Judge: Judicial transformation crucial

2012-10-25 12:40

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Johannesburg - Transformation of the judiciary is a human imperative in a constitutional democracy, Judge Selby Baqwa said on Thursday.

"While judicial transformation is a constitutional imperative, it is in fact a human imperative. Don't we see transformation all over the world? Don't we see transformation in the green revolution, human rights, rights of children and so on?

"You transform or you perish. We owe it to posterity," he told an Institute for Security Studies' crime conference in Sandton.

Baqwa commended the country for the progress made since 1994, but said there was still a long way to go as there were still only two female judges on the Bench of the Constitutional Court.

Effects of the past

"The fact is that the impact of our apartheid past has - can I add, also our chauvinist society - left yawning gaps in terms of training that have to be filled expeditiously and in an innovative way.

"The Judicial Service Commission (JSC) needs a credible pool from which judges have to be selected. We need to go beyond excuses that there are no suitable candidates without doing anything about it," he said.

At present there were 237 judges in the country, Baqwa said.

There were 71 black men, 27 black women, 16 coloured men, eight coloured women, 13 Indian men, 12 Indian women, 70 white men and 20 white women.

Baqwa said just 18 years ago the country had no Judicial Services Commission, Human Rights Commission, National Prosecuting Authority and Public Protector.

"It is quite obvious that change has happened and happened in a radical way. The past 18 years have been constructive and useful ones. Transformation has happened."

Supremacy of the Constitution

He said the transformation of the judiciary was underpinned by the values of the supremacy of the Constitution, the rule of law, impartiality and human dignity.

"An independent and impartial judiciary is a fundamental for the rule of law. The foundation of the principle of judicial independence rests on the idea of separation of powers between the executive, the legislature and the judiciary," Baqwa said.

He said the concept of separation of powers remained a "delicate" issue in South Africa.

"Judicial power should, of necessity, be vested in a mechanism independent of the legislative powers of government, with adequate guarantees to insulate it from political and other influences."

He said courts found themselves in the "precarious" position of having to pronounce on policy matters.
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