judiciary, the John Hlophe matter and selection of judges.

The Mail & Guardian understands that you had an opportunity to speak to the heads of courts on Sunday and you were already trying to lobby for the Judicial Service Commission (JSC) meeting to be pushed out. If you already knew on Sunday that there needed to be a postponement, was Monday not short notice given that people were already there for the meeting?

First point to clarify is that the JSC was not postponed. We had a meeting of the JSC on Monday and Tuesday and we just finished this afternoon (Wednesday).
What was postponed was the agenda item for the interviewing of judges.

You indicated that you wanted to tackle the issue of the transformation of the judiciary. The question that immediately comes to mind is what difference has the few days made to such a complex issue?

Well, the first point to highlight is that the issue of transformation of the judiciary itself is a constitutional imperative. The JSC has, since 1994, been engaged with this issue, but as the Cabinet member responsible for the administration of justice over and above my being a member of the JSC, I also had to look at the broader picture, not only the issue of judges but also the justice landscape as a whole. So that is why I required this assessment that I am currently doing, so that when we reconvene I am fully conversant with the challenges this sector is facing.

So you needed the working meeting in other words?

Yes, so in the past three days I’ve now got a very good sense of what the JSC has been doing, their processes and procedures, and also their thinking in terms of how all of us can be able to enhance and accelerate the transformation. I was telling some people earlier on as well that it is not only about the transformation of the judiciary per se in terms of appointments—it does not start there, in fact that is where it ends.

We have to look at the whole legal profession, the attorneys, the advocates. How much are we doing as a government, not only the DOJ (Department of Justice), but other government departments, including state-owned enterprises? Do we give opportunity to the PDI lawyers so that they get the experience and skills that they will require to become appointable as judges? Do we as the minister responsible for the administration of justice and JPs (judge presidents), when we make acting appointments—because it is a very important stepping stone to becoming a judge—are we able to spread the net wide enough in order to ensure that we attract — so these are the issues we are grappling with.

A source informs the M&G that the issue, certainly in the morning, of the four presidential nominees was grappled with and there was quite a heated debate.

No, that is a lie. Whoever told you is lying. The issue of how the JSC is constituted was never discussed.

So there was never talk of whether the four presidential appointees need to be re-configured in any way?

In any case, it’s not the responsibility of the JSC—those are presidential appointees, so if the president (Jacob Zuma) wants to appoint, he will do so in his own time.

It is clear from the tone and manner in which you have come in that the issue of transformation now tops the agenda. Are we seeing new steam on these issues?

We are seeing an acceleration of this process arising not even out of Polokwane, but the Constitution itself. It enjoins us to make sure that we accelerate the process of transformation in terms of the racial profile of the judges on the bench, as well as gender representivity. One of my major concerns is that up until now we do not have a female judge president in South Africa. So these are the issues I am grappling with, what are the challenges etc.

There was resistance around the Superior Courts Bill from members of the judiciary, such as George Bizos and former Chief Justice Arthur Chaskalson, especially the sections that gave away the administration of the courts to the Department of Justice. Is that particular Bill now going to be dusted off and re-introduced, and how are you going to deal with the issues around the uproar the first time around?

Well fortunately I had a meeting with the heads of courts on Sunday, and that issue also came up, and I indicated to them that I need speed on some of these issues. If there are issues that are non-contentious, we are going to ensure that on those aspects that there is no debate we will move with speed to implement them, and those that require consultation I will consult with them. But at the end of the day we need to move on these matters because the policy direction is very clear—that we require an apex court, which is the Constitutional Court.

Was this decision in any way prompted by the perception from some quarters that the Supreme Court of Appeal (SAC) as a court is conservative?

No, no my understanding, and also as a lawyer myself, is that we are a constitutional democracy and the chief justice is the head of all courts and everything emanates from that, so there has to be a hierarchy that starts from the chief justice downwards. The issues of tweaking the role of the SCA as an intermediate court, those we can debate, but the question of the apex court — is non-negotiable.

