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.
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!BACK TO TOP