1 March 2012
The independence of the judiciary is one of the core values that the African National Congress fought for, and will in no way be affected by a pending judicial review, says Justice and Constitutional Development Minister Jeff Radebe.
Addressing journalists in Pretoria on Monday, Radebe said his department’s review of the judiciary and the assessment of the Constitutional Court decisions were aimed at strengthening the judiciary so that it could play a more effective role in transforming South Africa.
He also released a discussion document on the transformation of the country’s judicial system and the role of the judiciary in the developmental state.
Among other things, the document reflects on the role of the judiciary in transforming society, the separation of powers between the executive, legislative and judiciary, steps taken to enhance the judicial system, and the impact of decisions of the Constitutional Court on the reconstruction of South Africa.
Constitution ’embodies the values we fought for’
Radebe emphasised that the government would defend the independence of the judiciary at all costs.
“The Constitution is an embodiment of the values that the ANC [African National Congress] stood and fought for. The ANC-led government will defend these values at all cost, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy.”
Radebe said the government’s track record since 1994 showed that it had “respected all decisions of courts at all levels”.
He cited the Glenister case as one decision that the government had adhered to and which his department, through Police Minister Nathi Mthethwa, was “busy piloting” through Parliament.
The Constitutional Court ruled in March last year that part of the legislation on the disbanding of the elite investigative unit the Scorpions and launching of the Hawks was constitutionally invalid.
The piloting through Parliament of the Constitution Seventeenth Amendment Bill, introduced in 2010, showed that the administration of President Jacob Zuma had taken steps to enhance the powers of the Constitutional Court, he said.
Criticism of court judgments ‘part of democracy’
Radebe said the transformation of the judicial system was a constitutional imperative entrusted upon the government and contained in Schedule 6 of the Constitution.
“As you know, we are nearing the second decade of democracy, and I think it is an appropriate time now to do a review,” he said, adding that the Constitution came into effect just over 15 years ago, on 4 February 1997.
He conceded that the country had made a lot of progress in the transformation of the judiciary, and today there were more black and female judges than 1994, but said that more progress needed to be made in this regard.
Criticism of court judgements in a democratic country, he said, was not unusual, and judges were no less immune to scrutiny than the executive was.
“Over the years, many in the judiciary have shown a profound understanding of the constitutional imperatives and set out to defend the basic law of the land,” he said.
He listed two landmark decisions which had both found against the government – the Grootboom judgement in 2000, which related to the provision of housing, and the Treatment Action Campaign’s judgment in 2002 on the right to health.
Assessment of Constitutional Court decisions
Turning to the assessment the department planned to hold of Constitutional Court decisions, Radebe said the kind of assessment of a constitutional court was not unusual, and that other countries conducted similar reviews of constitutional court decisions.
Independent reviews by academics of Constitutional Court decisions would be consulted during the assessment.
A public process would be held to identify the research institutions the department would work with for the assessment.
Radebe said the assessment would tackle three areas. Firstly, it would undertake a comprehensive analysis of the impact of the decisions of the Constitutional Court since the inception of the court. Such an analysis would look at the transformation of the state and society and how the socio-economic conditions and lives of people have been affected by such decisions.
Secondly, the assessment would look at the impact of the decisions of the Constitutional Court on all branches of the law, and the extent to which any branch of the law had or should be transformed to meet the transformation goals envisaged by the Constitution.
Thirdly, it would assess the capacity of the state in all its spheres to implement measures that sought to give effect to the country’s transformative laws and the decisions of the courts.
Radebe said the idea was to complete the assessment within 18 months from its commencement date.
Seminars and a national conference would be held to discuss the findings of the assessment and those of the research papers carried out by academics alongside the assessment.
The process should be seen as part of the department’s plan – including the Constitution Seventeenth Amendment and the Superior Courts Bill due to be passed this year – to reform the judiciary and enforce the independence of the judiciary.
He said the South African Law Reform Commission would be re-engineered to boost its legal research capacity, and to better serve the needs of South Africa given its various social challenges.