Reforms in justice system enhance freedom

Tuesday, October 14, 2014

By Communications Minister Faith Muthambi

Those with long memories may remember that there was little or no justice under apartheid and that the separation of powers between the legislature, executive and judiciary was non-existent.

The judiciary did not enjoy independence as its authority was vested in the state and the minister of justice was, in effect, the person who made the decisions. It was normal then for the apartheid government to pass unjust and discriminatory laws, arrest people without reason, or even kill those it considered to be threats to its existence.

The dawn of democracy in 1994 brought fundamental changes to the functioning of South Africa’s judiciary. The constitution introduced an independent judiciary and the doctrine of separation of powers which ensures that the three branches of government function separately and do not interfere in each other’s autonomy. In addition, it prevents the abuse of power within the various spheres of government.

To enhance the independence of judiciary and strengthen the separation of powers, President Jacob Zuma in 2010 established the Office of the Chief Justice. The Department of Justice and Correctional Services recently strengthened the Office. From the beginning of this month, administrative functions and personnel attached to the Superior Courts have been transferred to the Office of the Chief Justice. This is in line with our constitution that prescribes procedures for the separation of powers and an independent judiciary and courts that are effective and impartial.

It will allow the Office of the Chief Justice to render support to the Chief Justice in exercising administrative and judicial powers, duties as Head of the Judiciary and of the Constitutional Court. Provincial efficiency committees that bring together the judiciary, the police, correctional services and prosecutors to effectively manage the flow of court cases and improve the administration of courts now also fall under the Office of the Chief Justice.

The decision to transfer powers, restructure the judiciary and integrate the courts is affirmed by the Superior Courts Bill and the 17th Constitution Amendment Bill which were both signed into law by President Jacob Zuma last year.  The Superior Courts Bill brought together a number of separate pieces of legislation relating to the Constitutional Court, the Supreme Court of Appeal and the High Court. The Bill also rationalised the 13 High Courts, which included those inherited from the former apartheid homelands into a single High Court with a fully functional Division of the Court established in each Province.

The 17th Constitution Amendment Bill on the other hand assigned “powers and functions to the newly established Office of the Chief Justice” and paved the way for the Constitutional Court to be the apex court on all matters. Before these changes, the Supreme Court of Appeal was the highest court on all other matters while the Constitutional Court was the highest court on constitutional issues. This, in effect, means the Constitutional Court can now hear all matters, not only constitutional ones.

The Minister of Justice and Correctional Services Michael Masutha says his department is working with Office of the Chief Justice to ensure that the transition happens without glitches. The affected members of staff have been identified and consultations with them are on-going. In total 1 486 members of staff will be transferred from the department to the Office of the Chief Justice. The transfer will not have any impact on the conditions of service of the affected employees. “We will ensure that in the course of consultation, all anxiety and concerns raised by the staff and relevant unions are being addressed,” he said.

As we continue to celebrate 20 years of democracy, we should be proud of what our judiciary has achieved within a short space of time.

Our judiciary is truly independent and, as a country, we have made huge strides in ensuring that access to justice is not only for a select few, but for everyone.

As South Africans we have to celebrate these changes that entrench the separation of powers in the country and the independence of the judiciary.


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