by Mike Pothier, South Africa, October 1997
THEME = JUSTICE
"In many cases, judges who served under the Apartheid regime still carry with them the baggage of the past." These recent words of Mr Dullah Omar, the Minister of Justice, can be seen as a summary of the South African judiciary - there have been, and are, good judges and bad, those who worked hard for justice, and those who were content to do the government's bidding. The arrival of democracy in South Africa has meant changes in the judiciary as well, and it is now beginning to reform itself to uphold the rights and freedoms won for the nation by the liberation struggle.
South Africa's courts are divided into two levels: the lower courts, also known as Magistrate's Courts; and the higher courts, which comprise the High Court, the Supreme Court of Appeal, and the Constitutional Court.
Magistrate's Courts deal with most criminal matters and with certain civil matters. Generally speaking, the more serious or complex cases are dealt with by the High Courts, which also have greater sentencing powers. Most large towns have a Magistrate's Court, and the cities may have as many as a dozen or more.
The High Court has thirteen divisions spread around the country, mostly in the major centres. It can hear all cases, both criminal and civil, and has sentencing powers up to life imprisonment. It also hears appeals on decisions of the Magistrate's Courts. The Supreme Court of Appeal is the highest court in ordinary criminal and civil matters, and hears appeals from the High Court. Its decisions are binding on all High and Magistrate's Courts. It sits in Bloemfontein, South Africa's judicial capital. The Constitutional Court is the highest court in constitutional matters, and its rulings bind all the other courts, including the Supreme Court of Appeal.
Apart from these, there are also some specialised courts, dealing with land, income tax, labour and family matters, as well as Chief's Courts, which have limited jurisdiction in applying customary law.
South African judges (who sit in the High Court, the Supreme Court of Appeal and the Constitutional Court) are generally highly- qualified lawyers with many years of experience in the practice of law. Recently, academic lawyers have also been appointed to the Bench. Until a few years ago, judges were all white, and with two exceptions out of about 120, all men. This has changed rapidly, and we are now beginning to see more women and more blacks appointed. Nevertheless, it will be some years before the judiciary is fully representative of the overall population. Appointments are made formally by the President, on the recommendation of the Judicial Services Commission, a body widely representative of the legal profession. Judges may be removed from office only by Parliament, and then only under certain strictly defined circumstances.
Corruption, in the sense of bribery and dishonesty, is unknown among South African judges. They are paid very generous salaries, which they continue to earn even after retirement, and even those who served the interests of Apartheid, were people of considerable personal integrity.
The situation regarding magistrates is less satisfactory. While many of them are well-qualified, a lot lack a sufficient legal background. In addition, they are civil servants, and thus part of the executive branch of the State, rather than belonging to the independent judicial branch. Apart from their judicial duties, they also have numerous administrative functions, such as issuing licenses and conducting marriages. As with judges, the majority of magistrates are white men, although this is also changing gradually.
In a formal sense, South African judges have always enjoyed independence: that is, their decisions have been free from direct political interference. However, in the past, they were appointed by the Minister of Justice, with the result that the government was able to ensure that a majority of judges were either sympathetic to its policies, or at least were not going to indulge in "judicial activism" against Apartheid. Furthermore, the allocation of cases to particular judges, was done by the Judge President of each High Court division. There are numerous examples of this system being used, to ensure that politically contentious cases were kept in the hands of judges, who were unlikely to go against the government's orders. Thus, while formal independence was maintained, the degree of substantive independence was far from ideal.
Where magistrates are concerned, as civil servants, they were subject to much more direct pressure in the past. Also, the vast majority of them were drawn from the (apartheid) government- supporting section of the population. Nevertheless, although one can find many cases of racism and biased decision-making in the Magistrate's Courts, there was not much in the way of direct interference with their work. Of course, it can be argued with justification that, if you put "reliable" magistrates and judges in place, you do not have to worry about interfering - they will perform satisfactorily anyway!
We can be confident that this situation is now a thing of the past. There is a conscious effort to reform and upgrade the Magistrate's Courts, to improve the training and qualifications of magistrates, and the manner of judges' appointments makes it unlikely that the abuses of the previous era will be repeated.
The South African Constitution makes wide provision for the rights of the accused. Access to lawyers, family and ministers of religion is guaranteed; the right to a fair trial is also guaranteed, including the right to be informed of the charge, to prepare a defence, to have a lawyer appointed at state expense where necessary, not to give self-incriminatory evidence, the right to bail, and the right of appeal. An arrested person must be brought before a court within 48 hours, and no-one may be detained without trial. In short, the criminal justice system measures up to the highest standards of human rights, and in some ways, exceeds the standards of many "civilised" nations.
Each High Court division is served by an Attorney-General assisted by numerous state advocates and public prosecutors, whose task it is to conduct the prosecution of crimes. In criminal trials, the defence is generally carried out by private lawyers, either attorneys or advocates (corresponding to the English solicitors and barristers), or by state-appointed lawyers if the accused cannot afford a private lawyer. In civil matters, the parties engage their own legal counsel.
South African lawyers are invariably university graduates, and their training is of a high standard. Many leading lawyers are renowned for their part in opposing Apartheid, and for using the law to protect victims of racist policies. On the other hand, prosecuting counsel also worked to extend the reach and effect of Apartheid, and those working for the previous government were subject to the same pressures as magistrates, as mentioned above.
The South African legal system, and the judges, magistrates and lawyers who serve it, are slowly but steadily emerging from the shadow of Apartheid. The establishment of a democracy, the adoption of a Constitution which stresses freedom, equality and human rights, and a commitment to upholding the rule of law and the independence of the judicial system, auger well for the future.
There is much reason for hope that the judiciary and the legal system as a whole, will be powerful agents for nation building and human progress in the years to come.
END