A Constitutional Court will have a huge impact on the lives of all South Africans, making the composition of the court a crucial issue, writes Dennis Davis. Yet two important judges were not chosen
JUDGED by the density of coverage in last week’s media, the country’s very future appeared to depend on the inevitably mercurial conduct of Louis Luyt. It even prompted two judges of the Natal Provincial Division and an Appellate Division judge to break the usual judicial reticence for commenting on public events.
Luyt’s antics far outshadowed the coverage on the presidential appointment of the four judicial members to the Constitutional Court, a decision which could have far reaching implications for the nature and content of democracy in this country.
The emphasis of the media is reflective of the widespread public ignorance concerning the potential impact of the Constitutional Court on the lives of South Africans.
For the first time in our history sovereignty will be shared between parliament and the Constitutional Court, the judgments of which could well determine crucial questions such as the death penalty, the right of a woman to an abortion, the right of rural women to land, the constitutionality of land restitution legislation, taxation and a host of other social and economic problems.
For this reason the composition of the court is of vital importance. A constitutional judge requires different attributes to that of a supreme court judicial officer. Not only should the constitutional judge be fiercely independent, have keen analytical skills and a knowledge of constitutional principles, but he or she will need a political and sociological imagination to build a conceptual bridge between constitutional principle and the political, economic and social demands of all sectors of the society.
Viewed in this light, the concern expressed by some that the system of public hearings to be employed by the Judicial Services Commission prior to the appointment of the balance of six members of the court, will create a bias in favour of white men is unjustified. If the criterion for appointment turned solely on litigation experience in commercial cases, the fear would be justified. Once the criteria are broadened to take into account the different demands of constitutionalism, the president will be able to appoint a group of six men and women who reflect the demographic composition of the country without any suggestion of tokenism or affirmative action.
It is for these reasons that the appointment of the four judges gives cause for disquiet. Little is known of Judge Tholakele Madala, save that he was a recent appointment to the Transkei Bench. Accordingly, one can only express the hope that his appointment can be justified on the grounds of the criteria outlined above.
By contrast much is known of Judge Richard Goldstone and there can be little doubt that in ordinary circumstances his appointment would have been warmly welcomed. I, for one, was surprised that neither he nor Judge Ismail Mahomed was appointed as chief justice when Judge M Corbett’s term came to an end.
However, the circumstances are not usual. Goldstone has been appointed chief prosecutor for the United Nations to deal with Bosnia war crimes. It is likely that he will be out of the country for two years. To accommodate his appointment, the constitution will now have to be changed to make provision for an acting appointment to the Constitutional Court.
The ”Goldstone Amendment” to the constitution is unacceptable. Members of the Constitutional Court enjoy one non-renewable term of office for seven years. Now one of the members will only sit for five years and his place will be kept warm by an acting member who might well have the vested interest that he or she could enjoy a permanent appointment in seven years time! Further-more, the first two years will be crucial in the development of a coherent jurisprudence and in this process the court will miss the important contribution of Judge Goldstone.
The mistake is compounded by the omission of Judge John Didcott from the list of four appointees. If the criteria for appointment outlined above are accepted, Didcott together with Mahomed (who was appointed) and Arthur Chaskalson (the newly appointed president) would be the three most suitable candidates.
While Mahomed and Chaskalson will grace the court, Goldstone’s truncated contribution has been regarded by the government as superior to that offered by Didcott.
The Constitutional Court without Didcott is an impoverished court. He was the first South African judge to pioneer the human rights jurisprudence which was later accepted by many other judges. His creativity, intellect and courage are exactly the qualities required if the constitutional enterprise is to succeed. The country is owed an explanation as to the reasons for this omission.
Didcott is not the only deserving case. Johan Kriegler is another judge who would have added to the strength of the court. The first president of Lawyers for Human Rights, a lawyer of principle and courage as illustrated in his judgment in the ”Neethling” case and a man who, particularly after his Independent Electoral Commission experience, probably is able to feel the pulse of South Africans, black and white, better than any other judge.
Why have these two judges been omitted from consideration? Together with Chaskalson and Mahomed, they would have contributed enormously to the development of a constitutional jurisprudence of which all South Africans would have been proud.
Their exclusion raises questions as to what criteria the government has employed in choosing constitutional judges and whether the National Party continues to exercise the kind of influence over judicial appointments which ensured that Didcott never reached the Appellate Division.
* Professor Dennis Davis is director for the Centre of Applied Legal Studies