Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
Mbeki centralising control over judges?
In the article on Zuma versus Mbeki, which I linked to yesterday, the author suggests that President Thabo Mbeki was busy centralising control over the judiciary”. A reader wants to know whether this is correct.
As far as I can tell, this assertion is not correct. According to someone close to the cabinet, it was Mbeki who personally ordered the withdrawal of the draft legislation which would have amended the Constitution and would have given more control over the administration of the judiciary to the Minister of Justice. This was also reported accordingly by the Mail & Guardian.
Last month the Minister of Justice tabled two Bills – one dealing with Judicial Education and one dealing with the establishment of a complaints mechanism against Judges – which seemed to accommodate at least some of the concerns expressed by the Judiciary. The Bills largely left control over the training and disciplining of Judges in the hands of Judges and seemed to present a relatively sensible compromise between the executive’s impulse for control and the Judiciary’s need for independence. (Despite some problems with the legal education Bill.)
However, my source suggests that the Minister of Justice (read, Deputy Minister of Justice) has indicated to the ANC caucus that when the Bill comes to the Portfolio Committee (chaired by someone romantically linked to the Deputy Minister of Justice), they may want to change the Bills to enhance the role of Magistrates. The argument is that Magistrates should be treated as co-equal with Judges and should get equal space “at the table”.
Politically, Magistrates are perceived to be less independent and thus more malleable than Judges. Legally, the Constitutional Court has confirmed that Magistrates Court are hierarchically at a lower level than High Courts and are therefore fundamentally different. To treat Magistrates and Judges exactly the same therefore makes no constitutional sense.
I suppose some members of the Executive believe that Magistrates would be prepared to do the bidding of the Executive in the various forums created by the Bills.
If these changes are introduced during the Committee stages of the Bill, Judges will be extremely upset. The President will also be extremely upset. The Minister will, as per usual, not have a clue, while the Deputy Minister will work behind the scenes. Let’s hope cooler heads in the ANC prevail and no significant amendments are made to this legislation during the Committee stage.
Watch this space!
