Review of the judiciary: Transformation = co-operation

Almost exactly three years ago, Jacob Zuma addressed the last ANC rally before the election on April 22 2009, which returned the ANC as ruling party and made him president of the country. He spoke about everything from education to crime before he identified two institutions that required “transformation”: the judiciary and the media.

Just prior to that, on April 7 2009, the day the withdrawal of corruption charges against Zuma was confirmed, he declared that the probe against him “was supported by a vicious media campaign”. Various initiatives have since been underway to clamp down on the media.

During that same time, when he was refuting the charges against him, he told Independent Newspapers that he sought a review of the Constitutional Court: “If I look at a chief justice of the Constitutional Court, that is the ultimate authority, which I think we need to look at … because I don’t think we should have people who are almost like God in a democracy … you can have a judge of whatever level making a judgment (and) other judges … saying it was wrong … And therefore we have to look at it in a democratic setting; how do you avoid that?”

Amid continuing verbal attacks from ANC leaders on the judiciary, it has transpired Zuma’s notions have remained steadfast. In November 2011 the cabinet announced that the executive would “review” the Constitutional Court (CC).

Zuma again told Independent Newspapers in February this year that: “We want to review [the Constitutional Court’s] powers. It is after experience that some of the decisions are not decisions that every other judge agrees with … You will find that the dissenting [judgment] has more logic than the one that enjoyed the majority. What do you do in that case?”

He added that judges “are influenced by you guys [the media]”.

2011 was the year in which several court decisions overturned key ruling party decisions, which explains the sudden action after a hiatus of almost three years. These court decisions all had to do with changes that the Zuma faction pursued in structures that it regarded as having been subject to political manipulation by a different ANC faction, or other “influence”.

These decisions included the following: the CC findings on the Hawks and the president’s powers in extending judges’ terms; the CC decision against an appeal involving Western Cape Judge President John Hlophe; and the SCA decisions on Menzi Simelane and the corruption charges against Zuma.

Cabinet stated that the purpose of the review was “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution in terms of non-racialism, gender, disability and other transformational variables”; and “to affirm the independence of the judiciary as well as that of the executive and Parliament with a view to promoting interdependence and interface that is necessary to realise transformation goals envisaged by the Constitution”.

Cabinet also agreed to the following approach: “Appropriate mechanisms (are to) be developed to facilitate … regular interface between the three spheres of the state to enhance synergy and constructive engagement among them in pursuit of common transformative goals … to benefit society at large.”

The public outcry following cabinet’s announcement led to changes in the review’s terms of reference. Gone was any explicit mention of “mechanisms” to facilitate “interface” but the SCA was added to the review, which probably has to do with its recent “unhelpful” judgments.

The review could provide valuable information on the CC’s immense contribution to South African democracy in developing constitutional jurisprudence. Law professor Pierre de Vos has also argued that it could shed light on the problem of the lack of constitutional development of the common law; and on the accessibility of the highest courts.

But the events leading up to the review serve as a reminder of its real intent.

It is also notable that the terms of reference are still framed by the justice ministry’s “discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state”.

This document confirms cabinet’s November 2011 decision on approaches to transformation of the judiciary, including that a mechanism be established for the three branches of state to engage in “regular debates”

The notion of “co-operation” between the executive, legislative and judicial arms is ANC policy. A 2007 ANC discussion document misapplied the constitutional principle of co-operative governance to these arms, adding that they should work “in tandem with one another” and that “the Constitution envisages a system where all branches of government work in collaboration”.

Given that this review does not form part of the Superior Courts Bill’s present rearrangement of the courts, its findings will have to be effected in future legislation.

The ANC discussion document on the judiciary for its Mangaung conference in December this year recommends that the Superior Courts Bill should “deal with the courts (the structure, composition, jurisdiction and functioning thereof)”, while separate legislation (a “Judicial Authority Act”) should be drawn up to create a governance structure (a “Judicial Council”) “under the command of the Chief Justice”.

This draft law will also prescribe the rules of court regarding “the procedure and processes applicable in court proceedings, including requirements and conditions that must be met by any person who approach the court as a litigant”, which affects access to justice.

Whether and how the review fits into this proposed legislation is not clear. It could be tempting for the legislators to introduce some mechanism for “interface” there.

This monthly column, which first appeared in The Star, Cape Times, Mercury and Pretoria News, is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.