The Transformation of the Judiciary
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The Transformation of the Judiciary
Dr Murray Wesson∗ and Professor Max du Plessis∗ ∗
Fifteen Year Policy Review, S outh African Presidency
∗
LLB (Natal), BCL DPhil (Oxford). Lecturer, School of Law, University of Leeds.
∗∗
B.Iuris (SA), LLB (Natal), LLM (Cambridge). Associate Professor of Law, University of KwaZulu-
Natal, Durban; Associate Member of the KwaZulu-Natal Bar; Senior Res earch Associate at the
Institute for Security Studies and Research Associate, Matrix Chambers, London.
1Introduction
This report is part of a fifteen year polic\y review being carried out by the South
African Presidency. The main objective is to provide a ‘conceptual analysis’ of the
transformation of the judiciary. This entails an evaluation of programs and policies
that have been implemented, and their outcomes, as well as consideration of strategies
that might now be adopted. According to the terms of reference provided by the
Presidency, the report should identify the main issues regarding the transformation of
the judiciary, the position of the various stakeholders, and also make reference to
international experience.
The transformation of the judiciary – in South Africa and elsewhere – is an
extremely complex topic and the terms of reference that have been provided are
broad. In this report, we attempt to approach the issue as follows. Firstly, the term
‘transformation’ implies a change from a state of affairs that existed previously. For
this reason, the report commences with a discussion of the role of the judiciary under
Apartheid and attempts to draw certain conclusions about the Apartheid judiciary’s
institutional character. In light of this, the report discusses what is meant by the term
transformation. It is argued that transformation should not be understood as carrying
a single meaning. Instead, various themes can be identified. These are: the process
whereby judges are appointed; the need to diversify the judiciary; the need to change
the attitudes of the judiciary; and the need to foster greater judicial accountability.
M ore recently, judicial transformation has also become associated with calls for a
more efficient judiciary that is responsive to the needs of ordinary South Africans and
1
which facilitates greater access to justice.
The report discusses each of these issues in turn. The conclusion reached is
that South Africa has generally made impressive strides towards transforming the
judiciary in its first fifteen years of constitutional democracy. M oreover, this has
been achieved while respecting the independence of the judiciary and the separation
of powers – principles that are themselves objectives of judicial transformation, as
discussed in greater detail below. Ideally, this approach should be replicated in South
Africa’s next fifteen years of constitutional democracy. Unfortunately, recent
legislative activity in this area, and resolutions and statements of the ruling African
National Congress (ANC), while apparently motivated by legitimate objectives, have
not always heeded this principle. This has given rise to apprehension and concern in
both the judiciary and civil society. For this reason, the report attempts to identify
strategies whereby judicial transformation can continue to be pursued while avoiding
such unnecessary controversies and outcomes that might ultimately prove counter-
productive to the constitutional project as a whole.
The Judiciary under Apartheid
One way to appreciate the transformation of South Africa’s judiciary fifteen years into
democracy is to consider the state of the judiciary under Apartheid. Any discussion
of the role of the judiciary under Apartheid is likely to be contested. The submissions
1
See, for example, the resolution adopted at the 52nd National Conference of the African National
Congress (ANC) held at Polokwane, 16-20 December 2007, entitled ‘Transformation of the Judici ary’
(accessed 17 March 2008). The
resolution calls inter alia for a ‘single, integrated, accessible and affordable court system.’
22
made by judges to the Truth and Reconciliation Commission (TRC), and the refusal
3
of judges to appear before the TRC in person, illustrate this. Nevertheless, as a
starting-point, certain less controversial observations can be made.
First, the process whereby judges were appointed under apartheid is well
4
known. In terms of s 10 of the Supreme Court Act, judges were appointed by the
State President. According to M pati JA, there is, however, a widely held view that
the State President was merely a rubberstamp and that the M inister of Justice was in
5
effect the person who made the appointments. In the later years, this was usually on
the recommendation of the Chief Justice or Judge President of the relevant division.6
Candidates were also drawn from the ranks of senior counsel and were invariably
white and male. Indeed, in 1990, when the process of political change commenced,
the judiciary was exclusively white and, with one exception, male. South Africa’s
first black judge, M ahomed J, was appointed in 1991. On 27 April 1994, the date of
South Africa’s first democratic election, the situation was much the same: the
judiciary remained predominantly white and male, with the exception of three black
7
males and one white female.
The process of identifying potential candidates and their selection was also
shrouded in secrecy. It seems clear, however, that political factors played a role in
determining who secured appointment and who was promoted. As Sydney Kentridge
explained in 1982: ‘[O]ver the past thirty years a number of appointments to the
Supreme Court and a number of judicial appointments have been made which are
explicable solely on the ground of the political views and connections of the
8
appointees and no other conceivable ground.’ Despite this, it was the practice of the
Nationalist government to praise the independence and ability of the courts in
extravagant terms, even claiming without apparent irony that they were amongst the
9
most fair-minded in the world.
In addition to the process whereby judges were appointed, it is also
uncontroversial that judges operated under a dispensation very different to that which
exists now. The South African Constitution was modelled on the Westminster
tradition of parliamentary sovereignty, which meant that judges enjoyed no power to
strike down legislation that infringed human rights. Judges were, however, able to
interpret legislation and, in so doing, might have been able to mitigate its effects. In
this regard, what interpretative approach did judges adopt?
In answering this question, one must invariably engage in generalisations.
However, in pioneering work John Dugard argued that South African judges tended to
2
See ‘The Truth and Reconciliation Commission, and the Bench, Legal Practitioners and Legal
Academics’ (1998) 115 South African Law Journal (SALJ)15.
3
Judges refused to appear before the TRC on the basis that it would amount to cases being retried and
compromise their independence. See MM Corbett ‘Presentation to the TRC’ (1998) 115 SALJ 18, 20.
For discussion, see D Davis, GJ Marcus and J Klaaren ‘The Administration of Justice’ in Annual
Survey of South African Law 1997 (Juta & Co, Johannesburg) 786, 788-789.
