The significance of this is heightened by the amount of shock, awe, smoke and ink spilled in the past year over the judiciary and the separation of powers. When that distinguishing and digging-down work is done, the perception is that, at least in terms of ANC policy, the judiciary is not part of governance.
The first policy initiative has attracted the most media attention so far. It has been called a review of the Constitutional Court and the Supreme Court of Appeal, but is more accurately an assessment: “Terms of Reference for the Assessment of the Impact of the Decisions of the Constitutional Court and the Supreme Court of Appeal on the South African Law and Jurisprudence”.
This document invited institutions to make submissions to the department of justice and constitutional development to conduct this assessment or parts of it. The deadline was the end of April.
There are links, but this policy initiative can be distinguished from the second, the department’s “Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State”, released in February. In April, the department extended the deadline for comments on this discussion document until the end of May.
A national dialogue
Justice Minister Jeff Radebe wrote in the preface: “The document gives an overview of the protracted debate and negotiations within the judicial sector and the legal profession spanning over a period of 14 years. Time is now opportune to initiate a national dialogue on these fundamental principles of judicial reform which have crystallised over time.”
The heart of this document is linked to several pending pieces of legislation and “the process of transforming the superior courts and the entire superior court system”.
These first two policy initiatives are, of course, those of the government. The third is what the ANC’s policy documents, released in March, have to say about “the role of the judiciary in the developmental South African state”, for instance. The most pertinent appears to be a document titled “Legislatures and Governance”, with a subsection, “Nature of the Developmental State We [are] Building”.
The document discusses co-operative governance and the role of the provinces, local government, ward committees and community participation, legislatures and the concept of a single election. But neither it nor another document, “Balance of Forces”, deals with the judiciary.
A “Peace and Stability” document devotes seven pages to the judiciary, under headings Polokwane conference resolutions on the judiciary, judicial governance, court administration, impact of court administration on rule-making (rules of court), aspects for policy consideration and access to justice as a guiding principle.
After the first, with its reference to Polokwane, it is downhill from then on. The remainder deal with bread-and-butter topics over the institutional reform of the judiciary and are largely uncontroversial. Indeed, the material briefly covered in the ANC policy document is covered in more depth in the justice department’s discussion document.
Rule of law
On the controversial topic of separation of powers, the ANC’s document is hardly controversial: “The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored. The separation of powers embodied in the Constitution provides checks and balances to safeguard these values … The courts must exercise their judicial authority in line with the injunction of the Constitution.”
Perhaps the most biting is this: “The current policy and legislative framework … [does] not promote an efficient and accountable judicial system that is consonant with the ideal of an accessible justice system.”
Three messages about the judiciary can be taken from this drilling down into the ANC policy documents.
First, the framing of the issue of the judiciary is not that of separation of powers but access to justice. The question that then arises is: Why do these documents engage in talk about access to justice when the ANC, in political discourse directly and seemingly reflexively, talks about the separation of powers?
Second, the policy documents view the judiciary as an object rather than an agent of transformation.
Third, the documents show a sharp disjunction between the judiciary and governance. In terms of ANC policy, the judiciary does not appear as part of the governance discussion.
But there is a gap in these documents. In the current world of regulatory capitalism, a policy to deal with the interface of the judiciary and governance is crucial. Scholars are increasingly theorising about the rise of a regulatory state in the Global South, paying particular attention to the role of the judiciary in it.
In a more practical vein, the continuing e-tolling saga provides a clear example of the link between the judiciary and governance, a link not examined in these documents.
Jonathan Klaaren is a former director of the Mandela Institute and a founder member of Wiser. He is based at the University of the Witwatersrand’s school of law