Thando Ntlemeza

When delivering a public lecture, Judge Johann Kriegler asked an interesting question: Can Judicial Independence Survive Transformation? A question which talks to the fundamental principles, which underpin South African constitutional democracy. Even the judge himself concedes that “both transformation of the judiciary and the preservation of its independence are constitutional imperatives.” However, this part of the judge’s lecture has – unfortunately – not enjoyed much publicity, for the reasons that may be best known to the journalists and media houses.

The judge tells us that “judicial independence may not be sacrificed on the altar of transformation”. Whilst noting his point, this principle should not be used to frustrate transformation either. We must – at all times – avoid a temptation to raise judicial independence over-and-above transformation and vice versa. Instead of defending and promoting one constitutional imperative, we must defend and promote both imperatives. Both constitutional imperatives “must always survive”, but ensuring this requires a balancing exercise which takes into account the history of South Africa and the kind of society we want to create, build and sustain.

We know as a matter of fact that in the apartheid South Africa “…justice had a white unwelcoming face with black victims at the receiving end of unjust laws administered by courts alien and generally hostile to them.” The white face of justice was not only overwhelming and part of the oppressive discriminating system; it also failed to recognize the humanity of the oppressed people.2 Neither did this system recognise the independence enjoyed by the judges today. Instead, it required judges to be positivist functionaries that were expected to apply apartheid laws without due regard to principles of justice and human rights.3

Writing about instrumental and functional value of judicial independence, Nico Steytler4 stated that judicial independence provides citizens with confidence in judicial processes. Underlying this is an assumption that once it enjoys independence, the judiciary discharges its responsibilities without fear, favour or prejudice; which implies that public confidence in the judiciary derives from the independent nature of the institution, something that may not be easily accepted, if at all.

We would remember that during the apartheid days the judicial officers were required to apply – and in deed applied – laws that denied majority of South Africans human dignity. To this majority, the judiciary can claim independence only if it is legitimate and this legitimacy depends upon the extent to which it is transformed into a more representative, competent, sensitive, humane and responsive judiciary. Meaning that only a transformed judiciary enjoying respect and confidence of the citizens can legitimately demand respect for judicial independence. However, we respect the principle of judicial independence because we undertook to recognise an untransformed judiciary during the transition as judicial independence is fundamental in our democracy, but on the understanding that judicial transformation would be pursued to legitimise the judiciary.

In conclusion, let me emphasise that judicial independence and transformation of the judiciary are mutually inclusive imperatives, which should be defended and promoted at all times, without any overemphasis of one over-and-above another in academic and public debates because doing so would further polarise our society. With due respect, emphasis on judicial independence creates an impression that the judge believes that this principle is more important than transformation. Whether the judge wanted to create this impression is another question.