If the independence of the judiciary was to be preserved, then the South African government's "misguided [methods of] transformation would have to be confronted fearlessly and honestly".

This was according to Judge Johann Kriegler, at a public lecture hosted by the Wits University School of Law, entitled ‘Can judicial independence survive transformation?'

Speaking with 25 years experience at the Johannesburg Bar and service as a provincial, appellate and Constitutional Court judge for nearly two decades, Judge Kriegler emphasised the serious threats facing an independent judiciary in South Africa, often under the "guise of transformation".

The recent attention focused on the judiciary, in light of the ongoing Judge John Hlophe "soap opera" - he is accused of interference in the Constitutional Court judgement on President Jacob Zuma - and the Presidency's "ham-fisted" approach to the nomination of Sandile Ngcobo as Chief Justice, only made this topic more difficult, said Kriegler. While he did not want to dwell on these topics that have shown the judiciary in a mostly negative light, the experienced judge said that "Judge Hlophe was not the problem" with the dubious judiciary, but a "manifestation of an underlying problem".

Transformation and independence in the judiciary were "Constitutional imperatives", said Kriegler. Although the Constitution did not explicitly mention transformation, this was implied, as the Constitution acted as a "bridge between the old and the new".

"Transformation was essential," he stressed, but the Constitution also created a "triad of State power" in the form of the executive, legislative and judicial arms of government, each of which must be kept autonomous, and never "sacrificed on the altar of transformation".

Kriegler stated that the threats facing the independence of South Africa's judiciary came from both outside and inside the system.

External threats came mostly from national office, Kriegler explained, in the form of resolutions that were "reaffirmed" at the December 2007 Polokwane conference. These African National Congress (ANC) resolutions envisaged the "reform" of the judiciary.

The government wanted the Department of Justice and Constitutional Development to take over the everyday running of the courts. But, said Kriegler, one need only look at the state of Johannesburg's courthouse, which he described as "filthy, ill-maintained... and a disgrace", to gauge the level of respect shown towards the judiciary by the executive.

Understandably, Kriegler conceded, the new administration was inclined to "sweep clean" - and he was not referring to the state of South Africa's courthouses - the practices of the past, by taking over control of the judiciary. Although he said he admired the ANC's principles and commitment to non racialism, the government's plans for the "reform" of the judiciary still posed a significant threat to its independence.

The internal threat to the independence of the judiciary, Kriegler explained, came in the form of the Judicial Service Commission (JSC). This organisation was the "ideal solution on paper", but not in practice. While the JSC was an "essential organ of State" and he admired many of the individuals that made up its ranks, Kriegler said that the institution had "become an impediment, rather than an aid to judicial independence".

The JSC's function of appointing judges was regulated by Section 174 (s174) of the Constitution. Kriegler explained that s174(1) required the appointment of "appropriately qualified" and experienced individuals, while s174(2) called for gender and racial representation.

The judiciary must be representative of the society in which it served, said Kriegler, but s174(1) was the primary requirement, with s174(2) its "rider" and therefore a more discretionary condition. This order of importance had been "turned on its head", Kriegler stated, at a cost to the judiciary.

The JSC's appointment of unqualified judges "eroded confidence" in the judiciary, said Kriegler. This was evident in the common practice of commercial litigation not going to court, but rather being heard before arbitrators. Businesses would "go where the market said [one] received the best service". This indicated a lack of trust in the judiciary, as well as undermining the independence of the judiciary as judges were sidestepped.

In the appointment of judges, the JSC had taken to questioning candidates on their political history. Kriegler said that he did not understand the relevance of a candidate's political allegiances as to whether or not the candidate would make a good judge.

In terms of the JSC's "quasi-disciplinary" function, Kriegler said, with reference to the ongoing deliberations over Judge Hlophe, that the institution had been swayed there too by political and transformative imperatives.