The year is at an end and it is thus customary to look ahead to the legal challenges facing our constitutional democracy in 2011, based of course upon the knowledge gained during 2010.
This year presented a few achievements and a host of potential threats. Pride of place must go to the successful prosecution of police commissioner Jackie Selebi.
A successful prosecution of one so powerful, a chief of police well connected to the ruling party, is a triumph for accountability to the legal system, the independence of the courts and hence, the rule of law.
Some will doubtless claim that the ill-fated prosecution of Glenn Agliotti and the revelations concerning deals struck so as to obtain evidence against Selebi take the gloss off this achievement. But who, if placed in the position of the prosecution, would not have risked failure with Agliotti to achieve success in the prosecution of a corrupt police commissioner?
Another item on the credit side of the account is the current Superior Courts Bill, which has removed pernicious interference with the judicial function as advocated by deputy justice minister Johnny de Lange, and confirmed government’s adherence to the doctrine of separation of powers, in particular by creating an office of chief justice, which will control the administration of courts in the stead of the justice department.
It also appears as if the judges of the Constitutional Court will not be given life tenure and will continue to be appointed for a fixed, non-renewable term. That may well result in at least two vacancies for office to this critical institution during the next year and possibly three if the president does not extend the term of the chief justice.
In turn, it will focus attention on the appointment process as conducted by the Judicial Service Commission (JSC). The JSC has already been subjected to sharp criticism for certain of its appointments over the past year which, in turn, has focused attention on whether the actual criteria used by the JSC for appointment are the same as those it recently published.
Most certainly, a presidential extension of office of the chief justice over replacement by his deputy, Justice Dikgang Moseneke, is the stuff of controversy. Judicial appointments both to the high court and the Supreme Court of Appeal (SCA) will also be critical in the light of important new legislation that will surely test the commercial expertise of the courts in the form of the new Companies Act, itself somewhat of a mess thanks to the shambles that is the trade and industry department.
The Act will thus require much complex judicial work and, given the absence of precedent and major innovation contained in it, the legal profession is unlikely to rely more on the courts and desist from its perennial rush to arbitration.
In turn, the JSC will have to think how to ensure that more commercial expertise is available to the courts, particularly the SCA, in which the absence of such expertise is disturbing.
The consequences of the appointment process may well be sharpened by the potential challenges that could confront our courts during 2011. The Protection of Information Bill and the proposed Media Tribunal may both be passed into law and hence will doubtless be subject to constitutional challenge.
If this legislation is similar in form to the present proposals, the courts will be confronted by weighty constitutional argument and a government determined to get its way. If so, we will soon find out how deferential our newly constituted Apex Court is when confronted with a truly hard case.
The organised legal profession may also land up as a constitutional litigant in the courts. The Legal Practice Bill seeks to transfer the powers of the Bar Councils and Law Societies to a newly constituted body that will, effectively, be constituted by ministerial appointees.
In turn, this will result in a centralised form of governmental control of the legal profession. That the profession itself is in dire need of transformation, its claims of great progress notwithstanding, is clear, but the solution surely does not lie in the destruction of the present form of voluntary association and its replacement by a central body of people who serve at the pleasure of the justice minister. A legal battle looms. The state of the prosecution service will remain a key focus of attention.
That the Scorpions’ reputation may have been significantly dented by the events of the Agliotti case should not be translated into the immediate conclusion about the justification for creating the Hawks. Corruption in government, at whatever level, is an assault on our constitutional principles.
It makes no difference how many politicians make speeches about the ills of corruption in public life, change comes only with the successful prosecution of those responsible, no matter their station in government.
The jury is surely out as to whether the Hawks or any other similarly constituted body will show the same skill and willingness in prosecuting powerful political figures as it does rhino poachers.
The direction of our constitutional journey cannot be determined in one year. But 2011 may well provide significant answers as to whether we have retreated or moved forward towards our constitutional destination.