The unhappy fact that it is journalists, investigating organs of state and officialdom and the political class and their involvement in corrupt practices to loot the State’s resources, who, by so doing, attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries, cannot be ignored. The examples of abuse of the system have been addressed elsewhere in this judgment. Moreover, the respondents’ perspectives assume that the designated judge is not lied to and is diligent… In my view, in the absence of a rebuttal, this example illustrates a grave vulnerability in RJCA that such an apparent abuse could occur. The common cause examples of blatant lies being told to the designated judge further exacerbates the vulnerability of the system.
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.
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