4
59 of 1959.
5
‘Transformation in the Judiciary – A Constitutional Imperative’, Inaugural Lecture, University of the
Free State, 6 October 2004 (accessed 17 March 2008)
11.
6
Mahomed CJ, Van Heerden J, Chaskalson J, Langa J and MM Corbett ‘The Legal System in South
Africa 1960-1994’ (1998) 115 SALJ 22, 32.
7
MTK Moerane ‘The Meaning of Trans formation of the Judiciary in the New South Afri can Context’
(2003) 120 SALJ 709, 712.
8
‘Telling the Truth About Law’ (1982) 99 SALJ 648, 652.
9
GJ Marcus ‘Respect for the Courts: Myth and Reality’ (1985) 1 South African Journal on Human
Rights (SAJHR) 236.
3adopt an excessively ‘positivistic’ or ‘literal’ approach towards the interpretation of
statutes. They regarded themselves as merely ‘declaring’ the law and denied that they
enjoyed a creative role. In Dugard’s words: ‘While acknowledging the difficulties of
interpreting ambiguous statutes, they maintained that the role of the judge in such a
case is to give effect to the ‘true’ intention of the legislature … Apparently, the judge
is denied any creative power in his mechanical search for the legislature’s intention,
and desirable policy considerations, based upon traditional legal values, are viewed as
10
irrelevant.’
There were, of course, numerous difficulties with this approach. First, it is
doubtful that it accurately describes the process of statutory interpretation. As Dugard
sought to demonstrate, judges do not decide cases by mechanically applying legal
rules. Their background, experience and outlook invariably play a role. Indeed, the
Constitutional Court has subsequently acknowledged this, stating that ‘[i]t is
11
appropriate for Judges to bring their own life experience to the adjudication process’
– a point to which we return below. Secondly, to the extent that literalism, justified
on the basis that one is thereby giving effect to the intentions of the legislature,
constitutes an attractive theory of statutory interpretation, it is clearly premised on the
existence of a democratic legislature. In the absence of such an institution, literalism
appears wholly inapposite. This anomaly was, however, seldom the subject of
12
judicial acknowledgement.
Furthermore, apart from generally failing to interpret legislation in favour of
human rights, judges also rarely commented on the racist and unjust nature of
apartheid law, in their judgments or other forums. Indeed, ‘[d]uring the long years of
apartheid rule, only a handful of judges showed themselves willing to condemn
legislative enactments that infringed basic civil liberties. The majority chose to
13
remain silent.’ Hugh Corder draws the conclusion that, in the application and
development of the law, the apartheid judiciary generally supported the status quo
determined by the white minority, with some notable exceptions in individual cases.
He comments as follows: ‘The overall picture [of judicial attitudes] which emerges is
one of a group of men who saw their dominant roles as the protectors of a stability …
The judges expressed it in terms of a positivistic acceptance of legislative sovereignty,
despite a patently racist political structure, and a desire to preserve the existing order
14
of legal relations, notwithstanding its basis in manifest social inequalities…’
At the conclusion of apartheid, the South African judiciary was therefore
almost exclusively white and male; its composition had been influenced, to some
extent at least, by political factors; it had been schooled in a tradition of parliamentary
sovereignty with a concomitant emphasis upon literalism in the interpretation of
statutes; and it had generally supported the status quo in an unjust system.
Nevertheless, for reasons for continuity, the judiciary survived the political
transition almost entirely intact. While the legislative and executive branches of
government were replaced, the only innovation in respect of the judiciary was the
10
Human Rights and the South African Legal Order (Princeton University Press, Princeton 1978) 369.
11
President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147
(CC) para 42.
12
Mahomed CJ et al (n 6) 30.
13
E Cameron, D Davis and GJ Marcus ‘The Administration of Justice, Law Reform and Jurisprudence’
in Annual Survey of South African Law 1993 (Juta & Co, Johannesburg) 791, 795.
14
Judges at Work (Juta & Co, Cape Town 1984) quoted in H Corder ‘Judicial Authority in a Changing
South Africa’ (2004) 24 Legal Studies 253, 255.
4creation of a Constitutional Court, which would serve as the highest court of appeal
for constitutional matters.
Furthermore, it was this same judiciary that was tasked with enforcing, and
developing the meaning of, a Constitution that constituted a radical departure from the
Apartheid legal order. M ost obviously, the Constitution entrenches a system of
democratic government in which Parliament is no longer sovereign. Courts are,
instead, empowered to strike down legislation that is inconsistent with the
Constitution.
The Constitution also expressly rejects a literal approach to statutory
interpretation and instead provides that ‘[w]hen interpreting any legis lation, and when
developing the common law or customary law, every court, tribunal or forum must
15
promote the spirit, purport and objects of the Bill of Rights.’ In keeping with the
rejection of Parliamentary sovereignty, it is the values of the Constitution that should
guide statutory interpretation, not the intentions of the legislature.
Finally, as has been widely noted, the South African Constitution is intended
16
to be ‘transformative’ in nature. It does not seek to preserve a particular state of
affairs but instead aims to establish a society very different from that which existed at
its inception and that which exists now. Geoff Budlender expresses this as follows:
‘Our Constitution differs from many others in a fundamental respect. Most
Constitutions reflect the outcome of a change which has already taken place, and lay
down the framework for the new society. A key theme of our Constitution is the
17
change which is yet to come – the transformation which is yet to come.’ Again, this
sits uneasily with the Apartheid judiciary’s institutional character which, as Corder
notes, tended to regard itself as a protector of the status quo.
Against this background, it was, as Budlender also remarks, something of a
leap of faith to place such extensive power in the hands of the judiciary – faith that, he
18
thinks, has generally been vindicated. It is also against this background that the
imperative to transform the judiciary must be understood.
The Transformation of the Judiciary: What Does it Mean?
