TRANSFORMATION OF THE JUDICIARY

The Department of Justice and Constitutional Development's discussion document on "The Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State" raises the question of the kind of transformation that the government has in mind. Is the objective simply demographic transformation in terms of Section 174(2) of the Constitution, or is it the transformation of the mindset of the judiciary?

This is not the first time that the question has been raised.  On 8 January 2005, in its annual statement to mark the anniversary of the establishment of the ANC, the National Executive Committee stated that

"We face the continuing and important challenge to work for the transformation of the judiciary. Much work has already been done to address the race and gender imbalances within this institution. Nevertheless, more progress has to be achieved in this regard. 

However, we are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination. 

The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious and negative consequences for our democratic system as a whole." 

Substantial progress has already been made with the demographic transformation of the judiciary. According to a recent reply by the Minister of Justice and Constitutional Development to a parliamentary question by Mr Nick Koornhof of COPE there are currently 233 judges appointed in the various Superior Courts. Of these, 168 are males including 71 Whites, 69 Blacks, 16 Coloureds and 12 Indians. There are 65 female judges, comprising 25 Blacks, 20 Whites, 12 Indians and 8 Coloureds.

This compares with the situation in 1994 when all but 3 of the 166 judges in the Superior Courts were White.  By 2005, the 198 Superior Court judges included 108 Whites (99 men and 9 women) and 90 Black, Coloured and Indian judges (72 men and 18 women).

The Minister of Justice and Constitutional Development has acknowledged this progress in the Department's discussion document: "There certainly have been many other milestones in the transformation of the judiciary and the court system since the onset of democracy. These milestones include the changing racial and gender composition of the judiciary, and governance arrangements and the visible progress made towards the alignment of societal values with the constitution." 

It would, however, appear that the Department's main problem is no longer the racial composition of the judiciary - although the gender composition would certainly still require attention - but the fact that it so often strikes down legislation and executive conduct that it considers to be unconstitutional.

According to the Department's discussion document "[i]n the South African context, transformation of the Judiciary is not and cannot be limited to achieving equitable balance in terms of demographic representation only. As is explained in the succeeding paragraph, establishing a judiciary that reflects the racial and gender composition of the South African society is a constitutional imperative. However, transformation also seeks to ensure that the Judiciary is appropriately positioned to respond to the diverse needs of society and plays a meaningful role in the realisation of a better life for all."

The question then arises as to how the government intends to further transform the judicial system, including the judiciary, to ensure that "courts are well placed to play a meaningful role in the pursuit of the broader transformation goals in pursuit of a democratic society"?

If the judicial system is transformed in order to ensure better access to justice, more effective case management and upkeep of court infrastructure among others, it will indeed add value to our constitutional democracy. However, if the purpose of this process is to "transform the collective mindset of the judiciary" in order to seek alignment with policy rather than principle, we have much reason for concern. 

An overwhelming majority of our sitting judges have been appointed after 1994, thus either in terms of the Interim Constitution, 1993 or the Constitution, 1996. These judges have all taken an oath or affirmation that they will uphold the Constitution without fear, favour or prejudice - evident from a number of key rulings, especially by the Constitutional Court, although some judgements less popular with the government than others.

In this regard, former Chief Justice Arthur Chaskalson recently remarked that it was not unusual to see occasional tension between the judiciary and the other arms of government in a constitutional democracy since it was "part of the courts' duty under the Constitution to determine whether legislative and executive action is consistent with the Constitution." 

The government appears to be holding a different view on the matter judging from recent remarks by the Chief Whip of the ruling party that South Africa is becoming a one party state led by unelected judges, as well as the Minister's position reflected in the Department's discussion document that "[s]triking a balance between policy and law becomes necessary in the current times where courts are increasingly placed in a situation where they have to pronounce on matters of public policy". These and other similar remarks by, amongst other, the President and senior members if the ANC remain a matter of concern and may shed some light on the intended goals of the government to further "transform" the judiciary. 

Assuming that the aforementioned hypothetical public policies are indeed meeting constitutional muster, it appears as if the discussion document may be losing out of sight that the judiciary is, in principle, not supposed to be representing the views or interest of any particular group (or party), but rather that it is mandated in terms of the Constitution to uphold the Constitution and the values, rights and principles it enshrines in a manner that is fair and equal to all.

If the judiciary is transformed to share the "collective mindset" of the government of the day, where does it leave the independence of the courts and what chance of justice will there be for those who may differ from such a "mindset"?

Adv Johan Kruger is Director of the Centre for Constitutional Rights at the FW de Klerk Foundation

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