Section 165(2) of the Constitution1 declares that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. No person or organ of state may interfere with the functioning of the courts.2 Organs of state are directed to assist and protect the courts, through legislative and other measures, to ensure their independence.3 The other two branches of government thus bear the responsibility of ensuring that the independence of the courts is a reality and is in fact maintained. About a quarter of a century ago the Canadian Supreme Court identified three mechanisms as being 'essential to the independence of the judiciary: security of tenure (in the form of life appointments and removal only for cause), decent financing (of both the salaries of judges and the operations of the courts), and an appropriate degree of control by judges of the administration of the courts.'4 Although we have proudly proclaimed that the judiciary is independent, South Africa, like many other democracies around the world, has not as yet satisfied the third 'essential mechanism', viz an appropriate degree of control, by judges, of the administration of the courts (institutional independence).5 The establishment of the Office of the Chief Justice is, however, a step in the right direction.
1 Constitution of the Republic of South Africa, 1996.
2 Section 165(3).
3 Section 165(4).
4 Valente v The Queen  2 SCR 673.
5 For a short discussion on institutional independence see the writer's paper delivered at the second Judges' Symposium held aton.
6 Sandra Day O'Connor 'Judicial Accountability Must Safeguard, Not Threaten, Judicial Independence: An Introduction' (2008) 86 Denver University Law Review 1.
As to the first 'essential mechanism', s 176 of the Constitution provides for judges' security of tenure and a prohibition on any reduction of the salaries and benefits of judges; while s 177 stipulates the circumstances under which, and the manner in which, a judge may be removed from office.
'An independent judiciary requires both that individual judges are independent in the exercise of their powers, and that the judiciary as a whole is independent, its sphere of authority protected from wrongful interference by the other two branches of government. . . As for the independence of individual judges, there are at least two avenues for securing their independence: First, judges must be protected from the threat of reprisals, so that fear does not direct their decision - making. Second, the method by which judges are selected, and the ethical principles imposed upon them, must be constructed so as to minimize the risk of corruption and outside influence. The first endeavour is to protect judicial independence from outside threats. The second is to ensure that judicial authority is not abused, and it is the core concern of the enterprise of judicial accountability.'
Having listened this morning to the President of the Republic of South Africa and the Minister of Justice and Constitutional Development, it seems that threats to the independence of the judiciary, which were manifest from certain regrettable skirmishes in the past between the judiciary and the Executive branch of government,7 are a thing of the past, hopefully for good.
7 See the introduction in the article National Judges' Symposium (2003) 20 SALJ 647.
8 Section 172.
9 Justice CT Howie 'Judicial Independence' (2003) 20 SALJ 647 at 683.
10'Independence and Integrity as a Criterion for Judicial Performance Evaluation' (2003) University of Notre Dame Law Review 15.
11 At p 15.
The purpose of this discussion, however, is not to map the distance we, as a country, have travelled in our endeavours to achieve judicial independence, but rather to comment, briefly, on the other important requirement for the judiciary to earn the confidence and respect of the public, namely integrity.
Much as the judiciary needs to be independent from outside sources that does not mean that judges should be free to behave as they please. The core function of a judge is to decide cases in a court of law. And for the execution of that function judges are given enormous powers. In constitutional matters they are able to declare invalid any law, including legislation passed by the elected representatives of the nation, and can declare unconstitutional any conduct, of/by the President of the country, that is inconsistent with the Constitution.8 Their decisions affect the rights of individuals, including their liberty, property, status, etc. And if they want to be independent enforcers or guardians of the rule of law judges they must be incorruptible. In the words of Justice Howie, the former President of the Supreme Court of Appeal, judges owe no favours, they must never do; and equally important, the public must never think they do.9 Section 34 of the Constitution provides that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. Judges are thus required to be fair in the adjudication of matters before them.
Dr Stephen Colbran10 reasons that independence and integrity are without doubt essential requirements for a judge. For this view he takes his cue from Article 14.
'All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.'
Judges must accordingly ensure that when litigants leave the courtroom at the end of their case they do so satisfied that, whatever the outcome, they individually receive a fair hearing before a competent, independent and impartial judicial officer, in the sense that they each had a fair opportunity to present their case and that they were afforded equal treatment. Judicial integrity in a system that applies the rules of law equally to all 'is manifested by impartiality , procedural fairness, and a vigorous application of the law'.12 12 Stephen Colbran, above n 10, quoting Justice Brennan Courts for the People - Not Peoples' courts in a speech delivered at the inaugural Deakin Law School Oration, 26 July 1995 13 Greg Mayne 'Judicial integrity: the accountability gap and the Bangalore principles' in Transparency International's Global Corruption Report 2007. Comparative analysis of judicial corruption are available at www.baselgovernance.org or http://www.transparency.org/publications/gcr/gcr_2007.