Judicial transformation in South Africa can be chiefly understood as a response to the
negative characteristics of the Apartheid judiciary outlined above. For this reason,
judicial transformation should not be understood as carrying a single meaning.
Instead, various themes can be identified, each of which must be discussed.
First, judicial transformation must incorporate changes in the manner in which
judges are appointed. Appointments should not be secretive and should not be
influenced by party political considerations. Secondly, for reasons discussed in
greater detail below, it is necessary to change the demographics of the judiciary. As
an institution, it cannot remain predominantly white and male. Thirdly, the
underlying attitudes of the judiciary must change – it must, argues Budlender,
19
‘embrace and enforce the principles of a fundamentally new legal order.’ Fourthly,
it is necessary for the judiciary to be accountable, although the difficult questions are,
of course, accountable to whom and in what manner? Finally, judicial transformation
15
Section 39(2).
16
See K Klare ‘Legal Culture and Transform ative Constitutionalism’ (1998) 14 SAJHR 146.
17
‘Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa’ (2005) 4
SALJ 715, emphasis in the original.
18
ibid.
19
ibid.
5has, as indicated, also come to be regarded as embracing concerns about efficiency
and access to justice. Each of these aspects of judicial transformation is explored in
remainder of this report.
The Process whereby Judges are Appointed
The process whereby judges were appointed under apartheid has already been
outlined. The Interim and Final Constitutions established a new procedure, intended
to overcome the difficulties that were inherent in that approach. Under the Final
Constitution, the President appoints the Chief Justice and Deputy Chief Justice after
consulting the Judicial Service Commission (JSC) and the leaders of the parties in the
20
National Assembly. The same procedure applies in respect of President and Deputy
President of the Supreme Court of Appeal (SCA), with the exception that the leaders
of the parties represented in the National Assembly need not be consulted.21 Other
judges of the Constitutional Court are likewise appointed by the President after
consulting the Chief Justice and leaders of the parties represented in the National
22
Assembly. Here, however, the JSC prepares a list of nominees with three names
23
more than the number of appointments to be made, from which the President may
24
make appointments. The judges of all other courts are appointed by the President on
25
the advice of the JSC.
It is the JSC that constitutes the most radical break from the pre-constitutional
procedure for the appointment of judges. The composition of the JSC is complex but
includes inter alia senior members of the judiciary, the M inister responsible for the
26
administration of justice, legal practitioners and members of Parliament. Judicial
appointments commissions have been adopted in many parts of the world and the JSC
is a large body by international standards. According to Kate M alleson, this is chiefly
because it is a product of compromise. At the time of the negotiations, the African
National Congress (ANC) favoured a politically dominated composition while the
judges and legal profession argued in favour of a body in which the legal contingent
was in the majority. According to M alleson, although the final outcome looks, on
paper, to have been a victory for the political representatives, with members of the
legislature constituting the single largest group, the JSC is, in practice, heavily
27
dominated by lawyers. Notwithstanding M alleson’s view, Amy Gordon and David
Bruce note that the ‘domination of politicians and political appointees in the JSC has
driven allegations that the judicial appointments process gives too much power to the
28
executive and legislature and infringes on the separation of powers.’
As for the procedure followed by the JSC, the Constitution provides that the
JSC ‘may determine its own procedure, but decisions of the Commission must be
29
supported by a majority of its members.’ In broad outline, the JSC calls for
20
Section 174(3).
21
ibid.
22
Section 174(4).
23
Section 174(4)(a).
24
Section 174(4)(b).
25
Section 174(6).
26
Section 178(1).
27
‘Assessing the Performance of the Judicial Service Commission’ (1999) 1 SALJ 36, 38.
28
A Gordon and D Bruce ‘Trans formation and the Independence of the Judici ary in South Africa’ in
After the Transition: Justice, the Judiciary and Respect for the Law in South Africa (Centre for the
Study of Violence and Reconciliation, 2007) 50 (accessed 17 March 2008).
29
Section 178(6).
6nominations whenever a vacancy occurs; candidates are then interviewed, after which
the JSC makes recommendations to the President. Interviews are conducted in public,
which allows for greater public debate and scrutiny. However, once the interview is
concluded, the deliberations of the JSC are confidential. This has led to criticism on
the basis that the JSC’s reasons for preferring one candidate are not always clear. In
the view of Mpati JA, however, little would be achieved – for either the disgruntled
candidate or the appointment system – if the JSC were to disclose its deliberations.
The public would, in his view, do better to focus on the criteria that the JSC
30
employs.
As noted, a key rationale for the creation of the JSC was to establish a more
independent and open appointments process. In this the JSC appears to have been
successful. As M alleson notes, the fact that the ANC-led government has
intermittently expressed dissatisfaction with the pace of judicial transformation can be
31
interpreted as a measure of the JSC’s independence. Put differently, if the JSC did
act at the behest of the executive, the ANC would presumably not find grounds to
complain about its performance.
Diversity
The promotion of a diverse judiciary is a constitutional imperative. Section 174(2) of
the Constitution provides that ‘[t]he need for the judiciary to reflect broadly the racial
and gender composition of South Africa must be considered when judicial officers are
appointed.’ But what is the rationale for this objective? What principles should
govern the promotion of a diverse bench? And how successful has the JSC been in
achieving diversity? These are the questions addressed in this section.
32
Affirmative action can be justified on various grounds. In the context of
judicial appointments, it is submitted that a good starting-point is the seminal US case
of Regents of the University of California v Bakke, in which Powell J held that
affirmative action is permissible in university admissions because of the educational
benefits of a diverse learning environment. In his words: ‘An otherwise qualified
medical student with a particular background – whether it be ethnic, geographic,
culturally advantaged or disadvantaged – may bring to a professional school of
medicine, experience, outlook and ideas that enrich the training of its student body
and better equip its graduates to render with understanding their vital service to
33
humanity.’
