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.”
The Hon. Mogoeng Mogoeng
Chief Justice of South Africa
Chair: Suella Fernandes
Chair of Trustees, Africa Justice Foundation
25 June 2013
The topic I was asked to address this meeting on is ‘The Rule of Law in South Africa: Measuring Performance and Meeting Standards’. In my view, it essentially boils down to the role of the judiciary in promoting peace, good governance and sustainable economic development. And at the heart of it is the observance of the rule of law, which the Constitutional Court of South Africa explained in these terms:
The exercise of public power must … comply with the constitution, which is the supreme law, and the doctrine of legality, which is part of that law. The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the constitution. It entails that both the Legislature and the Executive “are constrained by the principle that they may exercise no power and perform no function beyond that conferred on them by the law”. In this sense the Constitution entrenches the principle of legality and provides the foundation for the control of public power.
Even if all others were to be unable to give practical expression to the rule of law, human rights and the constitutional aspirations of the people in any democracy, that constitutional democracy would survive; provided a truly independent body of judges and magistrates, loyal to the oath of office or solemn affirmation, is in place and ready to administer justice to the aggrieved in terms of their oath of office or affirmation.
And that is the oath or affirmation to be faithful to the Republic of South Africa, to uphold and protect the constitution and the human rights entrenched in it and to administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law. Central to the affirmation or oath of office is the obligation to uphold the foundational values of our constitutional democracy, which include the rule of law, human dignity, equality, freedom, transparency and accountability.
This is the legal philosophy and the vision necessary for the promotion of the rule of law and the economic developmental agenda not only for South Africa and the SADC (Southern African Development Community) region but of the African continent as well. Because African countries face similar challenges albeit to varying degrees, I have decided not to confine my address to South Africa but to deal with the broader African situation.
Africa is a beautiful continent. And Africa is populous, comprises vast tracts of land and is extremely rich in minerals and natural resources. It has what it takes not only to have its people bask in the glory of sustainable economic development and prosperity; but also to enjoy peace and all-round stability in an environment of good governance, facilitated by an independent, efficient and effective court system. And yet reports about Africa are generally negative.
Africa is generally associated with massive corruption, social and political instability, rigged elections, dictatorships, abuse of human rights with near impunity, rampant non-observance of the rule of law, coups d’état, sickness and disease, high mortality rate, abject poverty, economic underdevelopment, dependency and in general, the paucity of accountability, responsiveness and good governance. Yet economists say that the United Kingdom and Switzerland, which do not have the mineral and natural resources we have, with a very small population and a small piece of land, are each richer than all African countries put together. We must therefore play our part to reverse this unacceptable state of affairs.
To avoid dwelling on the predictable lamentations of Africa, generally based on what colonization has done to us, and how some superpowers possibly continue to employ more nuanced and sophisticated ways of prospering with our resources at our expense, we need to identify the challenges that strangle the possibility of African people enjoying the peace and the prosperity that this great continent is pregnant with, which African people can change.
The judiciary is the third branch of government; the third arm of the state. There simply can be no state or government without the judiciary in a genuine constitutional democracy. To breathe life into the African dream that is inspired by the desire to break free from centuries of economic oppression, and to recapture the lost glory of Africa, the judiciary in Africa must be more alive to the enormous responsibilities it bears on its shoulders to contribute to the renaissance of Africa.
When the judiciary enjoys both individual and institutional independence and is faithful to its constitutional mandate, then peace, good governance and sustainable economic development is achievable. It must be for this reason that it is recalled in the preamble to the statute of the Conference of Constitutional Jurisdictions of Africa (CCJA); that the Constitutive Act of the African Union enshrines the commitment of heads of state and government of the Union ‘to promote and protect human and people’s rights, to consolidate institutions and democratic culture, to promote good governance and the rule of law’. The judiciaries of Africa have, through the CCJA, also committed themselves to supplementing the AU mechanisms to consolidate the rule of law, democracy and human rights. Finally, we recognise again in the CCJA statute that the achievement of the above objectives is ‘closely linked to the independence and impartiality of judges’. And it is to this end that the CCJA and the court system in a true democracy were primarily established.
How then can we, as the judiciary, make this African dream and the renaissance of Africa come true? I am one of those who believe that lasting solutions to our problems are simple but certainly not simplistic. We often fail to address problems that beset our systems and countries because we tend to look for complex and highly sophisticated solutions, when simple and practical ones, borne out of the experiences of others, and our own experiences are at hand and best suited to yield the much needed results.
Why do we not witness in France, Singapore and the UK problems that have become familiar in Africa? We have oil, gas, gold, diamonds, platinum, chrome, coal etc. in abundance, and breath-taking tourist attractions. The UK is the size of a game reserve in South Africa known as the Kruger National Park. South Korea is about the size of a province in South Africa known as KwaZulu-Natal – where Durban is – and Singapore was very poor and insignificant in 1965, but is now rightly counted among the big world economies although it has nothing but its people and a tiny piece of land. A closer examination of the operations of their judiciaries would, without ignoring the damage done by our painful history, be quite revealing.
