When asked to give this talk, some months ago, I thought that I was supposed to speak only about the independence of the judiciary - a concept easy to discuss and in principle uncontroversial. When the invitation was confirmed, a few weeks ago, I realized that I had agreed, instead, to speak on the state of the judiciary. How, as a sitting judge, do I do that when pronouncing on matters currently before the courts, and on recent developments, is something that I cannot - should not - do?

So lest you think that I will discuss recent developments in the judiciary, let me disabuse you of the thought. I shall not even touch upon current cases or on complaints laid by judges against each other. What does that leave to discuss? There are actually some matters. First, the structure of the courts since the first interim Constitution; second, the shape and composition of the judiciary - the demography; thirdly, recurring threats to the independence of the judiciary and related matters; and finally, the question of a single apex court.

History and background - the structure of the courts since 1994

When South Africa adopted its first democratic constitution, in 1994, the court system was left intact, save that a new court was added - the Constitutional Court - to deal with principles of constitutional law, fundamental rights entrenched in the Constitution, and the compliance of the common law and statutes with the Constitution. It was believed that the apex court then - the Appellate Division, which was the final court of appeal - was composed of old-order judges who would not have the constitutional vision required to transform the legal system and implement the founding values of dignity, equality and freedom. After debate, negotiation and comparative analysis, the drafters of the Constitution agreed upon the creation of an entirely new court that would deal with only constitutional matters. The President, Nelson Mandela, appointed Arthur Chaskalson as the first President of the Court. Mick Corbett remained the Chief Justice, presiding over the Appellate Division. Ten other judges were appointed to the Constitutional Court: four current judges by Mandela himself, and the remaining six also by him from a list of 10 people recommended by a newly established Judicial Service Commission. Two of the six happened to be current judges when appointed. The others were from the bar or with academic backgrounds with diverse histories.

The Constitutional Court was given specific jurisdiction in certain constitutional matters; Divisions of the Supreme Court were also given constitutional jurisdiction and were mandated to develop the law in a manner consistent with constitutional rights and values. The Appellate Division was not given any constitutional jurisdiction.

In 1996, when the final Constitution was adopted, the names of the courts changed: Provincial and Local Divisions of the Supreme Court were renamed High Courts (their names remain in confusion 12 years down the line) and the Appellate Division was renamed the Supreme Court of Appeal. More importantly, it too was given jurisdiction in constitutional matters. The court structures remained the same, however. Their composition did not. I shall return to that shortly. By agreement, in 2001, the constitution was amended so as to make the head of the Constitutional Court the Chief Justice and the head of the Supreme Court of Appeal the President.

The appointment of judges: the composition of the judiciary

In the dark old days judges were appointed by the Minister of Justice and appointments were often political. All judges came from the ranks of the bar, and with two exceptions in 1994 they were men. And of course they were all white until a few Indians, notably Ismail Mahomed, and some Africans were appointed prior to the democratic election in 1994.

The creation of the Judicial Service Commission by the 1993 Constitution changed both the manner of appointment-making and the nature of the appointments. With pressure from academe the interviewing process became open - though not the decision-making process - and candidates ceased to come only from the bar: attorneys and academics were appointed directly to the bench. While some argued, and still do, that only the bar produces professionals skilled in court practice and readily able to adjust to being judges, there would have been few appointments of Africans or of women if the JSC had not looked to other sources for the judiciary. And there was a constitutional imperative to make the bench diverse. In 1996 the final Constitution changed the structure of the JSC so that it now comprises a majority of politicians rather than lawyers, with obvious consequences. There is a perception now that political fealty is a more assured path to appointment as a judge than ability.

It is noteworthy that in the last few years senior white advocates at the large Bars - Johannesburg, Durban and Cape Town - have not made themselves available for the bench. There are of course some exceptions. But eminently worthy candidates, who would be valuable members of the judiciary, have been rejected. That has led to a disenchantment which adds to the economic disadvantage to which judges are put. Why make the financial sacrifice that is inevitable in appointment to the bench only to be deprecated as a white, and therefore old-order, judge? Why even make oneself available if it is only to be rejected and humiliated during the JSC proceedings? But just as political climes do change, so we can hope that judicial ones might too. As I speak, the JSC is interviewing candidates for appointment to the Constitutional Court, the Supreme Court of Appeal and the high courts. And for the first time in years senior members of the bar have accepted nominations to the high courts and white men have stood for positions in the Constitutional and Appeal courts.

The appointment of lawyers with minimal court experience to the high courts has done the public no service. In the major commercial hub of the country, Gauteng, there are few judges with any legal commercial experience left on the bench. Of the 63 judges there less than 20 per cent appear to have any substantial experience of commerce. And there are 23 vacancies on the Pretoria and Johannesburg courts, largely filled with acting judges from the bar who give of their time and experience but do not take permanent judicial appointments. I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it - and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants.

