A Progressive Judiciary

8 June 2017

Fiat justitia ruat caelum

Let justice be done though the heavens may fall

This is the first of two briefs which will discuss the recent comments on the judiciary. This brief will examine the concept of a “progressive judiciary” and the criteria for judicial appointment. The second brief will address the allegations of “judicial overreach” and their impact on judicial independence.

Introduction

Lately, there has again been much criticism levelled against the judiciary, particularly from the ruling party. There has been talk of the need for a more “progressive judiciary” and suggestions of adding certain criteria to the appointment of judges. But what does “progressive” essentially mean?  This brief will address the concept of a “progressive judiciary” and the criteria for appointment as a judicial officer.

The enigmatic “progressive judiciary”

The ANC in its 2017 Peace and Stability National Policy Document called for a more “progressive judiciary”. However, there has been little attempt to explain what this entails. Are they using the term “progressive” as synonymous with activism or transformation, or does it mean something else entirely?

“Progressive” has been defined as ‘favouring social reform’ or ‘favouring change or innovation’.[i] But it is also typically referred to in the context of government action, as in ‘moderate political change and especially social improvement by governmental action’ and ‘using or interested in new or modern ideas especially in politics and education’.[ii]

If one were to look at it in this sense, then it looks like the ANC meant they want a more activist judiciary, as activist is defined as ‘[c]ampaigning to bring about political or social change’.[iii] In the same breath it can also refer to transformation, which means ‘causing a major change to something or someone, especially in a way that makes it or them better’. However transformation does leave room for further interpretation.[iv]

But in a country such as ours, we sometimes have to look deeper than the plain and simple, or, in other words literal meaning of what is written on a page. Our own courts have stressed the importance of context when it comes to interpretation.[v]

So, on the one hand, let’s say the context is that the ANC is pushing for the “activist” approach and greater social change, what exactly is the judiciary’s role in this and how have they failed previously? Recently it was the Constitutional Court which had to intervene to ensure social grants were paid in time due to a Minister’s failure.[vi] Likewise, in the high courts, the Johannesburg High Court found that 84 men, women, and children could not be evicted as the City of Johannesburg needed to be involved to ensure it would not result in homelessness and alternative housing might need to be arranged.[vii]

Is the issue that the courts keep placing these obligations on the government and not on private persons? That government is struggling to keep up with its own constitutional obligations? Or does it go further?

On the other hand, let’s say the context is that the government has been humiliated by losing court battle after court battle.[viii] It could be that their intended definition of a “progressive judiciary” means a more executive-centred judiciary, one that would find more favourably for the government.[ix]

This brief would not be the first to consider such a suggestion. In fact, there have been multiple comments on the topic. Some believe that a “progressive judiciary” actually means a ‘subservient judiciary’;[x] that it is a ‘deliberate attempt to capture the judiciary’;[xi] or a compliant judiciary.[xii]

In 2013 a tender to review the highest courts was awarded to the Human Science Research Council (HSRC) together with the Nelson R Mandela School of Law of the University of Fort Hare by the Department of Justice and Constitutional Development. This tender was to run for a period of 18 months[xiii] and at a cost of R10 million.[xiv] The research has been completed and the report has been written. So why has the government not released the report? There is not much information available but in a halfway update, the HSRC said they had ‘interviewed two esteemed former constitutional court justices’ who expressed anxiety over government’s failure to ‘adequatley implement court orders’ and called for respect of the rule of law and the judiciary.[xv]

Ultimately, a “progressive judiciary” has not been given any clear meaning by the ANC. But in times such as these, with phrases such as state capture featuring prominently in daily headlines and discourse, we need to be alive to the possibility of attempts to “capture” the judiciary.

The criteria for the appointment of judicial officers

In the same policy document, the ANC proposed that new criteria be added ‘for eligibility to judicial appointment’ which is to include ‘amongst others social activism’ (own emphasis).[xvi]  There are a few things to consider here.

Would social activism not mean upholding and being committed to the enforcement of our constitutional values? In the criteria already used, is there no space for discussion of activism?  And what does “amongst others” entail?  With the makeup of the Judicial Service Commission (JSC) as it stands now, the ANC members on it are in a position to ask questions about social activism of candidates for appointment and to argue for the importance of such a quality.

As it currently stands, the Constitution requires the candidate:

1. to be appropriately qualified;

2. to be a fit and proper person; and

3. to reflect the racial and gender composition of South Africa.[xvii]

The JSC has added supplementary criteria. These include, is the candidate:

1. a person of integrity;

2. a person with the necessary energy and motivation;

3. a competent person (both technically competent and has the capacity to give   expression to the values of the Constitution);

4 an experienced person (technically experienced and experienced in regard to the values and needs of the community);

5.a person that possess appropriate potential; and

6. a person whose appointment would send a positive message to the community at large?[xviii]

The above criteria are already quite wide and open to interpretation. So what would making “social activism” part of the criteria entail? Does it mean doing pro bono work; writing judgments that enhance the values in the Constitution, either as a judge or an acting judge; or does it require taking part in some form of protest? Whatever the exact meaning, such questions on the history of the candidate’s commitment to constitutional values can already be determined within the confines of the above criteria.

A further concern arises when we consider what the JSC may actually be requiring of candidates for judicial appointment.  Could it mean requiring the kind of “progressive” judge who finds in favour of the government as envisaged above? With such open concepts, members of the JSC may be tempted to believe they have a ‘free licence to vet candidates by assessing their morality, ideology and values that accord with those of the selector, or the institution or political party represented by the selector on the JSC, rather than what the Constitution demands’.[xix] Judicial independence may be compromised when a member or members of the JSC, whilst assessing a candidate's ‘commitment to constitutional values and the Constitution’s transformative project’, instead begins ‘assessing political commitments’ or utilises such assessment to ‘see how a judge might reason in a particular type of controversial case or imminent controversy’[xx] including by posing the question in an abstract manner.

In the recent judicial interviews, held on 3 – 7 April 2017, questions on judicial activism and independence were asked. Justice Zondo, who was being interviewed for the position of Deputy Chief Justice, was asked what constructive way there was for engagement between the judiciary, executive and the legislature; what he thought or heard on the capture or attempted capture of the judiciary; what were his thoughts on judicial activism and the role of the judiciary in the developmental state; and what role he had fulfilled in this regard. The last question, illustrates that “social activism” is already a consideration during the interview process. The former questions allude to the possibility of assessing the candidate regarding encroachment on judicial independence and his thoughts on the subject. Those questions may have been loaded, but Justice Zondo, handled them well and answered in a way that would keep transparency and accountability live within the judiciary.

Conclusion

In light of the above brief consideration of a “progressive judiciary”, concerns of executive interference within the judiciary underlines how, now more than ever, we must ensure that we keep and encourage our independent judiciary.

Chelsea Ramsden, Legal Researcher, HSF, 8 June 2017