lay off judges, says top legal body 
17 July 2008

Even before the “Hlophe saga”, the International Bar Association (IBA) was concerned about the level of criticism directed at the judiciary in SA .
In a report released on Monday, the international body of advocates recommended the “government, political parties and the press be temperate” in criticising judicial decisions.  This follows the judges of the Constitutional Court lodging a complaint with the Judicial Service Commission (JSC) alleging that Western Cape Judge President John Hlophe tried to interfere in matters pertaining to African National Congress (ANC) president Jacob Zuma.

The saga has since snowballed, with Hlophe lodging a counter-complaint and ANC leaders criticising some judges for being “counter-revolutionary”, among other things.The report said “the public has a legitimate interest in court decisions, which should not be immune from public debate or criticism. However, engaging in public criticism or personal attacks undermines public faith in the independence of the judiciary and the rule of law.”

The report follows a vis it by high-level delegation from the IBA to SA in May, a mission prompted by “concerns regarding potential threats to the independence of the judiciary raised by civil society, members of the legal profession and members of the judiciary in SA”.  The concerns related to bills before Parliament, including the Superior Courts Bill and the 14th amendment to the constitution. The report overwhelmingly focuses on the proposed changes in the justice system proposed by the bills.

First gazetted in 2005, the bills caused a furore because they were perceived to threaten judicial independence. As a result, President Thabo Mbeki ordered them to be withdrawn from Parliament at the end of 2006.  The report recommended that while judicial accountability was important, courts should be self-administered or at least administered by an independent agency. Furthermore, court rules should be developed by a rules board as is the case now.

However, one of the resolutions made at the ANC’s conference in Polokwane last year was to ensure the legislation was passed before the end of the present term of government.  According to the report, MPs and government officials told the delegation this was unlikely.  The delegation was assured, however, that “action would not be taken on the bills without further consultation”.

Franny Rabkin, www.businessday.co.za