In a 1985 speech to the Canadian Bar Association, Chief Justice Dickson emphasised the importance of an independent and impartial judiciary in maintaining and protecting the rule of law. For Dickson, the rule of law required not only that the judiciary should be the exclusive arbiter of disputes, but that the judges should ‘not depart from their proper function of law interpretation and application’ and their ‘primary task of deciding cases and dispensing justice’. Dickson stressed his increasing concern ‘about certain extra-judicial activities which could tend to politicise the role of judges and detract from their impartial and independent status’. He specifically cautioned judges against accepting requests to serve on public inquiries and royal commissions.

Recent experience has demonstrated that Dickson’s advice has not always been followed. Canadian governments at both the federal and provincial levels have increasingly looked to sitting judges to occupy non-judicial roles. Sitting judges have not been shy to accept these appointments, particularly to public inquiries. In recent years, inquiries such as Walkerton, Somalia, Gomery, Arar, Cornwall, Goudge, the Computer Leasing Scandal and the Oliphant Inquiry have occupied not only the headlines, but also considerable time and energy of sitting Canadian judges.

In the United States, judicial and extra-judicial behavior is governed primarily by the Code of Judicial Conduct, which originally was set forth in 1972 and which subsequently has been adopted in the federal court system as well as in the court systems of all fifty states. Although there are several different versions of the Code of Judicial Conduct, its widespread adoption provides a certain degree of uniformity from jurisdiction to jurisdiction, and forms the foundation for a national body of law concerning the conduct of judges. Each jurisdiction, however, is free to interpret the Code according to its own understanding of it, which allows for some variation in the application of the Code from one court system to another.

In each of the fifty states, there is a judicial conduct commission, charged with enforcement of the Code of Judicial Conduct and invested with authority to discipline judges for Code violations. The decisions of these commissions may be appealed to a court, usually the highest court in the state. In the federal system, judicial councils in each of the thirteen federal judicial circuits are authorized to enforce the Code of Judicial Conduct and discipline judges for Code violations. Council decisions are reviewable by the Judicial Conference of the United States. In addition, many states have official or unofficial bodies that issue advisory opinions concerning judicial conduct. For federal judges, advisory opinions concerning the Code are available through the Judicial Conference of the United States. The American Bar Association also issues advisory opinions regarding the Code of Judicial Conduct.

Judicial politics has never been in the news in South Africa as much as it is currently. Scarcely a week passes without a newspaper billboard proclaiming the most recent pronouncement by a superior court judge. This shift in the focus of public life is a direct reflection of the elevation of the judiciary in the constitutional framework since 1994, consequent on the allocation to it of the power of judicial review of legislative action. So, from the establishment of the Constitutional Court (CC) in 1994, judgments dealing with highly contentious social issues or high-profile national figures have featured in news media, mostly indicating public approbation for the work done by the courts. Regrettably, however, the past seven years or so have witnessed particular judges or even courts being cast in an altogether less positive light generated by controversy surrounding the judicial appointments and disciplinary processes which have been in place since 1994.

The purpose of this chapter is to describe such events, setting them critically against the practices of the pre-democratic period in South Africa’s history and against the prevailing party political climate. As with every aspect of the ‘government’ of South African society, critical assessment needs to occur in such contexts, not unduly to celebrate successful innovation nor to seek excuses for lamentable shortcomings, but to emphasise properly the complexities of a society in transition. This is a process which necessitates substantial upheavals of established practices and expectations, in which there is a risk of the loss of what might have been conducive of good governance, in pursuit of systemic renewal and a greater degree of equity and justice. So this is a tale of both good and bad, of confusion and poor management in the face of uncharted territory, and of the constant tensions lingering from the wickedness of the past.

Judges in Australia, Canada, New Zealand, South Africa, the United Kingdom and the United States find themselves functioning in an era where it is fashionable to invoke the catch-cry of ‘accountability’. Such invocations by critics, politicians and commentators in relation to the judicial arm of government are sometimes made without a proper evaluation of the important contributions an independent and impartial judiciary makes to the maintenance of the rule of law. These six countries operate under a diverse spectrum of constitutional frameworks. South Africa is a unitary state, with a reasonable degree of provincial allocation of power, while the United States is a federal republic. Australia, Canada, New Zealand and the United Kingdom operate under a parliamentary monarchical framework, except that both New Zealand and the United Kingdom are non-federal polities. Despite the diversity in the constitutional frameworks, a common thread runs through these six countries: a shared belief in the fundamental importance of having a judiciary which is both independent and impartial.

The South African Constitution confers extensive powers on the South African judiciary to uphold the rule of law. In so doing, it stipulates that courts must be independent and subject only to the Constitution and to the law, which judges must apply impartially and without fear, favour or prejudice.

