Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
In a constitutional democracy in which the Constitution is supreme and in which the courts can declare invalid any law or act by a member of the executive or – where applicable – a private institution or person, safeguarding the independence of the judiciary is pivotal. All the checks and balances contained in such a constitution will ultimately only be effective if judges are allowed to interpret and apply the Constitution and the law in an impartial manner and where judges are free – according to their conscience and in line with their honestly held beliefs – to interpret and apply the Constitution and the law without fear, favour or prejudice.
Currently the independence of the South African judiciary is guaranteed by section 165 of the Constitution, which confirms that the judicial authority of the Republic is vested in the courts; that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice; that no person or organ of state may interfere with the functioning of the courts; and that 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.
Section 165, interpreted holistically, confirms that members of the executive – including the Minister of Justice – may not interfere with the functioning of the Courts. Although the Minister of Justice is politically responsible for the administration of justice in South Africa, he or she may not unilaterally impose norms and standards on the judiciary or act in any other way that could be perceived as interfering with the institutional independence of the judiciary or the impartiality of judges.
The Minister can therefore not take over the management of court rolls and cannot tell individual judges that they need to work longer hours or that they need to produce their judgments within a reasonable time as this would be seen as interference with their independence. Yet, when judges take months and – in some cases – even years to produce written judgments, the administration of justice is fundamentally compromised. Some mechanism must therefore be found to ensure that judges are held accountable without interfering with their independence.
At the same time, the Ministry is required to support our judges and to provide the backup to ensure that judges are able to do their wjob to the best of their ability. When a judge’s computer stops working, the air-conditioning in her office is on the blink, the lifts stop working or the toilets are not cleaned, the Ministry of Justice, working with Public Works, must ensure that this is fixed.
Of course, if a judge is particularly unpopular with the executive, there will always be a temptation to “punish” such a judge by not providing adequate support. But as recent complaints by senior judges about conditions at the South Gauteng High Court in Johannesburg has shown, the Ministry may be less than stellar in its support even where the executive has no personal vendetta against a judge or against a particular court. In such cases, it would be important for the judiciary to speak with one voice and to have a champion in the form of the Chief Justice – as the head of the Judiciary – to ensure that the executive provides our courts with the support that they are constitutionally entitled to.
One may therefore view the proposed amendment to section 165 of the Constitution, contained in the Constitutional Seventeenth Amendment Bill, through this lens and argue that the amendment will help to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary (who happens to be the Chief Justice) and the Minister of Justice regarding the administration of justice. The amendment would add the following subsection to section 165 of the Constitution:
(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.
This proposed amendment must be read with the provisions of the proposed Superior Courts Bill. Section 8 of this Bill states that:
(3) The Chief Justice may, subject to subsection (5), issue written protocols or directives, or give guidance or advice, to judicial officers: (a) in respect of norms and standards for the performance of the judicial functions as contemplated in subsection (6); and (b) regarding any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts.
Read together, the proposed amendment of the Constitution and the relevant provisions of the Superior Courts Bill will bestow extensive powers on the Chief Justice over the administration of the Courts. However, the power of the Chief Justice is tempered by further provisions which confirm that the “management of the judicial functions of each court is the responsibility of the head of that court”. The proposed section 8(5) of the Bill also requires that any protocol or directive issued by the Chief Justice may only be issued by the Chief Justice if it enjoys the majority support of a forum of judicial officers convened by him or her.
When dealing with High Courts, the forum of judicial officers must include all the Heads of the Superior Courts. A worrying aspect of the draft Bill is that it does not limit this forum of judicial officers to the Heads of Superior Courts. In theory the Chief Justice can decide to co-opt any number of judges to serve on such a forum. In theory, a number of hand picked judges larger in number than the Heads of Court can therefore be selected by the Chief Justice to sit on such a forum in order to try and ensure that the proposals of the Chief Justice are approved. This is a serious flaw in the draft legislation that needs attention.
That the power of the Chief Justice over the judicial functions of all courts are quite extensive is made clear by section 8(6) of the Bill, which states that the judicial function over which the Chief Justice exercises responsibility include (but is apparently not limited to) the determination of sittings of the specific courts; assignment of judicial officers to sittings; assignment of cases and other judicial duties to judicial officers; determination of the sitting schedules and places of sittings for judicial officers; determination of standards applicable, and procedures to be adhered to in respect of: (i) case flow management; (ii) the finalisation of any matter before a judicial officer, including any outstanding judgment, decision or order; and (iii) recesses of Superior Courts.
The purpose of the amendment of section 165 of the Constitution and the introduction of section 8 of the Superior Courts Bill is clearly to empower the Chief Justice to take charge of the administration of justice to ensure that our courts operate more efficiently. In theory this will improve access to justice and will ensure that all courts function better and faster to serve the public efficiently and impartially. This move has been welcomed by many commentators – most notably by my colleague Richard Calland – because, so it is argued, in order to safeguard the independence of the judiciary while ensuring judicial efficiency, the Chief Justice, rather than the Minister of Justice, should be empowered to oversee the running of our Courts.
Critics will argue that despite the safeguards included in the Superior Courts Bill, the amendments would give the Chief Justice too much power over the running of the Courts. For example, the Chief Justice could issue directives (in consultation with the judicial forum) setting norms and standards for the performance of many judicial functions, including decisions about the assignment of judicial officers to individual cases. However, as I read the section, the Chief Justice would not be able to interfere in a decision made by a Judge President about the allocation of a case to a particular judge. He or she would only be able to issue directives setting out norms and standards to be followed by the Judge President when allocating cases.
Nevertheless, the big weakness of this section as it reads now is that the Chief Justice would be able to manipulate the composition of the forum of judges whose approval will be needed to issue these directives. Given the fact that the Chief Justice is appointed by the President with hardly any involvement of the Judicial Service Commission, and given that the Chief Justice is therefore a clear political appointee, extra safeguards are needed to ensure that better checks and balances are placed on the exercise of the authority of the Chief Justice.
Law makers have a tendency to legislate for current conditions and based on incumbent personalities, instead of formulating laws that would be sound even if the conditions changed and the current personalities retired. The mere fact that most of us trust the current Chief Justice to exercise these proposed powers wisely and in a consultative manner, does not mean that a future Chief Justice will do so. It is therefore important that the proposed legislation be amended to include more stringent checks and balances that will limit the powers of the Chief Justice in order to prevent a power grab in the future.
PS: The Constitution Seventeenth Amendment Bill, read with the Superior Courts Bill, contains other important provisions that will lead to far reaching changes to our judicial system. In the coming days I will discuss these provisions in more detail.BACK TO TOP