Extract from the ANC policy discussion document on Peace and Security, March 5 2012

B: JUDICARY

1.INTRODUCTION

1.1 It was one of the constitutional compromise reached at the Multi-party negotiations for a free South Africa that certain aspects relating to the transformation of the courts and the judiciary would not be part of the immediate transformation landscape that led to the establishment of the Parliament that represents all people of South Africa and the democratisation of government and other state institutions. The aspects that required the attention of Government immediately after the adoption of the Constitution include the following:

(a) the rationalisation of the court including their structures, composition and areas of jurisdiction with a view to establish a judicial system suited to the requirement of the Constitution. (item 16(5) of Schedule 6 of the Constitution);

(b) the implementation of legislative and other measures to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and effectiveness (section 165(4) of the Constitution); and

(c) the enactment of legislation to provide for the training programmes for judicial officers, the procedure for dealing with complaints about judicial officers, the participation of people other than judicial officers in court decisions and for any other matter not specifically dealt with in the Constitution (section 180 of the Constitution).

1.2 It was part of the political settlement that the above and other matters pertaining to the transformation of the judiciary would follow the establishment of the Constitutional Court and the Judicial Service Commission brought into existence by the Interim Constitution and subsequently entrenched in the Constitution.

1.3 The Constitution is explicit that Government, through the Minister responsible for the administration of justice, would manage the transformation process in conjunction with the judiciary and other social partners.

1.4 The transformation of the judiciary extends beyond the initiatives and programmes geared to transform its racial and gender composition envisaged in section 174(4) of the Constitution.

The transformation extents to processes that would change the mindset of the members of the judiciary and a complete overhaul of the legal system realize a goal of a unified South Africa, free of racism, sexism, poverty and deprivation. The Constitutional Principles adopted by the ANC in 1991 sought to establish a judicial system that advances the ideals of a national democratic society and social justice. In particular, the Principles provided for the following:

Without interfering with its independence, and with a view to ensuring that justice is manifestly seen to be done in a non-racial way and that the wisdom, experience and judicial skills of all South Africans are represented on the bench, the judiciary shall be transformed in such a way as to consist of men and women drawn from all sectors of the South African society.

In a free South Africa, the legal system shall be transformed to be consistent with the new Constitution. The Court shall be accessible to all and shall guarantee to all equal rights before the law.

1.5 These ANC's Constitutional Principles formed the basis of the 34 Constitutional Principles which in turn formed the foundation for the Constitution of the Republic of South Africa, 1996.

The independence of the judiciary and the rule of law are the pillars on which the constitutional order is anchored. The separation of powers embodied in the Constitution provides checks and balances to safeguard these values. Each of the three arms of the State has a distinct mandate that emanates from the Constitution.

In terms of the Constitution the Legislature exercises legislative authority; the Executive The Executive is charged with political administration to ensure transformation and development for the attainment of the national democratic goals and oversees the implementation of policies and legislation; and the Judiciary interprets the law and excises judicial power in terms of which it could struck down laws enacted by Parliament and any conduct of the Executive which do not meet the constitutional muster. The courts must exercise their judicial authority in line with the injunction of the Constitution.

2. THE POLOKWANE CONFERENCE RESOLUTIONS ON THE JUDICIARY

2.1 At its 52nd National Conference held in Polokwane in 2007, the ANC noted the resolutions of the previous Conferences in relation to the transformation of the judiciary and which have not yet been implemented and resolved that they be implemented forthwith. In relation to judicial and the administration of the courts in particular the Conference resolved as follows:

11. There needs to be an integrated system of court governance within a single judiciary, with the Chief Justice as the head of the judiciary;

12. While justice is an exclusive national competency, there is a need to look at the matter carefully in the context of co-operative governance with particular reference to access and equity. We re-affirm the need for everyone to respect the rule of law and the independence of the judiciary especially in so far as the adjudicative function of the courts is concerned. The judiciary must adjudicate without fear, favour or prejudice, but should also respect the responsibility of the other arms of state and not unduly encroach in those areas.

13. The principle of separation of powers and the independence of the judiciary must be respected by all spheres of government. In this context:

a. the Chief Justice, as the head of the judicial authority, should exercise authority and responsibility over the development and implementation of norms and standards for the exercise of judicial functions such as the allocation of judges, cases and court rooms within all courts in the court system.

b. the administration of courts, including any allocation of resources, financial management and policy matters relating to the administration of courts are the ultimate responsibility of the Minister responsible for the administration of justice".

2.3 The ANC-led Government continues to implement laws and programmes to implement the Polokwane Conference resolutions to advance the national democratic principles that underlie our constitutional democracy. Among the proposed legislation is the Constitution Seventeenth Amendment Bill, its accompanying Superior Courts Bill both of which are being 14debated by Parliament.

