Independence of the judiciary not under threat - Radebe

Tuesday, February 28, 2012

Cape Town - The independence of the judiciary is not under threat, the Minister of Justice and Constitutional Development Jeff Radebe assured South Africans on Tuesday.

Radebe said the review of the judiciary and the assessment of the Constitutional Court decisions by his department were aimed at strengthening the judiciary so that they could play an effective role in transformation in South Africa.

He also released a discussion document on the transformation of the judicial system and the role of the judiciary in the developmental state.

Among other things, the discussion document reflects on the role of the judiciary in transforming society, the separation of the powers, steps taken to enhance the judicial system and the impact of decisions of the Constitutional Court on the reconstruction of South Africa.

Radebe emphasised that the government would defend the independence of the judiciary at all costs. "Our history since 1994 has shown that the ANC government has 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 the Minister of Police Nathi Mthethwa, was "busy piloting it through" Parliament.

The Constitutional Court in March last year ruled that part of the legislation on the disbanding of the Scorpions and launching of the Hawks was constitutionally invalid.

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 pointed out that the piloting 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 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 that more progress in this regard needed to be made.

Criticism of court judgements in a democratic country, he said, was not unusual and that 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 relates to the provision of housing and the Treatment Action Campaign's judgment in 2002 on the right to health.

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 has 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 seek 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 SA Law Reform Commission would be re-engineered to boost legal research capacity, and to better serve the needs of South Africa, given its various social challenges.