Let’s continue to build a strong, resilient judiciary that will stand test of time
By Kwena Manamela
Though law is an interesting career, the realm of law raises several interesting scenarios while the legal profession is under scrutiny.
For example, an attorney may today represent the State but tomorrow represent a client against the State. Simply put, a lawyer may represent an accused as much as a complainant. A legal officer takes instructions from an alleged thief, murderer, hijacker, burglar among others and their complainants thereof.
As we are introduced to the doctrine of law and the golden rule of innocent until proven guilty, the constitution distinguishes the three organs of state as the executive, legislature and judiciary. Though these organs of state are independent, they are also interdependent.
They are like the three legs of a pot wherein without one the State is incomplete or dysfunctional. The three operate separately, that is independently, but with an element of checks and balances or interdependency.
South Africa’s organs of state are fashioned such that they are pillars of our democracy, owing to years of human rights abuse, trampling on rules of natural justice and the apartheid rule. The country comes from a past where people were arrested without trial, bail, and even not appearing before any court until their release.
It is common knowledge that prior to 1994, South Africa’s justice system was meant to serve only 20% of the population while post-1994, there was one Department of Justice established to serve 100% of the population.
As our democracy matures, the judiciary has been highly stretched and tested, with individuals and organisations questioning its independence, impartiality, morality and ethics. Further that there are allegations that judges can be bribed to deliver a preferred verdict at the expense of justice with the sacrosanctity of the judiciary even called into question.
Information brought before the Judicial Commission of Inquiry into Allegations of State Capture, corruption and fraud in the public sector, including organs of state, headed by Deputy Chief Justice Raymond Zondo, contains allegations that the State Security Agency (SSA) offered bribes to some judges.
Allegations that there were bribes towards arriving at a particular outcome at the ruling party’s 2017 elective conference needs to be formalised by those who are privy to the matter through evidence or further information.
Former Justice of the Federal Constitutional Court of Germany Professor Dieter Grimm describes judicial independence as, “the constitutional safeguard against the threat arising from politicians to the judges’ proper exercise of their function”. Grimm says also, “it is directed against attempts to induce judges not to apply the law but to bend to political expectations”.
As the country observes Human Rights month, let us continue to build a strong and resilient judiciary that will stand the test of time, jurisprudence and the doctrine of law. A judicial system that will stand out against its peers in the world for the sake of a united, non-racial, democratic and prosperous South Africa.
Addressing the Cape Law Society in November 2012, the late chief justice of South Africa Arthur Chaskalson said: “The independence of the judiciary and legal profession are central pillars of our constitutional democracy, and that we should be astute to ensure that there is no erosion of these fundamental principles.”
* Kwena Manamela is an author and social commentator.
** The views expressed here are not necessarily those of The Sunday Independent or IOL.