The love fest between the executive and the judiciary at the Second Judicial Conference for South African Judges seemed to have been spoilt slightly by remarks by Justice Minister, Jeff Radebe. Apparently Radebe mooted the idea – dropped by the Mbeki cabinet after an outcry from judges – that the executive would assume the responsibility of administering the judiciary.
Judges have rejected any political attempt to manage their affairs, describing such a move as “interference” and making it clear it would be ‘contested’, says a Cape Argus report. The report says Deputy Chief Justice Dikgang Moseneke told Radebe he had touched “a very very raw nerve”, and that the judges considered managing their own affairs as “holy ground”. Moseneke is reported to have added: “Any power that would detract from the ability of the judiciary to do their judicial function without executive intervention would be a matter that would have to be clarified and that would have to be contested.”
In 2005 the Department of Justice published for comment a Draft Constitution Fourteenth Amendment Bill over the December holiday (when the skelms thought no one would notice) which would have amended section 165 of the Constitution. This section guarantees the independence of the Courts and states that Courts are subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice and the amendment would have added the following provision:
The Cabinet member responsible for the administration of justice exercises authority over the administration and budgets of all courts.
The government’s argument at the time was that the Minister needed to take charge of the administration and budgets of courts to ensure better access to courts and that the proposed amendment would in no way interfere with the independence of the judiciary which would still be able to exercise its power withour fear, favour or prejudice. Judges decide cases, but politicians and administrators should run the courts, so the argument went.
Are judges being hyper sensitive about this matter or does this amendment – which Radebe clearly itches to ressurect from the grave - pose a real threat to the independence of the judiciary? After all, why should judges have to worry about budgets and the administration of their courts? Are they any good at it? Should they not rather decide the cases put before them and leave the mundane stuff like preparing the role, fixing the airconditioners, ordering the books for libraries and fixing the computers to the Minister and his team?
Well - duh! – everyone with two brain cells can see that this is a very bad and dangerous idea. The Constitutional Court has stated that one of the pillars of judicial independence is a guarantee of its institutional independence. The judiciary can only be independent if, at the very least, its institutional independence is safeguarded. This means that judges must have some guarantee that their salaries will be paid and not reduced and that their conditions of services will not be affected by any decision they might make in a particular case.
Where the Minister is given a constitutional right to exercise authority over the administration of budgets of all courts, the Minister is in effect given the power to interfere with the institutional independence of the judiciary. Imagine the judges of the Constitutional Court hand down a string of judgments in which it finds against the state or (just for argument’s sake) against the sitting President in a criminal case. If this kind of amendment is passed, the Minister will be able to reduce the budget of the Constitutional Court, cut off their computer access or even their electricity.
Even where the salaries of judges are not affected, this would potentially hand the Executive dangerous powers that could be used to try and intimidate judges. “Good” judges or “good” divisions of the judiciary could be awarded with perks and benefits while “bad” judges or “bad” divisions could be punished.
If there is a problem with the administration of budgets and of the courts, then the Minister must find a way to deal with this without taking such drastic measures which would potentially threaten the independence of the jduiciary. The Minister will therefore have to drop this crazy idea and will have to sit down with the leadership of the judiciary to help them to solve any problems there might be. But judges (and not politicians) should have the final say on the administration of courts and budgets.
Even if the Minister now says (and maybe really believes) that he does not intend to abuse the power he wants to grab for himself to intimidate judges and to undermine their independence, there will come a time when a Minister of Justice will abuse such power. If we have learnt one thing in human history it is that power given and power unchecked will eventually be abused. That is why this idea is such a bad one and why the judges are so implacably opposed to it.
Good for them. President Zuma can demonstrate that he meant what he said on Monday by ordering the Minister to drop this idea immediately. If Zuma does nothing, questions will be asked even more persistently about who is really in charge of the ANC and of the government it leads.
Pierre, I am vehemently opposed to anything that even begins to look like the thin end of a governmental or political interference in the operation of the high courts.
But at the same time I must say that it looks like the administration of the courts does leave a fair bit to be desired. By way of an example, have you seen the antiquated equipment some judges and their secretaries have to cope with? My thinking would be to establish a professional administrative body which would oversee and deal with the administration aspect under the auspices of the CJ and the JP’s. That is to say final authority would remain with the CJ and the JP’s but there would be a professional entity dedicated to maximising the efficiency of the system, making recommendations to the CJ and JP’s, implementing their directives and generally freeing up the judges to get one with justice tasks. That entity would have a constitutionally guaranteed budget or income of some kind to enable it to function. The idea is not entirely novel: consider the role of the Master of the High Court and the Registrar of the High Court; this is but a variation of that theme with a specialised function. But for God’s sake, keep the politicians out of it. Letting them have any say at all is opening Pandora’s box albeit it ever so slightly.
