ADDRESS TO THE BLACK MANAGEMENT FORUM ANNUAL
CONFERENCE 2008
SANDTON CONVENTION CENTRE
17 OCTOBER 2008
THE ESSENCE OF THE TRANSFORMATION OF THE JUDICIARY
IN SOUTH AFRICA
There are 199 permanent judges in South Africa. 78 of these are white men
and 13 white women. So white judges comprise just under 46% of the judiciary.
59 judges are African men and 15 are African women. So, just over 37% of our
judges are African. There are 12 coloured men and 4 coloured women; 10 Indian
men and 8 Indian women.
Black judges (inclusive of coloured and Indian judges) comprise over 54%
of the judiciary. Women of all races make up 20%. This is down from 30% as at
June 2007 according to the government’s study released earlier this month by the
Presidency on the 15 year review of our democracy. From this, it appears the
transformation of the judiciary to reflect gender demographics is regressing.
The Judicial Service Commission, which interviews and recommends
candidates to the President, sat from Monday to consider candidates for judicial
appointment. It is expected to conclude its interviews today.
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One constitutional court judge is due to retire at the end of this year. He is
African. There are 6 candidates who have put themselves up to take his place. 3
of them are white men. There would have been 4 white men but the fourth
appears to have been persuaded to withdraw his candidacy by a lobby group in
order to accommodate another white man who by all accounts seems tipped to get
the nod at least from the JSC. Our new President will then have to decide whether
the replacement of an African constitutional court judge by a white man is
desirable in light of the legislative framework to transform South African society
in all its manifestations.
On Monday, we heard that an African candidate for the constitutional court
has also withdrawn his candidacy. Tuesday, yet another candidate withdrew.
Naturally, no reason was advanced for these withdrawals.
Now on e-tv
commentators propound the line that these are casualties of the constitutional court
complaint against the Cape Judge President. I find that laughable.
This of course leaves the door wide open for the white man preferred by the
lobby group to get the nod because all credible competitors for the position have in
my view been persuaded by a lobby group to stand aside and perhaps apply next
year when another 4 vacancies arise in the constitutional court.
This latest
development convinces me, more than ever, that the lobby group’s candidate will
be appointed to the constitutional court unless our new president considers the
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matter very carefully by applying the criteria upon which the ANC resolved in
Polokwane last year. In my respectful view, if one considers at least one of this
judge’s most recent judgments, he does not meet that criteria and it would be a
mistake to appoint him at this stage.
In September next year, 4 more judges of the constitutional court are due to
retire. 2 of them are African and include the chief justice. The other 2 are white.
Again, when the JSC proposes names to the President next October, the challenge
for our new President will be to consider the desirability of replacing African
constitutional court judges with white persons.
Leadership of the judiciary – at least on the face of it – is firmly in African
hands. The Chief Justice is African. His deputy is African. The President of the
Supreme Court of Appeal is African. All the Judges President (the Heads of the
various High Courts) are African, except for the Acting Judge President of the
Cape High Court who is a white woman (Surprise! Surprise!).
These are the numbers. These are the facts. The numbers seem to me to
show that if the measure of the transformation of the judiciary is the racial
composition of our judges, then the government led by the ANC can pat itself on
the back for a job well done. But is that all there is to transformation of the
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judiciary? Is the essence of judicial transformation the racial composition of our
judiciary? In my view, hardly.
The ruling party’s view on this issue is rather revealing and we cannot
ignore it. Since it came into power in 1994, never once has the African National
Congress adopted a resolution at its national conference that judicial
transformation involves the racial composition of the judiciary. So when a judge
of the Supreme Court of Appeal publicly criticises government policy of
appointing what she terms “unskilled and inexperienced” black judges over
“worthy” white judges, I shudder to think how she arrives at her judgments.
Government policy is informed by the ruling party’s policies. There is no ANC
policy that black judges must be appointed over more worthy white judges.
Perhaps the Supreme Court of Appeal judge can point us to the source of her
information.
On the subject of judicial transformation, the ANC has rather tended to
focus on accessibility of the courts through both geographic proximity to the
people the courts are intended to serve; the use of all official languages in the
courts to facilitate accessibility of justice; the restructuring or rationalisation of the
court system to take on board community courts and traditional courts.