Judicial impartiality is thus a principle at the forefront of the Constitution, but it was also deeply embedded in South African common law. Roman-Dutch law (derived substantially from Roman law) recognised the principle that no one should be a judge in his (or her) own cause and afforded a remedy, the exceptio recusationis, to enforce it. In the era of parliamentary sovereignty before the new democratic dispensation, the courts conferred perhaps the strongest protection they could on the common law requirement of judicial impartiality: they held that it could be excluded only by an express provision in an Act of Parliament. The Roman-Dutch law principle is substantially similar to the English common law principle of judicial impartiality and, accordingly, Commonwealth jurisprudence on judicial impartiality has been influential in South African courts.

The following assessment of the standing of the judiciary in Australia would be regarded as generally accurate: ‘Measured in historical and international terms the Australian judiciary is acknowledged to be of outstanding quality and has enjoyed the public’s confidence.’ Nevertheless, there have been particular judicial appointments which were claimed to be motivated by political considerations or which were based on cronyism. Simon Evans and John Williams wrote:

Such claims exist due to the fact that the process of judicial appointment lacks transparency. In noting calls for greater transparency in judicial appointments processes, the current federal Attorney-General (Robert McClelland) acknowledged that the mystery surrounding the current processes and the controversy over past appointments would give rise to two negative consequences: ‘First, it can tarnish or detract from the honour of being appointed to judicial office. Second, at a broader level it can diminish public confidence in the courts and the justice system.’ The federal Attorney-General’s response to the issue was that improvements could be made through the ‘touchstones of increased transparency and greater consultation’. Apart from the growing calls for reforms to the appointments process, increasing interest at the federal level and in a number of the states is also focused on the absence of appropriate mechanisms for handling complaints against judicial officers for misconduct which is not of sufficient seriousness to warrant the extreme measure of removal from office.

In Australia, most judicial appointments are effected without much publicity. Senior judicial appointments do attract a degree of media interest, especially appointments to the High Court of Australia. When a vacancy arises in the High Court there is the usual speculation about the identity of the person likely to be appointed to fill the vacancy. At both federal and state levels, judicial appointments are in reality made by the government of the day. In formal constitutional terms, the appointment of federal judges is made by the Governor-General in Council, while the appointment of state judges is made by the Governor in Council. A discussion paper issued by the federal Attorney-General’s Department in 1993 succinctly describes the appointment process as varying according to the ‘personal preferences of individual Attorneys-General’.

Judges in Australia are not confined to the performance of judicial functions only. As judges at federal and state levels are held in very high regard by the general public, governments at both levels have from time to time sought to have judges perform non-judicial functions.

Australian judges have engaged in a broad spectrum of non-judicial or extra-judicial activities.There have been a few historical instances of judges accepting ambassadorial appointments. A Justice of the High Court of Australia, Sir Owen Dixon, served as Ambassador to the United States; Chief Justice John Latham was Minister Plenipotentiary in Japan; and Justice Fox of the Federal Court served as Ambassador of Australia for Nuclear Non-Proliferation and Safeguards. The Director of the Australian Security Intelligence Organisation (ASIO) was at one stage a federal judge; likewise the Chair of the National Crime Authority. Federal judges have been appointed as President or Deputy President of the Administrative Appeals Tribunal (AAT), a tribunal performing ‘administrative’ functions. Judges have been entrusted with the non-judicial function of authorising warrants for the interception of communications, and more recently with the issuance of detention and questioning orders in relation to terrorism investigations. The use of judges, federal and state, in conducting royal commissions and other inquiries ‘has been a settled feature of Australian public life during the whole history’ of Australia. Judges have been appointed to perform such a role mainly because of their special qualities: ‘training and skill to gather facts, identify those which are relevant, assess the honesty of evidence, evaluate competing arguments, act with sensitivity and neutrality in unravelling controversial issues and present an impartial report evidencing legal accuracy and dispassion’.

The study of judicial independence is important in national legal systems as it is an essential guarantee for democracy and liberty. Judicial independence is also an essential feature in ensuring a globalised economy. Corporations must have confidence in the impartiality and independence of the tribunals that will adjudicate disputes in the multiple jurisdictions in which they operate around the world.

Recent decades have witnessed a marked increase in the relative role of the judiciary in society. This general trend is shared by countries with different legal traditions and various systems of government. The judiciary is a significant social institution, and like the other branches of government, contributes to shaping the life of the community. The increasing role which the judiciary has assumed warrants some re-examination of the conceptual framework and the theoretical rationales which define its position in relation to the other branches of the government. One of the most significant aspects of the role of the judiciary in society is its independence and impartiality.

