This paper is intended to provide a perspective on questions related to the independence of the judiciary in present-day South Africa. While South Africa is no longer in the heart of its political transition, the legacy of apartheid rule is still strongly felt and post-apartheid “transformation” continues to be a central concern of government and society more broadly. But how does judicial independence relate to transformation? Rather than conceiving of it as a separate issue, this paper departs from the point of view that the consolidation of judicial independence is a key dimension of the process of judicial transformation in South Africa. If this is so, the question arises as to whether there may be tensions between independence and other key elements of transformation, including the creation of a judiciary that is representative of the people and that is dedicated to protecting and promoting South Africa’s constitutional values, fostering an atmosphere of judicial accountability, and improving the efficiency and appropriateness of the justice system to ensure access to justice for all people.
In the midst of the current crisis of crime and violence, it seems almost trite to state that there is a need for greater respect for justice and the law in South Africa. As reflected in some recent studies on organised crime, attitudes of ambivalence towards the law on the part of many South Africans contribute to an environment in which organised, and other crime, flourishes. Known criminals are widely tolerated, or even admired – notably if they are perceived as preying on people from other communities. This forms part of a culture which also condones other illegal practices, spanning everything from the buying of stolen goods and illegal reconnections, to corruption and white-collar crime. The fact that there is also a significant problem of vigilantism is also obviously a manifestation of a lack of respect for the law. Vigilantism is, in part, motivated by the sense that people have that they need to take the law into their own hands as they cannot rely on the criminal justice system to enforce the law. This belief in the ineffectiveness of the criminal justice system in turn provides vigilantes with the confidence that, in punishing the alleged perpetrators of the original crime, they themselves can violate the law with impunity.