Serjeant at the Bar
Gilbert Marcus, SC, dealt most effectively with the complaints of Rex van Schalkwyk, once a judge of the supreme court (“Constitutional Court: A triumph over repression”, November 17 to 23). Hence the question as to why the need to traverse the same ground yet again.
The reason is simple: Van Schalkwyk’s unreasoned attack does not represent a view of one disgruntled jurist. It is to be found in the very centre of our legal academies and courts. A reluctance to recognise the centrality of the Constitution and the foundational principles that are contained therein, together with a continued bout of social amnesia regarding from whence we as a society have come, bedevils our legal development.
In cases dealing with the right to legal representation, the law of succession and customary law and delict, the Supreme Court of Appeal (SCA) has perpetuated the legal shibboleths of the past. In Hlantlalala’s case it followed the parsimonious approach to the right to legal representation set down in the pre-constititutional decision of Rudman (which had rejected the progressive decision of Judge John Didcott in the lower court). In Mtembu’s case it failed to engage with the principle of equality when dealing with customary law. In Carmicheale’s case it failed to deal with the constitutional imperative of an accountable government when a woman sued for damages after being raped by a person who had been allowed to roam free, notwithstanding protestation from the local community to the police and prosecution that he should not be freed on bail after being charged with another crime, particularly given his violent past.
Recently a senior member of the SCA wrote an article about the role of judges which was published in an academic journal. In it Judge Nienaber cited with approval the approach to adjudication advocated back in 1967 by then chief justice LC Steyn.
Writing within the context of criticism of the manner in which the judiciary interpreted laws relating to detention without trial, Judge Steyn had argued that a judge’s role was to interpret the words of a statute and not to be concerned with matters of politics; by which he meant worrying about the consequences of the interpretation. The effect of this myopic view in which judges denied the inherent ambiguity of words and the moral and legal consequences of their actions had a devastating effect upon the very legitimacy of the judiciary.
Now, more than 30 years later, a current member of the same court writes with approval of this approach, namely that judges must interpret and must never introduce their own preconceived opinions, ideological positions or political views into the judicial role. Obviously Judge Nienaber is not attempting to defend the indefensible as did Steyn. But he reveals the same philosophical approach a denial that law is politically laden, that all judges have preconceived views and that they have choices which inevitably have to be made. Once these are denied (which does not mean that the denier does not have preconceived views far from it) judges will inevitably introduce their own preconceptions into their judgements in an inarticulate way.
In a most incisive analysis of this problem, Professor Andre van der Walt has recently written that “many South African lawyers (including practicing lawyers, academics and judges) think that on the whole, Roman Dutch law is not so bad. The evil of apartheid is blamed on legislation, the creation of an ill-advised and short-sighted government but the common law is more or less excused from blame for the shameful part of our legal and political history … My fear is that the political, social and jurisprudential baggage of our past, including our segregationist and unjust past, will be smuggled back into the new constitutional order via the well intentioned , uncritical recourse to the common law as a source of stability and meaning, a normality condition.”
Van Schalkwyk argues that the Constitution adds little of significant principle to the common law. Judge Nienaber’s theory amounts to a denial of the importance of political and ideological influences in the judicial process. Both represent the problem which Van der Walt has outlined. Both work with the idea that Roman Dutch law is a source of fairly neutral, universal principles which courts can apply with confidence. The problem is that this approach ignores the very areas where racist, sexist and non-egalitarian principles saturate Roman Dutch law and hence are incompatible with the promise of the Constitution to build a society based on freedom, dignity and equality.
The decisions of the SCA mentioned above reflect a mindset that is still deep-seated in legal communities in this country. For this reason the recent approach of the Judicial Service Commission in the appointment of Judge Edwin Cameron and Judge Mahomed Navsa to the SCA is most welcome. With further appointments to be made early next year it is to be hoped that the SCA will set the tone for the development of a common law which meets society’s aspirations as contained in the Constitution.