Africa desperately needs a truly independent and efficient judiciary in each of its countries to create peace and stability. When citizens know that there is an effective and efficient court system in their country and that arrest, prosecution, conviction and sentence for the guilty is predictable, then corruption and crime in general will go down.
Those who may wish to take power through unconstitutional means would be deterred from forging ahead with their unconstitutional plans by what an independent judiciary in their country could do to them. I asked colleagues in countries like Germany where people cycle freely with no apparent fear of crime even at night what the secret was. And they said the efficiency of the judicial system and the predictability and probability, as opposed to a remote possibility, of paying for one’s crime is the reason behind the peace and overall stability the people enjoy.
When the other branches of government know that courts as the guardians of the constitution will always do their job without fear, favour or prejudice, they will observe and promote the rule of law.
When it is known that a challenge to the executive’s failure to deliver on a constitutional obligation could result in an executable court order against anybody from the president to a mayor, of their own accord government functionaries and role players in business will obey the law of the land, observe business ethics and good governance will materialize.
Good governance stems from compliance with conventional, legislative and constitutional governance prescripts. The entrenchment of the human rights culture, the observance of the rule of law and giving priority to, among others, the realization of the legitimate aspirations of the citizenry in terms of the law, transparency, accountability, responsiveness, the creation of a truly independent and effective corruption-busting machineries, protection of press freedom and the creation of an investor-friendly climate are some of the key ingredients of good governance. For example, the Constitutional Court of South Africa ruled that the corruption-busting body created in terms of legislation was not sufficiently independent to deal with corruption effectively and the relevant legislation had to be appropriately amended to meet the independence requirement.
All of the above conspire to create an investor-friendly atmosphere. When potential investors know that in Africa you will get justice against any law-breaker when defrauded, and when government, business partners or any entity tries to get an unjust or unlawful advantage of them, they will come in droves to invest, given the huge and diligent labour force, the fertile and productive land, the very rich minerals and abundant natural resources we have to offer.
In this regard, the United Nations observed a few years ago that there was a direct link between the capacity of the judiciary to promote the rule of law and facilitate good governance on the one hand, and the willingness of multinational companies to embark upon massive and sustainable economic development on the other. And a concern was raised about the apparent lack of capacity by African judiciaries and governments to facilitate an investor-friendly environment.
The leadership of the South African judiciary has resolved to make policies, set its own strategic priorities and develop a concomitant implementation matrix, to ensure that South Africa has the fundamentals necessary for the realization of the South African and African dream in place.
Nationally, regionally and continentally, the judiciary in Africa must also be encouraged to embark on a very brutal individual judge – and institutional introspection.
The starting point I think, is identifying key challenges that inhibit judiciaries in Africa from executing their constitutional mandate efficiently and effectively. Do judicial officers in all African countries enjoy both individual and institutional independence which would insulate them from undue influence and corruption? Do they all have real security of tenure? Are they paid fairly well? Do they have the essential tools of trade? Is there proper judicial self-governance in the area of court administration and do they control their own budget? Even if there is no self-governance in the strict sense, is the executive or hybrid court administration system in place compatible with genuine judicial independence? Is the court budget adequate for the execution of key functions? Is there an effective judicial education system in place? Does the judiciary broadly enjoy the confidence of the populace? If not, why, and what should be done to address those perceptions or realities, as the case may?
We must develop in-house capacity to identify challenges that undermine the efficiency and effectiveness of the judiciary in the continent. That task should be narrowed down to our regions and our respective countries so that we can identify measures that should be employed to get courts back to their rightful place, wherever there is a need to do so. South Africa has done this and is always looking for ways to improve on this.
Peer review mechanisms without undue self-imposition on others must be explored, the exchange of best practices, and finding an effective way of having interference with judicial independence exposed by allied institutions like the associations of solicitors and barristers all require urgent attention.
When the judiciary is under unfair attack in any country, it must be a concern of allied national, regional and continental bodies alike. We must be our brothers’ and sisters’ keepers.
There is also a need to develop effective communication strategies to disseminate information about judicial institutions and associations, their role and the challenges and role of the judiciary in Africa.
We must find a legitimate way of influencing decisions about changes necessary to secure judicial independence in all African countries, without interfering unduly in the affairs of any sovereign state, given the sensitivities attendant thereto. The academia should speak and write articles more, the organized profession should also echo sentiments on what needs to be done and how, bodies like the International Commission of Jurists should add their voice and we must also work on our own vocal cords as judges about the fundamental changes needed in the judiciaries of African countries. We must find a way to engage with colleagues in the affected countries on how best to work together towards bringing about the necessary changes by the judiciary.
