Trying to match the occasion with some book knowledge, I did no better than invoke the character of Robert Jordan in Ernest Hemingway’s A Farewell to Arms. He spoke of things “which are worth the fighting for”.
In the dying hours of the constitutional negotiations, back in November 1993 at Kempton Park, I led the fight-back against a National Party-African National Congress deal that would have empowered the president and his cabinet to have effectively hand-picked their own Constitutional Court. The minuscule Democratic Party, sidelined on many other key issues, managed to win this battle.
My efforts to provide a Judicial Service Commission to act as a filter between the executive and appointments to the highest court in the land drew both cynicism and praise.
Both the cynicism and excessive praise were overblown. I just reckoned then, as now, that without an independent constitutional court which owed fealty to the constitution, not to the government, SA’s brave new democratic world would be stillborn.
Reading the criticism and concern which greeted the unprecedented adjournment of the first meeting of the Judicial Service Commission (JSC) since the election, I thought perhaps another of Hemingway’s aphorisms applied to the body on whose establishment I had expended so much energy all those years ago. He used the phrase “beautiful fatalism” to describe people “who stay loyal to a doomed cause”. Are the causes of judicial independence, and the JSC as a vehicle to ensure it, doomed?
Certainly the JSC has been knocked all over the legal ballpark recently. It has made a meal and, the South Gauteng High Court suggests, a hash of investigating complaints of misconduct against Cape Judge President John Hlophe.
On the appointments front, new Justice Minister Jeff Radebe prevailed, on a majority vote, to postpone proceedings, in part, he said, to allow him meaningful input on the question of the transformation of the judiciary, “with regard to race and gender representivity”.
Actually, inside one of the documents that members, including Radebe, received for the meeting, was an appendix baldly entitled “Demographics”. Here, in detailed racial arithmetic, was the result of the JSC’s handiwork on the transformation front over the past 15 years. At the commencement of the new constitutional order, 97% of all judges were white men. According to the JSC document, today 54% of the country’s judiciary are black, and 27,2% are female. To widen the pool of women appointees, the JSC has inaugurated a special training programme targeting women practitioners. In terms of race, the JSC has ensured that 87% of the nominees it proposed for high court positions in the past year were black.
But such progress, impelled in part by the constitutional requirement that the judiciary “reflect broadly the racial and gender composition of SA”, is quite insufficient for the taste of the Black Lawyers Association. According to their document, which was attached in support of one of the candidates up for consideration, nothing short of full-scale proportional representation will suffice: “The judiciary, and therefore the JSC, cannot pretend that it is proper that justice should be meted out to the majority black population by a majority white judiciary, or a marginally black majority bench.”
Strangely , there was no document before the JSC that dealt with any of the violations we have witnessed over the past few months of section 165(3) of the constitution, which provides that “no person or organ of state may interfere with the functioning of the courts”. No doubt a vast file could be filled with threats made against the judiciary in recent times .
Last weekend, Democratic Alliance leader Helen Zille warned against reducing the judiciary to puppets of the ruling party. Doubtless, Radebe will have regard for this concern. He should also use the period of reflection he has arranged to consider how best to balance the sometimes competing claims of diversity and competence. Supreme Court of Appeal Judge Carole Lewis last year drew attention to inexperienced high court judges meting out “horrifying convictions and acquittals where judges had simply not understood the fundamental rules of evidence or criminal law”.
I suspect most South Africans, of all stripes, would rather appear before a judge, of any colour, who could competently apply the rule of law, without prejudice, and hold the ring for them against the mightiest forces in the land.
That is, indeed, “worth the fighting for”.
*Published 19 June in Business Day
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