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Khaya Sibeko

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The Judiciary And Society

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Since the advent of the democratic dispensation, there has been no legal battle between the state and a civilian that has captured, with authority, and has saturated itself into the national consciousness other than the Jacob Zuma/ National Prosecuting Authority saga. To make all more interesting it started way back in 2003. The case’s ability to generate such public interest stems from the fact that it carries with it implications that have and will continue to reverberate beyond the corridors of justice. The JZ/NPA episodes have become, in their own little, a pedagogue into the complexities and technicalities of the judicial sector of the country. A functioning and effective judiciary is, in essence, although not absolute in its nature, the corner stone of a constitutional democracy. The independence of the judiciary is non negotiable, this was agreed upon at the negotiations settlements in 1991 at the Convention of a Democratic South Africa (CODESA). The separation of powers of the judiciary, legislation (parliament), and the executive ( cabinet) was designed in such a manner that we didn’t have to find ourselves replicating the deeds of the previous regime, whose courts were at the mercy of the executive which was, needless to say, prejudice towards others. It’s for this reason that our judiciary adhere to guides provided by our Constitution. In fact the relationship between our Courts and the Constitution is one based on reciprocity. In his delivery of the inaugural memorial lecture of the late Justice Ismael Mahomed, Chief Justice Pius Langa eloquently summarized the existing reciprocity when he said: “Courts are constitutionally bound to ensure that fundamental rights are protected and promoted. Indeed, all persons are entitled to the protection afforded by the law against unlawful invasions of their rights.

Put another way, if the rule of law is eroded through actions that threaten to compromise the integrity of the judiciary and judicial process, all constitutional rights and freedoms are undermined”. Access to justice is more than one’s ability to enter a court building without discriminatory impediments; in fact the physical access is merely the first step in a process of one being able to have their disputes and grievances legally arbitrated and thereby receiving favorable outcomes where they are warranted as prescribed in the constitutionally enacted laws. Another contentious issue in the accessibility of justice in South Africa is the financial implications attached to the litigation process. Such implications already place those without the financial muscle at a disadvantage. It’s well known that finance places people at a better position of acquiring credible service, not only in the legal fraternity but the entire public service. The government has tried through its Legal Aid Board scheme to assist those who can not afford to pay for their fees, but the very fact that it’s failing to attract the most sought after and astute legal brains, is indicative that justice for those people who are at the periphery of the economy will remain, at least for now, a pipe dream. Since the majority of South African are crowded at the poorer strata of our society and therefore can’t receive the best services legally, how adversely will their lack of faith in the judicial process dent the reputation of the Courts? And can the Courts remain the safe guiders of their human rights, when the same Courts are perceived as impotent?

As far as the criminal justice is concerned, the Courts are the last leg in the achievement of justice. The criminal justice machinery includes the police force and the prosecutors. If the police do not conduct their duty diligently as per their job description then the prosecutors, who are the ones who have to go to court and argue the case, will stand a very minimal chance of winning the case. And every time prosecutors lose cases due to lack of evidence, a picture of a judiciary that favors criminals is painted because the greater public usually does not know that the burden of proof lies with the state in such cases. Until the components of the criminal justice system, which is about to under go a overhaul, function in a synchronized fashion then criminal will always walk out free based on technicalities.

HIERACHY OF THE JUDICIAL POSTURE

The positioning of the various courts in South Africa was designed in a way that makes it an almost certainty that there is justice that is seen to be done from the rural areas right up to the most sophisticated and urbanized of our surroundings. The Constitutional Court: It’s the acme of judicial expression in South Africa. It hears cases relating to the violation of rights contained in the Bill of Rights. Cases can not be brought to the court in their first instance. It’s composed of 11 Judges who are called Justices. At the helm currently is Chief Justice Pius Langa, who succeeded Arthur Chaskalson, whose tenure ends in September this year. He is assisted by 10 other associate Justices and the most recent to join the court is Justice Edwin Cameron. The court is seated at the Constitutional Hill in Johannesburg. The Supreme Court of Appeals: The SCA is situated in Bloemfontein which is the judicial capital of the country. It has the powers to reverse or cement judgments made in the lower courts. It’s the ceiling point to cases not related to any constitutional contentions. One of the most recent pronouncements was in the appeal laid by the NPA against the judgment of Judge Nicholson, involving Jacob Zuma. It is headed by Judge President E.T Howie and Deputized by L. Mpati. The Supreme/High Court: The High Court has the jurisdiction to hear any kind of matter. The court is divided in a Local and Provincial Division respectively. There are High Courts in Bisho, Bloemfontein, Cape Town, Durban, Grahamstown, Kimberly, Mmabatho, Pietermaritzburg, Thohoyandou, Mthatha, Johanessburg (Local Division) and Pretoria (Provincial Division).

The Magistrates Court: Currently there are more than 400 Magistrates Courts. This is largely because such courts are mainly the first places where people with ‘serious’ disputes actually go for legal arbitration. The courts are divided into 2 parts namely; the District and Regional magistrates’ courts. The magistrates’ courts do not hears matters relating to murder, rape and treason. The courts are allowed to hears disputes that do not exceed R100 000. Other organs of Justice: The Public Protector, SA Human Rights Commission, Equality Courts and Small Claims Court. The Courts continue in their quest to deepen the sense of constitutional supremacy and justice for the deserving. It’s an undeniable fact that this important branch of our democracy has a long way to go in remedying the ill of society but at the same time it should be respected and approached with dignity. It, the judiciary, is the protector of those in our society whose worth has become trinket in the eyes of those who profess to know better than the prosaic masses. It’s through our Courts that the rights and dignity of lesbians and gays are today recognized and therefore enjoy the same liberties that are afforded to married couples of heterosexual community. The people of Phiri, in Soweto, were denied their right to water and instead the City of Johannesburg sought to place vulgar commercial enterprise at their expense but the Courts came to their aid because they realized the necessary role of water and pronounced in the community’s favor.

Even though the case is up for appeal now, it was a stern warning to other municipalities wanting to follow in that route. South Africans living abroad are on the verge of being able to exercise their right to vote in the forth coming election, and for that they can thank the mature manner at which our Courts are able to decide on fundamentals of a democratic state. The Courts have not shied away from making unpopular judgment. Where else in Africa but in South Africa can a Court rule against the president of a ruling party that is virtually assured of victory in a for coming general election, such moves are indicative that our Courts do not cower at the presence of intimidation however grand it might be. However controversial the decision might be at times, ours is a judicial process which understands its imperative position in the enhancement of an inclusive and credible constitutional democratic nation. Our government should be constantly challenged every time it makes choices that do not resemble the mandate it receives every 5 years from the greater populous. Criticism leveled against the judiciary must be of a constructive nature and not personal attacks, similar to the ones that have been playing themselves out in our public domain by amongst other the leadership of the ruling party. The Chief Justice says this of judicial criticism: “… Thus, while judges are by on means above reproach, any criticism leveled at the judiciary and the manner in which it conducts its affairs must be done in good faith and not in a manner that subverts the values of our Constitution”. Happy Human Rights Month.

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