@Pierre
“After all, why should judges have to worry about budgets and the administration of their courts?”
I feel thats a very good question and in fact Judges dont need to actually and they actually dont, well shouldnt and Ill explain bringing in a comment by CD
@CD
The idea is not entirely novel: consider the role of the Master of the High Court and the Registrar of the High Court; this is but a variation of that theme with a specialised function
think much bigger, what needs to happen is to create a “National Council of Justice”
1)In this body you will have your JSC and your magistrate commission appoint judges and so forth to cases and carry on the functions of what the JSC has always done.
2) Human Resource Management
3) Fiscal Administration
Technology Management
4) Information Management
Intergovernmental Liaison
Secretariat Services
5) Research and Advisory Services
Community Relations and Public Information
Caseflow Management
6)The Court Administrator’s – they combine the technical skills of a manager with knowledge of public and business administration and an understanding of the duties and the problems peculiar to the courts.
Judges have no time for this shit but this is where your court administrator’s come into place.
Thats all, its simple
The Minister of Justice should rather focus on the fight against corruption and be responsible for anti corruption tasks than be so obsessed with admin controls of the judiciary!
CD, I really like your suggestion. And even if hoping that someone with some pull will take it further is too optimistic, I will be hopeful anyway.
I read you as advocating the introduction of a professional body especially tasked with seeing to the administration of the courts but answerable to the judiciary.
Now I think this notion addresses concerns which are either actually or presumably ostensibly put forward by the sides in question here. That is, your proposition takes adequate cognisance of the judiciary’s justifiable desire for institutional independence – which, as the Professor makes out, is integral to judicial independence. And your proposal also has due regard to what we hope (however daring that hope may be) is the Justice Minister’s bona fides concern that judges are over and unnecessarily burdened by administrative tasks.
CD good idea! Hopefully all sides will explore something along these lines to improve the efficiency of courts without interfering with judicial independence.
We were just talking about the lack of independance of the Magistracy. If this goes ahead it may start off well but there WILL be abuse in our lifetimes. I fear that what may happen is that the Judges may become like Magistrates. The courts should retain their budgets and appoint their own administrative staff with an interviewing panel comprising members of the Judiciary and Magistracy (for that particular court) and representatives of the Justice Dept. The Justice Dept’s representatives should make up less than 30% of the panel.
Pierre, why do you ask at the end of your article ” who is really in charge of the ANC OR THE GOVERNMENT IT LEADS ” are you not conflating the ruling party and government? Careful when you want to accuse Prez Zuma of lack of leadership that you don’t in the process expose yourself of the crime you always accuse ANC supportes of.
Mdu, your statement seems perplexing. I talk about “the ANC” (one thing) and “the government it leads” (another thing), so there is absolutely NO conflation of the party and the government or the state in my statement. The ANC is one thing and the government (it happens to) lead is another.
Prof, what I am saying is you should have asked who is in charge in the government, I don’t see why you had to include the ANC when complaining about a Govt Minister.
I can do no more than repeat what I’ve said about the politicians’ meddling in magistrates’ independence under the previous post below. However, it would seem as if it is exactly what the ANC-driven goverment is now also trying to attain in respect of High Court judges. They have seen how they could exercise ‘control’ over the magistracy (no small thanks to the apartheid regime’s example!), so now they want to do it in respect of the judiciary.
This makes my point. Instead of judges (and some academics and politicians) being opposed (for varying reasons) to the idea of magistrates becoming part of a ‘totally independent’ judiciary, they should rather welcome the idea of magistrates joining ranks to ensure the independence of the judiciary.
Mdu – that ‘Govt Minister’ is a very high-ranking ANC compadre, no doubt carrying out the views of the party as a whole, and to include the ANC as a whole is therefore not wrong at all. If Jeff Radebe has his own agenda in all this, then I hope the ANC kicks him under the butt sooner than later.
Mdu, you may remember that a short while ago COSATU siad that Cabinet Ministers should not be formulating policy but they should simply implement ANC policy (as conatined in their Polokwane resolutions and manifesto).
As much as the various parties had their own manifestos and some may have ben voted for on their policies (I doubt the ANC was one), it is best that Ministers formulate clear and well-researched policies for their departments.