Another avenue to explore is establishing a link between regional structures of presidents and ministers of justice of our respective countries and those of the judiciary. We should not leave it to the regional executive structures to take decisions about judicial structures and matters without meaningfully involving the relevant leadership of the judiciary. The judiciary must also have a say at AU level about matters that affect them. Our role should not be limited to appointments to regional and continental tribunals or courts which were established without any real engagement with the leadership of the judiciary. We should also be involved in their creation and restructuring.
I believe that that there is peace, good governance and a generally sound economy in countries like Singapore and the UK because the rule of law, human rights and good governance are observed as a matter of course. In those countries courts protect the right of the media to objectively and accurately inform the public; courts are largely efficient and effective; they are not beholden to the executive, parliament, the media, lobby groups or the rich and powerful. Civil disputes are somewhat speedily and justly resolved and investors are apparently happy that the law and those who enforce the law will protect their legitimate business interests if unjustly or unlawfully interfered with. There is good governance, social and political stability largely because courts force the politicians and society to act only in terms of the law.
I am convinced that each African country with a judiciary that operates with the ever-abiding consciousness of its constitutional responsibility to contribute to peace and stability, the observance of the rule of law, good governance and the creation of a climate that is conducive to sustainable economic development and plays its part, will help its country to achieve these noble objectives, and realize the legitimate and constitutional aspirations of the citizens.
If we do so individually and collectively as courts in African countries, then Africa’s lost glory shall be recaptured, and we shall assume our rightful place in the community of nations. We shall shed ourselves and our continent of the stigma, the disrespect, marginalization and suffering that we have had to endure for far too long.
Please don’t misunderstand me. I am not saying that the judiciary alone can turn things around in a country. But I am saying that the judiciary that is left to do its job well without fear, favour or prejudice has the capacity to significantly change the deplorable conditions that the majority of our people have had to live with over the years.
Each judiciary owes its relevance, significance and support not just to the constitution of the country, its laws and impressive institutions. It also owes its credibility and admiration to the strategic priorities it is able to sets for itself; the development of a plan to realize its deliverable objectives with firm time-frames, where practicable; and a credible funding model that would not compromise its independence for projects that require financial resources.
We have, since 13 October 2012, brought together all departments and key institutions under the umbrella of the body chaired by the chief justice. That body is known as the National Efficiency Enhancement Committee. As the name suggests it is designed to ensure that every key role player in the court system carries out its constitutional responsibilities in a way that would ensure that it enhances the observance of the rule of law through efficiency and effectiveness.
We are also running pilot projects on the proper implementation of the case management system known as Judicial Case Management in five High Courts. This system will in due course be rolled out to all the High Courts and the Magistrates Courts to enhance greater efficiency and the speedy delivery of quality justice to all.
We are also in the process of developing norms and standards and our own capacity to harvest statistics to help us identify performance-related challenges in our courts, timeously, so that we can address them without undue delay.
Our judicial education institute for judges and magistrates has since January 2012 been fully operational.
A national department led by the Judiciary has, since 2010, been promulgated into existence. It is a critical stepping stone towards the establishment of a fully-fledged court administration system led by the judiciary and created in terms of legislation as an entity independent of executive control.
The South African judiciary is thus doing everything within its power to promote and enforce the observance of the rule of law by developing performance monitoring and evaluation standards and ensuring that they are met. This is of course an ongoing process. And in its interaction with other African judiciaries, it not only draws lessons from their experiences but also suggests with all modesty that they consider why it has worked for South Africa.
I thank you.
There has been a transformation of the South African judiciary since 1994, and many competent lawyers have been appointed to the Constitutional Court. However, there is another group of great lawyers who have never been appointed, and they appear to have encountered difficulties during the interview process. Have they been singled out, perhaps due to their political independence?
Hon. Mogoeng replied that some of the lawyers alluded to applied to the Constitutional Court before his appointment as chief justice, and thus he could not comment on those cases. Some applicants have been singled out for celebration or vicious attack in the media, but the Judicial Service Commission (JSC) does not focus on media reports and will never rubberstamp a candidate into power based on popularity. It is necessary to look at individuals’ track records as judges first.
However, Hon. Mogoeng noted that the executive has more influence over this process than the chief justice. There have been complaints that appointments are decided in advance by members of the ruling party who serve in the JSC. Hon. Mogoeng said it cannot be a case of racial prejudice or gender discrimination, because male and female judges of all backgrounds have been appointed, but rather this indicates collusion between the ruling party and the judiciary, and an attempt to intimidate the JSC.
Hon. Mogoeng stated that without a credible judiciary in place, South Africa’s constitutional democracy will be destroyed. He added that question needs to be asked over what kind of judiciary South Africa is creating.
