Two recent events once again focus attention on the challenges facing the judiciary. The attempt, rather vain as it turned out, by Mac Maharaj to deny the public access to information relating to an investigation into his finances emphasises the major battle ahead on the legality of the Protection of State Information Bill (the secrecy Bill). The government now seems so heavily invested in its present content that bitter litigation lies ahead.
The second event relates to the lengthy saga concerning the Judicial Service Commission (JSC) and Western Cape Judge President John Hlophe. Not only does it appear that the complaint brought by justices of the Constitutional Court against the judge president is no closer to resolution than it was three years ago, but the NGO Freedom under Law has now alleged that the current chief justice, Moegeng Moegeng, has dragged his forensic feet in ensuring that the JSC deals with a further complaint that it has brought against Hlophe.
The judiciary faces challenges — imposed or self-induced — that it must negotiate if its legitimacy is to be secured. Of course, the problems it confronts about the way litigation has become the stopgap for political failure, or the difficulties it faces in dealing with its own members, all take place at a time when the institution appears to be viewed with considerable suspicion by key members of the ANC and/or government. Most significantly, President Jacob Zuma has, on more than one occasion, argued that the judiciary should not invade the space of a democratically elected executive to develop and implement policy.
Recently, readers of chapter 14 of the new development plan of the National Planning Commission (NPC) may have concluded that the country is in a state of political dissonance. In contrast to the attacks on the judiciary and the advocacy of more secrecy, the NPC argues in favour of a progressively minded judiciary and increased transparency in public affairs. The NPC argues in favour of a resilient anti-corruption system that would include an open, responsive and accountable public service.
Then comes the complete riposte to the advocates of the secrecy Bill: “State information, including details of procurement, should be made openly available to citizens.” How this is to be reconciled with the secrecy Bill presumably only government spin doctors will know.
The NPC calls for a judiciary “that is progressive in its judicial philosophy and legal inclinations. The selection and appointment of judges is of crucial importance, not just to the rule of law and the independence of the courts but to socioeconomic transformation.”
That argument appears to be totally incompatible with the suggestion that courts must defer to the executive on policy formulation and execution. The NPC’S formulation envisages a judiciary that promotes the commitments of the Constitution to substantive equality and socioeconomic provisioning to those most in need. In turn, this implies that the judiciary will be compelled to overrule the executive when it fails to meet the promises of the Constitution.
But the NPC goes further. It suggests that “it is important for the JSC to lead a process to build a consensus on the qualities and attributes of the ideal South African judge”. Such a judge, says the report, should hold a “progressive judicial philosophy and an understanding of the socioeconomic context in which the law is interpreted and enforced”.
Significantly, the NPC observes that “at present there is little or no consensus in the JSC or the legal fraternity more generally about the qualities and attributes needed for the bench”. As a result, the NPC recommends that the JSC “should lead a process to establish clear criteria for appointment of judges with emphasis on the candidates’ progressive credentials and transformatory judicial philosophy and expertise”.
These observations and recommendations would be significant if only for their obvious indictment of the JSC’s inability or unwillingness, after almost 17 years of operation, to have led a process that long ago should have culminated in a set of criteria to appoint or promote judges aligned with the direction set out by the NPC. But the report’s implications go still further: judges with progressive credentials and a transformatory judicial philosophy are hardly likely to defer to the executive or the legislature when the latter fail to meet their constitutional obligations to promote the welfare of millions of historically and currently disadvantaged people, or fail to govern in an open and transparent manner.
Agreed, a progressive philosophy does not mean that the judiciary must overreach itself and assume the functions of the other arms of state. But it does imply a judiciary that will not inevitably defer to the will of the executive. That is hardly the approach articulated by politicians who have accused the judiciary of being “counter-revolutionary”. It also raises telling questions about certain JSC appointments and its refusal to appoint some judges over the past 17 years.
The overriding conclusion that emerges from this part of the NPC’s report is that it runs counter to significant aspects of current government policy and JSC conduct. If it is to be implemented by government and followed by the JSC, then the dangers caused by legal conflict over the secrecy Bill, the deadlock on complaints about Hlophe, as well as future judicial appointments by the JSC, will be very much relegated to an unfortunate past. But then which part of government will prevail?
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.