The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The love fest between the executive and the judiciary at the Second Judicial Conference for South African Judges seemed to have been spoilt slightly by remarks by Justice Minister, Jeff Radebe. Apparently Radebe mooted the idea – dropped by the Mbeki cabinet after an outcry from judges – that the executive would assume the responsibility of administering the judiciary.
Judges have rejected any political attempt to manage their affairs, describing such a move as “interference” and making it clear it would be ‘contested’, says a Cape Argus report. The report says Deputy Chief Justice Dikgang Moseneke told Radebe he had touched “a very very raw nerve”, and that the judges considered managing their own affairs as “holy ground”. Moseneke is reported to have added: “Any power that would detract from the ability of the judiciary to do their judicial function without executive intervention would be a matter that would have to be clarified and that would have to be contested.”
In 2005 the Department of Justice published for comment a Draft Constitution Fourteenth Amendment Bill over the December holiday (when the skelms thought no one would notice) which would have amended section 165 of the Constitution. This section guarantees the independence of the Courts and states that Courts are subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice and the amendment would have added the following provision:
The Cabinet member responsible for the administration of justice exercises authority over the administration and budgets of all courts.
The government’s argument at the time was that the Minister needed to take charge of the administration and budgets of courts to ensure better access to courts and that the proposed amendment would in no way interfere with the independence of the judiciary which would still be able to exercise its power withour fear, favour or prejudice. Judges decide cases, but politicians and administrators should run the courts, so the argument went.
Are judges being hyper sensitive about this matter or does this amendment – which Radebe clearly itches to ressurect from the grave – pose a real threat to the independence of the judiciary? After all, why should judges have to worry about budgets and the administration of their courts? Are they any good at it? Should they not rather decide the cases put before them and leave the mundane stuff like preparing the role, fixing the airconditioners, ordering the books for libraries and fixing the computers to the Minister and his team?
Well – duh! – everyone with two brain cells can see that this is a very bad and dangerous idea. The Constitutional Court has stated that one of the pillars of judicial independence is a guarantee of its institutional independence. The judiciary can only be independent if, at the very least, its institutional independence is safeguarded. This means that judges must have some guarantee that their salaries will be paid and not reduced and that their conditions of services will not be affected by any decision they might make in a particular case.
Where the Minister is given a constitutional right to exercise authority over the administration of budgets of all courts, the Minister is in effect given the power to interfere with the institutional independence of the judiciary. Imagine the judges of the Constitutional Court hand down a string of judgments in which it finds against the state or (just for argument’s sake) against the sitting President in a criminal case. If this kind of amendment is passed, the Minister will be able to reduce the budget of the Constitutional Court, cut off their computer access or even their electricity.
Even where the salaries of judges are not affected, this would potentially hand the Executive dangerous powers that could be used to try and intimidate judges. “Good” judges or “good” divisions of the judiciary could be awarded with perks and benefits while “bad” judges or “bad” divisions could be punished.
If there is a problem with the administration of budgets and of the courts, then the Minister must find a way to deal with this without taking such drastic measures which would potentially threaten the independence of the jduiciary. The Minister will therefore have to drop this crazy idea and will have to sit down with the leadership of the judiciary to help them to solve any problems there might be. But judges (and not politicians) should have the final say on the administration of courts and budgets.
Even if the Minister now says (and maybe really believes) that he does not intend to abuse the power he wants to grab for himself to intimidate judges and to undermine their independence, there will come a time when a Minister of Justice will abuse such power. If we have learnt one thing in human history it is that power given and power unchecked will eventually be abused. That is why this idea is such a bad one and why the judges are so implacably opposed to it.
Good for them. President Zuma can demonstrate that he meant what he said on Monday by ordering the Minister to drop this idea immediately. If Zuma does nothing, questions will be asked even more persistently about who is really in charge of the ANC and of the government it leads.BACK TO TOP