ePoliticsSA 03.05 Transforming the Judiciary[2005 May 13]
Debating the Transformation of the Judiciary: Rhetoric and Substance
The transformation of South Africa’s judiciary is constitutionally prescribed, necessary and inevitable – what is important about transformation, however, is the form it takes. Since the structure of the courts and composition of the judiciary in South Africa are firmly rooted in apartheid, the question is not whether transformation should occur, but what steps should be taken to ensure that transformation processes are effective, transparent and respect the independence of the judiciary.
The blue-print for the kind of South Africa we want to create lies in the Constitution which calls for non-racialism, non-sexism and inclusiveness to permeate every level of society. The judiciary cannot and should not be divorced from this conversation. A plurality of views is needed if this process is to reflect accurately what the state of transformation is in our justice system, and what recommendations should be made for the future.
The separation of powers remains the framework around which this democracy is crafted, in other words, a not-negotiable. Any discussion of this issue would need to be even more carefully framed. Thus far, not much constructive has come out of the very public debate on the issue. On all sides of the divide there has been a level of recklessness – beginning with comments surrounding the ANC’s January 8 statement, Tony Leon’s recent comments on the threat to the independence of the judiciary, and the happenings in the Cape High court which has necessitated intervention from the Chief Justice.
The debate is more complex than the un-nuanced assertion by some that the judiciary is being wholly undermined, and it is about more than saying the country needs more black judges. It is also about creating a change in the way in which justice is dispensed and the way in which citizens experience justice.
Dramatic changes in the structure of the courts are underway, combined with a set of laws introducing accountability measures and judicial education for judges. Draft legislation encompassing these measures has been contemplated by Department of Justice for a number of years and is aimed at bringing the structure of the courts, and various other aspects of the judiciary, in line with the Constitution.
This edition of ePoliticsSA will evaluate the draft legislation currently in process which aims to address the issue of transformation in the judiciary. It will assess the potential impact of the Bills in light of the imperative to transform the bench, as well the potential effects for judicial independence and the separation of powers.
ePoliticsSA 03.05.pdf
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