For Powell J, affirmative action is therefore permitted because it exposes
students to views they would not otherwise encounter, thereby adding value to their
university experience. This argument can be extrapolated to the judiciary. Here, one
might argue that diversity will result in a plurality of viewpoints being brought to the
process of adjudication, thereby enhancing the quality of judicial decision-making.
Kentridge, for instance, drawing on his experience as an acting judge of the
Constitutional Court, states that the Court’s diversity ‘illuminated our conferences
especially when competing interests, individual, government and social, had to be
30
Mpati (n 5) 15 endorsing the view of Sir Sydney Kentridge in ‘The Highest Court: Selecting the
Judges (2003) 62 Cambridge Law Journal 55.
31
Malleson (n 27) 37.
32
For discussion, see C McCrudden ‘Rethinking Positive Action’ (1986) 15 Industrial Law Journal
219.
33
Regents of the University of California v Bakke (1978) 438 US 265, 314.
7weighed. I have no doubt that this diversity gave the court as a whole a maturity of
34
judgment it would not otherwise have had.’
What objections might be advanced against this rationale? First, one might
question whether a judge’s background and experience should be relevant to the
process of adjudication. Surely this results in partiality and subjectivity? Would it
not be better to emphasise technical competence regardless of race, gender and so on?
In truth, this is an issue that we have canvassed already. As discussed, one of
the myths that was propagated about the judiciary under apartheid was that personal
experience never plays a role in judicial decision-making. The role of the judge is,
instead, merely to declare the law. As Dugard sought to demonstrate, this account of
adjudication is misconceived. The judge’s interpretation of law and fact will
inevitably be coloured by his or her background and experience. As noted, the
Constitutional Court has subsequently acknowledged this and stated that ‘[i]t is
appropriate for Judges to bring their own life experience to the adjudication
35
process.’ If so, then this constitutes a powerful rationale for judicial diversity. As
Cory J remarks in the Canadian case of R v S (RD): ‘The sound belief behind the
encouragement of greater diversity in judicial appointments was that women and
visible minorities would bring an important perspective to the difficult task of
36
judging.’
However, a far more pertinent objection can be advanced, which is that the
diversity rationale presupposes a link between a person’s status – their race or gender
– and the views that they hold. Put differently, this justification seems to assume an
essentialist notion of identity, in terms of which a person’s status determines their
opinions. Indeed, this is implicit in the use of the term ‘representative’ to describe the
type of bench that proponents of judicial transformation seek. The word suggests –
implausibly to some – that judges drawn from a range of backgrounds will somehow
‘represent’ the concerns and interests of their particular constituencies.
For Anne Phillips, an advocate of greater representation of women and
37
minorities in legislative assemblies, this is a matter of particular concern.
Nevertheless, she regards the exercise as worthwhile. First, there is the importance of
symbolic representation. In her words, ‘[w]hen those charged with making the
political decisions are predominantly drawn from one of the two sexes or one of what
may be numerous ethnic groups, this puts the others in the category of political
38
minors. They remain like children, to be cared for by those who know best.’ For
Phillips, the legitimacy of legislative – and, by extension, judicial – decision-making
is enhanced by greater diversity, even if the decisions themselves are not altered.
Budlender makes the point as follows: ‘A judge or magistrate who presides in a case
st
does so on our behalf. In the 21 century, in a democratic South Africa, there is
something utterly incongruous about this being done overwhelmingly by white
men.’ 39
Secondly, while rejecting the view that members of particular groups share a
unified set of views and interests, Phillips suggests that such individuals tend to
occupy a distinct position in society. Women, for example, ‘are typically
34
Kentridge (n 30) 61.
35
President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147
(CC) para 42.
36
(1997) 118 CCC (3d) 353 para 119.
37
The Politics of Presence (Clarendon Press, Oxford 1995).
38
ibid 39.
39
Budlender (n 17) 716.
8concentrated in lower paid jobs and they carry the primary responsibility for the
40
unpaid work of caring for others.’ Greater representation of women offers no
guarantee that the needs and interests arising from these experiences will find
expression – such a guarantee could only be sought in some notion of essentialism –
41
but it does make it more likely; it is an ‘enabling condition’ that ‘operates in a
42
framework of probabilities rather than certainties.’
In South Africa the diversity rationale is especially compelling, at least in
respect of race. Because apartheid segregated South Africans for so long, the colour
of one’s skin still says a great deal about one’s background, life experience, values
and outlook. However, as Budlender remarks: ‘That is the position of the current
generation. As we move towards a more clearly class-based society, there will be a
growing class of people who are black, but have no lived experience of deprivation or
of being discriminated against, and who have only limited contact with people who do
43
have that experience.’ This process is, one might add, likely to be exacerbated by
the well-known tendency of affirmative action to benefit the best-off members of
disadvantaged groups. In other words, the type of person most likely to be considered
for judicial appointment is less likely to be someone from an underprivileged
background. Clearly, this factor should be borne in mind by the JSC.
If that establishes the case for pursuing a more diverse bench, how successful
have such measures been? Given that, as mentioned, in 1990 the bench was
exclusively white and, with one exception, male, progress has arguably been
impressive. According to the most recent statistics, of the 201 judges in the superior
courts, white males remain in the majority, numbering 89. There are, however, 59
black, 9 mixed-race and 11 Indian male judges. In addition, there are 33 female
44
judges: 11 white, 10 black and 6 Indian. Such progress has been partly achieved by
widening the pool from which candidates are drawn. Previously, judges were
appointed solely from the ranks of senior counsel – a practice that is not conducive to
45
a diverse bench even in the absence of a system such as Apartheid. Now, candidates
for the judiciary can be drawn from academia, the magistracy and attorneys’
profession. Chaskalson CJ has, however, warned that further progress is likely to be
slow: ‘We have already drawn deeply into the pool of existing candidates from these
sections of the profession. We need to increase the size of the pool. It takes time for
people to have the necessary experience and be in a position where they can accept a
46
place on the bench.’