14 Judicial Accountability in South Africa (1990) 6 SAJHR 251.
15 Above n 9.
It has been argued that a vital step towards ensuring the overall integrity of the judiciary is to foster a culture of independence, impartiality and accountability among judges.13 The author suggests that the judiciary, like other branches of government, must be accountable directly or indirectly to the general public it serves. I have no difficulty with this proposition as long as it is clearly understood that issues before a judge must be decided without concern for the popularity of the decision. They must apply the law to the facts without regard to possible criticism. My former colleague, Justice Edwin Cameron, states the position thus: 'In the context of the judiciary, accountability entails that judges' performance of their functions should be subject to certain constraints. . . Institutionally, judges are obviously subject to theconstraints of precedentand to the constraints of collegiality (in terms of which decisions of coordinate rank are treated with deference even if not formally binding).'14 Justice Howie, in similar vain, holds that for the decisions they make in court, judges are bound only to the decisions of higher courts, to the law and their consciences.
But judicial independence may be undermined and the integrity of the judiciary dented because of internal weakness. Judges cannot call on their independence as a defence against criticism for judgments unduly delayed, or poorly written. Litigants come to court in the belief that their disputes will be resolved. It is simply unfair, and indeed unacceptable, for litigants to be kept waiting for an inordinately long time for a judgment. Justice delayed is justice denied. One can only imagine the frustration of a litigant who, after waiting for an unduly lengthy period for a judgment, is unable to discern from the judgment when ultimately delivered, why she or he has lost the case. In the recent past the Judicial Service Commission (JSC) has received a not insignificant number of complaints against certain judges for failure to deliver judgments. In some cases judgments had been outstanding for more than three years. Such conduct can only be destructive of the integrity of the judiciary and thus of any confidence the public might have had in it. I should mention that recesses are not for going on holiday. They are primarily for catching up on outstanding judgments. Delivering judgments timeously is, in my view, part of being accountable. And as judges we need to remind ourselves that our decisions must be made through a process of reasoned decision-making and not arbitrarily. They must be justified in law. That is a fundamental principle of the rule of law. Former Chief Justice Chaskalson suggested this morning, and I agree with him, that in cases that are not complex or long judgment should be delivered immediately. But a judge must do so when certain that he or she will be able to express himself/herself clearly.
Jeffrey M. Sharman suggests that judicial independence presupposes a judiciary that is well trained and educated in the law, and that accordingly 'the ideal judge is independent, impartial, and learned in the law'.16 Although this was said in the context of the United States of America, it is true for all democracies. Prior to 1994 judges in South Africa were appointed mainly from the ranks of senior advocates, the rationale being that they were experienced in the practice and procedure in the superior courts. That policy is now a thing of the past. Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer.17 The responsibility for the selection of suitable candidates for appointment (by the President) as judges rests with the JSC. That body is thus required to ensure that proposed appointees will contribute to maintaining the integrity of the judiciary. In this regard the supplementary criteria used by the JSC in the evaluation of candidates for appointment are important. These criteria include the following: the proposed appointee must be a person of integrity; a person with the necessary energy and motivation; and a person with experience and competence. There can be no compromise on integrity and competence. Some candidates will be less experienced than others but will exhibit potential to be 'the ideal judge'. And this is where the Judicial Education Institute is to play an invaluable role. Its task is to train and prepare individuals who aspire to be appointed as judicial officers and to arrange for, or provide, continuing education for sitting judicial officers.
16 Jeffrey M Sharman Judicial Ethics: Independence, Impartiality and Integrity available at www.iadb.
17 Section 174(1) of the Constitution.
I have mentioned that judicial independence may be undermined and judicial integrity dented because of internal weakness. Article 7 of the Beijing Statement on the Independence of the Judiciary provides that judges 'shall uphold the integrity and independence of the judiciary by avoiding impropriety and the appearance of impropriety in all their activities'. Judges are not above the law. They must avoid impropriety not only during the performance of their judicial function but also in all other activities or conduct.
Commission Amendment Act18 which came into operation on 1 June 2010 provides for the establishment of a Judicial Conduct Complaints Committee headed by the Chief Justice. That committee now deals with all complaints brought by the public against judges. The Act also introduces an enforceable Code of Judicial Conduct, which will guide judges on the important question of professional ethics and also inform the public about standards of conduct that judges are expected to uphold. The Code of Judicial Conduct has already been drafted but awaits parliamentary approval. All these measures are aimed at ensuring that the integrity of the judiciary is maintained.
18 Act 20 of 2008.
'Independence, integrity, and competence, are the hallmarks of a judiciary committed to upholding the Rule of Law and they are the principles for which a judiciary should be held accountable.'
(Delivered at the Hilton Hotel, Sandton, Johannesburg, on 8 July 2011.