Transformation of the judicial system

July 1st, 2012

By Victor Dercksen

In any scientific research, it is a sine qua non that there must be absolute agreement in respect of the keywords relating to the subject postulated. If not, the participants in a subsequent debate will be arguing at cross purposes because they will advance from divergent vantage points.

In the article ‘Have your say on transformation of the judicial system’ in 2012 (Apr) DR 13 the word ‘transformation’ is used almost ten times.

Many years ago Professor Pierre Hugo, a former lecturer in the political science department of Unisa, indicated to me that it is imperative that the outcome of proposed transformation must be unambiguously clear. Should this criterion be applied to the proposed research referred to by the Justice Minister in the ‘Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African state’, the test will fail because the research may result in changes in several spheres of the judicial system.

An analogue in the medical profession amply illustrates the point: In a celebrated court case a plastic surgeon performed an operation on the face of a female patient, the object of which was to vastly improve her looks. Unfortunately, the result was disastrous and the patient sued the specialist for damages. The court awarded substantial damages and found that the surgeon failed to explain to his patient that the proposed transformation could have disastrous results.

It is axiomatic, therefore, that the ultimate result of the transformation (as envisaged by the Minister) must initially be explained to the general public. This is a sine qua non. Should the Minister fail to discharge this obligation, the use of the word ‘transformation’ could simply be applied to disguise the real motive of the party pleading for transformation.

Of course, this is not the first time that this word or concept has been applied, but it was also canvassed at the negotiating table some decades ago. Arguably, the participants could palpably have been cross purposed as to its real intent. Dr Leon Wessels, one of the architects of the Constitution, stated publicly at the Stellenbosch Woordfees this year that the negotiating parties eventually agreed on 34 principles that were to be embedded in the Constitution. A Constitution Amendment Bill that aims to effect changes to the basic values of the Constitution requires a majority vote of at least 75% of the members of the National Assembly and of at least six provinces in the National Council of Provinces in order to be passed.

The question now arises whether the Minister is only treating the symptoms (as evinced by negative court experiences for the government) instead of attending to the real cause of the malady.

It is my submission that the real causes are failures on the part of the government, including:

  • Laws are passed through parliament without carefully assessing whether they conform with the provisions of the Constitution.
  • Draftsmen serving the aims of politicians and ignoring the exigencies of the law.

The Minister alludes to the proposed assessment as being an ordinary evolutionary development and not an unusual exercise.

However, there is an uneasy feeling that the purpose of the exercise is to restructure the Constitutional Court in order for government to have the final say. Similarly, the feeling remains that this exercise has been triggered by Constitutional Court rulings that disturbed the government. Recently, members of the ruling party protested that the fundamental basis of the Constitution is that the people shall govern and that the Constitutional Court could not be allowed to undermine the voice of the people.

Ultimately, this gave birth to the entity now being appointed by the Minister to inter alia assess the decisions of the Constitutional Court since its inception (it is of course an open question whether research like this is not in the ambit of the South African Law Reform Commission).

I can safely assume that the very best legal brains in the country are being elevated to the higher courts.

A serious concern is who will be entrusted to act as ‘super judges’. It is a frightening thought that any layperson can be entrusted to assess the complicated domain of intricate legal matters. A politician also cannot be entrusted with this absolutely important mission (even if he is a lawyer, his principal duty is loyalty to the party).

South Africa recalls the abominable steps taken by a previous government, which packed the senate and declared itself a High Court of Parliament when a constitutional crisis occurred.

The branches of state are enshrined in the Constitution and they govern the administration of the country. Two of these branches are the legal and political spheres, both very important.

It is absolutely imperative that these two branches should not encroach on each other’s terrain. The citizens of the country must at all times be assured of the independence of the courts, and that the rule of law is fully respected and practised.

The predicament of the present government (or any civilised government) is contained in the more than 2000-year-old maxim emanating from Rome:

Quis custodiet ipsos custodiet? (Who guards the guards?/Who governs the government?)

Victor Dercksen BA (Hons) MA (Unisa) DPhil (NMMU) is an attorney at Dercksens Attorneys in Knysna.

This article was first published in De Rebus in 2012 (July) DR 60.