The impact and the effect, of the management and control of judges by the executive on the independence of the judiciary.
Womack, Anna Johanna Catharina.
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The independence of the judiciary is not only crucial for the legal community, but for all South Africans, including the business community. It is important for local and foreign investment to have confidence that the judiciary will protect and enforce their interests. It is submitted that if the independence of the judiciary is undermined in South Africa, not only will the judiciary be affected but so will the broader business community. The aim of this study is to determine what effect legislative and executive interference in managing the judiciary, through its human resource processes (such as selection, training and discipline of judges) as well as through its finances and court administration, has had on the independence of the judiciary. In recent years there has been an increased interest in the activities of the judiciary and an increase in the criticism of its members. This has resulted in the executive proposing amendments to legislation which, in turn has resulted in the ongoing debate in legal circles about the impact of these measures on the independence of the judiciary. The concern is that the proposed measures will enable the executive to further encroach upon the judiciary and undermine its independence. Consequently, members of the judiciary, academics, members of the bar council and the side bar have objected strongly to the proposed legislative changes. The purpose of this case study is to explore the extent to which the executive has already interfered with, and proposes to further interfere with judicial personnel and the functioning of the judiciary. A further purpose is to establish what effects the aforesaid political interference has had on the independence, the efficient and effective functioning of the judiciary. It is hoped to determine whether the proposed legislative and executive measures will remedy the perceived judicial inefficiencies through holding members more accountable or whether they will compound the problems that already exist. In pursuit of this broad aim the research takes a grounded, theory-generating approach. The foundation of the research design is a combination of the use of the literature surveyed in Chapter Two together with the responses to the survey questionnaires and the answers to the interview questions from judges of the various superior courts of South Africa. The South African judiciary presently comprises of the Constitutional Court, the Supreme Court of Appeal and 13 divisions and local divisions of the High Court situated in Bisho (Ciskei); Bloemfontein (Orange Free State); Cape Town (Cape of Good Hope Division); Durban (Durban and Coast Local Division); Grahamstown (Eastern Cape); Johannesburg (Witwatersrand Local Division): Kimberley (Northern Cape); Mmabatho (Bophuthatswana); Pietermartizburg (KwaZulu-Natal); Port Elizabeth (South Eastern Cape Local Division); Pretoria (Transvaal); and Thohoyandou (Venda). A dual approach using two types of research instruments, namely the survey questionnaire and the interview questionnaire, was used. In 1999 only two of the ten Constitutional Court judges were women (Sally Baden, Shireen Hassim and Sheila Meintjes, 1999). At that time there were only two female judges in the Labour Court and one in the Land Claims Court. Also, of the total of 186 judges, at the time, 156 were white males, 20 were black males, 7 were white women and 3 were black women. However, the racial and gender composition of the judiciary has changed dramatically since then (Seedat, 2005, page 5) and (Lewis, 2008, page 1). No random sample was taken, due to the small population size of the judiciary and it was feared that it would further reduce the response rate. Both research instruments (the survey questionnaire and the interview schedule of questions) were sent to the entire population of judges, which at the time that the study was conducted, consisted of 213 judges in total. The main source of data was obtained from the research questionnaire developed by the researcher. This was posted to each of the respondents, together with a self-addressed envelope. The aforesaid data was obtained from the semi-structured face to face (alternatively telephonic) interviews conducted with the respondents, who were willing to participate and agreed to be interviewed. Amongst the judges surveyed and interviewed some were current judges, some were retired judges and some were acting judges, of the various superior courts (the interview questionnaire was also developed by the researcher), all of whom were spread across the whole of South Africa. Due to distance and time constraints, a number of the judges agreed to be interviewed telephonically instead of face to face, which saved the researcher a great deal of expense, with regards to travelling and accommodation. The constant comparative method of qualitative analysis was used. Data reduction was carried out in three stages, each representing a progressively higher level of theoretical abstraction. The findings of the research are expressed as an integrated theory and a series of propositions, generalized within the boundaries of the study, relating legislative and executive interference with the judiciary and what the impact and effect these have had on the independence of the judiciary. The conclusions may be summarized in four statements. Firstly, there is political interference with the personnel of the judiciary, through the Judicial Service Commission being involved in the judicial selection and disciplinary processes. This has negatively impacted on the efficient functioning of the judiciary. Secondly, the judiciary has transformed and no further political inference is necessary to bring about transformation of its structures or its functioning. Thirdly, there is executive interference, by the Department of Justice, with the judiciary's finances and court administration, which has negatively impacted on the efficient functioning of the judiciary. Fourthly, the proposed judicial bills are an unnecessary intrusion and, if enacted, will increase the executive's power over the functioning of the judiciary, further undermining its independence and possibly eventually leading to its complacency. This will have adverse consequences for all South Africans, including the business community, as local and foreign investor confidence in the South African judiciary's ability to protect and enforce their rights. In light of the aforesaid, the recommendation is that all forms of political interference with the judiciary should be removed and that the legislature and the executive should support the judiciary and protects it from judicial criticism. The legislature and the executive should take steps where necessary to remedy the abovementioned, for example to correct the imbalances in the composition of the Judicial Service Commission and allow the judiciary to control its own internal processes thereby ensuring that it functions efficiently and independently.