Fifteen years after the adoption of the 1997 Constitution, a live debate has emerged in South Africa about the role of the judiciary. This week the Government published a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State. The developmental language returns to the emphasis on social transformation, which might be contrasted with a more rights-oriented framework. What is interesting is that the language of transformation is now being directed not with just at South Africa’s socio-economic maldistribution, but at the judiciary itself. The implication, and the view of some commentators, is that the Court has interfered with the Government’s ability to engage in social and economic transformation.
The Government grounds this exercise in Sec. 16(6) of Schedule 6 to the Constitution:
“(a) As soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)”
In this light, and as part of a broader set of judicial reforms, the Minister of Justice announced a comprehensive assessment of the impact of Constitutional Court rulings on the transformation of the state and society. The nominal idea is to look at the impact of the decisions on socio-economic conditions, and to enhance capacity for dialogue with other branches of government toward pursuing a common goal. Others believe the ultimate goal is a reduction in the Court’s powers. President Zuma seemed to imply this in an interview in which he said “How could you say that the judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court; we want to review its powers.” While the President has had to backpedal, the debate about the role of the Court and its ability to constrain Government seems to be likely to continue over the next couple years as the review proceeds.