E Surty: First prestige lecture for 2009

17 March 2009

Professor Christof Heyns, Dean of the law school
Professor Chris de Beer, Senior Vice-Principal of the University of
Pretoria
Prof Antony Melck, Executive Director, University of Pretoria
Honourable Justice Phineas Mojapelo, Deputy Judge President of the South
Gauteng High Court
Distinguished members of the judiciary
Excellencies from the diplomatic corps
Distinguished academics
Honoured guests
Legal practitioners and law students
Ladies and gentlemen

Dumelang!

It is a special privilege and honour for me to give this Prestige Lecture
tonight. Thank you for your kind invitation.

My subject tonight is “The separation of powers and judicial independence.”
This plainly raises preliminary questions as to the nature of the separation of
powers under our Constitution and whether that separation provides for an
independent judiciary.

South Africa is a constitutional democracy and like most other
constitutional democracies it is premised on the doctrine of the separation of
powers and the rule of law. The two are intertwined the very separation of
powers is achieved through law. The distinctive and separate role of the
legislature, executive and judicial organs of the state are clearly spelt out
in the Constitution: The
executive initiates, develops and implements policies and legislation, the
legislature passes laws and has an oversight role over the executive, and the
judiciary upholds the Constitution and the law.

The Latimer house principles recognise that the three branches of government
“are the guarantors in their respective spheres of the rule of law, the
promotion and protection of fundamental human rights and the entrenchment of
good governance based on the highest standards of honesty, probity and
accountability.”

Although the doctrine of the separation of powers is recognised as a
fundamental constitutional principle of a democratic state based on the rule of
law, it is trite that no universal model for the separation of powers
exists.

In dealing with the doctrine of the separation of powers, Ackermann J in
Buzani Dodo v The state, reviewed the major judgments of the Constitutional
Court on the issue, and concluded that the constitutional court has clearly
enunciated that the separation of powers under our Constitution “ although
intended as a means of controlling government by separating or diffusing power,
is not strict, embodies a system of checks and balances designed to prevent an
over concentration of power in any one arm of government, it anticipates the
necessary or unavoidable intrusion of one branch on the terrain of another,
this engenders interaction, but does so in a way which avoids diffusing power
so completely that government is unable to take timely measures in the public
interest.”

The constitutional court, in other words, confirmed that in South Africa, as
in other well known constitutional designs, a bright line separation of
functions between the three branches of government was never intended. Having
said that it must also be noted that in order to exercise judicial power (as
one of the three powers in a democratic government) this power needs to be
vested in a mechanism independent of the legislative and executive powers of
the government with adequate guarantees, to insulate it from political and
other influences.

It is important therefore to understand what judicial independence is and
what is required to preserve that independence. At the outset it must be noted
that there is an “agreed” definition of judicial independence and it is not the
intention of this paper to formulate such a definition. Rather, as has become
the norm amongst courts in common law jurisdictions over the past two
decades,
judicial independence is measured according to what is referred to as the
“essential conditions” or “core values” of judicial independence.

In De Lange v Smuts, Ackermann J referred to the views of the Canadian
Supreme Court in the Valente judgment, as “leading” case, where three essential
conditions of independence were identified “that could be applied independently
and were capable of achievement by a variety of legislative schemes or
formulas.” Those three essential conditions of judicial independence are
security of tenure, financial security and administrative independence.
Security of tenure is understood to embody as an essential element the
requirement that the decision maker be removable only for just cause, “secure
against interference by the executive or other appointing authority.”

Financial security was described in Valente as meaning security of salary or
other remuneration, and, where appropriate, security of pension and “the
essence of such security is that the right to salary and pension should be
established by law and not be subject to arbitrary interference by the
executive in a manner that could affect judicial independence.”

The third essential condition of judicial independence identified in Valente
was “institutional independence of the tribunal with respect to matters of
administration bearing directly on the exercise of its judicial function.” In
this regard the Court held that judicial control over matters such as the
assignment of judges, sittings of the court and court lists as well as related
matters of allocation of court rooms and direction of the administrative staff
engaged in carrying out these functions, has generally been considered the
essential or minimum requirements for institutional “collective”
independence.

The court held further that although an increased measure of administrative
autonomy or independence that is being recommended for the courts, or some
degree of it, may well be highly desirable, it cannot be regarded as essential
for institutional independence. The essentials of institutional independence,
which may be reasonably perceived as sufficient were summed up by the court as
“judicial control over the administrative decisions that bear directly and
immediately on the exercise of the judicial function.”

