An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The first time I encountered the practice was many years ago when I visited Morocco. Pictures of the country’s supreme leader, the then King of Morocco (who was later succeeded by his son), could be found everywhere: not only in government buildings, but in every tea shop, hotel and carpet sellers stall. It was as if the pictures were placed everywhere to remind everyone that Big Daddy was watching them.
Of course, in apartheid South Africa, pictures of the Prime Minister and the relevant self-important Cabinet colleague (with the obligatory silly Homburg hats), could be found in every government department. And I remember once clearing out the boxes of junk from my father’s house and stumbling on a big black and white framed picture of “Doktor Verwoerd” (alongside a framed picture of the Voortrekker Monument) amongst the discarded ashtrays (in the form of wagon wheels) and plates (commemorating the NG Kerk Warmbad’s 75th anniversary) and old newspapers bringing news that South Africa was leaving the Commonwealth (1960) and that South African boxer Arnold Taylor had become the WBA Bantamweight boxing champion of the world (1973).
(These portraits had been long forgotten, of course, because after 1994 very few white South African ever admit to having supported Verwoerd or having voted for the National Party. Surely none of those ex-Nationalists now serving in the DA and the ANC would want us to remember that they were enthusiastic supporters of apartheid.)
But even in apartheid South Africa, where Afrikaners generally revered the Prime Minister as a demigod sent by Our Father in Heaven Himself to keep the Volk safe from die swart gevaar and the communists, the picture of the Prime Minister could be found only in government buildings (and in private homes, of course). Naively I had thought that our new democratic and revolutionary ANC government would dispense with such idolatry. Who in the ANC, I thought, would want to imitate the apartheid government and treat government Ministers as if they were not the servants of the people but rather Very Important People who had to be feared and obeyed?
Well, I was wrong. After all, we did not have a true revolution in South Africa in 1994. The state remained intact and we had a “transition” in which the National Party handed over the political (but not the economic) power to the majority (who happened to support the ANC), while the state and all its structures (and the bad apartheid era habits of the state apparatus) remained. Today it is unclear whether the ANC transformed the state or whether the deeply embedded state culture managed to curb the more egalitarian habits (or was it mere rhetoric?) of the ANC and whether the culture of the apartheid state did not insinuate itself into the heart of the ANC controlled government.
So, soon after 1994 pictures of Nelson Mandela and his cabinet appeared in government buildings. Because it was Nelson Mandela, it kind of warmed my heart and I did not object. But these days whenever I visit a government department and I see big colour pictures of our President and of the relevant Minister (or in the Western Cape, pictures of Helen Zille) looking sternly down at those who enter, I do not feel at ease. In a democracy, governments (and with it Presidents and Cabinet Ministers) are supposed to come and go, but those pictures seem to suggest otherwise.
I am, of course, too sensitive about this. The existence of those pictures can easily be justified on the basis that the cabinet minister (or the President) is the political head of the Department one is visiting and is hence accountable for what happens there. Having a picture of the President or Cabinet member can therefore be seen as a reminder of the accountability of our government Ministers to the ordinary public. If that Home Affairs official treats you with contempt because you are not rich (or white) it is the relevant Cabinet Minister in that picture who should be held accountable.
That is exactly why it is completely inappropriate that pictures of President Jacob Zuma and Justice Minister Jeff Radebe adorns the foyer of the Western Cape High Court. Our Courts are not part of the government and (unlike officials in the Department of Justice) our judges are not accountable to the President or the Minister of Justice. It is worth quoting extensively from section 165 of our Constitution, which states:
- The judicial authority of the Republic is vested in the courts.
- The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
- No person or organ of state may interfere with the functioning of the courts.
- Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
So, Courts are subject to the Constitution and the law — not to the authority of the Minister of Justice. While the Minister ensure the smooth running of the justice system, individual judges and the judiciary as an institution are not accountable to the Minister, either for individual decisions or for the day to day running of the courts. This is what judicial independence entails.
Those pictures on the walls of the High Court tells a different story though. To the uninitiated litigant or accused entering the Cape High Court, those pictures might very well suggest that the Courts are not truly independent as they are under the authority of the President and the Minister and accountable to them.
Justice must not only be done but must also be seen to be done. And this can only happen when courts are not only independent (as guaranteed in our Constitution) but also seen to be independent by ordinary citizens entering a court building. Where pictures of members of the executive adorns the foyer of a court building, the danger is that some ordinary citizens will begin to believe that the courts are accountable to the executive and that judges will rule in a manner that will please the executive – regardless the facts of the case or the law applicanble to that case.
It was therefore unwise to place these pictures in the foyer of the Western Cape High Court. One can only hope that either the Judge President or the Chief Justice will take immediate steps to rectify this mistake in order to safeguard the image of the judiciary and to ensure that no one would be fooled by these pictures and would begin to believe that our courts are not independent.
This is not a decision that can be left to government officials. The relevant leaders of the judiciary need to take steps to rectify the matter. Hopefully either the Judge President or the Chief Justice will act swiftly and will do the right thing to continue jealously to guard the image of our judiciary.
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