Click here to view the article that The Witness published about the address,
here for the article published in Cape Times,
and here for the Beeld article.
For the article published by Die Burger, click here.


Professor Christof Heyns, Dean of the Law School;

Professor Chris de Beer, Senior Vice-Principal of the University of Pretoria

Prof Antony Melck, Executive Director, University of Pretoria

Honourable Justice Phineas Mojapelo, Deputy Judge President of the South Gauteng High Court;

Distinguished Members of the Judiciary;

Excellencies from the Diplomatic Corps

Distinguished Academics;

Honoured Guests;

Legal Practitioners and Law Students;

Ladies and Gentlemen;

Dumelang!

It is a special privilege and honour for me to give this Prestige Lecture tonight. Thank you for your kind invitation.

My subject tonight is "The separation of powers and judicial independence.” This plainly raises preliminary questions as to the nature of the separation of powers under our Constitution and whether that separation provides for an independent judiciary.

South Africa is a constitutional democracy and like most other constitutional democracies it is premised on the doctrine of the separation of powers and the rule of law. The two are intertwined – the very separation of powers is achieved through law. The distinctive and separate role of the legislature, executive and judicial organs of the State are clearly spelt out in the Constitution: The executive initiates, develops and implements policies and legislation; the legislature passes laws and has an oversight role over the executive; and the judiciary upholds the Constitution and the law.

The Latimer House Principles recognise that the three branches of government “are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability.”

Although the doctrine of the separation of powers is recognised as a fundamental constitutional principle of a democratic state based on the rule of law, it is trite that no universal model for the separation of powers exists.

In dealing with the doctrine of the separation of powers, Ackermann J in Buzani Dodo v The State, reviewed the major judgments of the Constitutional Court on the issue, and concluded that the Constitutional Court has clearly enunciated that the separation of powers under our Constitution –

“(1) although intended as a means of controlling government by separating or diffusing power, is not strict;

(2) embodies a system of checks and balances designed to prevent an over concentration of power in any one arm of government; it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another; this engenders interaction, but does so in a way which avoids diffusing power so completely that government is unable to take timely measures in the public interest”.

The Constitutional Court, in other words, confirmed that in South Africa, as in other well-known constitutional designs, a bright line separation of functions between the three branches of government was never intended. Having said that it must also be noted that in order to exercise judicial power (as one of the three powers in a democratic government) this power needs to be vested in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influences.

It is important therefore to understand what judicial independence is and what is required to preserve that independence. At the outset it must be noted that there is an “agreed” definition of judicial independence and it is not the intention of this paper to formulate such a definition. Rather, as has become the norm amongst courts in common law jurisdictions over the past two decades, judicial independence is measured according to what is referred to as the “essential conditions” or “core values” of judicial independence.

In De Lange v Smuts, Ackermann J referred to the views of the Canadian Supreme Court in the Valente judgment, as a “leading” case, where three essential conditions of independence were identified “that could be applied independently and were capable of achievement by a variety of legislative schemes or formulas.” Those three essential conditions of judicial independence are security of tenure, financial security and administrative independence. Security of tenure is understood to embody as an essential element the requirement that the decision-maker be removable only for just cause, “secure against interference by the Executive or other appointing authority.”

Financial security was described in Valente as meaning security of salary or other remuneration, and, where appropriate, security of pension and “the essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence.”

The third essential condition of judicial independence identified in Valente was “institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.” In this regard the Court held that judicial control over matters such as the assignment of judges, sittings of the court and court lists as well as related matters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirements for institutional “collective” independence. The Court held further that although an increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, may well be highly desirable, it cannot be regarded as essential for institutional independence. The essentials of institutional independence, which may be reasonably perceived as sufficient were summed up by the court as “judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function”.

In the later judgment of Van Rooyen, the Constitutional Court set out to determine the appropriate test for assessing whether a court has the institutional independence required by our Constitution. The Court stated that institutional independence involved independence in the relationship between the courts and other arms of government. In assessing this relationship the High Court adopted the test used in R v Genereux, which is whether the court or tribunal ‘from the objective standpoint of a reasonable and informed person will be perceived as enjoying the essential conditions of independence.’ Chaskalson CJ agreed that the appearance or perception of independence plays an important role in evaluating whether courts are sufficiently independent. It was therefore held that in deciding whether a court was to be perceived to be independent and capable of impartially discharging its duties, an objective test properly contextualised was an appropriate test. The perception had to be one that was based on a balanced view of all the material information. The question was how things appeared to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person. Bearing in mind the diversity of South African society this cautionary injunction was of particular importance in assessing institutional independence. The well-informed, thoughtful and objective observer had to be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation made between different levels of courts.

Any discussion in reference to judicial independence must therefore start by determining whether, in any judicial system, the three essential conditions for judicial independence are present, namely security of tenure, financial security and institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.

There is no question that in so far as security of tenure and financial security is concerned, our Constitution and legislation properly gives effect to these principles of judicial independence. But there has been some controversy over the third, namely the courts’ administrative independence. That controversy has arisen from the proposals made in the Superior Courts Bill regarding the administration of the courts. In some countries, the whole administration of the courts is given to the courts – that includes the appointment of court staff, the determination and implementation of HR policies, security, transport, interpretation, transcription services, registry, libraries, etc, etc. In other countries only those matters of administration that bear directly on the exercise of their judicial functions are left to the judiciary to decide. These matters include the allocation of cases, judges, hearings, workload, court rolls etc. There is no universal model – there are various approaches to court administration. The critical issue is to ensure both perceptually and in substance that the administration of the courts by the executive does not impinge on the independent and impartial dispensation of justice. It is a matter of proper allocation and appropriate checks and balances.

