Don't touch the judges
WE LIVE in the "Time of the Vulture", a time in which cowboy capitalists, a time in which the bribing of state officials and politicians, is taken for granted by members of the old and new business elites - all in the service of securing humongous bonuses for executives.
It is a time in which the 50 million South Africans who pay some form of tax are required to subsidise the lavish spending habits and the lifestyles of the few rich and famous individuals who are milking the state dry, all in the name of either respect for the free market or for the need to restore the dignity of those who were cruelly oppressed during apartheid.
It is a time in which voters are increasingly becoming more disillusioned with corrupt and greedy councillors; dithering, self-righteous demagogues masquerading as politicians; and smarmy, rapacious and often incompetent captains of big business.
DA MP Denis Joseph recently told an ad hoc committee of the National Council of Provinces during a debate on a draft code of conduct for judges that a strong message needed to be sent to the members of the judiciary that they were not untouchable.
"Nothing stops this parliament reviewing whatever is on the table and coming up with a new package. I get the impression that the judges feel that, because there was such an agreement, it should not be touched, it should be for life. I think it's important we tell these judges [that there are] many other laws we are changing, many systems we are changing," Joseph said.
The danger is that this populist statement might find favour with the public. After all, are we not wasting money on salaries for judges, money that could be better spent on paying for textbooks and ARVs, for houses for the homeless and more free water for those who cannot afford to pay for it?
But this is a dangerous and irresponsible statement. I say so not because I am particularly fond of judges or that I think judges are beyond criticism.
When judges act in ways that conflict with the values enshrined in the constitution, when serving judges resist attempts to force them to declare their financial interests, for example, or when they interpret and enforce legislation, common law or customary law as if the Bill of Rights was never passed, when they apply the law as if male domination and heterosexism is not only accepted but required, they need to be lambasted in a vigorous manner.
Simply put, without the financial security provided by these provisions in the a ct, the independence and impartiality of the judiciary will be seriously threatened. This is why section 76(3) of the constitution states that: "The salaries, allowances and benefits of judges may not be reduced."
In De Lange vs Smuts the Constitutional Court confirmed that "a basic degree of financial security free from arbitrary interference by the executive in a manner that could affect judicial independence" was an absolute requirement for an independent and impartial judiciary. Quoting from a relevant Canadian judgment, the court stated that: "The word 'impartial' connotes absence of bias, actual or perceived. The word 'independent' reflects or embodies the traditional constitutional value of judicial independence."
It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception.
First, where parliament is legally entitled to reduce the salaries or benefits of judges, the judiciary can never be independent or impartial because the absence of financial security for judges would, at the very least, create the reasonable apprehension on the part of the public that judges will be fearful to hand down judgments that might upset the legislature or executive for fear of having their salaries and benefits cut.
In a dominant party system like ours, this problem will be exacerbated because the perception might become a reality and the majority in parliament might in fact reduce the salaries and benefits of judges to whip them into line, which would automatically bring an end to the independence and impartiality of the judiciary as judges would then be intimidated into making decisions that would not further upset the other branches of government in order to retain their salaries and benefits at a reasonable level.
Amending the constitution to scrap section 76(3) - something that would be necessary before Joseph's threats could be carried out in a constitutionally valid manner - would destroy the independence and impartiality of the judiciary and end constitutional democracy as we have come to know it in the past 18 years.
The need to quickly make lots of money to finance their retirement after they end their terms as judges would leave judges wide open to conflicts of interests during their service as they might well act cautiously so as not to alienate either the government or those in big business, for whom they would hope to do lucrative consulting work on their retirement.
In the "Time of the Vulture" I am loathe to endorse an expensive and wasteful pension scheme for anyone being paid from the public coffers. But for members of the judiciary I happily make an exception. We need to pay our judges well and look after them in their retirement. It is our insurance policy against corruption, nepotism, the flaunting of the rule of law and the abuse of power.
Given the South African context, honest, impartial and independent judges may therefore be a prerequisite for safeguarding the democratic space within which active citizens can enforce their rights and fight back against the vultures. At the price tag, the paying of pensions for life to judges is a huge bargain.
Pierre de Vos is a constitutional law expert and professor at the University of Cape Town