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 Today, the IBAHRI issued a 51 page report examining the potential impact of
proposed judicial reforms on South Africa’s judicial independence. The report,
entitled Beyond Polokwane: Safeguarding South Africa’s Judicial Independence,
provides a detailed commentary on some of the most controversial aspects of the
reforms, and highlights the commitment expressed by representatives of the South
African Government to safeguarding the country’s strong tradition of judicial
independence since the end of apartheid.
The primary concerns of the IBAHRI relate to aspects of the Superior Courts Bill
and the 14th Amendment to the Constitution Bill proposing changes to court
administration, budgetary control, rule-making procedures, judicial appointments
and judicial conduct. In their present form, the two bills leave the judiciary
vulnerable to increased executive control which could have serious implications
for the rule of law and democracy in South Africa in the future.
Sternford Moyo, Vice-Chair of the IBAHRI Council, President of Southern Africa
Development Community Lawyers’ Association and member of the IBAHRI delegation
states: ‘Institutions of democracy are vital but fragile. Any action that is
perceived to have a negative impact on the independence of the judiciary
requires close scrutiny and extreme caution. The democratic dispensation in
South Africa , which incorporates the values of constitutionalism, human rights
and democracy, has become a shining example for Africa and the rest of the
world. We all have an interest in protecting it.’
IBA Executive Director Mark Ellis states ‘South Africa is a country which places
respect for human rights and democracy at its heart. The IBAHRI supports the
government’s agenda for transforming the judiciary; however, these reforms must
take place with the appropriate respect for the independence of the courts.’
The IBAHRI welcomed reassurances from South Africa ’s Minister of Justice,
Brigitte S Mabandla that members of the judiciary would be fully and properly
consulted on all issues relating to judicial reform. The IBAHRI believes that
the judiciary is an important partner in the reform process and urges increased
dialogue and information sharing on all of the issues addressed in the report.
Click here to download the full report: Beyond Polokwane: Safeguarding
South Africa’s Judicial Independence from the IBA’s website.
Background
The report follows a visit to South Africa undertaken by the IBAHRI in response
to a resolution entitled ‘Transformation of the Judiciary’, passed at the 52nd
National Conference of the African National Congress (ANC) in Polokwane, in
December 2007. The resolution called on the incumbent government to act upon
matters contained within two bills proposing a series of reforms to the justice
system. The Superior Courts Bill and the 14th Amendment to the Constitution Bill
were initially gazetted in December 2005 but were withdrawn from Parliament by
the President in response to fears that they would increase executive control
and influence over the judiciary. The ANC resolution in Polokwane recommended
the implementation of provisions contained within the two bills before the end
of the present term of parliament, provoking concerns from some members of civil
society and the legal profession that the bills would be re-enacted in their
original form.
The delegation held meetings with the Chief Justice and other judges of the
Constitutional Court, President of the Supreme Court of Appeal, judges of the
High Court, the Minister of Justice and representatives of the Ministry’s
Directorate-General of Operations, the Treasurer General of the African National
Congress (ANC); the Chair of the Portfolio Committee on Justice and
Constitutional Development, the Acting National Director for Public
Prosecutions, the Chief Executive Officer of the Human Rights Commission, the
General Council of the Bar, the Law Society of South Africa, Advocates for
Transformation, Mr George Bizos and former Chief Justice Arthur Chaskalson. Dated 14 July 2008
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Circular No 297/2008
