Lesley Cowling
JUDGE John Didcott may still sit on the Constitutional Court despite being passed over by President Nelson Mandela last week.
Mandela will have to choose another six judges from a list of 10 compiled by the Judicial Services Commission — and the commission is almost certain to include Didcott.
The JSC called for nominations from the public and the legal community last month. It will draw up a shortlist of candidates to be interviewed in open hearings in September.
According to a reliable source, the JSC has already received a number of nominations for Didcott from organisations and individuals, including other Natal judges.
“It would be unthinkable to exclude Didcott from the shortlist,” said one human rights lawyer this week. “The only question is whether he is prepared to go through the public hearings.”
The omission of the outspoken Natal judge has puzzled legal practitioners, who see him as a natural choice because of his brilliant legal mind and long human rights record.
“In his judgments, he has displayed a great sensitivity to constitutional issues and human rights,” the lawyer said.
Lawyers for Human Rights’ Witwatersrand region regretted his ommission “in view of his long and courageous struggle to create precisely the kind of jurisprudence that Lawyers for Human Rights would hope to see emerging from the court.”
Didcott was described in 1988 as having “zero chance” of making it to the then highest court in the land, the Appellate Division, after publicly criticising PW Botha’s government for unjust legislation.
He had been a thorn in the flesh of the authorities long before 1988, however, attacking the Department of Justice in 1980 for a “deliberate strategy to subvert, harness and control the Supreme Court”.
In 1986, he and two other Natal judges overturned six clauses in the emergency regulations on grounds that they were too vague or the State President had exceeded his powers.
But the uncompromising stance that made Didcott so unpopular with the old regime may be that which sticks in the craw of the new. “He’s male, white and independent-minded and that’s three strokes against him,” said Martin Brassey, professor of Law at Wits University.
Didcott is known to be temperamental and irascible. “But his temperament and irascibility is nothing compared to Mohamed’s,” the lawyer said. “Besides, irascibility has never been a disqualifying factor for judges.”