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Has the SA judiciary been compromised by recent legislative reforms?

Has the SA judiciary been compromised by recent legislative reforms?

20th October 2014

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The hallmark of any true constitutional democracy is the independence of its Judiciary. For the period following the enactment of the Constitution until approximately 2004, South Africa saw an initial unified, independent Judiciary, jettisoning the excesses of apartheid jurisprudence with alacrity and confidently pioneering the development of a socio-economic justice system in line with the new constitution order. In the eyes of the world, South Africa was heralded as an example to other fledgling democracies and less progressive jurisdictions. Unfortunately, recent legislative activity and the attitude and statements of the ANC have caused concern for the sacrosanctity of such independence and suggest a trend towards the pre constitutional attitudes of the past.

The Superior Courts Act (“the SCA”) and the Constitution Seventeenth Amendment Act (“the CSAA”) have recently altered the structure and governance of the superior courts. The CC is now the apex court of South Africa, no longer confined to deciding constitutional matters. This has consequences for the qualities anticipated of the judges of the CC, in terms of their experience and understanding in the application of the law, and the competence of the court as a whole to hear any type of legal challenge. Although seemingly benign, it is argued that in the context of the current judicial appointment process, which is struggling to withstand undue influence from the Executive, this development may well have far reaching consequences for the independence of the Judiciary.

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The office of the Chief Justice has been redefined and as the head of the Judiciary he (or she) will play a primary role in the resourcing and administration of the courts. Given the tendency of the Executive to rein in the courts, a fearless and unfaltering judicial leadership by the Chief justice becomes increasingly more important. The Legal Practice Act (“the LPA”), passed on 23 September 2014, will have far reaching consequences for the structure and functioning of the attorneys’ and advocates’ professions, suggesting a government-controlled legal profession in the form of the Legal Practice Counsel (“LPC”), which is unlikely to be able to function without influence from the Executive. The Protection of State Information Bill (“the PSIB”), in its present form will, once enacted, will curtail the scope of judicial inquiry and in addition to a myriad of constitutional violations, limit the Judiciary’s sentencing discretion. Perhaps most importantly it is likely to represent a pivotal test of the resilience of the doctrine of separation of powers and it’s functioning within South Africa.

An overall analysis of the effect of the legislative reforms on the independence of the South African Judiciary requires a closer examination of the elements that comprise judicial independence, namely the individual independence of judges and the institutional independence of the court. In relation to institutional independence of the courts and within the context of the CSAA and the SCA, changes that are ostensibly positive have taken place to improve the administrative and structural independence of the judiciary. The judiciary is better equipped to run its own administrative affairs, enhancing administrative independence from the executive. The restructuring of the court system provides structural certainty and independence. Unfortunately very little has changed in relation to its financial independence, which remains under Executive control. Thus while the Judiciary’s financial dependence remains more or less unchanged there have theoretically been positive administrative improvements. However, this assessment would only hold true in an environment where justices were appointed to the bench by way of a process that is fair, transparent and reasonable and in which Executive input is restrained.

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The appointment process, carried out by a body that has demonstrated itself to be susceptible to executive influence, is at present fraught with political tension. The Judicial Services Commission’s (“the JSC”) most controversial appointment, that of Moegoeng CJ, was initiated by President Zuma and there is a perception that Moegoeng CJ may not be politically neutral. Given that in theory judges are afforded the freedom to decide without pressure or influence, individual independence is the responsibility of judges themselves. It is accordingly at this juncture that the individual independence of future JSC appointees needs to be considered. Their independence will be determined by their own personal qualities: their integrity and intellectual capabilities infused by the moral values they bring to bear upon the process of adjudication.

In relation to the LPA, time will tell exactly how this regulatory reform will affect the independence of the profession, and consequently the judiciary. One can only hope that a direct influence of government in the regulation of the legal profession will not survive constitutional muster. Lastly, pressure mounts as the PSIB, which was passed in parliament on 25 April 2013, has not received presidential assent and inexplicably remains in limbo. If referred to the Constitutional Court, it will be the ultimate test of individual independence and the resilience of the doctrine of the separation of powers within the South African context.

To subvert the independence of the Judiciary means to subvert the very foundations of the society that it seeks to safeguard. Amidst the posturing and prevarication surrounding discussions concerning this topic, one aspect is clear: if South Africa is to remain a true constitutional democracy it is critical that the concentration of power remains distributed among the three arms of Government. At this pivotal moment in South Africa’s democracy, the Judiciary needs to be prepared to resist political manipulation, thereby maintaining their independence and preventing regression to a role as subordinate to an arrogant executive.

Written by Kathleen Louw, Senior Associate at Werksmans Attorneys

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