Despite the process of reconciliation, there are=20 obviously judges who are struggling to break out of the=20 old mould, writes Dennis Davis
IT could surely not have been expected that there would=20 be unanimous enthusiasm for the decision by the=20 Constitutional Court that the death penalty was=20 unconstitutional. But for a sitting judge of the=20 Supreme Court to condemn the Constitutional Court,=20 thereby calling into question the Constitution, is an=20 entirely different matter.
Judge Van Dyk’s outburst against the authoritative=20 interpretation of the Constitution raises pertinent=20 questions regarding our judiciary’s capacity for legal=20 transformation. The new Constitution imposes fresh=20 philosophical demands and different legal perspectives=20 from those of the apartheid era. If a judge cannot=20 accept these changes he or she should resign.
It is ironic that it should be Judge Van Dyk who calls=20 the Constitution as interpreted by the Constitutional=20 Court into question. It was he who found Barbara Hogan=20 MP guilty of treason in 1983, finding that her (non- violent) work for the African National Congress had=20 been clearly aimed ”at destroying (the) peace and=20 tranquility (in South Africa) and (was) also aimed at=20 the very destruction of the state itself”. So a non- violent contribution to the development of a non-racial=20 democracy was held to fall within the common law crime=20 of treason.
Notwithstanding the much-heralded reconciliation=20 process, there are obviously judges who are struggling=20 to break from the old mould.
The problem is compounded by the apparent difficulty in=20 transforming the judiciary. Thankfully, the Judicial=20 Service Commission recommended the appointment of three=20 black lawyers to the Bench in Gauteng; the fourth=20 appointment was equally deserved, for Basil Wunsh has=20 had a long and distinguished career as an attorney of=20 the very highest calibre.
Unfortunately the process was marred by an apparent=20 campaign to discredit Kathleen Satchwell who was short- listed for appointment. Her ”crime” was that some 10=20 years ago, in seeking an order of court to compel the=20 attorney general to prosecute a detainee, an award of=20 costs was made against her. It would appear that the=20 court believed a security policeman who alleged, in=20 contradiction to Satchwell, that she was never=20 prevented from seeing her client in detention and that=20 hence she could have brought her application at an=20 earlier time, more convenient for the attorney general.
This attack on Satchwell followed widespread rumours=20 that judges on the Bench didn’t want her to be=20 appointed; hence the trumped up ”charge” at the=20 interview! Was an application for an order compelling=20 an attorney general to charge or release a detainee to=20 be brought only at the convenience of an attorney=20
Consequently a fine, experienced lawyer who would have=20 made a real contribution and whose appointment could=20 not have been labelled ”gender tokenism” was not=20 recommended for appointment at all because a court from=20 the Van Dyk era believed a security policeman!
With this approach, the JSC is failing the challenge of=20 the country, by ignoring the imperative of changed=20 perspectives. Or are the standards of the reasonable=20 security policeman still to be used as the yardstick?
A further even more disturbing question arises. Is it=20 the attitude of the JSC that only advocates are welcome=20 to the Bench — save for the odd exception like Wunsh?=20 For example, one of the finest women academics in the=20 country, Carol Lewis, didn’t even obtain an interview=20 from the JSC. By contrast the Johannesburg Bar endorsed=20 the candidature of one Des Duke, who told the JSC in=20 the style of humour which is doubtless popular at the=20 Bar Common Room that his acting judicial career had=20 brought him into contact with the ”jewellery trade” (he=20 tried ”necklacing cases”).
Unless the JSC grasps the imperative that new=20 approaches to law are needed, that the old standards=20 cannot be slavishly followed, the Van Dyks will be=20 replaced by the Dukes (albeit with a little more tact)=20 to the detriment of legal transformation in South=20
Professor Dennis Davis is head of the Centre for=20 Applied Legal Studies at Wits and lectures at the=20 University of Cape Town’s Department of Commercial Law