The Constitution Seventeenth Amendment Bill, among others, seeks to affirm the Chief Justice as the head of the judiciary assigns on him or her responsibility for the establishment and monitoring of the implementation of norms and standards for all the judiciary. These norms and standards are intended to promote good governance, ensure efficiency and promote access to justice. The Constitution clearly contemplates a single judicial system at the apex of which is the Constitutional Court ("CC"). In section 166, the Constitution places the CC at the apex of the "judicial system." The Magistracy is also expressly located by the Constitution within the judicial system. This is a far cry from the days of Apartheid when the Magistrates were part of and were controlled by the Executive.

2.4 Flowing from Constitution Seventeenth Amendment Bill, the Superior Courts Bill provides, among others, for a judicial governance framework under the leadership of the Chief Justice, as the head of the judiciary. The magistracy will in turn be under the governance of the Judges President of the Division of the High Court having jurisdiction over the lower courts in the division concerned.

2.5 At its NGC held in Durban of 2009, the ANC reflected on the need to review the conference resolutions relating to judicial and court administration with a view to establishing a judicial system that is commensurate with the separation of powers and independence of the judiciary enshrined in the Constitution. The review of these resolutions in particular, is intended to establish an effective and judicial administration which is necessary for the efficiency and effectiveness of the court system.

The current policy and legislative framework in terms of which the administration of processes which are connected with the judicial functions of the courts are the responsibility of the Minister do not promote an efficient and accountable judicial system that is consonant with the ideal of an accessible justice system.

2.6 Therefore this document seeks to initiate a policy discussion in relation to the judicial governance and the administration of courts pursuant to the decision on the NGC and subsequent discussion by the Peace and Stability subcommittee.

3. Judicial governance

3.1 There is currently no integrated judicial governance framework under the command of the Chief Justice for the effective management of judicial functions and that instills accountability required by the Constitution. Ad hoc governance structures which have no legislative basis and lack the necessary legal competence to carry out and governance responsibility continue to exist at the different hierarchy of the courts. There are no mechanisms through which these governance structures are answerable to the Chief Justice as the head of the judiciary.

3.2 Whereas at the level of the Superior Courts the traditional Heads of Court forum chaired by the Chief Justice and consisting of the President of the Supreme Court of Appeal and of Judges President of the High Courts assumes the responsibility for the governance of the superior courts, there are no effective structures at the level of the Lower Courts. At the lower courts there is an overlap between the regulatory functions of the Magistrates Commission and ad hoc structures representative of the Regional Court Presidents and Chief Magistrates respectively.

3.3 The Chief Justice and the Heads of Courts have commenced with discussion intended to formulate firm proposals on judicial governance and court administration. The proposals will be taken into account when the Minister of Justice and Constitutional Development, guided by the outcome of this ANC policy process, prepares draft legislation that he would submit to Cabinet.

3.4 An area that would require careful consideration in relation to the desired policy framework relates to the distinction between the role and powers of the envisaged judicial governance structure and that of the Minister of Justice and Constitutional Development concerning policy formulation of certain aspects of the administration of justice. Of significance would be the oversight role of Parliament in relation to policy pertaining to the courts and the judiciary.

This area constitute the nucleus of the South African model of separation of powers which would require an intelligible reflection in the final policy framework and the legislation that will be promoted through Cabinet to give effect to the desired policy.

In view of the anticipated public interest and rigorous debate that this particular aspect is likely to generate during the consultation and Parliamentary hearings stages, it appears ideal and logical to develop a separate legislation on the judicial regulatory framework from the Superior Courts Bill.

The latter Bill will, in the main, deal with the courts (the structure, composition, jurisdiction and functioning thereof), while the regulatory aspects relating to the Judicial Council and Court Administration may be dealt with effectively in a separate legislation in the form of the Judicial Authority Act (JAA).

3.5 As explained above, the Constitution Seventeenth Amendment Bill and the Superior Courts Bill provide a framework for the establishment of an integrated governance framework for the judiciary across the entire judicial system. Pending the enactment of these Bills an institution of the Office of the Chief Justice has been established through a Presidential Proclamation to provide capacity for the Chief Justice to perform his or her judicial leadership role.

3.6 Although the Office of the Chief Justice functions independently from the Department of Justice and Constitutional Development, it is a government department which is answerable to the Minister of Justice and Constitutional Development and Cabinet. The Office of the Chief Justice is therefore not an independent institution outside Executive. It is for that reason that the measures implemented through the Presidential Proclamation are perceived to be temporary in nature, pending the enactment of legislation that will be informed by clear policies that this document seeks to address.

4. Court Administration

4.1 Concomitant to the establishment of the judicial governance framework there is a need for the establishment of a court administration system that is consistent with the separation of powers doctrine. It is important that the envisaged court administration system is integrated into the judicial governance framework.