How are we going to grapple with the issue that we have packed the SCA mostly with lawyers with a deep understanding of criminal, civil or common law versus mostly constitutional law experts at the Concourt?

It is fair point, but I think the answer to that is that at the end of the day the Constitutional Court is the court of last instance, so there can be no debate about that if I am an individual ... if I am dissatisfied with any courts from Cape Town to Bloemfontein, I must have a right to go all the way to the Constitutional Court.

The other issue that is a bone of contention is taking away the administration of the courts from the chief justice and giving it to the DOJ. Is that still on the cards?

Well, I’ve got an open mind on this issue. I need to understand the arguments both from the executive and from the judiciary, but having been a minister of public works from 1994 to 1999, I appreciate the challenges of user departments having responsibility of day-to-day management of their buildings and stuff like that, so I will have an open mind in dealing with it.

The Legal Practice Bill is another contentious one. Is that still on the cards?

It is one of the Bills that will be coming this year, 2009, but I am willing to discuss it with all affected parties in the legal profession as part of the consultation, but there is no debate that it is going to go through in 2009.

The issue of briefing patterns of certain advocates versus others—is that also going to be addressed by the Bill?

My view is that that is much more of an administrative issue from the DOJ and other government departments. We don’t require any law to give PDI lawyers work and I have indicated to the JSC that it is my intention to make sure that we are able to play our part in the transformation process by giving equitable work to a wider spectrum of our people, so that the huge bill in terms of finances of the procurements for legal services must not be the preserve of an elite few, and that includes SOEs. In fact, we are going to Cabinet in order to ensure that the DOJ has that oversight role of making sure that we are able to achieve our objectives, because one of the complaints I receive from colleagues and also from lawyers themselves [is that] they say certain departments prefer certain advocates and so that has to stop.

Will the State Litigation Unit play any role in any of this?

They will be playing a role and I will be meeting with them so that I can understand what they have been doing thus far. But clearly there has to be action, there should be more action than words.

Did the noise around the courts, especially on the issue of Jacob Zuma’s litigation, influence in any way the need to accelerate the pace of the transformation agenda by the government?

Not really. If you remember, former president Thabo Mbeki also has been trying to tackle the whole issue of ... this justice landscape. Maybe it might have accelerated people’s thinking, but me, I am not influenced by it. It’s just that now I am the minister of justice and I have a job to do and my guideline is the Constitution of South Africa. So I make sure that I use my ability to facilitate the process of accelerating the transformation agenda.

There is talk, and this is in the Polokwane resolution and the president repeated this in his reply to Parliament, around a “progressive judiciary”. Can you give me an idea of what this means?

My point of view is that all of us in South Africa need to progressively implement our Constitution. The Constitution is not just a document to be admired, but its effectiveness lies in it being effectively implemented expeditiously, so that our courts, our judges, they need to make sure that the ordinary man has access to justice. So if we do that we will be progressively implementing our Constitution so that it must not just remain a pious declaration that we all adopted in 1996 ... if it takes three years for a case to be heard that means that justice is not being felt by ordinary South Africans.

The M&G is more interested in the calibre of judges deemed progressive.

Well, the Constitution is very clear on this matter, that any appropriately qualified woman or man who is fit and proper through the JSC interviews —

We hear you, but it has been said that there are different standards or quality on the bench as we sit right now, with some judges labelled conservative and others activist.

I am the Cabinet minister responsible for the administration of justice, so I can’t comment on the competence or otherwise of judges because the assumption is that all our judges have been properly appointed through the JSC, so that is why it is important that we need to look at their judgments and whether their judgments enhance our Constitution in South Africa in a progressive manner.

Is the process of the selection of judges itself perfect? Are we sure that the JSC process can necessarily deliver so-called progressive judges?