These three principal measures of judicial independence however fail to include a crucial role player in securing the independence of the judiciary – namely the judiciary itself. As our late Chief Justice Mahomed so presciently noted, in his address to the International Commission of Jurists in 1998, that it was also the responsibility of judges themselves to “protect, nurture and enhance the independence and the integrity of the judiciary”. He explained it as follows:

“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power. Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”

Further to that our former Chief Justice Chaskalson, in the Van Rooyen judgment reflected on the need for respect and courtesy in the interactions between the three arms of government. He held as follows in this regard:

“In a constitutional democracy such as ours, in which the Constitution is the supreme law of the Republic, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation of powers requires that the judiciary, in its comments about the other arms of the state, show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary and one another. They should avoid gratuitous reflections on the integrity of one another.”

Our Constitution prescribes the character and calibre of, and the environment within which the judicial officer must perform this delicate role. Judicial officers must be fit and proper persons, who must broadly reflect the racial and gender composition of the South African society. The requirement of “fit and proper person” connotes persons of high competence and integrity. The integrity and ethical standards of the judiciary lies at the heart of a fair and impartial judicial system envisaged by the Constitution. The late Chief Justice, Ismael Mahomed, when addressing the Second Annual General Conference of the Judicial Officers Association of South Africa, reiterated that professional and ethical standards as well judicial temper should inform the conduct of Magistrates in the pursuit of justice. I quote from his speech:

“The ultimate power of the courts must therefore rest on the esteem in which the judiciary is held within the psyche and soul of a nation and in the confidence it enjoys within the hearts and the minds of potential litigants in search of justice. No public figure anywhere, however otherwise popular, could afford to be seen to defy the order of a court which enjoys, within the nation, a perception of independence and integrity.“

These sentiments were echoed recently by the Chief Justice, Pius Langa, when he addressed the audience at the Inaugural Lecture in Memory of the late Justice Mahomed, when he reiterated:

“It stands to reason that a weak, unprincipled judiciary will be powerless to stem a tide of human rights violations and to keep state power in check. It is accordingly in everybody’s interest that the courts should be enabled and protected so that they can do their work properly and impartially, without fear, favour or prejudice in protecting these rights. At the same time, we should demand the highest ethical standards and the utmost competence and integrity among members of the judiciary.”

The courts are not just the arbiters of fundamental rights they are themselves bound to them. Section 8(1) specifically states that the Bill of Rights binds the judiciary. This is not just a duty to apply the law but a duty to comply with it. As supremacy clause in section 2 states ‘conduct inconsistent with the Constitution is invalid.

That brings me to the issue of judicial misconduct. The core principle of security of tenure ensures that a judge can only be removed for gross incompetence or misconduct and only after the JSC has made such a finding and the National Assembly has adopted a resolution to that effect by two thirds of its members. But what constitutes misconduct and gross misconduct? What standards are expected of the judiciary? And who should do the disciplining of judges in matters that do not justify impeachment? These are difficult questions. Put more abstractly what is the relationship between accountability and independence? If there is accountability, who are judges accountable to? The proposed answer to these questions, which I believe is the proper balance between accountability and independence is: a conduct committee of the JSC made up of judges and a code of conduct against which individual judges conduct can be measured.

The relevance of the emphasis on these fundamental rights and the values they contain lies in the fact that the judiciary itself must be guided by the ethos and values that underlie an open and democratic society. The Constitution enjoins the three organs of State to work together to serve the public interest or the interest of a democratic and open society. Therefore the Supremacy of the Constitution and the rule of law form an important yard stick that guides the court in executing its judicial function. It is this yard stick that ensures that courts cautiously exercise their judicial power.

At the heart of the principle of separation of powers is a commitment to enhance democracy, increase accountability, and protect, promote and fulfill our fundamental human rights which are the cornerstone of our democracy. The common thread binding the functionaries of the three organs of State is the commitment to respect, protect and uphold the Constitution which is the pledge every public office-bearer must make before he or she assume public office. I imagine that the extent to which constitutional precepts inherent in the constitutional democracies with adequate checks and balances such as ours are applicable to the judiciary may arise in the context of the debate.

It is common cause that constitutional democracies across the globe are characterised by the inherent tension that exists between the three arms of Government as they jostle for pre-eminence. There is no common approach through which different countries have organised and managed the complex and at times contentious relationship between the three arms of government. In the judgment of Van Rooyen v the State, the former Chief Justice, the Honourable Arthur Chaskalson contended that different democracies have drawn the boundaries at different places depending on their constitutional framework and socio-political context while maintaining the universally acknowledged core principles of judicial independence as articulated in the United Nations Basic Principles on the Independence of the Judiciary. The manner and approach by which the three Organs of State manage their relationship is paramount. The Constitution and the interest of society are the primary guiding factors to be taken into account in the process of easing and normalising these tensions. The challenge presented by the delicate balance is particularly important in South Africa, where the Executive has a duty to implement policies that are necessary to transform a society which is emerging from centuries of institutionalised oppression, inequality and poverty. Our Constitution is explicit in committing all organs of State to achieve this national goal - it obliges organs of State to cooperate with another and act in mutual trust.

I thank you!