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.
Now that President Jacob Zuma spends more time “acting” as President than appearing as a criminal defendant in court, he has (mostly) stopped saying really silly things and has impressed many people – including me – who might otherwise have been ill disposed towards him. While one is (still) not sure what Zuma really thinks on any number of issues (or whether he has any original thoughts at all, given the fact that he claims to be at one with the ANC collective – which like the Borg in Star Trek seems to assimilate its leaders), his utterances and actions since he has become President has often been quite impressive.
This morning’s keynote address at the Second Judicial Conference for South African Judges in Pretoria is a good example of the post-dropping-of-charges-Zuma. President Zuma hit almost all the right notes on the judiciary and his speech contained very little that might be of concern to lawyers, judges or ordinary citizens, worried about the Rule of Law, the independence of the judiciary and the supremacy of our Constitution.
He praised the Chief Justice and Deputy Chief Justice (whom he had criticised previously when he was still an accused) as well as George Bizos, one of the JSC members who are quite independent minded and outspoken, and pointed out that they all had an impeccable record in the fight for justice, freedom and human rights in our country. He also affirmed the government’s support for the independence of the judiciary and the separation of powers.
As there is some nervousness that the talk in government about the need for the transformation of the judiciary might mask sinister motives to attack the independence of the judiciary, it was also good that President Zuma explained what the government understood with judicial transformation. Said the President:
Let me from the onset state that the transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence. An independent judiciary is one of the cornerstones of any democracy. As the Executive we respect without reservation, the principle of judicial independence and the rule of law.
When we talk of judicial transformation and access to justice, we are talking about three issues in particular. We want to ensure that even the poorest of the poor do enjoy access to justice. Secondly, that the justice that people access is of a high standard and thirdly, that justice is attained without undue delay.
Central in the struggle for a just society has always been, and continues to be human rights and the rule of law, which are fundamental pillars of a Constitutional democracy. Under apartheid colonialism South African Courts discriminated on the basis of race, culture, gender and religion. The oppressed therefore viewed the courts as part of the instruments of the apartheid system of oppression.
It has therefore been a mission of all administrations since 1994, to create a society, which would be underpinned by justice and human rights, guided by our country’s Constitution. Transformation should also mean the appointment of judges who are committed to the new democratic order. It means increased access to justice for all sectors of society, including the poor and marginalised. Transformation means the promotion of a culture of judicial accountability, and the creation of structures necessary to foster judicial independence.
If one assumes that a judiciary committed to the democratic order does not mean a judiciary committed to the interests of the ANC government, but, instead means a commitment to the values in the Constitution – including the value of respect for diversity, something President Zuma mentions in his speech – this view of transformation is not controversial at all. Some might raise an eyebrow about the remark that the judiciary should be more accountable, but elsewhere in the speech the President mentioned respect for the separation of powers and the independence of the judiciary and also dealt with criticism of judges.
President Zuma quoted the words of late Chief Justice Mahomed who said that it was fine for judgments to be subjected to vigorous attack and criticism before continuing:
A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination. What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment.
This principle was of course (ironically) not adhered to by Mr Zuma’s backers when Zuma was still an accused person. Julius Malema and Gwede Mantashe, amongst others, attacked the personal integrity of the judges of our highest court, even calling them – ridiculously – counter-revolutionaries. Mr Zuma (as he then was) never repudiated them. Only time will therefore tell whether President Zuma really believes everything he said today or whether the attitudes emanating from him and his supporters during his court case linger on.
President Zuma also said some other potentially controversial things during his speech. He said that the government “need to work harder to deal with the perception that the rights of criminals are prioritised” above those of the rights of victims and pleaded that the approach to the granting of bail needed to be examined. “Communities see alleged perpetrators arrested and then swiftly released only to commit further crimes or to intimidate witnesses”.
This statement seems uninformed and problematic from a human rights perspective. To my mind there is nothing wrong with the current bail provisions which do provide for a denial of bial where there is a real fear that a person will commit further crime or intimidate witnesses. Zuma here is playing to the peanut gallery. As a person who was swiftly granted bail after being arrested on a charge of rape, he of all people should have some appreciation of how important the granting of bial is in a human rights based culture.
The one really scary and stupid idea raised by President Zuma (reflecting ANC policy adopted at Polokwane) is that the Judicial Service Commission and the Magistrates’ Commission should be integrated into a single appointment mechanism and that a single grievance procedure for all judicial officers should be established.
This would be a disaster and would fundamentally weaken the independence of the judiciary. As the Constitutional Court pointed out in the Van Rooyen case, our court system is hierarchical and affords greater protection and safeguards for the independence of High Courts than for the Magistrate Courts. Because Magistrate Court judgments can be appealed to higher courts whose independence is more vigorously protected, the judicial system as a whole remains independent.
The quality of appointments to Higher Courts is also – as a general rule – much higher than the quality of appointments to Magistrate Courts.
If the Magistrates Commission and the JSC are collapsed into one body it will fundamentally weaken the independence of the High Courts and will open the door for the appointment of really spectacularly unqualified people to the High Court Bench. The quality and integrity of the High Court and its judgments would almost inevitably suffer – perhaps disastrously so. We will all – rich and poor – then equally have access to a Bench unable or incapable of providing us with the justice promised by our Constitution.
Let us hope this absurd and dangerous idea is quietly dropped after consultation with the judiciary.BACK TO TOP