Tuesday, August 08, 2006

By Tembeka Ngcukaitobi
The Cabinet has called for public involvement in the debate on judicial transformation.
This call is significant for two reasons:
·         It confirms a principle embedded in our Constitution that government has a duty to facilitate public involvement in the legislative and policy making processes. This duty is based on the value of openness, a founding value to the Constitution. During Apartheid policy making was shrouded in secrecy. Our constitution expressly commits the democratic government to openness.
·         Until now, the debate on the transformation of the judiciary has largely consisted of a dialogue between the judges and the government. The public has played no more than a spectator role.
What compounds the debate is that by publishing proposed constitutional amendments without a sound theoretical framework which informs public discourse, government put the proverbial cart before the horse. That should not, however, impede public debate at this stage. The starting point is the meaning of judicial transformation. Judicial transformation should seek to achieve three main goals, without being static: accessibility, racial and gender composition, and accountability.
The Constitution provides that everyone has access to courts. The rules of our civil courts and their geographic location render this right an illusion. The rules of the civil courts are complex and the pre-trial procedures time consuming.
The rules of the High Courts and other courts of similar status like the Labour Courts are inconsistent. Even the High Court has different “local” practices which differ from division to division.
The result is that cases may be dismissed or delayed for want of compliance with one or other form of pre-trial rule or practice.
Not only does this unnecessarily increase the cost of litigation; it also impedes the constitutional promise of access to courts. This is due, in part, to different bodies being responsible for the formulation of rules of courts. It is necessary to develop a coherent system of developing the rules for all courts.  
Courts are mainly located in towns and big cities. Yet a significant number of black and poor people live in townships and rural areas and their daily lives are impacted by court decisions.
Apart from reflecting an inheritance of the past, the current structure of the courts is cumbersome. Litigating through the system often results in delays in attainment of justice. For instance, an employee who has been unfairly dismissed may wait for up to five years for justice, while an employer traverses the entire system from the CCMA to the Labour Court, Labour Appeal Court, Supreme Court of Appeals and, finally, where a constitutional matter arises, the Constitutional Court.
Courts must be rationalised to make them structurally and geographically more accessible.
The Judicial Services Commission has done much to change the racial and gender composition of the judiciary. Obviously, more still needs to be done to achieve the stated constitutional objective of appointing a judiciary representing nation’s racial and gender demographics. Transformation, however, cannot simply be limited to facts and figures. To deepen transformation, the judgments of our courts must be infused with the spirit of constitutionalism. In simple terms, judges must be sensitive to the need to develop a coherent body of jurisprudence underpinned by the values of human dignity, equality and freedom.
Accountability is also a foundational value expressly mentioned in the Constitution, which provides that judges are “subject only” to the Constitution.
Accountability should, in our context, comprise two interrelated elements.
First, in a system such as ours, based on the supremacy of the Constitution, a judge’s role cannot simply be about legal adjudication. Judges have a higher role. They are the guardians of the Constitution and our freedoms.
At present, the public perception is that errant judges, like those who fail to disclose their business interests, are unaccountable. It is necessary to develop a system which can hold errant judges accountable. This is important not for politicians and big business, but for ordinary litigants, whose daily lives are affected by court decisions.
The second element of accountability is the relationship between the judges and the other branches of government. Again, guidance should be sought from the constitution itself.
Judicial independence is one of the cornerstones of the Constitution. But the Constitution does not envisage a system where the judiciary exists in “splendid isolation.” To the contrary, the Constitution expressly provides that the other branches of government must, through legislative and other measures, assist the courts to ensure their independence and effectiveness. The Constitution requires a system the branches of government mutually co-exist and are interdependent.
These issues, although difficult, should inform public discourse. Common ground should be found on those issues which are constitutionally desirable and permissible.
Tembeka Ngcukaitobi is a partner at Bowman Gilfillan where he specialises in constitutional law. He writes in his personal capacity.