It is not only commercial litigants who suffer the lack of experience on the part of many high court judges. There have, in criminal matters, been horrifying convictions and equally horrifying acquittals where judges have simply not understood the fundamental rules of evidence or of criminal law. I shall not dwell on these. They are a matter of public record. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.

Can I substantiate the claim that the courts have been radically transformed in so far as race is concerned? First, and most importantly, the heads of all courts, except the Competition Appeal Court headed by Judge Dennis Davis, are African. The Chief Justice, the Deputy Chief Justice and the President of the Supreme Court of appeal, are African. The Judges President of all high courts are African. In the Constitutional Court, of the eleven judges currently sitting, 8 are black. Three are women, two of them African. In the Supreme Court of Appeal, there are six African judges, three Indian judges and 12 white judges. There are three women, one of them African. I shall not dwell on the other courts, in several of which there is a majority of African judges.

There are 201 judges permanently appointed in South Africa. Ninety two are white, of whom 13 are women. There are 74 African judges, 15 of whom are women. There are 16 Coloured judges, four of whom are women, and 19 Indian judges, eight of whom are women. Thus a total of 99 judges is not white. Broken into gender: 161 men and 40 women.

I do not wish to enter the debate whether diversity in the bench amounts to transformation. I would prefer to suggest what is needed to make the judiciary effective in a true constitutional democracy. First, skilled men and women no matter their colour or creed. Second, independent minded people, beholden to no ideology, political or otherwise, and, importantly, beholden to no politician. This underscores the point made by Deputy Chief Justice Moseneke on the occasion of his sixtieth birthday that judges serve the constitution and the country, and not political forces. It was a statement that attracted ill-informed wrath and unprincipled criticism from politicians. Their reaction sends signals of distress to those who believe in an independent judiciary. Similarly, threats to turn the country into a battlefield should the criminal justice system take its course strike terror into those who believe in the rule of law.

An independent judiciary and threats to it

Recent vocal threats to the judiciary have been crass, crude and ill-informed: but reaction to them has been swift. However, threats to the independence of the judiciary have been on the cards for well over three years now in the form of policy statements and bills tabled by the justice ministry. In 2005 several draft Bills which affect the independence of the judiciary and which require the constitution to be changed were published. They were not discussed with the judiciary before their general publication. They include a Constitution Amendment Bill which allows for changes to the powers and status of the courts that would not otherwise be possible. A second bill regulates the Superior Courts. Others deal with judicial ethics and conduct and judicial education. After an outcry by all the heads of court, and interventions by others, the bills were temporarily withdrawn. But in December last year Parliament was given an instruction by the ANC conference at Polokwane to dust them off and put them back on the table.

The first point I wish to make here is that we have a negotiated constitution - a social compact not lightly to be changed. The amendments proposed entail the following changes to the constitution:

• They give to the Minister of Justice control over the administration and budget of the courts
• They give to the Chief Justice responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts, ‘other than the adjudication of any matter before a court'.
• They give to the Constitutional Court jurisdiction as a final court of appeal in non-constitutional matters provided it is in the interests of justice.
• They give the President power to appoint heads of all courts after consulting with the minister of justice and the chief justice in case of judges president; and after consulting the JSC in the case of the chief and deputy chief justice and leaders of political parties in National Assembly
• They remove a court's power to suspend the operation of legislation before it comes into effect.

Several of these amendments impact on the independence of the judiciary, a core ingredient of any democracy, expressed as such in our Constitution. During the first phase of negotiations of the fundamentals of the democratic constitution that was to be created, there was agreement on what were to be the essential elements of the ultimate consensus. They were reflected in 33 core principles contained in the interim Constitution of 1994, which had to be embodied in the final Constitution. One of those core principles was that there must be a justiciable Bill of Rights, which had the effect of constraining the power of the state. Another was that state power must be separated amongst the legislature, the executive and the judiciary. And then there was the following crucial principle upon which all the rest depended:

‘The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.'

That principle was embodied in s 165 of the final Constitution, which includes the following provisions:

‘(1) The judicial authority of the Republic is vested in the courts.
(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.'

The courts required by the Constitution thus have two distinct features. They must be independent and they must be impartial. Although these are related attributes, independence and impartiality are not the same thing. Impartiality relates to the state of mind with which the law is applied. It refers to a judge who will apply the law without fear or favour. Independence, on the other hand, relates to the conditions under which the judicial function is performed. Those conditions must isolate and protect a court from undue external influence. And what is central to the present constitutional order is that the state itself is subject to law as it is embodied in the Constitution. It is the Constitution, and not Parliament, that is now supreme, and even the state must act within its constraints. In such a political dispensation the courts are inevitably thrust into a critical role. Without an institution to ensure compliance with the law, the law has no purpose. An institution with authority to hold even the state itself accountable to the law is thus indispensable. And in order to be effective that role must necessarily be played by an institution that is, and is seen to be, independent of the influence of the other arms of the state.

