At first or even second glance one might answer the question whether the judiciary can be both independent and accountable, negatively. However there is evidence showing that not only is this possible but there are methods that can guarantee it. This essay will firstly give reasons as to why one could doubt that judicial independence could co-exist with judicial accountability. It will then discuss and explain a number of methods that can ensure that co-existence.
Unlike with Legislature, the people do not democratically elect the South African judiciary. Its function thus does not include representing and fulfilling the wishes of the majority. In fact it is one of the principles of independence that the majoritys view of an issue should not play a decicive role in the decisions of judges. Therefore in the name of independence, trhe judiciary is not accountable to the majority.
Accountability to the Executive and the Legislature is only briefly mentioned in the Constitution. Section 177 states that a judge may only be removed from office if the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct. Even then, a vote of two thirds majority of the National Assembly members is needed to get the judge removed. To embark on such a rigid and drastic measure is so much of a mission that most people would shy away from it. So here one sees the judiciary having great accountability powers of constitutional and judicial review over the executive and legislature who in turn would have to go to great lengths and make the judiciary accountable to them as a whole.
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Judicial neutrality as a form of judicial independence could further increase judicial inaccountability because in claiming to comply only with the formal rules of law judges shirk the responsibility of the effects that their own values and preconceptions have on their judgement, claiming that they were based objectively on legal rules.
So then should judicial independence be scrapped in order to force judicial accountabilty? No; because judicial independence is necessayr for
(1) ensuring that executive power is exercised according to the law; and
(2) protecting individual and minority rights.
If the judicairy was extensively accountable to the majority then these functions would be impossible to carry out. Say for instance the majority in Zimbabwe wished for President Mugabe to continue invading white-owned farms, the judiciary would have to adhere to their wishes and accept the legality of the act, irrespective of the wishes of the minority.
Supposing the Executive and the Legislature had easier means to remove judges then judges would be kicked off the bench for reasons such as disagreement with perhaps the ruling political party or with a policy or legislation. Something similar happened in Apartheid South Africa when the system was still parliamentary. (little or no seperation of powers between the legislature, judiciary and executive). In Minister of the Interior v Harris the Appellate Division declared the High Court of parliament (a court higher than the Supreme Court of Appea 1) was invalid. In response the National Party increased the size of the Appellate Division from 5 to 11 judges and then passed legislation that in all constitutional matters, all 11 judges had to sit. Of course the extra judges were NP supporters.
In a country with such diverse political views like South Africa, an independent judiciary is needed to block such acts of tyranny. On the other hand, accountabilty cannot be scrapped as judicial independence is important, so ways of reconciling the two must be sought.
In England, the judiciary may not pronounce upon or invalidate acts of Parliament. It also has no power to review Executive acts. However it remains independent because it is not part of or subordinate to the other arms of government. Accountability is ensured because judges are public figures in government and thus publicly accountable within the larger traditions of the law. Secondly, public assessment of judicial performance has become more outspoken over the years. This also ensures accountability.
From actual practice one sees that the South African judiciary can be made accountable to individual litigants (that is as opposed to making them accountable to the majority). In Penrice v Dickenson the court followed the Roman-Dutch principle that judges who had given a judgement in bad faith could be held financially responsible. Bad faith was defined as actions prompted by malice, personal spite, ill will or some other improper or unlawful motive. In Mag v Udwin the same principle was applicable in respect of defamatory statements made by judges.
Litigants can also ask for an award for costs of proceedings to be paid personally by a judge whose decision was set aside, if they can prove that the judge acted maliciously. In addition a if a litigant has a reasonable apprehension that the judge is biased, impartial or unfair the judge must recuse himself from the bench. This happened in BTR Industries v Metal and Allied Workers Union in which the deputy president of the court conmcerned attended a labpour seminar with the lawyers of the plaintiffs after the legal proceedings had commenced. The case went on review and it was decided that even though there was no evidence of actual bias the fact that one could reasonably apprehend its existence warranted the judges recusal.
The way in which the Executive and Legislaturecan keep the Judiciary accountable has been established already by the constitution. The judiciary must apply the constitution and the law impartially and without fear, favour or prejudice. When courts carry out such functions with wide ranging powers like interpreting legislation, applying common law, customary law, precedent etc, they must promote the spirit, purport and objects of the Bill of Rights. The constitution itself was written by the legislature. It therefore subjects the judiciary to the spirit, purport and objects that the people, as represented by parliament, intended the judiciary to be subjected to. In this indirect way, the judiciary is accountable to the legislature and to the majority.
In summary, Edwin Cameron says that judicial accountability can be ensured if an institution can balance strict adherence to rule of law (which brings certainty) but still be sensitive to social needs for rights to be guaranteed and development to be ensured. Such an institution must be in accord with the needs of the majority without disregarding the needs of the minority. It must also value the merits of formalistic reasoning but it must do so critically.
