Two replies by Minister of Justice and Constitutional Development Jeff Radebe to parliamentary questions on the planned review of the judiciary:

NATIONAL ASSEMBLY

QUESTION FOR WRITTEN REPLY
PARLIAMENTARY QUESTION NO.: 759
DATE OF QUESTION: 16 MARCH 2012

759. Ms M Smuts (DA) to ask the Minister of Justice and Constitutional Development:

How does he envisage judicial independence should be shaped by the social, political and economic realities in South Africa, as referred to in the discussion document (details furnished)?           

NW927E

Details referred to: Paragraph 3.3.11 of the Discussion Document on the Transformation of the Judicial System

REPLY:-

I wish to inform the Honourable Member that the transformation of the judicial system, including the construction of the evolving concepts of separation of powers and the independence of the judiciary which are the bedrock of our Constitution, must have regard to the history of centuries of inequality and deprivation brought about by colonialism and apartheid. 

It is therefore important that the transformation project sought to be implemented through the Discussion Document, must redress the legacy of inequality in order for all South Africans to enjoy equal benefit and protection of the law.  Similarly the courts, when interpreting the Bill of Rights in the Constitution, continue to have regard to the realities of the South African society. 

For example, in the Certification Judgment, where the Constitutional Courts observed that:

"[t]here is no universal model of separation of powers, and in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute."  I have no doubt that over time our courts will develop a distinctively South African model of separation of powers, one that fits the particular system of government provided for in the Constitution and that reflects a delicate balancing, informed both by South Africa's history and its new dispensation, between the need, on the one hand, to control government by separating powers and enforcing checks and balances, and, on the other, to avoid diffusing power so completely that the government is unable to take timely measures in the public interest. ..."  (At paragraphs 74)

In De Lange v Smuts, the Ackerman J, describing the separation of powers in the context of the magistracy in our South African situation had this to say: 

"The separation between the executive and the judiciary is not total in South Africa.  We need look no further than the magistracy to see the striking illustration of an overlap. Besides their judicial work, magistrates attend to a host of administrative tasks that fall within the exercise of executive power, moving readily and frequently from the bench to the bureaucracy and back". (At paragraph 124)

The above shows that all of us, including the courts cannot be ignorant to the social and political realities on the ground which this Document seeks to address in our quest to establish a non-racial, non-sexist and prosperous society envisaged by the Constitution. 

I wish to thank the Honourable Member for highlighting some of the points raised in the Discussion Document.  I wish to call once more, for an open debate of the principles contained in the Document as we approach the deadline of the end of April 2012 by which views and comments on the Document must have been submitted.

NATIONAL ASSEMBLY
QUESTION FOR WRITTEN REPLY
PARLIAMENTARY QUESTION NO.: 918
DATE OF QUESTION: 20 APRIL 2012

918. Mrs D A Schäfer (DA) to ask the Minister of Justice and Constitutional Development:

Why do the terms for the assessment of the impact of court decisions now also include the decisions of the Supreme Court of Appeal, while the discussion document (details furnished) initially limited this focus on the Constitutional Court decisions?

            NW1100E

REPLY:-

 The Honourable Member will recall that I , during my briefing to the Portfolio Committee on 26 April 2012, reiterated that some of the comments we received when I released the Discussion Document on the Transformation of the Judicial System and the role of the Judiciary in the Developmental South African State, had persuaded us to extend the assessment to the Supreme Court of Appeal. 

Further, the terms of reference inviting interested institutions to submit proposals for the desired assessment, which were published on the State Tender Bulletin and the Department's website early in March this year, stated explicitly that the decision to extend the assessment to the Supreme Court of Appeal was further necessitated by the fact that both the Constitutional Court and the Supreme Court of Appeal are at the apex of our jurisprudence.

Issued by Parliament, May 15 2012

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