Chaskalson CJ notes further that there may be a need for ‘positive action’ to
ensure that judicial transformation continues. This comment appears to be borne out
by the experience of other jurisdictions. Not all judicial appointments commissions
have been successful in promoting a diverse bench. However, one conspicuously
successful example is the Judicial Appointments Advisory Committee (JAAC) which
was established in Ontario, Canada in 1989. At that time, women made up a very
40
Phillips (n 37) 66.
41
ibid 83.
42
ibid 82.
43
Budlender (n 17) 716-717.
44
The authors are grateful to Advocate Pieter du Rand of the South African Department of Justice for
supplying these statistics.
45
The practice of appointing judges from the ranks of Queens Counsel has been criticised in Britain for
this reason. See B Hale ‘Equality and the Judiciary: Why Should We Want More Women Judges?’
(2001) Public Law 489, K M alleson ‘Rethinking the Merit Principle in Judi cial Selection’ (2006) 33
Journal of Law and Society 126.
46
‘The De Rebus Interview’ (2002) 409 De Rebus 10.
9small minority of the bench. Between 1989 and 1995, the proportion of women
judges appointed rose to 40%. An important factor in increasing the number of
women judges in Ontario was the approach of the commissioners and Attorney-
General, which resulted in a concerted effort to recruit women to the bench. In 1990,
for example, the committee undertook an ‘outreach’ program whereby it contacted
associations representing women lawyers and asked them to encourage outstanding
47
lawyers within their associations to apply for judicial appointment.
In this regard, it is notable that the current Chief Justice, Pius Langa, with the
support of the government (both financial and moral), has in 2007 launched a new
initiative aimed at dealing with the severe under-representation of women in the High
48
Court. Nineteen women were selected from over 300 applicants to participate in a
novel programme, specially designed to expose them to various fields of judicial
work. The participants, selected from the magistracy and private legal practice, had to
have ten years experience or more. They underwent a three-month theoretical course
and will undergo a further six-month practical judicial course at various high courts.
Candidates will be marked on their work. If they pass the course requirements, they
will be part of the pool available for the appointment of acting judges, from which, in
practice, high court judges are chosen. M uch of the success of this project will
depend upon the government and the Chief Justice encouraging and persuading the
Judge Presidents of the various provincial high courts to use this pool of candidates as
acting judges, so that they can put in practice what they have learnt on the course in
order to make them strong contenders in any high court competition.
Finally, what principles should guide the pursuit of a diverse judiciary? The
Constitutional Court’s leading judgment on affirmative action is Minister of Finance v
49
Van Heerden. In that judgment, M oseneke J was principally concerned with
affirmative action as a means of promoting equality, rather than as a means of
promoting diversity for the reasons outlined above. Furthermore, Van Heerden was
concerned with s 9(2) of the Constitution, which authorises affirmative action
generally, rather than s 174(2), which authorises affirmative action within the context
of the judiciary. For these reasons, it is doubtful that Van Heerden has direct
application to the appointment of judges.
Despite this, it is submitted that we can draw upon Van Heerden in
considering the principles that should apply to the pursuit of diversity within the
judiciary. In Van Heerden, M oseneke J indicated that affirmative action measures
under s 9(2) should satisfy three criteria: ‘The first yardstick relates to whether the
measure targets persons or categories of persons disadvantaged by unfair
discrimination; the second is whether the measure is designed to protect or advance
such persons or categories of persons; the third requirement is whether the measure
50
promotes the achievement of equality.’
As emphasised, in Van Heerden M oseneke J is chiefly concerned with
affirmative action as a means of promoting equality, rather than affirmative action as
a means of fostering diversity. Nevertheless, Van Heerden is instructive insofar as
M oseneke J envisages a proportionality test. In law, proportionality requires that the
47
K Malleson ‘Creating a Judici al Appointments Commission: Which Model Works Best?’ (2004)
Public Law 102, 106.
48
See ‘Address by the Deputy President Ms Phumzile Mlambo-Ngcuka at a Gala Dinner for the
Launch of Training Programme for Aspirant Women Judges, Johannesburg’, 16 August 2007,
(accessed 17 March 2008).
49
2004 (6) SA 121 (CC).
50
ibid para 37.
10measures adopted must be necessary and appropriate to achieve the objective that is
pursued, and the impact of the measures must be proportionate to the objective.
In promoting diversity within the judiciary, the JSC should, it is submitted,
likewise consider the purpose for which diversity is pursued, and whether the
measures that are adopted are necessary and appropriate in order to achieve that
purpose. The constitutionally authorised goal is a judiciary that is ‘broadly’
51
representative of the racial and gender composition of South Africa. The objective
is not a judiciary that represents the races and genders in direct proportion to their
share of the national population. Furthermore, diversity should be pursued, not for its
own sake, but for the reasons outlined above. The JSC should seek to appoint black
and female candidates that bring legitimacy and competence to the bench, thereby
enhancing the quality of decision-making and public confidence in the judiciary.
In short, race and gender should not trump all other considerations. Diversity
should be pursued proportionately, in a manner that furthers, rather than hinders, the
constitutional goals that have been elaborated in this section. This appears to accord
with the approach that the JSC is already taking. According to its 2004 Annual
Report, the ‘Commission pays particular attention to [diversity] when it considers
applications for judicial appointment. It also takes into account the requirement that
candidates who are appointed be committed to the values of the Constitution and have
52
the necessary skills to be appointed for office as a member of the higher judiciary.’
Despite this, Gordon and Bruce write that many people believe that the JSC has
‘focused more on race and gender than on legal competence when making judicial
appointments. As evidence of the JSC’s attitude, some people point to cases in which
experienced and highly qualified white male candidates have been overlooked in
53
favour of less qualified and experienced black or women candidates.’ In this regard,
it is also worth noting Budlender’s caution that ‘[w]e do need to take great care that
the appointment process does not generate either the reality or the perception that
white males, however well qualified, need not apply … If that happens, the judiciary
54
will be very seriously weakened, at a high cost to us all.’
