News24

Judge: Judicial transformation crucial

2012-10-25 12:40

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.

Comments
  • ant.duke - 2012-10-25 12:49

    Makes sense...

      claudia.meads - 2012-10-25 13:47

      Always interesting to see how those living in the past are the loudest proponents of 'CHANGE' (or its convenient euphemism - "TRANSFORMATION"). I would propose that the foremost need for 'transformation' (in SA) is for the likes of Judge Baqwa to 'transform' themselves out of the past, at least into the present, then for the first time in their lives look at the FUTURE... For at this moment in time, the one thing that SA most certainly ‘have’ the greatest shortage of, is a F_U_T_U_R_E.., your honour... alicia.myburgh.65, Absolutely.., let us not be deceived by the dance of the puppets, rather be watchful of the ‘spear’ of the puppeteer...

  • stevie0064 - 2012-10-25 12:54

    Lip service. The only reason anyone "transforms" anything is because of arbitrary public perception. How does 'race/gender representation' directly contribute to the separation of powers? Or impartiality?

  • rob.gunning.1 - 2012-10-25 12:57

    so.. get it done

  • parys.fotograaf - 2012-10-25 13:05

    The only thing crucial things are this: All judges should act under their oath To take the bench the person should leave the BAR Judges should use common law and all statute must be in line with common law. Only truth must be heard and seen in court( I dare you to do that one)

  • Jeremy - 2012-10-25 13:05

    I agree that the playing field needs to be levelled so that everyone, regardless of race and sex, has the opportunity to make the best of themselves. However, ultimately, being a very senior person in a very specific highly qualified job, whether it be judge, pilot, accountant, doctor or whatever, should depend on a person's ability, not their race or sex. If I'm flying at 30 000ft in a commercial jet, I'm not interested in transformation or BEE. All I want to be sure of is that the pilot is qualified and capable. And the same with any of the others...

      BigChiefPlumbPudding - 2012-10-25 13:27

      Exactly. But this does not fit well in the African agenda.

  • jannie.kotze.7 - 2012-10-25 13:13

    Not merit, but skin colour is the norm. This is the end of the road for civilized South Africa. Stuff you and your AA, EE, BEE, BBBEE, QUOTAS, TRANSFORMATION ETC. ETC.

  • luke.dekoker - 2012-10-25 13:21

    Judge Baqwa how many more years do you lot want to get something right?? Apartheid was abolished even before 1994, so why blame it?? rather look at your anc buddies for ALL Failures in South Africa.

  • Vince.York - 2012-10-25 13:43

    Courts must pronounce on policy matters in advance not retroactively, and quite correct transformation in line with humanity - not a narrow minded retributive racist stance! Be an equal officiating Judiciary for us ALL without bias - WE are your South Africans.

  • majwarha.balakisi - 2012-10-25 13:45

    @Jannie.kotze.7. Stuff you and your Afriforum, Solidarity, FF and DA

  • johann.enslin.9 - 2012-10-25 14:06

    Supremacy of the constitution and transformation in the same sentence?

      thando.ramncwana - 2012-10-25 16:38

      Redressing past imbalances in part of our constitution

  • Karel du Toit - 2012-10-25 14:44

    exactly what was the goal of this article?

  • TheVern69 - 2012-10-25 15:07

    He says transformation is needed,then he says it has happened...and this from a JUDGE?? Seriously...

  • abe.sheldon - 2012-10-25 15:20

    Can someone please tell me, how a court official can hold the mighty NPA to ransome by not releasing the Zuma spy tapes. Is he so stupid as a lawyer, that if he doesn't give the tapes, or it mysteriously disappears that his friend and boss will still go to jail. What will happen to the ordinary person in the street if he/she must hold information that the politically motivated NpA requires? This minister of justice is complicit in withholding these tapes, by not instructing the NPA to arrest the hulster

  • Muffin_man_can - 2012-10-25 15:39

    One of the few things that still work in this country is the judicial system and now they want to mess up that aswell..

  • long.tom.509 - 2012-10-25 16:48

    transformation-this has been done to fill quotas not based on merit or ability,the route that should have been taken is use the available skill and over time train and qualify people to take over,to suit demographics. 18 years down the road and the potholes are becoming craters.

  • erich.goosen - 2012-10-25 17:26

    It is very true that the JSC needs a credible pool from which judges can be selected, and that this pool must have sufficient candidates of other races to fulfil the requirements of transformation. What the JSC and the learned Judge Baqwa, however, do not tell us, how can this process be streamlined without lowering the standards of jurisprudence and appointing judges whose polical aspirations overshadow their legal knowledge and experience. The attributes of a good judge cannot be taught in text books and lecture rooms but are gradually acquired by experience in and exposure to litigation, interaction and patience with and respect for people of all walks of life and the urge to study and learn. There is no place for arrogance and a misplaced sense of own importance and power. The way that must be travelled by a prospective judge is a long and weary one where the guidance of a mentor is indispensible. There is no shortcut and it is better to prolong the period of training and learning and if transformation is achieved this way, even if it takes a few more years, will greatly benefit our judiciary.

      nick.collis.16 - 2012-10-25 20:18

      Very well put Erich ! If you look at the racial composition of todays judiciary there has already been a radical transformation of the judiciary but unfortunately not in the manner you so eloquently suggested.....Baqwa's remarks seem to hint at the idea of phasing out ageing white judges in favour of judges of colour...and probably with a political bias.

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