However, continuing public attacks on the judiciary have raised fears that they could damage its independence and integrity, and erode confidence in the institution. For example, last year supporters of the sacked former deputy president Jacob Zuma – who is fighting allegations of inappropriate behaviour – lashed out at the Supreme Court of Appeal for a relatively minor error in the summarised version of a subsidiary judgment. When, a year before, a judge sentenced Zuma’s close confidant Schabir Shaik to jail for fraud and corruption, and criticised the “symbiotic relationship” between the two men, some of Zuma’s supporters labelled the (white) judge a “racist.” A few years ago a black judge, John Hlophe, complained that some of his white colleagues were racists.

The ruling African National Congress has recently released a package of proposals to transform the judiciary, including that the executive set court rules and control their budgets. It is obvious that not only do these proposals go against the important principal of separation of power, but if implemented, will undermine the independence of the judiciary. In addition, the ANC document demands a “mindset” change in the judiciary. The country’s post-apartheid constitution demands that judges and magistrates base their decisions on the values of the constitution; if not, they can be subject to appeal. Although the ANC made quite clear that it was not about to usurp the constitutionally entrenched principle that the judiciary should be independent, the proposals do cause legitimate concern.

The proper functioning of South Africa’s constitutional democracy depends on an independent judiciary. During apartheid, the majority of the country’s population did not see the judiciary as either fair or independent. Barring a few credible exceptions, judges and magistrates enforced the apartheid system. During South Africa’s Truth and Reconciliation Commission investigation into the human rights abuses committed during apartheid, the judiciary refused to come clean. This reinforced perceptions that the system was compromised. An integral part of the constitutional negotiations that brought the end of apartheid was an all-party agreement that in spite of the judiciary’s failings during the apartheid era, there would be no purge, and that its independence was crucial to establishing the rule of law in the new democratic atmosphere.

Changes were expected to be introduced in a way that retained the legitimacy of the judiciary. However, it is clear that transforming the judiciary cannot only involve replacing white faces with black. For example, in recent rape judgements, many black judges’ values were clearly as conservative as some of their white colleagues. Many black and white judges and magistrates still astonishingly blame the victims of rape as responsible for being raped.

South Africa’s judiciary – especially the constitutional court – is now at the forefront of setting ethical values, moral standards and acceptable norms of behaviour in the infant democracy. For example, the relationship between politics and business is not only often indistinguishable, but there has also been a revolving door between the two occupations. A court decision was needed to warn businessmen and women that using their political connections to secure government contracts is wrong and can lead to lengthy imprisonment. Before that, party leaders showed no conviction in dealing with this corrosive issue.

In another case, the government for years refused to distribute life-giving anti-retroviral drugs. The courts had to compel the government to meet its obligations to the sick and the poor. Even on the issue of basic social services, the courts have often forced the government to deliver, such as building homes for the needy. It now appears that the presidential succession of the ANC may be decided in part by the judiciary – because party leaders are not providing mature leadership.

Although there is no silver bullet for transforming South Africa’s judiciary, reform will have to be driven by the judiciary itself. Obviously there should be credible public participation. It must be done in a way that does not threaten the integrity, independence and legitimacy of the judiciary.