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Let us trace briefly what the ANC seems to have in mind by
“Transformation of the Judiciary”.
If the resolutions taken at its national
conferences since 1994 are any indication, then to the ANC race does not seem to
have anything to do with judicial transformation. This should really come as no
surprise given the broad nature of the church called the ANC. Its membership
comprises all the colours of what Archbishop Emeritus Mpilo Tutu termed the
rainbow nation.
At the Bloemfontein national conference in December 1994 the focus as
regards transformation of the judiciary was on the establishment of an independent
and representative prosecuting authority, including the possibility of setting up a
central office of the attorney-general (now NDPP) and the restructuring of the
courts to take on board issues of community courts, traditional courts and
mechanisms to ensure accessibility. An African man was then appointed in July
1998 to lead the prosecuting authority, and was later succeeded by another African
man. No resolution was taken at the Bloemfontein conference to the effect that
judicial transformation entails a wholesale appointment of black judges.
No such resolution was taken at the Mafikeng national conference in
December 1997 either. At that national conference, the ANC’s focus was on the
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rationalisation of the magistracy and judiciary into a single judiciary; the
rationalisation of the court system to provide, at least, for a High Court in each
province, which is to be situated in the capital of such province; the establishment
of specialised family courts to adjudicate on and deal with all family related
matters; the establishment of community courts; the provision of a training
programme for judicial officers intended to sensitise the judiciary and to set up a
grievance procedure and mechanisms for complaints against judicial officers.
At the Stellenbosch national conference in December 2002 the focus was
on speeding up legislation to create a grievance procedure to deal with complaints
against judicial officers; expediting the transformation of the Judiciary by
creating a more representative, competent, sensitive, humane and responsive
judiciary; prioritising crimes against women and children, especially rape, and
strengthening the victim empowerment system.
I am not sure what was meant by creating a more “representative” judiciary.
Was the intention to create a racially representative judiciary? That is a possibility
if one considers the number of black judges today in comparison to 1994. Was the
intention to create a gender representative judiciary? Again, that is a possibility if
one compares the number of women judges today to that in 1994, and the former
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President’s penchant for women empowerment. The judge of the Supreme Court
of Appeal who now criticises government for a non-existent policy forgets that she
herself is a beneficiary of government empowerment of women.
In my view there is another possibility – philosophical inclination. If I
were in government and intent on transforming the judiciary I would focus less on
race and gender and more on the philosophical make-up of each candidate. I shall
return to this proposition later.
Last December in Polokwane, no less than 15 resolutions were taken in
relation to the transformation of the judiciary. Not one of them proposed that
judicial transformation entails swelling the ranks of the higher courts with black
judges. These are the resolutions:
1.
A single, integrated, accessible and affordable court system must be
established, including the integration of the Judicial Service
Commission (JSC) and the Magistrates Commission (MC) into a
single appointment mechanism and the establishment of a single
grievance procedure for judicial officers.
2.
The Constitutional Court should be the highest (apex) court for all
matters, constitutional and non-constitutional.
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3.
The High Court system should be rationalised into a single High
Court, with each province having, at least, a division of the high court.
4.
The Labour Appeal Court should be integrated into the SCA, as a
separate chamber. The Labour Court should be integrated into each
division of the High Court, possibly as separate Chambers. The
creation of further specialised courts outside the single court system
should be discouraged.
5.
Outdated court descriptors (titles / descriptions) should be
renamed. For example, the Transvaal Provincial Division, Transkei
High Court, Bophuthatswana High Court, Ciskei high Court would all
have to be renamed.
6.
Regional Courts to deal with civil matters should be established
and the functions of the old "black" Divorce Courts must be taken
over by the new Regional Civil Magistrates Courts.
7.
"Community" courts, municipal courts and small claims courts must
be promoted and expanded where practical and practicable.
8.
Traditional courts must be aligned with the new constitutional
dispensation and particular attention must be paid to the incorporation
and development of our indigenous law.
9.
Court governance of both higher courts and the magistrates’ courts
must be integrated within a single judiciary, with the Chief Justice as
the head of the judiciary.
10. While the independence of the judiciary and the rule of law must be
respected, and the judiciary must adjudicate without fear, favour or
prejudice, the judiciary should nonetheless also respect the areas of
responsibility of other arms of the state and not unduly encroach in
those areas.
