By Nomfundo Manyathi

Justice Minister Jeff Radebe recently released a discussion document on transformation of the judicial system and the judiciary, which included an outline of the proposed assessment of the decisions of the Constitutional Court. Members of the public have been invited to comment on the discussion document and have until 20 April to do so.

The release of the ‘Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state’ marked the beginning of the articulation of policies to guide the further transformation of the judicial system, Minister Radebe said.

He said that the document was necessary because there were still challenges and hurdles that the state confronted in its endeavour to transform society. In addition, it was important that the role of judicial officers was properly understood by those whose fate and livelihood were dependent on the judgments they gave, adding that judges were ‘not less immune to public scrutiny than members of the executive and legislature’.

The discussion document reveals that there have been instances where certain court decisions were ‘perceived not to fully advance the transformative purpose of the Constitution’, and there was therefore a need for constructive debate on the decisions of the courts and how they seek to advance the vision of a democratic society.

The 33-page document was adopted by cabinet in November 2011 and is an overview of the debates and negotiations in the judicial sector and the legal profession over the past 14 years.

It focuses on themes and principles that underpin the transformation of the judicial branch, such as:

• The role of the judiciary in transforming the state and society.
• The separation of powers, the independence of the judiciary and the rule of law as foundational values of a democratic society.
• Significant interventions and steps taken to enhance the independence and effectiveness of the judiciary.
• How the assessment of the Constitutional Court decisions would unfold.
• Minister Radebe said that the study of the Constitutional Court’s judgments should not be seen in isolation but as part of a holistic approach to the transformation of the judicial system in line with the Constitution, adding that recommendations to accelerate transformation had been approved by cabinet, which included:
• Intensifying institutional reforms aimed at enhancing the capacity of the Constitutional Court to lead the evolution of constitutional jurisprudence.
• Accelerating institutional reforms, including facilitating the development of appropriate judicial education.
• Implementing appropriate measures to enhance the efficiency and integrity of the Judicial Service Commission and the Magistrates’ Commission in the execution of their mandates to facilitate transformation of the judiciary.
• Establishing a framework to monitor the evaluation of the implementation of court decisions by all state departments and to advance respect for the rule of law.
• Establishing mechanisms for the three branches of state to engage in regular debates to manage their interface in the context of the separation of powers in pursuit of a common transformative goal.

Minister Radebe said that the assessment of the Constitutional Court would tackle four areas. Firstly, it would undertake a comprehensive analysis of the impact of the decisions of the court, since its inception. This 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 assesment would look at the impact of the court’s judgments on all branches of the law and the extent to which any such branch has or should be transformed to give effect to the transformative goals envisaged by the Constitution.

Thirdly, it would assess the capacity of the judiciary and the courts to build a jurisprudence in line with the Constitution.

Lastly, it would assess the capacity of the spheres of state to implement measures to give effect to the country’s transformative laws and the decisions of the courts.

The Minister explained that the assessment of the impact of the Constitutional Court decisions would involve in-depth research and would be focused on solutions that were capable of implementation. He emphasised that this was not an unusual exercise. ‘It occurs all the time and, as research will show, universities undertake [this] form of research to evaluate the social rights jurisprudence on the lives of peoples,’ he said, adding that it was necessary to undergo ‘a critical assessment’ of how the Constitution has changed the lives of South African citizens. The extent to which the decisions of the court were implemented by government would also be included in the review.

The company or institution that will carry out the study has not yet been identified, but once it has, the assessment is expected to take 18 months. Its outcome, recommendations, analysis, research papers and opinions will be presented at seminars and at a national conference that will take place once the study has been completed.

Anyone who wishes to comment on the discussion document can do so by writing to the Justice Department before 20 April. The submissions can be posted to Private Bag X81, Pretoria, 0001; hand delivered to the department at the Momentum Building, 329 Pretorius Street; or e-mailed to judicialdiscdoc@justice.co.za

Nomfundo Manyathi, nomfundo@derebus.org.za

This article was first published in De Rebus in 2012 (April) DR 13.