Justice Minister sticks to his guns

Justice Minister Jeff Radebe is ready for a fight. He is adamant a cabinet-ordered review of the impact of Constitutional Court decisions and the transformation of the judiciary is not a precursor to curtailing judicial independence.

“How will we ever curtail judicial independence when the constitution is so clear? It’s a perception,” Radebe said on Friday.

“Since 1994, (the) government has done nothing but to support the judiciary, has done nothing more than ensuring that the judgments are implemented,” he added.

However, he may face an uphill battle in the face of concerns raised in the wake of several senior ANC politicians’ comments comparing, particularly the Constitutional Court, to an opposition and suggesting the constitution contains “fatal concessions” that shifted power from the executive and legislature to the judiciary.

More recently, President Jacob Zuma said the Constitutional Court’s powers would be reviewed, although his office quickly tried to spin the controversial comments.

This week Radebe published a discussion document on the transformation of the judiciary, which sparked critical reaction. It will run in tandem with a review of Constitutional Court judgments, linked to an assessment of how the executive implements such judgements.

On Monday, the Justice Department will issue tenders for this review project aimed at research institutions with an interest in issues of law and justice. The aim is to complete the review research within 18 months.

And the timing of this discussion document and review? Nothing sinister, the minister says: it was released to coincide with the 15th anniversary of the constitution coming into effect.

So far Radebe appears not to be too happy with that debate – the discussion document talks of “irresponsible commentary”, while the minister’s deputy, Andries Nel, has described concerns over the possible impact on judicial independence as a “slight deficit of rationality” (see page 7).

The justice minister said it appeared many people were too focused on the executive and legislature, while the discussion document, review and envisaged interactions with civil society and communities would ensure the focus also fell on the judiciary.

“We do hope at the end of the day people should move away from their political constructs and become rational when we discuss these matters… People must free their minds and engage in discussion with the aim of ensuring that all of us in SA participate in this transformation project.

“Dialogues, seminars and so on, they communicate a message to the broad cross-section of South Africans so they understand that judges are part and parcel of society: they don’t come from Mars periodically to make these judgments.”

But the debate takes place as steps are already under way to reposition the judiciary. The Superior Courts Bill, currently before Parliament, is intended to rationalise the hierarchy of courts, including the establishment of one high court with nine divisions.

It entails spending money: neither Mpumalanga nor Limpopo have their own high courts yet, while there are three in the Eastern Cape. Such changes could also affect the North West.

Perhaps more significantly, the Superior Courts Bill places the chief justice at the head of the whole judiciary – the Bench and the magistracy – while making the Constitutional Court the final instance of appeal in all matters.

Critics have contended this may detract from the court’s role in establishing constitutional jurisprudence.

However, Radebe says these steps are unprecedented measures to give the judiciary its institutional independence.

The discussion document notes that the establishment of the office of the chief justice as a national department, even as an interim measure, “appears incompatible with the independent character of the judiciary”. The intention, however, was to ensure the office got sufficient resources and appropriately skilled staff to drive the restructuring.

“This is the beginning. I think we’ve done enough to kickstart the process so that the chief justice can have the resources… As the executive, we want that all those (administrative) functions that will enhance the judiciary must be transferred to them. That’s a building block… which has never happened in SA,” said Radebe.

After all, why should a court registrar be accountable to the Justice Department, when all the work was closely associated either with a magistrate or a judge?

There are no time frames for this development, although it is regarded as urgent.

“It is not only dependent on the executive, but also the judiciary itself. When will it be positioned to assume those responsibilities and when will it be able to conclude on a model that will fit our constitutional democracy,” said Radebe.

These measures, the government anticipates, would contribute to access to justice for ordinary South Africans – something that goes to the heart of transforming the court system.

However, Radebe says the judiciary has taken strides – not just in terms of racial transformation, but also attitude. In particular, the Constitutional Court has the capacity to help in the realisation of the Bill of Rights’ socio-economic aspect, as happened in the case for housing brought by Irene Grootboom in 2000, which the minister described as “one shining example” of how a judgment could impact on transformation.

“I see the judiciary playing a more proactive role in ensuring it participates in the acceleration of the transformation process. We need to see that in the judgments that they pronounce,” he said. “We need to be open-minded, because 300 years of colonial rule, 40 years of apartheid, cannot be overcome overnight. So it is a process. If you look where the judiciary is today… the strides that are being made indicate that even the mindset of the judiciary is gradually changing.”

There was nothing untoward in a review of the impact of Constitutional Court judgments, the executive’s capacity in implementing these and the broader transformation of the judiciary and its place in what the ANC calls the developmental state, or a system of governance in which the state plays a key role. The executive had conducted similar reviews at 10 and 15 years.

Radebe dismisses concerns that the independence of the judiciary is at risk as unfounded, given the government’s track record.

“By their actions, you shall know them. Our actions, practical action, in this area speak louder than words.

“We are not afraid, but promote debate as the ANC. We do not want people, like a herd of cattle or sheep, to go in one direction. People have divergent views, but at the end of the day there has to be a plan to ensure that access to justice happens. That is what is important.” - Sunday Independent