What I’m saying, in a long-winded way, is that there seems to be a blurring of the distinction between the party and the state. The term govt has, for years, been loosely use to refer to the people who are the party in charge. In this case it is the ANC. So the ANC govt and the ANC-led govt mean much the same thing.
A truly independant judiciary was crucial to ensure a smooth transition to a constitutional democracy. That’s been don (almost) and now is the time to start acting just like the govt did under apartheid – BULLY.
Having control of the purse strings will ultimately be the power that the govt needs. I’d like to know whether such an amendment would allow the govt to reduce the remuneration of judges. And where do the magistrates fit into this whole picture?
I support all the proposed changes, not only will the ligants make that racist court ( Supreme Court of Appeal) a thing of the past by exhausting their avenues in the High Courts and then turning to the Concourt as a last court in all matters, but there will be greater oversight over the judiciary, especially the racist Magistrates’, Judges, acting Judges and other legal professionals who are stunting transformative goals of the government. In addition, there will be an improvement in communication between the Executive and the Judiciary. So please Pirre and your followers, take your uninformed comments to Perth, UK, Netherlands or France take your pick. Transformation of the legal profession is coming like it or not!
Skhokho Radebe, I would like to believe that you and I can have a civil exchange. You see, even though we may opt for opposing positions, I think we both have the betterment of South African society at heart. So civility may be the very least we can expect from one another.
You are quite plainly in favour of a number of proposed changes that bear upon the judiciary. I happen to be against many which I have encounted in various writings. This does not mean that we have to be enemies. It merely discloses an opportunity for us to engage each other meaningfully thereby setting a good example for others who live in this country.
With all respect, I wonder whether you have tried to understand the importance of judicial independence. As I see things, one of the chief reasons as to why judicial independence is of crucial import is this: restricting the judiciary’s independence could mean rendering the courts either directly or indirectly answerable to the executive. And given your earlier post, this seems to be precisely the state of affairs which you would advocate.
But we as a country should make every civil, lawful effort to prevent such a reality from coming to pass. Now as to the reason why: restricting the judiciary’s independence could well undermine the rule of law. And the notion of the rule of law can comfortably embrace the following: the view that the ways in which people can conduct themselves (regardless of wealth, position or station in life) are restricted by the content of applicable laws. Or more simply couched, if laws provide for it you are bound by it – unless of course the laws in question are defeated by constitutional challenges. Thus, the rule of law is important in that it ensures that people (politicians for instance) cannot simply do as they please.
Again with the respect, it seems you are guilty of one deeply unfortunate misapprehension. You seem to think that the colour of your skin is a guarantee that the ANC’s pursuit of power cannot harm you. That the means it will employ to safeguard its crony culture could never prejudice black people as well as anyone else. If so, then you are wrong. Take Vusi Pikoli. He is black. And yet he got a proper raw deal for striving (and succeeding) to be worthy of his former office.
I accept that there are deep inequalities and understandable measures of bitterness in our society. But as I am sure you will agree, anger and resentment are hardly friends to reason. And it makes little sense for you to simply abandon your capacity to reason purely because you think recent and also foreseeable developments could be construed as black South Africans getting one over their white counterparts. We are all of us in this. And if certain proposals materialise, we are all of us in trouble.
With all due respect Skhokho Radebe what informs your view that the Supreme Court of Appeal is a racist court. Do you become a racist judge simply because you make a ruling based on facts, available evidence and the law against a black litigant? So how one conclude that a certain court is racist?
The judiciary to me is partly transformed I mean all judge presidents are black and majority of judges on the bench are black of course we need women as well to be represented on the bench particurlarly as judge presidents. Beside the above what more needs to be transformed.
Leigh, your points are noted, however, i dont agree with them at all, because they are based on assumptions that the ANC is here to use power to all South Africans. Yes i understand that fictitious concept of judicial independence, yet i’m yet to see it alive. The reson i say this is because i and others have defended litigants in various courts and the conclusion we reached is that judgments are often informed by factors outside the law. I’m sure you’ve heard and seen many articles on this. I think its rich and hypocritical to be lectured by you on the rule of law and judicial independence. I and others have suffered under the very system that your forfathers and grandparents used to oppress my people. My views are not about getting one over white people. They are about THE SPIRIT OF BLACK CONSCIOUSNESS. I think you would do well to read the book on this carefully. In addition, we dont know the full story on Pikoli, all we know is some reports by the liberal media whose interests lie elsewhere. Leigh, you are right that people are angry, but i think you underestimate the anger. You see the crime against the rich are a direct result of the subculture deloping from anger( especially the economic crimes). Lastly, i do believe the ANC has done certain things wrong, who wouldnt have, given the task the face(redeeming us), but this is not unique to the ANC, it has happened in other countries. The ANC is dealing with problems created by your people. So i think that your people have lost any credility or legitimacy to critique our government while at the same time living lavishly from the proceeds and benefits of apartheid( whether direct or indirect). Our people are forging African solutions to African problems. So if that aroses your guilt or fear about the future, well its not my problem!