In the later judgment of Van Rooyen, the constitutional court set out to
determine the appropriate test for assessing whether a court has the
institutional independence required by our Constitution.

The Court stated that institutional independence involved independence in
the relationship between the courts and other arms of government. In assessing
this relationship the high court adopted the test used in R v Genereux, which
is whether the court or tribunal “from the objective standpoint of a reasonable
and informed person will be perceived as enjoying the essential conditions of
independence.” Chaskalson C J agreed that the appearance or perception of
independence plays an important role in evaluating whether courts are
sufficiently independent. It was therefore held that in deciding whether a
court was to be perceived to be independent and capable of impartially
discharging its duties, an objective test properly contextualised was an
appropriate test. The perception had to be one that was based on a balanced
view of all the material information. The question was how things appeared to
the well informed, thoughtful and objective observer, rather than the
hypersensitive, cynical and suspicious person.

Bearing in mind the diversity of South African society this cautionary
injunction was of particular importance in assessing institutional
independence. The well-informed, thoughtful and objective observer had to be
sensitive to the country’s complex social realities, in touch with its evolving
patterns of constitutional development, and guided by the Constitution, its
values and the differentiation made between different levels of courts.

Any discussion in reference to judicial independence must therefore start by
determining whether, in any judicial system, the three essential conditions for
judicial independence are present, namely security of tenure, financial
security and institutional independence of the tribunal with respect to matters
of administration bearing directly on the exercise of its judicial
function.

There is no question that in so far as security of tenure and financial
security is concerned, our Constitution and legislation properly gives effect
to these principles of judicial independence. But there has been some
controversy over the third, namely the courts administrative independence.

That controversy has arisen from the proposals made in the superior courts
bill regarding the administration of the courts. In some countries, the whole
administration of the courts is given to the courts that includes the
appointment of court staff, the determination and implementation of
Human Resource (HR) policies, security, transport, interpretation,
transcription services, registry, libraries etc.

In other countries only those matters of administration that bear directly
on the exercise of their judicial functions are left to the judiciary to
decide. These matters include the allocation of cases, judges, hearings,
workload, court rolls etc. There is no universal model there are various
approaches to court administration. The critical issue is to ensure both
perceptually and in substance that the administration of the courts by the
executive does not impinge on the independent and impartial dispensation of
justice. It is a matter of proper allocation and appropriate checks and
balances.

These three principal measures of judicial independence however fail to
include a crucial role player in securing the independence of the judiciary
namely the judiciary itself. As our late Chief Justice Mahomed so presciently
noted, in his address to the International Commission of Jurists in 1998, that
it was also the responsibility of judges themselves to “protect, nurture and
enhance the independence and the integrity of the judiciary”.

He explained it as follows: “the independence of the judiciary and the
legitimacy of its claim to credibility and esteem must in the last instance
rest on the integrity and the judicial temper of Judges, the intellectual and
emotional equipment they bring to bear upon the process of adjudication, the
personal qualities of character they project, and the parameters they seek to
identify on the exercise of judicial power. Judicial power is potentially no
more immune from vulnerability to abuse than legislative or executive power but
the difference is this: the abuse of legislative or executive power can be
policed by an independent judiciary but there is no effective constitutional
mechanism to police the abuse of judicial power.

It is therefore crucial for all judges to remain vigilantly alive to the
truth that the potentially awesome breath of judicial power is matched by the
real depth of judicial responsibility.

Judicial responsibility becomes all the more onerous upon judges
constitutionally protected in a state of jurisprudential solitude where there
is no constitutional referee to review their own wrongs.”

Further to that our former Chief Justice Chaskalson, in the Van Rooyen
judgment reflected on the need for respect and courtesy in the interactions
between the three arms of government. He held as follows in this regard:
“In a constitutional democracy such as ours, in which the Constitution is the
supreme law of the Republic, substantial power has been given to the judiciary
to uphold the Constitution.

In exercising such powers, obedience to the doctrine of the separation of
powers requires that the judiciary, in its comments about the other arms of the
state, show respect and courtesy, in the same way that these other arms are
obliged to show respect for and courtesy to the judiciary and one another. They
should avoid gratuitous reflections on the integrity of one another.”

