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Did the South African judiciary hold its own in 2021?

FILE – The judiciary was able to hold its own this year, says the writer. 01.03.16. Deputy Chief Justice Moseneke and Cheief Justice Mogoeng at the Constitutional Court. File photo: Nokuthula Mbatha/African News Agency (ANA)

FILE – The judiciary was able to hold its own this year, says the writer. 01.03.16. Deputy Chief Justice Moseneke and Cheief Justice Mogoeng at the Constitutional Court. File photo: Nokuthula Mbatha/African News Agency (ANA)

Published Dec 18, 2021

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OPINION: Access to justice remains a thorny issue in South Africa. Although it is not stated in the Constitution, it is one of the values the Office of the Chief Justice (OCJ) aspires to. We hope that the new chief justice will continue to ensure the independence of the judiciary, writes Zelna Jansen.

Section 165 of the Constitution states that the judicial authority vests in the judiciary and that the courts are independent and subject only to the Constitution and law.

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The judiciary must also apply the Constitution and the law impartially, without fear, favour, or prejudice and without interference from any organ of state. These laws can be used as a marker or indication of how the judiciary performed in 2021.

The judiciary is a separate branch of government. The executive and the legislature are elected every five years and are appointed by political parties on a proportional representation system. The party that wins the most votes governs the country and will have majority vote in decisions adopted in the legislature.

However, the Constitutional Court (Concourt) in New Nation Movement v the President (2020), ordered that the Electoral Act of 1998, is unconstitutional as far as it prohibits independent candidates to contest elections in national and provincial elections. The Electoral Act is in the process of being amended to reflect this judgment.

Judges, on the other hand, are appointed on recommendation by the Judicial Services Commission (JSC) with the exclusion of the chief justice, who is appointed by the president. It is interesting to note that the JSC, when it convenes to interview and recommend judges, its commissioners consists of: a chief justice; president of the Supreme Court of Appeal; judge president; a Cabinet member responsible for Justice; two practising advocates, two practising attorneys, a teacher of law; six members from the National Assembly, of which three must be opposition; four permanent delegates from the National Council of Provinces (NCOP); and four persons designated by the president as head of the National Assembly. At least 11 out of the 23 commissioners of the JSC will be members of the ruling party.

Two significant cases can be used to determine whether the judiciary acted independently and applied the law impartially and without fear or favour or prejudice.

The Concourt, in the Secretary of the Judicial Commission of Inquiry into Allegations of Sate Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Zuma, illustrates how complicated it is to apply laws. There was much discussion about what to do as Zuma, despite being afforded several opportunities to attend the Zondo Commission and then eventually explain to the Concourt why there was a failure to attend and then to give evidence on what sentence the Concourt should give. The Concourt, in a seven to two majority judgment, ordered that the former president be imprisoned for a period of 15 months.

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The former president made an application in a lower high court to stay the Concourt order as well as an application to the Concourt to rescind its order. This was followed by looting and illegal protests in July in KwaZulu-Natal and Gauteng. In the end, the former president complied with the order and submitted himself to authorities. Faced with enormous pressure, the Concourt did not swerve from its judgment and remained independent and applied the law without fear.

In September, the Concourt dismissed an application by the Independent Electoral Commission of South Africa (IEC) to have the local government elections postponed. In June, the IEC conducted an inquiry into whether the local government elections scheduled for October 27 would be free and fair and if not, whether elections should be postponed? This led to several stakeholders being invited to submit comments and later broader public engagement. The IEC gave itself a few months to decide. It announced its decision in August, to make an application to the Concourt to order that the elections be postponed. The Concourt ordered that it did not have the authority to postpone the elections. It ordered that the IEC conduct the elections as stipulated in the Electoral Act and create opportunities for voters to register. This yet again illustrates that despite being pushed into a corner, the Concourt applied the law objectively and impartially. Civil society criticised the IEC for rushing the process. The IEC should have followed a process of amending the Electoral Act.

The two cases make a case for the judiciary having upheld the Constitution and the law as well as acting independently, without interference, and applied the law impartially and without fear, favour, or prejudice.

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However, access to justice remains a thorny issue in South Africa. Although it is not stated in the Constitution, it is one of the values the Office of the Chief Justice (OCJ) aspires to.

The chief justice is the head of the Concourt and the judiciary.

We hope that the new chief justice will continue to ensure the independence of the judiciary and do more to ensure that there is access to justice by the poor and most vulnerable.

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* Zelna Jansen is a lawyer. She is CEO of Zelna Jansen Consultancy.

** The views expressed here are not necessarily those of IOL and Independent Media.

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