Shimon Shetreet and Christopher Forsyth
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges
The Failure of Institutions: The South African Judicial Service Commission and the Hlophe Saga
This paper tells the tale of certain incidents that raise doubts about the integrity of some parts of the South African judiciary. Some such unattractive incidents are, perhaps, inevitable in any judiciary and, particularly so, in a judiciary that has undergone the sort of “transformation” the South African judiciary has undergone since the political changes of the early 1990s.
But the test of a constitution is the way in which it deals with such incidents. And here the argument of this paper is that the Judicial Services Commission, which has an unenviable role as the authority which must find that a judge has been guilty of “gross misconduct” before that judge may be removed from office, has been failing in this task. This is of profound and disconcerting consequence for the South African judiciary as a whole and constitutional government in that country.
This paper will not offer any remedy for the state of affairs. That is a matter and a test for the constitutional actors in South Africa. But it does point to the possibility that the judiciary itself will, in its own interests and the interests of the polity as a whole, insist upon the JSC adopting proper standards and disciplining errant judges. In other words that the cavalry may come to the rescue!
Before turning to the detail of this tale it will be well to maintain a sense of perspective. The almost wholly peaceful transformation of South Africa from an oppressive state in which the majority of the population was excluded from political power on racial grounds into a constitutional order with a constitution that is considered by some the most progressive in the world was an astonishing, almost miraculous, event in world history. Notwithstanding the current difficulties it is all so much better than many, myself included, expected or dared to believe possible.
The process of transformation was inevitably complicated and difficult. As Professor Hugh Corder has remarked:
[Transformation] is a process which necessitates substantial upheavals of established practices and expectations, in which there is a risk of the loss of what might have been conducive of good governance, in pursuit of systemic renewal and a greater degree of equity and justice. So this is a tale of both good and bad, of confusion and poor management in the face of uncharted territory, and of the constant tensions lingering from the wickedness of the past.
The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges, p. 46-47