Opinion

The South African judicial system was on display this past week. Live television and radio coverage of the Schabir Shaik judgment placed Judge Hilary Squires at the centre of public life. His three-day measured delivery has done much to educate the public in how the South African judicial system works.

Accustomed to the popular television shows promoting the American jury system, young South Africans could be forgiven if they do not understand the local justice system. Recently, the local soap Isidingo also attempted to put the judicial system on display in the murder trial of Cherel de Villiers-Haynes.

But the hasty representation provided the public with little substance to evaluate the present debates around the workings of the judiciary. Judge President of the KwaZulu-Natal Provincial Division, Vuka Tshabalala, made a wise decision when he choose to bring Squires out of retirement to preside over a case that he knew would have huge implications for the country's political life.

Irrespective of the differing responses to the guilty verdict in the Shaik case, there will be few who could dispute the thoroughness with which the judge approached his work.

Interestingly, the political response to the Shaik judgment will be shaped precisely at the time when five new bills are being considered to rationalise and transform the work of the superior courts of this country.

Tonight the Deputy Minister of Justice, Johnny de Lange, will lock horns with the legal fraternity at a public debate hosted by the Institute for Justice and Reconciliation. De Lange is widely believed to be the prime mover of some of the controversial aspects of the package of laws.

According to the Dean of Law at the University of Cape Town, Hugh Corder, most of the uncontroversial content had been agreed to by 2003, after a long process of discussion initiated in 1998 by the first minister of justice, Dullah Omar. The new ministerial team, said Corder, had added the contentious clauses.

Professor David McQuiod-Mason, president of the Commonwealth Legal Education Association, has explained the centre of the controversy as follows: "Instead of the ministry relinquishing control over the lower courts and lower court judicial training to an independent court administrative structure, it seeks to extend its control to include the higher courts.

"The proposals as they stand demonstrate a fundamental misunderstanding of the separation of powers principle inherent in a modern democratic state and our constitution," he said.

McQuiod-Mason argues that it is generally accepted in democratic countries that judicial training should be organised and controlled by an adequately funded judicial body independent of the executive.

De Lange has hit back, saying the new bills are seeking to transform the Justice College, where, with other justice officials, prosecutors and magistrates receive training. The bill creates a separate statutory institution and restructures the college into three independent faculties, one of which was dedicated to the judiciary as a whole.

The faculty is managed by an independent faculty board of six persons, mainly judicial officers, appointed by the chief justice or over whom the chief justice exercises a veto power, and presided over by the deputy chief justice, he said. The head of the faculty will be a retired judge, appointed by the chief justice.

This is clearly not a discussion about the racial composition of the judiciary. The need for adequate transformation appears to be a given. There are few who would make a case for continuing with a system that excludes blacks and women in the top echelons of the judicial system.

The fight is essentially about whether administrative changes will impinge upon the independence of the judiciary.

It is hard, from a lay point of view, to understand why changes are needed that will require altering the constitution. Section 165 provides that "the courts are independent and subject only to the constitution and the law...; no person... may interfere with the functioning of the courts...; organs of state ... must assist and protect the courts to ensure (their) independence, impartiality, dignity, accessibility and effectiveness...".

According to Corder, as our constitution adheres broadly to a "separation of powers" between the cabinet, parliament and the courts, it is right that each of these three branches of government should play a limiting role in regard to the use of public power by others.

"They should be operating in creative tension with each other, ultimately accountable to the voting public through the electoral process," he said.

"Our dreadful past shows all too clearly the dangers of an executive-minded judiciary."

Will the new bills substantially impinge upon the independence of the judiciary? Will the ministers or the legal fraternity win the argument?

Perhaps it will do both parties good to take Tshabalala's lead: build on what was good in the old, discard what was bad and shape a solid practice that will stand the country in good stead into the future. At least the judicial system has not failed the public in the Shaik matter. It remains to be seen whether the political system will pass the test.

Jaffer is a political analyst based at the Institute for Justice and Reconciliation, which is hosting a public debate on the transformation of the judiciary with UCT Dean of Law Hugh Corder and Deputy Minister Johnny de Lange today at 5.30 for 6pm at the Centre for the Book, Cape Town.

With acknowledgements to Zubeida Jaffer and the Cape Times.