Judicial Attitudes
As mentioned, few members of the judiciary spoke out against legislative injustice
under Apartheid, either in their judgments or other forums. Furthermore, there was a
tendency to adopt a literal approach to interpretation that eroded the creative role of
the judge. In general, Corder argues, Apartheid judges acted as defenders of the
status quo, despite its manifestly unjust nature.
As such, in South Africa’s current dispensation, there is a need for judicial
transformation to embrace changes in judicial attitudes. Judges must embrace and
55
enforce the principles of a fundamentally new legal order. Furthermore, the
51
Section 174(2).
52
See (access ed 17 March 2008).
53
Gordon and Bruce (n 28) 47.
54
Budlender (n 17) 723.
55
ibid 715. The same is obviously true of Magistrates. That certain members of the Magistracy have
not embraced the values of the Constitution is clear from recent reports of xenophobia in relation to
Zimbabwean nationals who were denied bail by a Magistrate. The bail hearing was heard on a Friday
afternoon, and she reminded lawyers for the detainees that she wanted to go home to spend time with
her family. Initially she declined permission for the lawyers of the accused to consult with their clients,
and eventually sent all the detainees back to the cells for the weekend after mocking their speech and
language and then refusing them bail. When the Legal Resources Centre took the matter to the High
11transformative nature of South Africa’s Constitution means that judges can no longer
cast themselves as defenders of the status quo. The judiciary must instead facilitate
the creation of the new society that the Constitution envisages.
All of this might seem uncontroversial. The difficulty is how to give effect to
a change in judicial attitudes. Here a key principle is that transformation cannot be
56
pursued in a manner that compromises, or even appears to compromise, the
independence of the judiciary or the separation of powers. The Constitution
guarantees this. It states that ‘[t]he courts are independent and subject only to the
Constitution and the law, which they must apply impartially and without fear, favour
57
or prejudice.’ Furthermore, ‘[n]o person or organ of state may interfere with the
58
functioning of the courts.’ Changes in judicial attitudes may therefore not be
effected through, for instance, executive interference in the work of judges. That
would undermine a cornerstone of South Africa’s democracy.
How then might transformation be achieved? It is submitted that one highly
successful strategy was the creation of the Constitutional Court, which binds all courts
in South Africa on constitutional issues. The judges appointed to the Court have
generally not served under the Apartheid judiciary (and those that did were recognised
for their consistent track-record as liberal and independent judges) and have the type
of credentials that the South African judiciary requires. The Court has produced a
highly progressive body of case-law that has won national and international acclaim.
Given its position in the hierarchy of courts, its jurisprudence has filtered down to the
lower courts and its instructive approach to constitutional interpretation and insistence
regarding the permeating effect of the Constitution in relation to all areas of law have
been reminders to other judges of the transformation imperative.
Another means whereby transformation in the attitudes of judges might be
achieved is through judicial education. Virtually all judges agree that ‘one of the
59
most effective ways of achieving transformation of the judiciary is through training.’
Former Chief Justice M ahomed, for example, explained the need for ‘sensitisation’:
‘Proper judicial insights in many areas would involve training sensitive to the
perspectives and the complaints of special groups, unfairly marginalised in the past,
such as women, blacks, homosexuals and even illiterate and disabled persons, all
60
disadvantaged by assumptions which might need review and discussion.’
Judicial education has been the subject of recent legislative activity. In 2005,
the government proposed, in the National Justice Training College Draft Bill, which
formed part of a package of five bills on the administration of justice, that judges
should be trained at a state managed institution: the Justice College based at the
University of South Africa in Pretoria. At present the College is managed by a Chief
Directorate within the Department of Justice and is mandated to provide practical
legal training to court officials in the employment of the Department. The National
Justice Training College Draft Bill sought to keep the College administration under
Court on urgent review, the judge who heard the matter referred the magistrate’s conduct to the
Magistrates’ Commission for investigation. See C Rickard ‘Xenophobes in judiciary need
trans forming’, Weekender, 23 February 2008.
56
As was remarked in the English case of R v Sussex Justices ex parte McCarthy [1924] 1 KB 256, ‘[i]t
is of fundam ental importance that justice should not only be done but should manifestly and
undoubtedly be seen to be done’ (258).
57
Section 165(2).
58
Section 165(3).
59
H Corder ‘Battle is on for control of the courts’, Sunday Independent, 5 June 2005.
60
Ishmael Mahomed ‘Welcoming Address at the First Orientation Course for New Judges’ (1998) 115
SALJ 1.
12the control of the Department of Justice as well as introducing a separate faculty to
‘provide proper and appropriate education and training for judicial officers.’
61
These proposals were met with justified protest. M ore specifically, it was
argued that judicial education should not occur at a government-administered
institution. Langa J, prior to becoming Chief Justice, argued that, in such
circumstances, the judiciary would not be regarded as independent. Although the
draft bill stated that curriculum matters would be the responsibility of the proposed
Faculty Board, it was noted that the Board would nevertheless fall under the
Department of Justice and would therefore be subject to the authority of the executive.
These objections are persuasive. As emphasised, judicial transformation
should not occur in a manner that compromises, or appears to compromise, the
independence of the judiciary and the separation of powers. The government was
receptive to these complaints and the proposed legislation has been withdrawn for
62
reconsideration. At the time of writing the new South African Judicial Education
63
Institute Bill differs substantially from the legislation that was previously proposed
and provides for the training of judges through the newly created Judicial Education
Institute under the direction of a Council, chaired by the Chief Justice. The Chief
Justice, with the concurrence of the M inister, will issue guidelines regarding the
functioning of the Institute. The 21 members of the Council will include the Chief
Justice, the Deputy Chief Justice and six other judges (including one retired judge)
and three magistrates. The other nine representatives will comprise teachers of law
and representatives of attorneys and advocates, the M inister of Justice (or appointee)
64
and a representative of the JSC. Accordingly, the authority of the M inister over the
Institute will be diluted and the predominance of judges on the Council will ensure the
requisite independence from the Executive. This is an excellent illustration of how
transformative goals such as changing the attitudes of the judiciary can be pursued
without compromising other key facets of judicial transformation, such as judicial
independence and the separation of powers.