11. The Chief Justice, as head of the judicial authority, should exercise
authority and responsibility over the development and implementation
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of norms and standards for the exercise of all judicial functions, such
as the allocation of judges, cases and court rooms, while the
administration of courts, including any allocation of resources,
financial management and policy matters relating to the administration
of courts, are the ultimate responsibility of the Minister of Justice.
12. There must be a single rule-making mechanism for all courts, which is
inclusive of all role players, to process rules through the Rules Board,
which is a specialist advisory body consisting mainly of legal
practitioners, with the rules being approved by the Minister and
Parliament, and in the process of adopting rules to allow for public
participation.
13. Every person must enjoy the right to use an official language of
his or her choice in all court proceedings of first instance. In
appeals and reviews against the findings of the court of first instance,
the record must be typed in English. Court process like summons and
writs of execution should be produced and printed in English and, if it
is the wish of a litigant, in one other official language, as prescribed.
14. Judicial training and skills development of our judiciary is nonnegotiable
and
must
be
vigorously
pursued.
Appropriate
mechanisms must be urgently established to pursue the priority of
establishing an adequate pool of judicial officers who are steeped
in and reflect the progressive values of our constitution.
15. This resolution, including past resolutions, must be urgently
implemented by the end of the present term of government.
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While some of these resolutions are new, others have been adopted in
previous national conferences since December 1994. One of the new resolutions
taken at the Polokwane national conference in December last year was this:
“Appropriate mechanisms must be urgently established to pursue the
priority of establishing an adequate pool of judicial officers who are
steeped in and reflect the progressive values of our constitution.”
In my view, this is the single most important resolution that the ANC has
taken in relation to the transformation of the judiciary in South Africa over the last
15 years.
The resolution captures in my view the essence of judicial
transformation. It is the benchmark against which all judicial appointments must
be measured.
But what are the “progressive values of our constitution” in which the new
breed of judges must be steeped? The answer lies ineluctably in our national
constitution.
The progressive values of our constitution are human dignity,
equality and freedom. They are not what politicians say they are from time to
time, which may change according to the agenda sought to be achieved at a given
time. No, they remain constant.
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For example, section 1 of the constitution says South Africa is founded on
human dignity, the achievement of equality and the advancement of human
rights and freedoms.
These three constitutional values are the foundation of the Bill of Rights
Chapter in our national constitution in terms of section 7. They are also the
measure by which the reasonableness and justifiability of the limitation of other
rights in the Bill of Rights Chapter must be gauged. In other words, in order to
determine whether or not the limitation of, say, freedom of expression or freedom
of movement and residence is reasonable and justifiable, a judge must have regard
to the effect that such limitation has on human dignity, equality and freedom. In
this regard, section 36(1) of the Constitution provides as follows:
“The rights in the Bill of Rights may be limited only in terms of law
of general application to the extent that the limitation is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom . . . .”
What is more, these three values are also a central feature in the
interpretation of the Bill of Rights Chapter. In this regard, section 39(1) says:
“When interpreting the Bill of Rights, a court, tribunal or forum -
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(a)
must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom”
So, these three values are not only fundamental rights under the Bill of
Rights Chapter in themselves; they are also the values on which the country called
South Africa is founded. And they are the essence with regard to which the Bill of
Rights Chapter must be interpreted.
In short folks, without human dignity;
without equality; without freedom – there is no country; there is no Bill of Rights.
Now, these constitutional values which the ANC says all judicial officers
must be steeped in are not the sole preserve of any one racial or gender group. I
am not aware of any empirical evidence that a black judge is more likely to
espouse and apply these values than a white judge. That is not what I understand
the ANC to be saying by this resolution. In fact, if one considers some of the
things done by the constitutional court, which is 72% black, one finds that these
things are not in my view consistent with these values. I could give you examples
but since I am counsel in a matter involving constitutional court judges, I think it
prudent that I do not go into much detail lest I am accused of attacking the
judiciary. When the case is finalised I think there are things that need saying
about the judiciary and I shall say them then. But this is neither the appropriate
time nor the appropriate forum to raise those issues.
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The simple point I make here is that a progressive judge who is steeped in
constitutional values is not necessarily black.
