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 problem is, of course, that the JSC is hopelessly divided on this matter. The Hansie Cronje effect has come in to play, so some members of the JSC will probably be loyal to Justice Hlope even if he admits that he only gave permission for Justife Desai to be sued because he received money from the Oasis group.
There is an urgent need for the Minister of Justice – or somebody at the Ministery who actually does anything – to finalise the Bill that will set up a system to deal with disciplinary matters against judges. What is required is the establishment of a sub-committee of the JSC, composed at the very least, of a majority of senior judges and chaired by the Chief Justice, to look into allegations of conflicts of interest and corruption against judges.
It would be untenable for such a committee to be controlled by civillians with overt political agendas. The indepenence of the judiciary requires that judges should be in control of their own disciplinary process. But one or two civillians could be added to ensure that the body does not become a toothless club protecting colleagues who should be brought to book.
This sub-committee should deal with judges on the basis of a code of conduct setting out what is required of a judge in terms of ethics and behaviour and should allow for reccommendations that range from suspension and docking of pay to full impeachment.