Regulating the South African Judiciary: 2012-2013

In a two-year period, four distinct policy initiatives regarding the place of the judiciary in South African governance were operative, cumulatively holding the potential for significant change in the existing policy on the judiciary. When examined, these initiatives allow for a somewhat surprising set of conclusions may be drawn. First, despite formal majority party policy clearly preferring virtually no role for the judiciary in governance, the state is engaged in at least two processes that have the potential to both formally recognize and strengthen the capacity of the judiciary to engage in governance. Second, despite the sharp rhetoric and the acrimonious debates of 2012, there currently exist more points of consensus than of contention regarding the shape and place of the judiciary in South Africa over the next three to five years. Third, the policy debate about the role of the judiciary in governance remains constrained by a number of factors including divergent views on the separation of powers, a lack of transparency that exacerbates suspicions, perceptions of hidden agendas, and mistrust, a largely untransformed legal profession, a lack of appreciation of the role of the media in debates over South African law and policy, and a failure by the South African state (including the judiciary) to come to terms with the increasing role of the judiciary as a regulator. A regulatory perspective provides an alternative way of conceptualizing the current debates on the role of the judiciary. From such a viewpoint, the politics of the judiciary in this period demonstrate five overlapping articulations of different logics of justification for regulating the judiciary.