Such a judge is not necessarily white either. There is no empirical evidence
that a white judge is better equipped to apply these constitutional values than a
black judge. In fact, in October last year the Supreme Court of Appeal, which is
60% white, issued a ruling that where an employee had been found guilty of
misconduct the determination of a sanction is the sole preserve of the employer
and that the CCMA cannot interfere with the employer’s decision in that regard –
however unfair. The author of that judgment was the very white man now being
championed by a lobby group for appointment to the constitutional court.
Now, equality includes equal protection and benefit of the law, and equality
is one of the values on which South Africa is founded. If only the employer has a
say as regards whether or not an employee must be fired (under the guise of a
reasonable employer test), then how on earth can the employee enjoy equal
protection of the law when he cannot challenge the employer’s decision to fire him
at the CCMA without reference to what a reasonable employer would have done
in the circumstances?
position.
Thankfully, the constitutional court has corrected that
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Before that, the Supreme Court of Appeal attributed to the trial court the
phrase “generally corrupt relationship” to describe the relationship between Mr
Schabir Shaik and the president of the ANC. It later emerged that the trial court
judge apparently never made that remark in his judgment in the Schabir Shaik
asset forfeiture case. The way had been paved, on wrong facts, by the Supreme
Court of Appeal for an inference that the ANC president is corrupt. This was an
affront on his human dignity – and human dignity is one of the values on which
our constitution is founded. This demonstrates that a white judge (or a group of
white judges) is not necessarily better equipped than a black judge to reflect
progressive values of our constitution.
So, if racial considerations are either inadequate or irrelevant for the
establishment of an adequate pool of judicial officers who are steeped in the
progressive values of our constitution, then how does the ANC hope to achieve
this without being accused of packing the judiciary with people considered to be
sympathetic to it? The answer lies in the “appropriate mechanisms” that the ANC
establishes in pursuit of that very important goal. I don’t know whether such
mechanisms have been established yet and would love to study them and even
offer to help in the national interest.
In my view, it is relatively easier to gauge the progressiveness of candidates
coming up for appointment to the constitutional court, the Supreme Court of
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Appeal and the High Court where those candidates have previously acted as
judges or held judicial office in the lower courts. From their written judgments
one can determine whether or not, and the extent to which, they are steeped in and
reflect the progressive values of our constitution.
The difficulty arises where the candidates are academics and attorneys and
advocates who have never before acted as judges or magistrates. I am from the
school that believes that such people should never be considered for permanent
judicial office without a reasonable number of acting appointments under their
belts, and a reasonable number of reported judgments from which one can gauge
whether they meet the required standard. A clever academic does not a wise judge
make. Instead you tend to get long judgments with elusive rationes.
In conclusion then, the essence of judicial transformation lies not in
packing the courts with black judges. It lies rather in packing the courts with
judges who are genuinely beholden to the constitution and the fundamental values
thereof.
It seems to me the Supreme Court of Appeal judge who attacks
government for doing that for which the constitution provides is clearly not
beholden to the constitution to which she has sworn allegiance.
Since 1994 the former presidents have made mistakes in some of their
judicial appointments. It is my sincere hope that the “appropriate mechanisms” of
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which the ANC speaks in its 2007 resolution with a view to establishing a pool of
progressive judges steeped in the values of our constitution will be put in place
soon so that mistakes of the past are not repeated. When appointing a candidate
recommended by the JSC the president must always bear this in mind: appointing
a judge is like giving birth. Once done, it cannot be undone. Firing a judge is not
a matter of labour relations. It is considerably more serious than that and so,
fittingly, considerably difficult to do.
So if you make a mistake in appointing a judge who does not reflect the
“progressive values of our constitution” but simply says he does, you are stuck
with him until he reaches retirement age. Who knows, the lobby group may even
prevail on our president to extend the retirement age for judges from 72 to 80,
thereby ensuring their man and their insalubrious ideas are irreversibly entrenched
in the nation’s legal framework. In my view, that is the threat to our democracy.
I say the genuine transformation of our judiciary must begin with the
candidates now sitting for interviews before the JSC. This nation cannot afford to
miss this opportunity to transform its judiciary for good. The constitutional court
and the Supreme Court of Appeal are particularly crucial in that transformative
drive because they have the final say.
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