You linked the role of the judiciary in the promotion of sustainable development, but could you comment on aspects of the rule of law that don’t link solely to development, such as the protection of children, women’s rights and disabled peoples’ rights?
Could you comment on the tensions over proposals to amalgamate solicitors and barristers in the judiciary: is this part of attempts by the government to control the judiciary?
It is essential to have an independent judiciary, but judicial decisions will not be enforced if the executive body does not uphold decisions. How can we guarantee that other institutional actors act in accordance with judicial decisions?
Hon. Mogoeng stated that the minister of justice and constitutional democracy is creating more sexual offences courts and lots of training has gone into empowering judicial officers at the regional level, as most of the cases are held there. This has meant that victims can go through the court processes more quickly; video conference facilities are being rolled out so victims of crime do not have to face perpetrators in courts; and there are more social workers and counselling available. Sexual offences have been identified as a priority as part of the National Efficiency Enhancement Committee.
New legislature protecting children has been passed in the last few years, enhancing public knowledge of the rights of children. There is less detainment of youths in adult facilities; instead, appropriate rehabilitation programmes are being set up. Women’s rights and children’s rights are some of the priority areas for the South African justice sector.
Hon. Mogoeng stated that members of the judiciary are not able to comment on the possible amalgamation of solicitors and barristers. The judiciary took the position that the distinction between solicitors and barristers might divide the judiciary unnecessarily, with some identifying as attorneys and others as advocates. It is within the power of the law society of the general council of barristers to do its best to resolve their differences.
Hon. Mogoeng noted that certain judiciaries in Africa are facing serious problems when it comes to the execution of judicial orders. In Kenya, the judiciary had to be dissolved and reappointed from scratch, due to massive corruption; the process is still not finalized. When the judges were asked why they were corrupt, they replied that they were underpaid. Hon. Mogoeng stated that this is why regional structures are needed to investigate threats to the independence of judiciaries and to enable exchange of best practices.
One problem with the judiciaries in Africa is that they sit back, because of the conservative nature of these institutions. Hon. Mogoeng stated that he tells his colleagues to fight to make sure the image of the judiciary in Africa changes. Judiciaries have to speak up otherwise they are part and parcel of the problem. There cannot be rule of law without the carrying out of orders, so Q&A: The Rule of Law in South Africa www.chathamhouse.org 4
it is important for judiciaries to help each other in Africa; allied institutions must speak up when a particular judiciary is not acting independently.
How does customary law, such as the leadership of traditional chiefs, fit into the South African constitutional and legal system?
Hon. Mogoeng stated that customary law should not necessarily be viewed as backwards or incompatible with South Africa’s progressive constitution and the Bill of Rights. Just as statutory law needed improvement to fit in with constitutional practices, customary law can be developed in the same way to remove elements that could take South Africans backwards.
There has been debate about the implementation of the Traditional Courts Bill between the judiciary and traditional leaders. The courts have to make sure that discrimination against women as practiced in the traditional sector is made a thing of the past.
Hon. Mogoeng noted that traditional leaders still need to be trained; royal academies must be re-established so that leaders are properly qualified in how to run traditional courts. Traditional courts must comply with the constitutional system, in order to improve South Africans’ access to justice.
Some multinational corporations operating in South Africa are using the law to avoid paying tax. Is there a mechanism that can be used to hold companies accountable, and to stop depriving South Africans of this source of revenue?
Can you say more about domestic benefits and inward investment as related to the connection between the rule of law and economic development?
Hon. Mogoeng stated that the problem lies in international agreements that members of the executive legislature enter into, or are forced to enter into. For example, a conference was held to develop a legal framework facilitating massive investment by China in Africa. However, this presents a major concern: the creation of a permanent legal structure in China that is Q&A: The Rule of Law in South Africa www.chathamhouse.org 5
favourable to Chinese companies paying minimal or no tax in African countries. This is a one-sided ‘partnership’; Africa needs development, but not at all costs.
Hon. Mogoeng noted that big economies have a way of getting away with these practices. Countries that are desperate for development are forced to comply with laws that are posed in accordance with international agreement; where tax is minimal or simply deferred. African citizens need to speak up; African countries need to employ highly qualified legal advice before signing to ensure that they get the right tax revenue systems set up. The judiciary can do little if it is already a done deal. The courts will not step in; arbitration will be carried out in the investor’s own country, according to their own laws.
Hon. Mogoeng spoke on the influence of the rule of law on the domestic economy, and the implications for those investing from outside the country. If the legal system does not look safe, companies will think twice before investing. Companies want to invest in countries with an independent judiciary; where they can have the confidence to approach a court of law without the possibility of bribery or corruption. Hon. Mogoeng noted that the judiciary is paid well enough in South Africa to render bribery impossible.BACK TO TOP