The latest round of appointments by the Judicial Service Commission in many ways confirms trends set by the commission over the past few years. The commission has made it clear that race is the most important factor determining appointments to the bench, and there is little doubt it has succeeded in making our courts more representative of the country’s racial diversity.
However, there also remain significant flaws in the way South Africa has been fashioning a new judiciary. These flaws could undermine the future of the legal system, already bracing itself for a tumultuous period of change heralded by the Legal Practice Bill. Many black lawyers appointed over the past few years have less experience than was traditionally required for judicial office. This notwithstanding, many have acquitted themselves admirably. At the same time, however, the calibre of white lawyers selected by the commission has, with a few exceptions, deteriorated. There are several reasons for this. Firstly, the commission’s selection procedure and its position on race have arguably discouraged experienced lawyers from applying. Secondly, judges president have not actively sought out top lawyers to become judges. Thirdly, the conditions of employment on the bench are bad and the money a fraction of the earnings of senior advocates.
To address these problems requires imagination and energy on the part of both the ministry of justice and the commission’s lawyers, politicians and judges.
Instead the commission has become an institution of little substance. It has developed a language of its own about what it terms “transformation”, with which it grills, with striking inconsistency, candidates before it. There are few substantial questions about legal principle; candidates are rarely interrogated on their knowledge of the Constitution, which would be a better measure than most of their commitment to post-apartheid South Africa. The commission has never made it clear what it is looking for. It has toppled merit as the main criterion for judicial appointment. But it must show more honestly how it justifies this. Already we have seen a shift to private arbitration in commercial matters, as litigants opt to avoid the vagaries of the courts. If the authorities do not attract a significant number of high-calibre lawyers to the bench, this trend will continue. Nothing suggests the government grasps the problem. Instead it is rushing through the Bill, which threatens to undermine the legal system’s independence. The Bill proposes regulating the profession with a statutory council, prompting fears that this will also affect the independence of the judiciary. The Bill proposes making courts more accessible, but appears to be a blueprint for enhancing the political correctness of the legal system, as opposed to offering pragmatic solutions to its problems. It is likely the Bill will not achieve its aim of accelerating the careers of the previously disadvantaged. By opening up the profession it will more likely encourage the best and the most successful lawyers to club together, stripping the profession of the culture of mentorship that should be cultivating our judges of the future. Betrayal
The government’s lackadaisical response to news that 30 state officials, politicians and others got special deals on luxury cars from a company that won a big contract in the arms deal makes nonsense of its claims to being committed to stamping out corruption. The government’s inaction in relation to both the company, European Aeronautic Defence and Space Company (Eads), and the 30 has failed to dispel public perceptions of a cover-up. Nothing less than identification of the individuals concerned and their immediate suspension will begin to satisfy an increasingly sceptical public. The ruling party has done no better than the government. Tony Yengeni should have been suspended as African National Congress chief whip at the first evidence that, as former head of one of Parliament’s defence committees, he had received an expensive gift from Eads and not disclosed it in the register of member’s interests. Parliament, too, has not covered itself in glory. Clear prima facie evidence that Yengeni did not make full disclosure of his assets and of benefits accruing to him should have elicited an immediate parliamentary investigation and a sense of urgency about what is, on the face of it, a breach of the ethical standards required of MPs. But we see in Parliament the same lackadaisical attitude that affects the government and ruling party. Parliament has, for example, not seen fit to publicise Yengeni’s defence of himself. Evidently the committee expects us to be satisfied to wait upon its conclusions before we may evaluate the evidence. Parliament, the ANC and the government are risking serious declines in public esteem. The electorate senses arrogant disregard for public concerns. Which of us has forgotten the hauteur of the four senior ministers who, a few months ago, dismissed suggestions of corruption in the deal? Who told us that, in suspecting that something was amiss in the deal, we and Parliament’s public accounts committee were stupid and ignorant? We are talking here of a government that has conferred upon itself the status of champion of moral renewal on the continent. The ANC and government should realise that their backwardness in taking quick and exemplary action is a betrayal of those who have believed its stated commitment to fighting corruption. Stop faffing around. Get with it.
@?Verbatim
“He is seen as a womaniser. It is publicly known and I think we should start talking about this, that the president has this kind of personal life. I’m not saying it’s scandalous. He’s a womaniser.” Journalist Max Du Preez on a radio programme on Sunday
“An attack on President Mbeki is an attack on the ANC and will not be tolerated. Max du Preez and his old friends have clearly embarked on a warpath and such statements on the ANC are a declaration of war.” African National Congress national representative Smuts Ngonyama
“We must strengthen the laws that empower black people to fight racism in the province and in the entire country.” Northern Province Premier Ngoako Ramathlodi at the funeral of Tshepo Matloga, who was murdered by nine rugby players and dumped into the crocodile-infested Arabie dam
“Well, if the Namibian people say that we want you to do this I am always at the disposal of the Namibian people.” President Sam Nujoma, who is ready to run for a fourth term as president
“Fuck you! This is my night.” Disgruntled singer Brenda Fassie after failing to scoop song of the year at the South African Music Awards
“He was like a brother and a friend.” Pat Fletcher after being bitten by his own pit bull, which was put down after attacking him