Wyndham Hartley
7 January 2008
Cape Town — The bitter wrangle between the African National Congress (ANC)-led government and the legal community over judicial independence is set to continue this year following the adoption at the party's Polokwane conference of a resolution that endorses positions that many in the legal fraternity believe infringe on the constitutional independence of the judiciary.
Since the publication of the Superior Courts Bill and the Constitution 14th Amendment Bill two years ago, objections from the legal community have been serious and sustained.
Among those who have criticised the proposed legal measures are former chief justice Arthur Chaskalson, veteran human rights lawyer George Bizos and former Constitutional Court judge Johann Kriegler.
Among the issues raised regarding the original legislation is the placing of absolute administrative and budgetary control of the courts in the hands of the justice minister, giving the minister the power to veto rules of court, and giving the president of the country more power in the appointment of acting Constitutional Court judges and judges president.
After the publication of the bills in January 2006, the General Council of the Bar convened an urgent symposium on February 17 to discuss the implications.
The barrage of criticism that followed caused the bills to be put on the backburner in Parliament, and to be referred to the structures of the ruling party for discussion.
A document on judicial transformation tabled at the ANC's policy conference last June did not recommend the removal of the controversial clauses and these were endorsed at the ANC's conference last month.
The Polokwane resolution also comes in the context of threats by ANC-aligned organisations of social upheaval should newly elected ANC president Jacob Zuma be brought to court on a new set of corruption, fraud and racketeering charges.
The draft resolution insists that the "principle of separation of powers and the independence of the judiciary must be respected by all spheres of government".
The resolution says that in matters concerning the adjudication of cases, the chief justice will have responsibility .
It continues by saying that the administration of courts, including any allocation of resources and financial management, is the ultimate responsibility of the minister and that there should be a single rule-making mechanism for all courts "with the rules being approved by the m inister and Parliament".
The justice ministry has insisted since the controversy began that in terms of the rules of court, the judiciary was not being deprived of a power to write rules because it has never had them.
Rules of court, in terms of the Rules Board for Courts of Law Act 1985, are determined by the board, which is appointed by the minister.
Democratic Alliance justice spokesman Tertius Delport said he had to caution that the executive not exercise administrative control to such an extent that it would infringe on judicial independence or "at very least create the impression that the executive is involved in, for instance, allocating judges, as this would be extremely damaging".
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