Accountability and Ethics
It seems uncontroversial that the judiciary should be accountable and ethical. The
reasons, says Cameron, are ‘obvious.’ Judges are an arm of state; wield enormous
power; and, because of their position, frequently assume the role of public oracles.
However, ‘[p]ower, public prominence and influence without accountability amount
65
to despotism.’ The difficult questions are, however, accountable to whom and in
what manner?
On 8 January 2005 the ANC’s National Executive Committee issued the
following statement: ‘The reality can no longer be avoided that many within our
judiciary do not see themselves as part of the masses, accountable to them, and
61
See the IDASA publication ‘Debating the Trans formation of the Judiciary: Rhetoric and Substance’
(accessed 17 March 2008);
David McQuoid-Mason and James Wylie ‘A Vote of No Confidence in New Judges’, Sunday
Independent, 15 May 2005.
62
‘Waiting for a New Policy on the Judiciary’, Business Day, 26 October 2006.
63
4 of 2007. The bill is available at (access ed 17
March 2008).
64
At the time of writing the Bill awaits concurrence by the National Council of Provinces before going
for presidential assent. See updated 13 March 2008
(accessed 17 March 2008).
65
‘Judicial Accountability in South Afri ca’ (1990) 6 SAJHR 251, 253.
13inspired by their hopes, dreams and value systems. If this persists for too long, it will
invariably result in popular antagonism towards the judiciary and our courts, with
66
serious negative consequences for our democratic system as a whole.’
How should this statement be understood? Clearly, the ANC cannot be
regarded as calling for some form of direct electoral accountability, as is the case with
the legislature. Even in a state without a justiciable Constitution, the ordinarily
understood role of the judiciary is to show above all else fidelity to the law. As Lord
Steyn (formerly Law Lord in the English House of Lords) has explained, the (English)
judiciary has a duty of a duty ‘of reaching through reasoned debate the best attainable
67
judgments in accordance with justice and law.’ In South Africa, judges are similarly
68
accountable to the law and above all the Constitution. As Chaskalson J clarified in S
v Makwanyane, the case in which the Constitutional Court declared the death penalty
unconstitutional, public opinion may be of some relevance but is no substitute for the
69
duty of the courts to uphold the provisions of the Constitution. In order to properly
satisfy that duty judges in mature constitutional democracies are set aside as
independent arbiters of human rights and are by their oath of office expected to avoid
any form of ‘accountability to the masses’ by their impartiality.
This independence of spirit is in fact a settled human rights principle that ‘is
70
addressed to the judiciary itself.’ The principle is encapsulated in Article 14 of the
International Covenant on Civil and Political Rights, which requires not only that
judges should be competent and independent, but also that they should be impartial in
the discharge of their duties. Justice Kirby of the Australian judiciary reflects that
Article 14 ‘helps to remind judges that they have no rights, as an elected legislator
may, to pursue an agenda that they conceive to be in the interests of society. They are
adjudicators. They must approach the resolution of the parties’ dispute without
71
partiality towards either side. Nor must they be obedient to external interest’. This
notion of independence has been firmly espoused by South Africa’s Constitutional
Court which has stated that judicial independence ‘is a constitutional principle and
norm that goes beyond and lies outside the Bill of Rights’ and thus is not subject to
72
limitation.
For these reasons it must be the case that the ANC statement cannot seriously
be construed as a call for compliant judiciary loath to upset or interfere with the
66
See ‘Statement of the National Executive Committee of the African National Congress on the
Occasion of Year 93 of the ANC’ (accessed 17
March 2008.
67
Johan Steyn Democracy Through Law: Selected Speeches and Judgments (Ashgate, Aldershot 2004)
130.
68
This is made clear by amongst other things the judicial oath which provides that all judges must: ‘…
be faithful to the Republic of South Africa ... uphold and protect the Constitution and the human rights
entrenched in it, and ... administer justice to all persons alike without fear, favour or prejudice, in
accordance with the Constitution and the law.’ See s 6(1) of Schedule 2 of the Constitution of the
Republic of South Africa.
69
1995(3) SA 391 (CC) para 87.
70
The Honourable Justice Michael Kirby AC CMG Judicial Activism (Hamlyn Lecture) (2004) 72.
71
ibid.
72
Paragraph 35 of the Court’s unanimous decision in Van Rooyen v the State 2002 (5) SA 246 (CC).
In that case the court addressed the issue of institutional independence and, through reliance on section
165 of the Constitution, explained that the Constitution ‘not only recognises that courts are independent
and impartial, but also provides important institutional protection for courts’ (para 18). Previously, in
De Lange v Smuts 1998 (3) SA 785 (CC) the Court stressed that independence is ‘ foundational to and
indispensable for the discharge of the judicial function in a constitutional democracy bas ed on the rule
of law.’
1473
government’s policies. Perhaps then the ANC’s statement might be better
understood as a call for the judiciary to be more aligned with the goals of the
government, even if not subservient thereto. Former Chief Justice Chaskalson
attempted at the time to provide such a positive interpretation of the statement, and
read it as a call for judges to uphold and give effect to the values of the Constitution.
In his view, the statement was a call consistent with the widely felt need for judicial
transformation, and a more rights-committed and socially-conscious approach to the
74
judicial task. Such an interpretation might also be sought in Budlender’s view that a
transformed judiciary should be responsive to the ‘goals’ of a democratically elected
government. However, he distinguishes between what the nation seeks to do in the
dispensation created by the Constitution and what the ruling party seeks to do from
time to time. The judiciary should be sympathetic to the former but should not distort
or ignore the law in order to accommodate the latter. That, he says, is not a
75
transformed judiciary; it is a ‘depressingly familiar judiciary.’ Put differently,
judicial transformation should not result in executive-mindedness – one subject of
76
Cameron’s classic critique of LC Steyn’s tenure as Chief Justice – being reinvented
in a new guise.
