There has been much concern expressed both in Parliament and in the media about the new wave of attacks on the judiciary. Perhaps the most disturbing manifestation of this antipathy towards our judges was the minister of police reportedly claiming that “some elements of the judiciary meet with characters to produce certain judgments”.
President Jacob Zuma informed Parliament that the first he had heard of this claim was when it was raised by Economic Freedom Fighters leader Julius Malema during presidential question time. Presumably, now that the president is aware of this report he will move to bring clarity to a statement that, if made and to date not denied, is a most serious attack on judicial integrity.
On August 4, Cosatu president Sdumo Dlamini directed part of his speech at Cosatu’s Gauteng provincial congress to a critical assessment of the state of the judiciary. His remarks did not take the form of the police minister’s one-line claim of conspiracy – the secret meetings in which judgments are finalised between judges and “characters”.
Instead, Dlamini’s was a more comprehensive attack on South Africa’s judges, which followed an assessment of the global and local forces that, he claimed, are conspiring against the South African working class.
In the interests of a proper debate, it is important to cite fully what Dlamini said: “As Cosatu, we want to reiterate that, whilst accepting the principle of the independence of the judiciary, we, however, reject efforts to hide behind this principle to block transformation or fair criticism of judgments.
“We want an increase in access to justice for all sectors of society, promoting a culture of judicial accountability. We are calling for the re-organisation of the court system to better reflect changes in the country’s provincial and demographic make-up.
“We call for the appointment of judges who identify with and are dedicated to advancing the socioeconomic rights of the working class and who pay allegiance to the new constitutional order.
“We call for an open debate in society on the transformation of the judiciary and the legal profession. Transformation of the judiciary must include … achieving racial and gender parity, changing attitudes towards the aspirations and needs of the working class and the poor, [striving for a] progressive gender perspective, chang[ing] the language of the courts, [creating] access to … justice, and building a prosperous, nonracial, nonsexist and democratic South Africa that would not tolerate inequalities inherited from apartheid capitalism.”
Some of these remarks are less than incendiary. In a democracy, it is surely the right of every citizen to debate the role, function and performance of key institutions of state, whether it be the legislature, the executive or the judiciary.
Further, because judges are not elected and, save for gross misconduct, enjoy tenure until they reach the prescribed retirement age, it cannot be contended that they should be immune from criticism in relation to their judgments. After all, judges are clothed with significant powers of review, which are central to the very constitutional design the ruling party played so central a role in constructing, so the exercise of these powers is clearly apt subject matter for robust public debate and scrutiny.
What is less easy to accept is some of the items on Dlamini’s agenda for debate. Where, for example, has the judiciary, when judgments over the past 20 years are read holistically, not advanced socioeconomic rights?
True, some decisions have been overly cautious. But ironically, that caution has been fuelled by an awareness that certain issues are best left to the political as opposed to the legal process to resolve.
The searing irony of this part of Dlamini’s speech is that, when the courts do take a more active stance, they are assailed by leading members of the ruling party for not adhering to the doctrine of the separation of powers.
Regarding the working class, it would be interesting to understand during this debate where the Labour Court and the Labour Appeal Court, partially products of the Labour Relations Act that Cosatu fought so hard to introduce in the 1990s, have failed this piece of social-democratic legislation and let down the rights of the working class.
The contrary appears to be the case, for if these courts had failed to guard jealously the purpose of the Labour Relations Act, it is unlikely that elements of the business community would constantly complain about the Act.
Assuming, for the sake of testing the claim, that the overwhelming numbers of judges who make up the judiciary do not meet Dlamini’s standards, the question then arises as to what the ruling party – of which Cosatu is a key ally – has been doing for 20 years. The ANC, in effect, commands a majority on the Judicial Service Commission, which appoints judges.
Let open debate commence, and let critics such as Dlamini produce proof for their claims. This is the way democracy should work.