I am still in the process of understanding all of these processes and procedures, but my understanding is that anybody can nominate a candidate, and then there is the process of screening through the JSC as well.

Now it is supposed to be public (access to the JSC interviews), and I am a journalist and even I have to stay in Camps Bay in order to access the Twelve Apostles hotel in this posh environment. How accessible is that?

Fair point. Also, that challenge must face Parliament and the NCOP, but I do know that at some point they do take Parliament to the people. It is a very good idea that you are pointing out. In fact, you reminded me that yesterday the new premier of Gauteng held the opening of her legislature in Kliptown, and I think it is a very innovative idea. So I think I concede to your point.

Your alliance partners, such as people like David Masondo, have said that judges should perhaps be elected by the people, and I would envisage that in that model a legal degree would be a so-called ticket to the game, and then the people would be allowed to vote based on the character of judges. What is your view on this suggestion?

Well, it is too early for me to make a substantial comment because I am still getting into the groove of our own [current] system.

This year on October 11 four Constitutional Court judges will turn off their lights for the last time, yet we have not heard anything about interviewing to replace them. Surely it is important to know who will replace the four judges sooner rather than later?

Well, as I understand it in terms of the processes and procedures of the JSC, when there are going to be interviews in October, the adverts go out in July, so I would assume that if that is the case it will be within these time frames. But I do concede that we need to look at the whole JSC process and whether it is adequate to have only two sittings a year.

On the issue of the chief justice (Pius Langa), as the minister responsible for the administration of justice, you will no doubt have an input to make on the appointment of the next chief justice.

That is the prerogative of the president —

But you can give advice around the calibre of person needed.

When the issue arises I will give my input, but that is the prerogative of the president.

I understand you are quite keen to forward a proposal to resolve the (Cape Judge President John) Hlophe matter?

Me? No, in the sense that this is the issue of the JSC, I am sure—and I don’t know whether this is today or tomorrow—the JSC is going to issue a statement on the deliberations, namely that we are not going to be appealing the judgment of the South Gauteng High Court and that the Hlophe matter is going to be set down shortly. So whatever will happen next will be within the context of the JSC.

How are you going to ensure that Hlophe returns to a process that his lawyers have said is tainted?

Well, as I understand the judgment of the South Gauteng High Court, JP Hlophe interdicted the JSC proceedings and the court has ruled that proceedings against him are now null and void, so those hearings start de novo, so we are back to square one.

Hlophe’s lawyers may argue that the issue of bias is still there. In fact, his lawyer says the issue between (JSC commissioner Mvuseni) Ngubane’s dissenting judgment and (JSC commissioner Lex) Mpati’s affidavit is unresolved.

I am sure when we receive that representation as the JSC we are going to consider that.

To sum up what you are saying: for you, the proper forum to resolve the Hlophe matter is still the JSC?

Yes.

What about the suggestion that eminent judges such as Richard Goldstone or those from foreign jurisdictions should be involved to resolve the matter?

Well, of course, for example the judges of South Gauteng at some point before giving their judgment gave the parties an opportunity to resolve the matter, so I am sure everyone, including myself, if there is a possibility of a settlement, it will be supported.

Would you support Judge Hlophe’s candidacy for the Constitutional Court chief justice role?

It’s a very unfair question because the post has not even been advertised. In any event, it is not up to me because the interviews are done through the JSC.

In light of the M&G‘s revelations around Ngoako Ramatlhodi, is he a fit and proper person to be sitting on the JSC?

Well, my understanding is that a member of the National Assembly can be appointed using criteria of electing members to Parliament, and the public, through the IEC, have an opportunity to object like they did with various members of the ANC and other political parties. So as soon as a person has been elected and has sworn allegiance to the Constitution, anybody sitting there has to be there.

Your halting of the JSC proceedings has been labelled as “unprecedented” and seen as almost obstructionist and creating a perception of interference on your part. What is your response to this?