That established, what structures should be in place to ensure judicial
accountability? South Africa has had recent examples of questionable judicial
conduct which illustrate the need for a code of judicial ethics and a procedure for
disciplinary action to ensure accountability. Both examples relate to Judges President
who failed to disclose their financial interests. In respect of the first matter involving
Judge President Hlophe of the Cape Bench, questions were raised about his failure to
disclose a retainer from the Oasis Group, which did not stand in his way in granting
the Group leave to sue a fellow judge in the same Division (Judge Desai) for
defamation. The JSC considered the debacle but was unable to agree that Hlophe JP’s
77
conduct was such that it warranted further inquiry. The second involves Judge
President Tshabalala of the KwaZulu-Natal Bench, who was recently asked by the
JSC to hand back shares valued at almost R7m that he had received from Tokyo
Sexwale. According to the JSC, it was considered ‘inappropriate’ for Tshabalala to
78
take the shares because of the risk that a perception of partiality could arise. The
inconsistent approach by the JSC to these two complaints has been the subject of
79
much critical comment, and suggests if nothing else the need for clear guidelines
and a code of conduct.
Like judicial education, judicial accountability has likewise been the subject of
recent legislative activity. In 2004, the government introduced the Judicial Service
Amendment Bill, which proposed a Judicial Code of Conduct as well as a Register of
73
For views suggesting that the ANC statement was just that, see N Fritz and D Unterhalter ‘ANC
Confuses Compliance with Constitutional Fidelity’ Business Day, 14 January 2005; M Ellis ‘Judges
Should be Free to be Unpopular’ The Sunday Independent, 23 January 2005.
74
‘Chief Justice Reaffi rms Judiciary’s Commitment to Transformation’ De Rebus January 2005.
75
Budlender (n 17) 720.
76
‘Legal Chauvinism, Executive-Mindedness and Justice – LC Steyn’s Impact on South African Law’
(1982) 99 SALJ 38.
77
For critical comment see J Kriegler ‘Judge Hlophe Betrayed the Nation with his Greed’, The Times,
7 October 2007 (accessed 17 March 2008).
See further ‘Top Legal Figures Call for Hlophe to Resign’, Legalbrief Today, 9 October 2007
(accessed 17 March 2008).
78
See C Rickard, ‘Explaining the inexplicabl e…’, Legalbrief Today, 19 February 2008,
(accessed 17 March 2008).
79
ibid.
15Financial Interests. The Bill also provided for a Judicial Conduct and Ethics
Committee, which would comprise the Chief Justice, the Deputy Chief Justice, the
President of the Supreme Court of Appeal, two people not ordinarily involved in the
administration of justice who would be appointed by the President, three judges
including one woman and two members of the JSC belonging to the legal profession
or academia. The fact that the proposed Committee would include people who were
not judges once again raised concerns about executive interference in the workings of
the judiciary.
The Judicial Services Commission Act Amendment Bill and the Judicial
Conduct Tribunal Bill were more controversial. These provided for the establishment
of a formal complaints and disciplinary mechanism for judicial officers, largely
through a sub-committee of the JSC. The sub-committee would hear complaints
against judges and would investigate non-impeachable complaints itself. Impeachable
complaints would, however, be referred to the JSC with the request that a tribunal be
convened. The subcommittee would comprise the Deputy Chief Justice and three
judges, one of whom would be a woman, designated by the Chief Justice in
consultation with the M inister. The tribunal, on the other hand, would comprise two
judges and one non-judicial person, appointed by the Chief Justice in consultation
with the M inister.
The bills sought to deflect criticism that they interfered with the independence
of the judiciary by providing that disciplinary bodies would not be able to entertain
complaints that ‘relate solely to the merits of the judgment, or are frivolous or
80
hypothetical.’ Despite this, the bills were met with strong opposition from members
of the judiciary, who favoured the creation of a Judicial Council of five judges to
assess complaints regarding their own members. 81 In this regard, it was argued that
the possible inclusion of members of the executive or legislature on the subcommittee
or tribunal would constitute an unacceptable breach of the separation of powers.
In response to this outcry, the M inister of Justice, Brigitte M abandla, agreed to
reconsider the bills. In mid-December 2005 the M inister gazetted for public comment
the Constitution Fourteenth Amendment Bill, which proposed altering various aspects
of court administration but reintroduced the ‘justice bills’ with little change. This
resulted in further opposition and discontent in the judiciary, with Justice Harms
stating in his submissions to Parliament concerning the Bills that ‘[i]t is wrong in
principle and constitutionally offensive to subject the judiciary to the functional or
ethical control of a non-judicial body, especially one in which executive appointees
82
predominate.’ Accordingly, in July 2006 President M beki announced that the
Superior Courts Bill and the Constitution Fourteenth Amendment Bill would be
processed only after the buy-in of judges into a new policy on transformation of the
83
judiciary.
The Judicial Conduct Tribunals Bill and the Judicial Services Commission Act
Amendment Bill have now been combined in the Judicial Service Commission
84
Amendment Bill. A gain, aspects of the Bill are likely to prove contentious. Section
12(1), for instance, provides that the Chief Justice, acting in consultation with the
80
Quoted in ‘Debating the Transform ation of the Judiciary’ (n 61) 8.
81
See generally LTC Harms ‘Judicial Ethics and Complaint Procedures’ (2006) 19 Advocate 20.
82
Justice Harms ‘Judicial Ethics, Complaint Procedures against Judges and Related Issues:
Submissions to the Portfolio Committee on Justice’ (May 2006).
83
Cape Times, 31 July 2006.
84
Not numbered. Available at (accessed 17 March 2008).
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