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Discussion document on the transformation of the judicial system and the role of the judiciary in the developmental South African State

Transformation of the judiciary discussion documentOn 4 February 1997 the Constitution of the Republic of South Africa, 1996 came into operation, symbolising the birth of a democratic South African Republic founded on the supremacy of the constitution and the rule of law. It is befitting to publish Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State in remembrance and celebration of the 15th anniversary of this supreme law of the Republic that positively changed the course of the South Africa’s history.

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The closing date for comments/submissions was 01 June 2012. Any further enquiries can be directed to: Adv JB Skosana, Tel: 012 315 1649, E-mail: judicialdiscdoc@justice.gov.za.

EXECUTIVE SUMMARY

The Discussion Document on the transformation of the judicial system and the role of the Judiciary in a developmental South African state (the Document) highlights reforms that have taken place and an overview of the transformative initiatives currently underway within the justice environment.  It recognises the critical role of the Judiciary as the third arm of the state and emphasises the importance of synergy between the three branches of the state in their common endeavour to realise the country’s goals of a developmental state, including the ideal of achieving a better life for all. The judiciary, through the exercise of its judicial authority, plays a critical role in achieving the goal of consolidating democracy and achieving the ideals of a democratic society.

The Document gives a brief overview of the significant milestones that have been achieved in the transformation of the Judiciary and the court system since the onset of democracy. These include the changing racial and gender composition of the Judiciary, reformed appointment and governance arrangements, and aligning the process of laws and policies with the values and ethos of the Constitution. Despite the significant gains that have been made in the 17 years of democracy, there are still hurdles that continue to hamper the attainment of the ideals of an open and democratic society envisaged by the Constitution.

The Constitution is the supreme law of the land and provides the basis for the transformation of the state and society. Its commitment to establish a non-racial, non-sexist, equal and prosperous society, founded on human rights, is revolutionary. Therefore, this Document seeks to reflect on the fundamental principles that guide the transformation of the judicial system and the Judiciary, within the broad context of social transformation. It articulates the constitutional vision of an equal society, based on social justice, and outlines certain approaches that are important for the consolidation and acceleration of the transformation of society for all people in South Africa to enjoy equal benefit and protection of the law.

The Document commences by describing the concept of the transformation of the judicial system, and distinguishes between the transformation of the judicial system and the Judiciary. It explains and locates the role of the courts and the Judiciary at the centre of the transformation agenda of a developmental state, and highlights the national goals that are key to the transformation of the state and society. It further explains, among other things, the entrenchment and realisation of the democratic values that are enshrined in the Constitution, and the eradication of poverty as a priority of government. It places emphasis on, and highlights the necessity for the three branches of the state to act cooperatively to realise the transformative goals of the Constitution.

The Document has eight chapters, which can briefly be summarised as follows:

Chapter 1 sets out the broad context of the transformation of the justice system, with specific focus on the transformation of the judicial and legal systems. It reflects on the policy and legislative framework that underpin the transformation of the judicial sector as a whole. 

Chapter 2 gives a background to the judicial reform initiatives. Significant milestones in the transformation discourse are highlighted. These include the establishment of the Constitutional Court, the Judicial Service Commission and the Magistrates Commission, as important institutions that guide the transformation discourse.

Chapter 3 restates the constitutional imperatives that underpin the transformation of the judicial system.  It highlights the critical role of the Constitutional Court in the transformation of our legal system and the South African Constitutional jurisprudence.

Chapter 4 explains the doctrines of the separation of powers, the independence of the Judiciary and the rule of law as pillars of our Constitutional democracy.  This chapter makes reference to the rich jurisprudence that emanates from the decisions of the Constitutional Court on the definition of the concept of separation of powers. Most importantly, it acknowledges the fact that the courts have, on several occasions, made it clear that the doctrine does not result in absolute separation.  The importance of the principle of checks and balances, which ensures that each branch of government checks on the other branches to ensure that no single branch oversteps its constitutional boundary, is explained in this chapter, as is the role of the Judiciary in safeguarding this principle. This chapter also reflects on the inherent tension that arise between the branches of government and the importance of regular interaction among these branches to manage and address these tensions.

Chapter 5 highlights the importance of jurisprudence, in particular the role of the Constitutional Court in the realisation of social transformation and in improving the lives of all citizens of the country. Emphasis is placed on the importance of the values that underpin the South African constitutional democracy, in particular, equality, social cohesion and nation building, and how these values are reflected in some of the decisions of the Constitutional Court. This chapter recognises these as values that must permeate the South African constitutional jurisprudence and law reform.

Chapter 6 explains the importance of judicial activism, which is a yardstick that can bring about positive change. This chapter also shows how constitutionalism limits judicial activism and, therefore, highlights the power of judicial review, exercised by our Superior Courts.

Chapter 7 recognises the need for the transformation of the South African legal system and highlights the need to infuse the traditional value system in the South African body of law. This chapter calls for deeper reflection on the need for an intensive overhaul of the plural legal system to establish a legal system based on the Constitution as the Supreme law in the Republic.

Chapter 8 gives a brief conclusion to the Document. Most importantly, it recognises the need for the Legislature, the Executive and the Judiciary, as branches of the state, to promote continuous dialogue to ensure cooperation and interaction for the realisation of the vision set out in the Constitution. This chapter contains the following recommendations:

(a) The impact of the decisions of the Constitutional Court on society should be assessed by a research institution(s) to establish the impact of these decisions on social transformation and the reform of the law broadly. The outcome of the assessment should form the basis for debate and dialogue with a view to enriching our constitutional jurisprudence and consolidating our democracy;

(b) The Judicial Education Institute should be used as a vehicle for transformation. The institute should not only be tasked with developing and implementing judicial education programmes that will enhance the skills, competencies and social contextual attributes of judicial officers, but should also align the training needs with the goals of a developmental state.

(c) Legislative and other measures should be undertaken to enhance the efficiency and integrity of the Judicial Service Commission and the Magistrates Commission in the execution of their constitutional mandate of changing the composition of the Judiciary in respect of its racial and gender demographics and other constitutional attributes to reflect the demographics of the South African society;

(d) A critical assessment of the Executive branch of government in implementing laws and court decisions.  A framework should be established and prioritised to monitor and evaluate the implementation of court decisions by all state departments to enhance respect for the rule of law.

(e) The mandates and composition of the South African Law Reform Commission and the Rules Board for Courts of Law should be reviewed with a view to enhancing the research capacity of the state. The expanded mandate of these research institutions should extend to areas of economic transformation, access to information and land restitution, among others, which are vital for the reconstruction of society.

(f) Appropriate mechanisms should be developed to promote regular healthy dialogue and engagement among the three arms of the state within the confines of the separation of powers in pursuit of the common transformative goal set out in the Constitution.