If they read the statement that was issued by advocate Moerane, they will understand that perception is not founded on fact, and to say that it is unprecedented is not accurate as the current sitting was supposed to have been held in April, so it is not the first time there has been a change in these things. I have no intention of interfering with the work of the JSC and I do not have that power to start with, because everything emanates from the Constitution and any act or conduct that is inconsistent with the Constitution will be invalid, so as a trained lawyer I will never put myself in a situation where I consciously do something that is against the Constitution. That is why the JSC agreed with my proposal, my request.

After three rounds of voting, was it tough to get it through?

Not really, it was robust and vibrant.

So are these fears that you could manipulate the process to get executive-minded or pro-Luthuli House judges unfounded?

I don’t know of any judges who suit that category because the judges come from lawyers, and the criteria to be a judge is that one must be appropriately qualified and fit and proper, so what people do in their spare time is no concern of the Constitution, so long as people do their work in accordance with the Constitution.

But in fairness, even some of the founding judges of the Constitutional Court had been involved in the struggle, and even as ANC members?

All of us in South Africa have been involved in a revolutionary process whose apex was 1994, so I am sure anybody who wants to be involved in any of the three branches of government are people who want to see a better life for the people of South Africa, so that we have this non-racial society, this prosperous community of all South Africans. So in a way we should not fear some of these words when we operate in different ways, but the main objective is to achieve the goals of our Constitution. So we should not be afraid of words like “we are involved in a revolutionary process of transforming South African society”.

I am assuming that you are talking about the National Democratic Revolution (NDR), at least that is the terminology as it is used.

Of course — yes

So people should not be scared to use the terminology is what you are saying?

They should talk about the legislature, they should talk about the judiciary —

Now why then is there brouhaha if I say I go against the NDR? Does anybody have a right to label me a counter-revolutionary?

Well, it depends on what you are doing. If you are doing something that is contrary to the Constitution to subvert this Constitution, that would be counter-revolutionary.

So the Constitution is very much part of that NDR?

Very much. It is a revolutionary document; if you read the Constitution as a whole you will see it has its roots in the Freedom Charter.

What are you doing to ensure that all of civil society gets involved in the process of what to contribute?

For example, when I got a briefing from the DG (director general) and other top officials, I was actually shocked that the annual budget of constitutional development is R11-million. So I ask myself, are we a constitutional democracy in South Africa if we have R11-million to promote our Constitution. How do you do that?

Let’s get to your DG (Menzi Simelane). There has been a report that Professor Stan Sangweni (chair of the Public Service Commission) handed over a report to you on the issue of the behaviour of your DG at the Ginwala Commission. Can you confirm this?

I can tell you right now that I have not received that report. Maybe it is still in the bureaucratic wheel, but I have not seen it. I know about it because in terms of the briefing I got on the Pikoli matter, these are some of the issues that were raised, and I was briefed that the matter was referred to Professor Sangweni, who has compiled a report, but I have not seen it.

Once you see it what can we expect?

Well, it will depend on the content of the report and what he is recommending, and on that basis I will formulate a view on what needs to be done.

It has been reported that you were given sight of a report around the issue of the spy tapes and you are expected to exercise your mind on whether there is action to be taken against Bulelani Ngcuka or Leonard McCarthy. Can you confirm this?

That’s not accurate. I did meet with the acting NDPP [Mokotedi Mpshe] discussing the NPA issue, but as you recall, when he made his decision at a press conference he hinted that he would be compiling a report for the minister of justice and the president, so I have not seen that report.

I read a report that the two, Ngcuka and McCarthy, might be charged. Is this far-fetched?

It is far-fetched. That report (Mpshe report) might still be on its way, but Advocate Mpshe has not given it to me.

Who is the new political champion for the Criminal Justice Review, and what can we expect next on this?

That project is still on track and the cluster met and a decision was taken that the review should continue being located in the Justice Department, so I am going to be sitting down with my deputy to decide what happens next.

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