Saturday, August 23, 2008

State of the Nation: Judicial Independence

The second in the State of the Nation series took place on Wednesday 22nd August 2008 at the Gordon Institute of Business Science (GIBS). This week’s topic was the independence of the judiciary and the speakers were: Arthur Chaskalson, former Chief Justice of SA; David Unterhalter, an advocate; and Zwelinzima Vavi, secretary-general of the Congress of South African Trade Unions (COSATU).


Arthur Chaskalson

Arthur Chaskalson spoke about the importance of the concept of judicial independence and why it is crucial for the proper functioning of a democracy. He cited the United Nations resolution of 1985 on The Basic Principles of the Independence of the Judiciary, which states, and I paraphrase:

  1. The independence of the judiciary shall be guaranteed by the State and enshrined in law.
  2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences.
  3. The judiciary shall have jurisdiction over all issues of a judicial nature.
  4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.
  5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures.
  6. Judicial proceedings must be conducted fairly with respect to the rights of the parties involved.
  7. The judiciary must be adequately resourced by the state.

Chaskalson underscored South Africa’s endorsement of these principles within our own constitutional framework. He also reiterated the importance of applying the law impartially, especially considering the high public profile of certain litigants at the moment.

Chaskalson’s comments were made in reference to recent remarks by senior members of the ANC leadership who have condemned Constitutional Court justices as forces of ‘counter-revolution’ for speaking out publicly on the alleged misconduct of Judge President of the Cape High Court, John Hlophe. This amounts to an affront to the principle of judicial independence, he said.

“Justices have been pilloried, their words somehow wrenched from its context and content.” he said. The implication was that the CC was somehow prejudiced against the ANC and its president. He insisted that there is no suggestion wherever that any such thing is happening.

Chaskalson went on to cite the deputy president of the ANC, Kgalema Motlanthe, and his statements about the role of the judiciary vis-à-vis the Jacob Zuma trial. He unpacked several points made by Motlanthe in his 1st August 2008 article on ANC Today.

  1. Motlanthe affirmed the importance of our constitution, and made the commitment to judicial independence to safeguard the rights of individuals. Chaskalson endorsed this view.
  2. The widespread lack of transformation in the judiciary was a pressing concern for the country. Chaskalson shared Motlanthe’s concern, but noted that this issue had no bearing on the attacks on the CC. “Who are the judges?” he asked “Eight of the eleven judges are black. All have a long commitment to struggle against apartheid. Those are the factors that influenced the JSC’s appointments.”
  3. According to Motlanthe, there is a commitment that the ANC will strive to uphold, defend and protect the credibility of the institution of the judiciary and the state. Chaskalson welcomed this commitment but insisted that it needs to be implemented.
  4. Chaskalson agreed with Motlanthe that all citizens should enjoy the same rights under the law as ordinary citizens. “Attacking the highest court in the land [from a position of political advantage] for short-term political aims is a negation of that principle.”

Everybody agrees that the judges are open to criticism and scrutiny, he ended. “This is not in itself a bad thing. However, criticism that amounts to an attack on the CC with such stridency undermines the integrity of the courts. It undermines a pillar of our democracy.” he said. “Comrade Vavi,” he implored “the time has come for us to allow processes to run. Let us do that.”


Zwelinzima Vavi

Zwelinzima Vavi claimed (full text) that the perception of the ANC and its alliance partners as acting in concert against the judiciary was a false one. He insisted that COSATU would be the first to come to the defense of the Constitutional Court if they believed that it was genuinely under attack; which he didn’t think it was. Vavi dismissed the allegations of undermining the integrity of the judiciary as the distortions of the national media which is driven by its rapacious capitalist agenda.

“Society is being presented with a story, largely by the commercial media, that institutions of democracy, in particular the judiciary, is under threat. Evidence for this is seemingly pronouncements by COSATU, ANC and SACP. I strongly submit that this case is based on shoddy reporting and evidence. Instead it amounts to a campaign to silence COSATU and its allies on the critical question of the role of the Judiciary.


Most of the time, South Africans form their opinions on organisations and personalities on the basis of what they read, hear or see from the media. The media is a very powerful force in society. Just three very rich companies, whose reporting and editorials does not always reflect the interests of the people we represent, own 95% of weekly and daily newspapers. In a class based society it is unavoidable that the media would reflect the interests of their rich and powerful owners.”

Vavi then outlined the liberation movement’s historic commitment to fight for the independence of the courts and that it is the poor and vulnerable who most need the protection of constitutional democracy.

"Let me for the record state categorically that COSATU not only respects the independence of judiciary but actually regards it as the corner stone of our hard-won democracy. It is just a myth driven mainly by media hysteria, that we have no respect for these pillars of our democracy.

It is a myth that we are a threat to our Constitution and the institutions flowing from it. No matter how many times this untruth is peddled it will not change the fact that COSATU and the rest of the formations who fought a long and hard struggle to win this constitutional based democracy are not a threat to our democracy.

COSATU, and the individuals who lead it - guided by the Freedom Charter, which insisted that "all must be equal under the law" - have spent all their lives struggling to free South Africa from the atrocities of apartheid and to win freedom and democracy.”


David Unterhalter

David Unterhalter, who is representing Mr. Hugh Glenister at the CC in his attempt to retain the Scorpions, spoke about the differently held values of many of those in power and those who genuinely value a robust and autonomous legal system under a constitutional order.

Unterhalter acknowledged that if you look at the history of democratic South Africa, then the government has generally abided by decisions of the judiciary. “However,” he cautioned “we are now in a different time, a time of transition.” Unterhalter raised the concern that there are two competing discourses frequently registered in public debate about this issue. One is the discourse of the independence of the judiciary and that its institutions should remain free from government meddling and the will of those in power. But there is also another discourse - that of the “National Democratic Revolution” (NDR). This view holds that the instruments of the law are in fact objects in the way of the NDR and that the judiciary should rather lend itself to the revolution and render itself as a means to that end.

There is a high degree of hyperbole coming out of the new ANC leadership about the counter-revolutionary aims of the courts. When one speaks about counter-revolutionaries you need to substantiate these claims and no such substantiation has been forthcoming, Unterhalter observed.

“Where is this conspiracy against Mr. Zuma?” he inquired rhetorically. There is a significant ammount of evidence from the Shaik trial to suggest that Zuma has a case to answer, he said. Unterhalter also failed to believe how it is that the national prosecutors and members of the bench are conspiring to undermine Zuma in the systematic way that they have been accused of doing. Conspiracies need to be backed up with concrete evidence was his message, and the best place to do this was in the court of law.

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