Leigh you must realise that in the future, some of us will be on the bench as Judges. So, lets not kid ourselves by thinking that your people care about Africans.
ERIC MMILA, i cant believe your naivete. But it is understandable given your baground. Well, my friend works there as a Law Clerk. He has suffered the most severe racism at the hands of white Judges there. Not only him, but also litigants who are treated differently based on their skin color alone. A recent example is Adv Dumisa Nstebenza SC. who was belittled for merely trying to present the client’s case. Similar treatment has never been meted out against any white Counsel, whereas i have seen them do extremely badly than Ntsebenza is alleged to have done. It cannot be disputed that the SCA is adorned by many apartheid Judges like Harmse, Lewis and others. Lastly, you must remember that the law is man made and can be abused by the same man who made it.
Skhokho Radebe : “The reson i say this is because i and others have defended litigants in various courts and the conclusion we reached is that judgments are often informed by factors outside the law”.
Uhm… like the Nicholson judgment? Thought that was a good thing in your books?
Mr Radebe, I am sorry to say but I think you are bulls*ing about you being a lawyer.
And if what you say is true, the only conclusion I can come to is that what we have here is a case of sour grapes on the part of someone who has yet to win a case. fresh out of law school? or years of disappointment and embarrassment?
“you must realise that in the future, some of us will be on the bench as Judges”
hahaha. i struggle to imagine a reality in which you will qualify as a judge, sir. not because you are black, but because you have shown by your utterances that you are not made of that stuff.
try zimbabwe, you might have more luck there.
oh, and calling someone a redneck? RACIST.
finally, you show very little confidence in your party’s ability and achievements fifteen years into democracy. wonder what they’ll say about that?
the skhokhos and terreblanches may rave on the fringes as they want, but thank God that there remain the moderate south Africans who are trying to make the country work.
but continue, please, your rantings are entertaining. beware though that they are reinforcing stereotypes held by WHITE racists about black people. (because yes, skhokho, you are a racist despite being black. we see this from your racist stereotypes that you fling about like you know what going through the blades of a fan).
Skhokho Radebe, even though I stand by my views regarding the import of judicial independence and the rule of law, I wish to apologise to you for having conveyed them. I wish to apologise because discussions about these points, however relevant they happen to be, often go so far to principle that they end up overlooking individuals. And for people to stand any chance at realising common ground and hopefully forgiveness, I think that some time has to be earmarked for considering individuals.
So with a view to adopting a more personal touch, I have read your last two posts here in what I hope will prove to be a more meaningful fashion. I have tried to read them more skillfully than I read the one that preceeded them.
Now I believe that skilful reading (much like skilful listening) engages not only the capacity for critical analysis but also intuition and tolerance. And having sought to read your posts in this way, I think two conclusions are inescapable. First, you are angry. And this is really the more obvious of the two. It also tends to obscure the second and more important of the conclusions: you are hurt. And for what it is worth (and as difficult as it may be for you to accept), I do sympathise. It seems you have had a number of very unpleasant experiences.
I would ask you one question though: what might it take for you to accept that it is in your own interest to take people (whatever race, creed or persuasion) as they come?
Skhokho Radebe // Jul 14, 2009 at 5:29 pm
Leigh is actually right here you are blinded by your own agenda and provide no evidence.
If your friend is being so badly abused by these white devils ummmm then why dont they go to the equality courts and lay a charge? or make a complaint to the JSC?
Ill give you an example how badly out of sync and just how you seem to have your own agenda..Judge Carole Lewis how is she an apartheid judge? she was nominated as an acting judge to the JHb high court in 1998 then she became a judge of the SCA in 2003
what year did apartheid end?
so how is she an apartheid Judge?
so really who is actually being Naive….
personnal question Skhokho Radebe why do you think in color? look just admit ur a racist….youll feel better. look ill help you: Im a racist im a yank and I hate canadians and they hate us. see i feel so much better