Our Constitution prescribes the character and calibre of, and the
environment within which the judicial officer must perform this delicate role.
Judicial officers must be fit and proper persons, who must broadly reflect the
racial and gender composition of the South African society. The requirement of
“fit and proper person” connotes persons of high competence and integrity. The
integrity and ethical standards of the judiciary lies at the heart of a fair
and impartial judicial system envisaged by the Constitution. The late Chief
Justice, Ishmael Mahomed, when addressing the Second Annual General Conference
of the Judicial Officers Association of South Africa, reiterated that
professional and ethical standards as well judicial temper should inform the
conduct of magistrates in the pursuit of justice. I quote from his speech:

“The ultimate power of the courts must therefore rest on the esteem in which
the judiciary is held within the psyche and soul of a nation and in the
confidence it enjoys within the hearts and the minds of potential litigants in
search of justice. No public figure anywhere, however otherwise popular, could
afford to be seen to defy the order of a court which enjoys, within the nation,
a perception of independence and integrity.”

These sentiments were echoed recently by the Chief Justice, Pius Langa, when
he addressed the audience at the Inaugural Lecture in Memory of the late
Justice Mahomed, when he reiterated:

“It stands to reason that a weak, unprincipled judiciary will be powerless
to stem a tide of human rights violations and to keep state power in check. It
is accordingly in everybody’s interest that the courts should be enabled and
protected so that they can do their work properly and impartially, without
fear, favour or prejudice in protecting these rights. At the same time, we
should demand the highest ethical standards and the utmost competence and
integrity among members of the judiciary.”

The courts are not just the arbiters of fundamental rights they are
themselves bound to them. Section 8(1) specifically states that the Bill of
Rights binds the judiciary. This is not just a duty to apply the law but a duty
to comply with it. As supremacy clause in section two states “conduct
inconsistent with the Constitution is invalid.

That brings me to the issue of judicial misconduct. The core principle of
security of tenure ensures that a judge can only be removed for gross
incompetence or misconduct and only after the Judicial Services Commission
(JSC) has made such a finding and the National Assembly has adopted a
resolution to that effect by two thirds of its members. But what constitutes
misconduct and gross misconduct? What standards are expected of the judiciary?
And who should do the disciplining of judges in matters that do not justify
impeachment? These are difficult questions. Put more abstractly what is the
relationship between accountability and independence? If there is
accountability, who are judges accountable to?

The proposed answer to these questions, which I believe is the proper
balance between accountability and independence, is: a conduct committee of the
JSC made up of judges and a code of conduct against which individual judges
conduct can be measured.

The relevance of the emphasis on these fundamental rights and the values
they contain lies in the fact that the judiciary itself must be guided by the
ethos and values that underlie an open and democratic society. The Constitution
enjoins the three organs of State to work together to serve the public interest
or the interest of a democratic and open society. Therefore the supremacy of
the
Constitution and the rule of law form an important yard stick that guides the
court in executing its judicial function. It is this yard stick that ensures
that courts cautiously exercise their judicial power.

At the heart of the principle of separation of powers is a commitment to
enhance democracy, increase accountability, and protect, promote and fulfil our
fundamental human rights which are the cornerstone of our democracy. The common
thread binding the functionaries of the three organs of State is the commitment
to respect, protect and uphold the Constitution which is the pledge every
public office-bearer must make before he or she assume public office. I imagine
that the extent to which constitutional precepts inherent in the constitutional
democracies with adequate checks and balances such as ours are applicable to
the judiciary may arise in the context of the debate.

It is common cause that constitutional democracies across the globe are
characterised by the inherent tension that exists between the three arms of
government as they jostle for pre-eminence.

There is no common approach through which different countries have organised
and managed the complex and at times contentious relationship between the three
arms of government. In the judgment of Van Rooyen v the state, the former Chief
Justice, the honourable Arthur Chaskalson contended that different democracies
have drawn the boundaries at different places depending on their constitutional
framework and socio-political context while maintaining the universally
acknowledged core principles of judicial independence as articulated in the
United Nations Basic Principles on the independence of the judiciary.

The manner and approach by which the three organs of state manage their
relationship is paramount. The Constitution and the interest of society are the
primary guiding factors to be taken into account in the process of easing and
normalising these tensions. The challenge presented by the delicate balance is
particularly important in South Africa, where the executive has a duty to
implement policies that are necessary to transform a society which is emerging
from centuries of institutionalised oppression, inequality and poverty. Our
Constitution is explicit in committing all organs of State to achieve this
national goal it obliges organs of State to cooperate with another and act in
mutual trust.

Thank you!

Issued by: Department of Justice and Constitutional Development
17 March 2009
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za/)