It is immediately apparent that of late the conditions under which judges work do not isolate them form external pressure. What is less obvious is the proposed incursion on independence featured in the Bills, for instance the superimposition of the Minister of Justice and his or her staff.

Two subsections would be added to s 165 of Constitution:

‘(6) The Chief Justice is the head of the judicial authority and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts, other than the adjudication of any matter before a court of law.
(7) The Cabinet member responsible for the administration of justice exercises authority over the administration and budget of all courts.'

The Superior Courts Bill makes provision for an office in the Chief Justice's office that will exercise authority over all judges. Budgets will be drawn, decisions made, by a civil servant answerable not to the Chief Justice but to a Minister. The officer will be appointed to keep track of everything that judges do: regulate leave, working hours, even, conceivably, allocation of cases to individual judges. These provisions show that the conception of an independent judiciary by government is only that judges must be impartial in the adjudication of a particular case. That is a very narrow conception which fails to allow for independence in the true sense: it does not allow for judges to be independent of the executive - a requirement of the Constitution and one that is there for the protection of the public and not judges themselves.

The threats embodied in the Bills are now given crass voice by politicians who believe they are entitled to tell the courts how to behave and what to decide. Of course considered criticism of decisions is justifiable and indeed often welcome. Legal academics and commentators play a valuable role in constructive criticism of judgments after their delivery. But ill-informed and strident complaints serve no one well. The combination of the incursions into judicial independence by the proposed legislation, and the attacks on members of the judiciary of late threatens our democracy itself.

What none of this means is that judges are free to act without restraint, or are themselves above the law. What judges have agreed is that there should be a code of ethics and the means for disciplining wayward judges. Judges do not want to be embarrassed by the antics of those who behave unprofessionally. Judges Louis Harms and Johan Kriegler, at the request of the Chief Justice and the President of the Constitutional Court in 2000, after considerable comparative research, drew up a Judicial Code of Conduct based on universal practice and principle. They presented it to the Department of Justice. It was accepted in principle by the heads of court. It has been ignored by the Justice Ministry although it has since been adopted elsewhere in the world. The Ministry presented instead their own Judicial Conduct bills in March 2005: these take no account of fundamental principles. They do not distinguish between impeachable and other misconduct; they speak in the language of criminal procedure; and they allow the JSC, composed mainly of politicians, to discipline judges and to recommend impeachment. Comments made by judges on these bills have also been ignored.

An apex court

And finally, what of the proposal to give the Constitutional Court jurisidiction in all matters, not only those with a constitutional dimension? Here there is controversy. I have made suggestions elsewhere as to the desirability of the creation of a single apex court with full jurisdiction. But before that is even considered, numerous issues must be addressed, not only by the proposers but by the courts themselves. I raise these only as questions without suggesting answers:

• On what basis should the apex court decide to hear a matter? Should there be some element of significant public interest in order for it to hear a case?
• Should it sit in panels in some matters? If so, which matters? Should it sit en banc in some? En banc in all?
• The composition of that court: should there be 11 judges, or perhaps fewer? Does the present size of the court contribute to complexities in decision-making, and to occasional delays in finalising its judgments? If so, would it be better to have nine or even fewer judges?
• Should the judges of that court have generalist judicial skills or constitutional skills as at present? Should they be drawn only from the ranks of the judiciary, as is the case with the Supreme Court of Appeal?
• On what basis will the appellate load be divided between what is currently the Supreme Court of Appeal and the Constitutional Court?
• Will the Supreme Court of Appeal invariably be required to act as a filter or will there be an appeal, in all or some matters, directly to the apex court?
• Will leave to appeal be granted in all cases to both courts? Or only to the apex court? And by whom will it be granted?
• How many appeals should a litigant be allowed?
• What will the respective courts be called?

Until these issues are debated and resolved no move should be made formally to change the jurisdiction of the Constitutional Court. That said, in the last three years the Constitutional Court has in fact assumed jurisdiction and heard appeals in matters that arguably have no constitutional dimension at all.

Conclusion

The judiciary and its independence are under threat at present. It is difficult and demoralising for judges to work in such circumstances. Three things are needed, in my view, for judges to be able to work effectively, efficiently and without fear of political interference. First, appointments to the bench must be made by having regard primarily to merit - skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC. Second, politicians should take lessons in constitutionalism and realize that they are not above the law. And third, the provisions in proposed legislation that in any way detract from judicial independence should be consigned to oblivion.

Carole Lewis is a Judge of the Supreme Court of Appeal. This is the text of her address to a South African Institute of Race Relations briefing, Johannesburg, October 14 2008

Click here to sign up to receive the Politicsweb daily headlines in your inbox in the morning