The Hanns Seidel Foundation co-hosted the roundtable on the above topic, where the speakers were Associate Professor Richard Calland of UCT’s Democratic Governance and Rights Unit, and Mr John Jeffery, Deputy Minister of Justice and Constitutional Development (left).
The essence of the question was whether the judiciary could be regarded as truly independent – as the Constitution requires – if it does not control all aspects of how the courts are run. Clearly, if the executive branch of government is able to exert even indirect control or pressure over judges by, for example, depriving them of sufficient research staff or limiting their access to international journals, conferences, etc., this would constitute an infringement on the independence of the courts.
Prof Calland (right) suggested that there are three broad models to be considered. Firstly, full autonomy, in terms of which Parliament would allocate an annual budget, requested by the judiciary, which would cover all the costs of running the courts, including staff, maintenance, resources and operational costs. Secondly, semi-autonomy, in which some basic administrative and maintenance functions would reside with the executive. Thirdly, no autonomy, in which only the strictly judicial functions, such as court procedure and decisions, would rest with the judges. Unsurprisingly, most jurisdictions follow a version of the second model.
Deputy Minister Jeffery, while agreeing that the courts should have sufficient autonomy to allow them to operate fully independently, argued that it would be inappropriate for judges to concern themselves with physical maintenance of the courts, with labour disputes arising from staff issues, or with minor financial/administrative issues. They were not trained for these functions, and they would occupy too much valuable time.
In addition, the Deputy Minister pointed out two more substantial objections to the full autonomy model. Firstly, it would involve the heads of court having to account to Parliament for their budget, leading to a possibly inappropriate ‘grilling’ of judges by MPs – something that is not in line with the separation of powers. Secondly, if the public was dissatisfied with some aspect of court administration or performance, it would have to bring its complaints directly to the judges. Again, this would involve judges in unseemly disputes, and potentially harm the dignity of the courts.
The discussion did not reach any particular point of finality, but did succeed in raising and airing the complexities of the situation. Perhaps, if there were a constitutional challenge to the Superior Courts Act, more certainty would be achieved.