Publication	Business Day
Date	2005-12-28
Reporter	Wyndham Hartley
Web Link	www.bday.co.za

Wide range of issues will challenge the justice community, including the prosecution of Zuma

SA’s justice community ­ from judges to ministers and Parliament ­ faces another turbulent year that promises to be just as testing as this year, with the double prosecution of former deputy president Jacob Zuma just one of the obvious problems.

This year the justice community was rocked by allegations of racism on the Cape bench made by Judge-President John Hlophe, and counterallegations of racism against him for comments he allegedly made about white lawyers.

There was also a major row about a set of new bills from the justice department that had the judiciary up in arms over what many judges regarded as an intentional invasion of their constitutional independence.

Hlophe launched his accusations of racism after his deputy on the Cape bench, Judge Jeanette Traverso, disagreed with the controversial rulings on cases brought by the pharmaceutical industry against the minister of health’s medicine-pricing regulations.

At issue was whether or not the judgment was written by Judge James Yekiso who heard the case, the implication being that he was incompetent. Hlophe blamed Traverso for spreading this rumour after an unconditional apology for having accused her in the first place.

He then became involved in a row with an advocate and an attorney, whom he allegedly called “white shit”. This came after alleged disrespect for the decision of a black acting judge he appointed. This issue still rests with Chief Justice Pius Langa.

The second major challenge for the legal community this year came after the contents of four new bills prepared by the ministry of justice became known.

Among the issues dealt with in the bills was the placing of the justice minister as the administrative head of all courts, the retraining of judges and the creation of disciplinary measures for judges.

All hell broke loose with Deputy Justice Minister Johnny de Lange insisting that the measures were intended to streamline the system, and the judiciary insisting equally strenuously that the bills infringed the separation of powers.

Democratic Alliance justice spokeswoman Sheila Camerer said at the time that De Lange’s “tortuous argument that one must distinguish between what he calls ‘institutional’ independence and ‘substantial’ independence was political humbug. Either the judiciary is independent or it is not”.

The battle has raged behind closed doors since then with a host of meetings between judiciary and ministry.

The matter is not resolved, and the first of the controversial bills, an amendment to the constitution that will make the Constitutional Court SA’s apex court, is expected early in the new year.

Whether the offending sections, about the administrative authority of the courts, have been changed, remains to be seen.

The prosecution of Durban businessman Schabir Shaik and the verdict that he had a generally corrupt relationship with Zuma, caused a massive row.

The race of Judge Hillary Squires became an issue, and organisations in the ruling alliance called on President Thabo Mbeki to transgress the separation of powers and have the charges against Zuma scrapped.

This fed into the discourse on the transformation of the judiciary and racism, which has deeply polarised the legal fraternity.

African Christian Democratic Party (ACDP) justice spokesman Steve Swart says his party has serious concerns about a wide range of issues that will challenge the justice community next year.

Principal among these is the racism row in the Cape bench, which has set black lawyers against white. “With these tensions unresolved, the question is how this will affect the ethos of the justice system,” Swart says.

He is also concerned about the decision of the Kamphepe commission, which is examining where control of the Scorpions should be vested ­ whether it remains with the justice department or is transferred to the South African Police Service.

Judge Sisi Kamphepe has yet to submit her report to President Thabo Mbeki.

Zuma’s trial on corruption and fraud charges “will be a supreme test for the rule of law and our democracy”, Swart says.

It remains a serious question whether Zuma’s vociferous supporters will accept a guilty verdict or whether they will attack the judgment as they did after the Shaik trial.

He says the legislation that could infringe on the independence of the judiciary by allowing the executive to make inroads on the realm of the judiciary is also of concern.

These bills are likely to come before Parliament’s justice committee next year, and there will undoubtedly be tense debates.

Swart says the ACDP will be vigilant in protecting the independence of the judiciary.

Any attempt to force these laws through using the African National Congress’ massive parliamentary majority will be damaging for the country’s image. He says two other bills have been substantially delayed ­ the Child Justice Bill and the Sexual Offences Bill.