In Canada, as in other jurisdictions, natural justice has included in the injunction that, ‘No one may be the judge in his or her own cause’. This rule began with a concern for self-dealing and pecuniary interests, but has evolved to include a range of biases, including attitudinal ones.

The essence of bias is a closed mind, or put differently, the absence of an open mind – as one judge observed: ‘bias represents a predisposition to decide an issue or cause in a certain way which does not leave the judicial mind perfectly open to conviction’.

Although an allegation of actual bias may certainly be brought against a judge in an Australian court, it is not necessary, in circumstances where there are concerns about a judge’s lack of impartiality, for such an allegation to be made out in order for the judge to be disqualified from hearing the matter in question. Rather, under Australian law a judge may be disqualified if it can be demonstrated that a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide’ (the ‘reasonable apprehension of bias test’).

Furthermore, allegations of actual bias in Australian courts in respect of judges are rare. Rather, due to the relative ease of demonstrating that a reasonable apprehension of bias may exist with regard to a judge (compared with proving that he or she is actually biased), and also, possibly, due to the lower risk of offending a judge by arguing for the former rather than the latter, a party who has concerns about a judge’s impartiality will normally seek to demonstrate that there is a reasonable apprehension of bias in relation to the judge, rather than that the judge is actually biased.

Canada provides an interesting case study of the interaction of free speech and the judiciary in large part because of the impact of the Canadian Charter of Rights and Freedoms (henceforth ‘the Charter’) on the topic. The Charter was enacted as a constitutional bill of rights in 1982. Subject to demonstrably justified reasonable limits that are prescribed by law, the Charter protects freedom of expression. It also recognises the importance of judicial independence and impartiality by providing a right to a fair and public hearing by an independent and impartial tribunal. In addition, it protects equality rights.

The Charter has had a significant liberating effect on critical speech about the judiciary and on extra-judicial free speech by sitting judges. Today, judges in Canada make extra-judicial speeches on matters of public controversy that would have been unacceptable in the pre-Charter era. Canadian judges can now discuss labour, health, national security and criminal justice policy and the treatment of disadvantaged groups and justifiably claim that they are focusing on issues that relate to the administration of justice.

What limits are placed on speech about the judiciary in South Africa and what are the limits on speech by the judiciary? Like the other South African chapters in this volume, in answering these questions this chapter contrasts the old and the new orders. Under the ancien régime, a legal system premised on a racially exclusive variant of Westminster constitutionalism, the South African judiciary was shielded from much of the adverse criticism that its service to such a system would otherwise have invoked. The judiciary was a beneficiary of statutory and executive measures designed to stifle opposition and shore up an illegitimate state edifice. On occasion though, the judges took on a more active role in silencing their critics by means of the contempt power. The result, in the estimation of one of the most perspicacious observers of this period, was that

On the other side of the coin, the judiciary itself assiduously followed Westminster conventions of aloofness from political controversy.

Introduction

In most African countries, constitutionally established authorities exercise the power of government alongside traditional authorities. Executive, legislative, and judicial functions are generally attributed by most modern African constitutions to presidents and prime ministers, parliaments, and modern judiciaries. However, almost invariably the same functions, whether or not formally defined and characterized in the same terms or exercised in the same manner, are also performed by traditional institutions and their leaders. Chiefs administer land and people, contribute to the creation of rules that regulate the lives of those under their jurisdiction, and are called on to solve disputes among their subjects. The relationship between traditional leadership and inherited western-style governance institutions often generates tensions. In Ghana, for example, local governance is an area where traditional leadership and the constitutional government sometimes “lock horns.” Traditional leaders often feel left out when the government takes decisions affecting their people and land without their consent or involvement. Chieftaincy is further plagued with its own internal problems, including issues of relevance, succession, patriarchy, jurisdiction, corruption and intra-tribal conflict. Challenges confronting the institution of chieftaincy have continued from the colonial era into recent times. The role of chieftaincy within post-colonial African countries continues to incite lively debates, as the case of Ghana exemplifies.

Introduction

The legal regulation of the family under customary law is characterized by complexity within particular traditional legal systems and by diversity across the wider range of such systems within Africa. Customary law may determine the rights and obligations of spouses, the terms of marriage formation and dissolution, the implications of marriage for family membership, parental rights and obligations regarding children, custody of children upon marital dissolution, land acquisition, ownership and inheritance, and often governance structures within the community. Virtually all of these legal norms have implications for gender equality.

Introduction

Paralegal organizations working in Africa are often comprised of non-lawyers who assist communities and individuals in the resolution of justice disputes. African paralegal organizations often operate in legal dualist systems in which both formal law and African customary law co-exist. Paralegals may be trained in formal law and frequently have intimate knowledge of customary law. Paralegals’ backgrounds in both areas of law place them in a unique position to assist communities in navigating the formal and customary systems.