THE DA'S JUDICIAL REVIEW: THREATS TO JUDICIAL INDEPENDENCE IN SOUTH AFRICA


Summary

The judiciary in South Africa has its present shape by virtue of a negotiated political settlement to which the ruling African National Congress (ANC) was a signatory. Our Constitution, which affirms the separation of powers and the independence of the judiciary, has been universally applauded. Our effective, functional and stable judiciary (compared to most developing countries) is a precious asset and is seen as one of the most successful aspects of our transition to democracy. We should be concerned to protect it and tread carefully when there is a danger it could be disrupted.

The DA believes that red lights are flickering.

For in the recent past, the governing party has launched a series of sharp attacks on the South African judiciary. The objective of these attacks is to promote a bench that is more sympathetic to the government's ideology and policy progamme of 'transformation', and to exert implicit pressure on judges to make rulings that accord with the government's policy agenda.

The most recent of these attacks took place at the ANC's 93rd anniversary celebrations in Umtata on January 8 2005. The party released a statement asserting that the bench should be brought into "consonance with the vision and aspirations of the millions who engaged in the struggle", and that judges should undergo a shift in their "collective mindset" so as to be "accountable" to the electoral "masses".

The statement smacked of a political attempt to soften up judges ahead of the "pharmaceutical case" - an action involving the legality of the Department of Health's medicine pricing regulations that was to begin being heard by the Constitutional Court on March 15.

Through its statements and actions, it would appear that the ANC is increasingly pressurizing the judiciary to 'transform' beyond the constitutional imperative of establishing a bench that broadly reflects the racial and gender composition of the South African populace - an imperative the DA fully endorses.

For the ANC, transformation also involves the establishment of a judiciary that is more executive-minded and accountable to the ruling party rather than the Constitution.

Such pressure constitutes a direct threat to the independence of the judiciary and, if it continues to mount, will inevitably undermine one of the key institutional pillars of our constitutional democracy.

This discussion document shows how the ANC is undermining judicial independence by:

• Advancing an ideologically partisan view of judicial transformation that is not sanctioned by the Constitution;
• Embracing a narrow definition of "racial representivity" as the key defining criterion for appointment to the bench, thus undermining the selection criteria set out in the 1994 "Guidelines for questioning candidates for nomination to the Constitutional Court". These Guidelines were specially devised for the body that nominates and recommends candidates for judicial appointment, the Judicial Service Commission (JSC), but appear to have been jettisoned recently;
• Using charges of real or imagined racism to intimidate the judiciary and to create a more executive-minded bench;
• Exerting explicit and implicit pressure on judges to prosecute the government's policy agenda through, for example, statements such as the one released on January 8 this year; and
• Attempting to exert greater political control over the judiciary with new legislative proposals such as the Judicial Conduct Tribunals Bill, the South African National Justice College Draft Bill, the Superior Courts Bill and proposed amendments to the Judicial Service Commission Act as well as the Constitution itself.

These legislative proposals sparked a fierce confrontation between members of the judiciary and the executive at a colloquium held in Johannesburg in April.

They come in the wake of several controversial developments that have impacted on the judiciary this year. These include the ANC's January 8th statement; the release in March of the "Report on Racism in the Cape Provincial Division" by the Judge President of the Cape High Court, John Hlophe; and the 'concept paper' on the transformation of the judiciary, commissioned by Justice Minister Brigitte Mabandla and drafted by her special advisor on transformation, Professor Shadrack Gutto, which is scheduled to be submitted to Cabinet in April 2005.

Download supporting documents (Judiciary DA’s Judicial Review Final.doc)