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.
An editorial in the latest De Rebus notes that President Thabo Mbeki has given assurances that any changes to the judicial system and the administration of justice would be done “in consultation with judges and magistrates” and expresses the hope that any changes would not interfere with the independence of the judiciary.
This comes in the wake of the ANC Polokwane resolution on the transformation of the judiciary which states that:
The administration of courts, including any allocation of resources, financial management and policy matters relating to the administration of courts, are the ultimate responsibility of the Minister responsible for the administration of justice.
This section of the Polokwane resolution really revisits a fight between the judiciary and the executive from 18 months ago which ended when President Mbeki ordered the Minister of Justice to shelf amendments to the Constitution that would have given the minister the final say on the administration of the courts.
The ANC says these changes are necessary to ensure the smooth running of the courts and also to ensure the full transformation of the judiciary. They point to section 174(2) of the Constitution which states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” and say judges are bad at administration. (The Minister, on the other hand, is of course a brilliant administrator.)
Let us hope that the optimism reflected in the De Rebus editorial is warranted and that the section of the Polokwane resolution quoted above will not be implemented. It is clear that almost all judges would oppose an amendment to the Constitution that would give the Minister a final say in the administration of courts – including the allocation of resources.
Such a move would clearly interfere with the independence of the Judiciary. As the Constitutional Court pointed out in amongst others, the Van Rooyen case, institutional safeguards are important to ensure that judges act without fear, favour or prejudice.
If the Minister gets the final say on the allocation of resources, some of this independence would be whittled away. One needs not be a rocket scientist to imagine a situation where a specific court consistently make decisions perceived to go against the interests of the government of the day and suddenly finding itself with dwindling resources.
One can also imagine how a specific judge who makes a decision that embarrasses the government would suddenly find that his computer never gets fixed and his air conditioning never works. In the wrong hands such power for the Minister would be dangerous because over time, such judges will realise that if they want to work in a nice environment and if they wish to get the resources they need, they better not make any decisions that displeases the government.
The Polokwane resolution does emphasise the need for judicial training and skills development of our judiciary, stating that it is “non-negotiable and must be vigorously pursued. Appropriate mechanisms must be urgently established to pursue the priority of establishing an adequate pool of judicial officers who are steeped in and reflect the progressive values of our constitution.”
If by this is meant that real transformation of the judiciary is not only about getting the racial and gender mix on the bench to be more representative but also about getting judges to internalise the values of the Constitution, the De Rebus editorial might well be justified.
Too often we talk about the transformation of the judiciary as if it was merely about race and gender and not about values. It is no use if you replace white, heterosexual, sexist patriarchal judges with black, heterosexual, sexist and patriarchal judges. Sadly, some of the appointments of the JSC has not taken this into account and some judges have been appointed despite their deeply conservative views on woman and gender.
The Minister and those people who wrote the Polokwane resolution would do well to rather address this problem than to try and take away the right of judges to administer the courts themselves.BACK TO TOP