Thulo Hoeane
IN THE good old days when the judiciary in this country was above reproach, there were judges like Justice Peter Mofokeng, Justice Baptista Molai and a host of other expatriate judges such as Justice Cortran and Justice Peter Brendan Cullinan to name only a few.
That was then. In those days the courts started their business of the day on time. The court rolls were always congested and on any given day judges were to be found in court rooms doing the right thing. Hearing and adjudicating over matters before them.
It was a pleasure as a young practitioner to appear before judges who exuded professionalism and a work ethic second to none. That was the High Court that I came know and it filled me with satisfaction to call myself a lawyer. That breed of judges preached what they practiced and were role models for all up-and-coming and seasoned professionals alike.
The routine and indolent postponement of cases – sometime for periods of up to 18 months for no reason at all – was unheard of. The practice of judges to deliver judgements timeously simply came with the territory. Judges heard matters, delivered judgements and there was no such thing as a backlog in the courts.
Judges were guided by their consciences to attain the highest standards of professionalism and led by example. That breed of judges needed no oversight and were fully accountable to the taxpayer for delivering quality services.
People had confidence in the courts and any form of criticism was unheard of because the judiciary was not in the business of attracting negative publicity to itself. That professional approach to their work earned them the requisite dignity and respect that is a given in this profession. We have come a long way since those days.
Judicial independence was guaranteed as it is today. Judges like today were not accountable to the executive in the day – to – day execution of their duties. But at the close of business judges could still be held accountable by the executive if they strayed from their professional obligations and got entangled in less professional pursuits.
But it was simply unheard of for judges to be involved in any misdemeanors or even to be associated in the remotest manner with anything below the radar of decency and professional etiquette. The likes of impeachment that we hear of in this God forsaken era were never on the agenda.
Judicial independence has thus existed from time immemorial but with a rider that it is not mutually exclusive of judicial accountability. Let me unbundle all this for you so that we remain on the same page.
Just because judges have the professional prerogative to decide cases as they please in line with the dictates of the law does not entitle judges to be above the law.
The executive has and will always have the necessary political oversight role to play over the judiciary in the event that the need arises and the judiciary falls foul of the constitution. Judicial independence cannot and must not be abused to elevate judges beyond the reach of executive oversight and administrative control.
That the executive has this oversight role must never be mistakenly understood to translate into a narrative that therefore the independence of the judiciary is compromised if it is administratively accountable to the judiciary.
At a practical level therefore it is untenable for anyone to argue that if the government feels that something is not right in the judiciary it should just fold its arms because the judiciary is supposed to be an independent entity. The independence of the judiciary is strictly confined to its professional role and is therefore not unlimited.
The government has an obligation to the tax payers of this country to fully account for the professional functioning of every institution and arm of the state. No one is above scrutiny and if need be the government has to step in and crack the whip.
The conventional and sometimes denialist approach these days is that the government is interfering with the judiciary when it rightly calls upon the judiciary to account for the crises that this institution finds itself in today.
In other words what this trajectory of thinking seeks to justify is that, notwithstanding the realisation that the judiciary is broken somewhere and has to be fixed as a matter of urgency, the government must just fold its arms and pretend that it is business as usual in our courts.
The government would be abdicating its constitutional responsibility if it did not intervene. In any event this intervention has the backing of the constitution and is not just the naked exercise of executive power.
It is flawed to argue that the Prime Minister by invoking powers granted by the constitution is interfering with the judiciary. Taken a step further, this misplaced line of thinking would lead to the undesirable situation where the judiciary could behave as it pleases outside the parameters set out for its professional obligations.
The Prime Minister is at the end of the day the ultimate elected representative of the people. And if the people cry foul over the appalling state of affairs that we are now seeing choking the administration of justice to death in this country he will – as he is doing now – call on the Chief Justice to account fully for what is going on.
Judicial independence is certainly not above but operates under the umbrella of judicial accountability. Judges are administratively accountable to the government of the day and the issues the Chief Justice is embroiled in are administrative matters which are the prerogative of the government to address.
