'Transforming' the judiciary

In keeping with this outlook, the ANC's Polokwane policy document on the Transformation of the State and Governance pushes for transformation of the judiciary. It calls for:

• Greater ministerial say over a more centralised (and therefore more easily manipulated) court system.
• Rule-making to be taken away from the courts and processed through a 'rule board' before being approved by the minister and Parliament.
• Greater concentration of power in the hands of the chief justice (he or she "as head of the judicial authority, should exercise authority and responsibility over the development and implementation of norms and standards for the exercise of all judicial functions, such as the allocations of judges, case and court rooms within all courts in the court system").
• The judiciary to "respect the areas of responsibility of other arms of state and not unduly encroach on these areas".

Interestingly, Zuma recently contradicted the ANC's policy when he called for the chief justice to have fewer powers: "If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at it because I don't think we should have people who are almost like God in a democracy… why are they not human beings?"

This quote is, of course, a little misleading as all Constitutional Court cases are decided by a quorum of at least eight judges (but usually all 11) through a majority ruling. Zuma must, surely, know this, which raises the question of why he is deliberately painting the picture of a justice system which is fundamentally undemocratic and which invests undue power in a particular individual.

It is equally worrying that Zuma, when asked about whether he would consider appointing Deputy Chief Justice Moseneke — who has formidable struggle credentials, including a 10-year stint on Robben Island — as chief justice, replied:

"I think I will be very sensitive (to Moseneke's abovementioned 2007 statement) and I think that this is the reason why we always say judges should know what they say. You can't just stand up and say I don't care what this ANC and it's the ruling party. You are just declaring war. Why should you say that when you are a judge?"

Any reasonable individual can ascertain that Moseneke's statement was not an attack on the ANC, but rather a statement on the impartiality of the judiciary. That Zuma fails to see this and that he implies that in order to be selected as a judge (and, indeed, the chief justice) one should be pro-ANC is very worrying.

Replacing Chief Justice Langa

Equally disingenuous, is the ANC's current obsession with the need to transform the judiciary. It is a given that the judiciary needs to meet its Constitutional imperative to "reflect broadly the racial and gender composition of South Africa. However, the transformation of the judiciary, thus far, has been remarkable.

Currently, the leadership of the judiciary is predominantly black — seven of the 11 Constitutional Court judges are black; all but one of the judge presidents are black; and the president of the Supreme Court of Appeal is black. Since 1994, almost 90 percent of judges appointed have been black and black judges make up 112 of the 205 judges countrywide.

The elevation by various lobbyists (most notably Paul Ngobeni) of Judge Hlophe as a suitable replacement for Chief Justice Pius Langa on the grounds of his race is, therefore, devious. Judge Hlophe is not any more likely than any other judge to speed up the process of transformation (in the true sense of the word, not as it is used in the Polokwane policy document) simply because he is black. Nor is there a shortage of competent black judges to choose from.

Surprisingly, for most, the South African public is not exempt from this decision-making process. Although the decision ultimately lies with the president, the Judicial Services Commission compiles a shortlist based on public submissions. South Africans have until 15 July to nominate their preferred candidate, by submitting motivational letters pointing to their candidate's qualifications and fitness for appointment.

On the next page: find out more about how Constitutional Court judges and JSC members are appointed.