4.2 In designing the court administration system or model suited to the South African Constitution, it will be important to compare and adopt best practices from the models which have been adopted by the different jurisdictions in various democracies. A distinction is usually drawn between the United States' model that places court administration under the judiciary and Commonwealth countries where a statutory body which operates within the proximity of the judiciary is established to assume responsibility for the day-to-day administration the courts and their budgets under the direction of the judiciary.

There are various forms of court administration agencies which exist in different jurisdictions. The main distinction between the US model and the model followed in most commonwealth jurisdictions lie in respect of accountability.

In the US model judges, as elected representatives, are directly accountable to the electorate while in the agency model the judges are accountable to Parliament through the head of the Agency as the accounting officer of the Agency. The following general principles apply to the court administration agency and bodies:

(i) the enactment of appropriate legislation is necessary to establish a court administration agency or an appropriate body to administer the courts;

(ii) the agency or the appropriate body has administrative autonomy and is functionally answerable to the judiciary and account for its budget and performance to Parliament, through its head (Chief Executive Officer);

(iii) the legislation establishing the court administration agency or body responsible for court administration would define the relationship between the Ministry and the Department of Justice;

 (iv) the head of the Agency or appropriate body is appointed by Chief Justice/ Minister/President, depending on the preference of the jurisdiction concerned;

(v) the head of the agency or appropriate body is accorded sufficient delegations, budget and capacity for the effective management of the courts.

5. Impact of the court administration on rule-making

5.1 Rules of court prescribe the procedure and processes applicable in court proceedings, including requirements and conditions that must be met by any person who approach the court as a litigant. They are therefore important for purposes of promoting access to justice.

5.2 A distinction is made between the inherent power of the Superior Courts to regulate and protect their own process (in terms of section 173 of the Constitution) and section 171 of the Constitution, which provides that all courts function in terms of national legislation, and their rules and procedure must be provided for in terms of national legislation. The latter rules amount to subordinate legislation and the participation of the three Branches of State in the making of these rules is explained in the chapter.

5.3 The judiciary, leading functionaries in court proceedings have an important role in the making of rules. Similarly the other arms of the state and civil society who are affected by the rules must have a role in rule-making.

5.4 Based on the practices of the comparable foreign jurisdictions clear policy is desirable in respect of the following:

(i) that the power to make rules of court relating to case management should reside with the judiciary and the rules must be approved by Parliament; and

(ii) that rules relating to matters which impact on public policy should be approved by the Minister and Parliament;

5.2 It is desirable to enact national legislation for the rationalization of the existing different rulemaking structures to promote uniformity;

6. Aspects for policy consideration

6.1 The discussion of the principles contained in this document should be geared towards the development of policies for the establishment of an integrated judicial governance framework providing for:

(i) the establishment of a governance structure in the form of a council or appropriate body representative of the judiciary at all the hierarchy of the courts under the command of the Chief Justice as the head of the judiciary;

(ii) the extent of the powers and functions of the governance structure, having regard to the policy-related functions of the Minister responsible for the administration of justice;

(iii) the establishment of an appropriate court administration system in the form of an Agency or a body with administrative autonomy to provide administrative functions that are closely connected with judicial functions of the courts; and

(iv) the extent of the powers and functions of the court administration agency or appropriate body, having regard to the South Africa constitutional framework pertaining to among others, the oversight responsibility of Parliament and the accounting arrangement provided for under the Public Finance Management Act of 1999.

7. Access to justice as a guiding principle

7.1 The transformation of the judiciary is a constitutional imperative premised on access to justice. Therefore the judicial reform initiatives seeking to provide for an independent judicial governance and court administration system must advance access to justice and respect for the rule of law.

7.2 The Constitution enshrines the right of access to justice, which includes access to courts and other independent tribunals or forums. Unless ordinary people have access to courts and other independent forums or tribunals to resolve their disputes, the vision of a society based on the rule of law as envisaged in the Constitution will not be realised. The following elements are necessary to enhance access to justice for ordinary citizens:

(a) Access to the legal profession;

(b) Access to courts which includes: ƒ

the right to effective legal representation;

ƒ developing simple and effective rules governing the conduct of legal proceedings; ƒ

the promotion of use of all official languages;

development of proper infrastructure;

decentralisation of administration of justice services, ƒ training of magistrates and judges in understanding the Constitution, values, aspirations and traditions of all the people

Possible questions to guide discussions

• What systems of judicial governance and court administration would be consistent with our separation of powers enshrined in our Constitution?

• What is an impact of the separate and independent judicial and court administration on access to justice having regard to the broad concept of access to justice?

• What are the potential gains and benefits of a separate and independent judicial governance and court administration for the three arms of the state and the community at large?

• How should the government enhance the principle of separation of powers?

• What is an impact of the separate and independent judicial and court administration on access to justice having regard to the broad concept of access to justice?

• What are the cardinal factors that should inform decisions relating to the process of developing rules of court?

Issued by the ANC, March 5 2012. The full document can be found here.

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