By Zelna Jansen
Concerns have been raised that the tussles between the arms of government will reduce the independence of the Judiciary and thereby weaken the rule of law.
South Africa’s democracy is based on the premise of decentralizing power by creating three separate and distinct arms of government, the Executive, Judiciary and Legislature. At the same time in creating the separateness amongst these arms, its functions sometimes overlap. It is in this overlap that the tussle for independence amongst the three arms of government becomes visible.
The striving for independence by the Legislature to make its decisions without interference from the Judiciary can be seen when the National Assembly (NA) passed a resolution appointing Members of Parliament (MPs) to the Judicial Services Commission (JSC). Former Judge president Dr. John Hlophe, representing the uMkhonto weSizwe (MK) Party, was among the MPs appointed to the JSC.
Before the Sixth Parliament rising for elections in May 2024, the NA in a two-thirds majority passed a resolution, removing Hlophe as a judge for gross misconduct. The NA’s resolution was based on a report from the JSC.
This prompted the Democratic Alliance and other stakeholders to apply to the Western Cape High Court to interdict Hlophe from participating in the activities of the JSC. The application was granted provisionally pending the outcome of a decision by the Constitutional Court. In terms of Section 167 of the Constitution, only the Constitutional Court has jurisdiction to decide whether the NA acted within its constitutional mandate.
The MK Party then asked the JSC to postpone its interviews scheduled for October pending the outcome of its constitutional application. The JSC refused, resulting in the MK Party seeking relief in an application to the Gauteng High Court to interdict the JSC interviews from proceeding. This application was dismissed. Hlophe resigned from the JSC on October 7, 2024.
The question to be considered is whether Hlophe had a chance to seek relief from the Judiciary in his bid to participate in JSC activities. Due to the finding of gross misconduct by the Judicial Tribunal and subsequent impeachment by the NA, it is doubtful. The JSC is the disciplinary arm of the Judiciary, and it found Hlophe guilty of gross misconduct and recommended his impeachment to the NA. Therefore, asking the JSC to postpone its interviews for judges until the constitutional court made its ruling, seemed futile. If this reasoning persists, then, irrespective of the majority resolution by the NA, it is likely that the constitutional court may agree with the Western Cape High Court and find that the NA acted unconstitutionally by appointing Hlophe to the JSC.
Perhaps Hlophe should look into the legalities of reversing his impeachment.
The Judiciary, similarly, also wants to make decisions without interference by the Legislature and the Executive. In the JSC interviews in May 2024 for the post of Chief Justice, Justice Mandisa Maya spoke of the independence of the Judiciary and envisaged a Judiciary that reports directly to the Legislature instead of the Minister of Justice. Amongst the reasons for this change is that this will assist with the budgetary processes. This is an ambitious vision which raises many questions. The Judiciary interprets and develops laws that cover a broad spectrum of issues and challenges facing the country. These same issues and challenges are discussed at an executive level at cabinet meetings with all the political heads of government departments. Is the Office of Chief Justice capacitated to do this? The Minister of Justice does not agree as it will significantly curtail the government's ability to oversee amongst others, access to justice.
The JSC interviews currently taking place further highlight the tussle between the Judiciary, Executive and Legislature. There have been outcries by the legal fraternity as to how the interviews are conducted and the questions asked. There have also been discussions amongst the legal fraternity to change the composition of the commissioners to the JSC. There are 23 commissioners of which one can say 16 are politically appointed.
Politically represented commissioners are tasked by their electorate to bring about transformation. It is therefore inevitable that questions to assess potential judges will be about how the law can be developed to assist the government in implementing its electoral mandate.
During the interviews, there was a difference of opinion between one of the candidates and a commissioner about who is responsible for land reform. The judge was of the view that it is the government's responsibility, however, the commissioner was of the view that the Judiciary too has a responsibility as it is the arm responsible for developing land jurisprudence which can help bring about redress. The commissioner emphasized that it is the courts that gave the term community a narrow definition which led to the exclusion of many communities and chose market value for compensation. The commissioner did commend the candidate on the progressive judgements as it showed the judge's ability to break free from the straight jacket of common law.
Another commissioner enquired from a candidate who appeared reduced a sexual assault sentence on appeal. The judge articulated a well-thought-out response. However, in my view, this response was not reflective of the devastation gender-based violence (GBV) wreaks on society nor that the President has categorized GBV as South Africa’s second pandemic.
These questions to candidates may cause discomfort to some members of the Judiciary and legal fraternity. However, laws are never meant to remain stagnant.
There are views that this line of questions negatively impacts the rule of law. The rule of law can be described as a democratic ideal encompassing many elements which amongst others are that everyone is equal before the law; courts must be independent and impartial, and laws must be made through clear and transparent procedures.
I am of the view that the tussles mentioned in this piece demonstrate the independence of the Judiciary and the line of questioning is necessary as it will allow the Judiciary to start flexing its intellectual muscle to develop the law.
* Zelna Jansen is an attorney specializing in law and policy reform, lobbyist, opinion writer and thought leader.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.