It should be said at the outset that the controversy which has developed over the appointment of South Africa’s chief justice does not involve great issues of principle. It is little more than a petty squabble, essentially over personalities. But it is nevertheless a damaging one for the judiciary.
Perhaps the most unfortunate aspect of the whole affair is the lack of wisdom shown by that group of men whom we like to consider the wisest of the wise: the brethren of the Appellate Division of the supreme court. Sworn to uphold the constitution of South Africa they have opened themselves to the charge of undermining “due process”.
Invited, quite properly, to offer nominations for the post of chief justice, they have in effect responded by putting forward what amounts to a petition in support of the candidacy of one of their number: Judge Hennie van Heerden.
And there is some evidence — in similar petitions from other provincial divisions — that some among their number have lent themselves to a campaign on Judge van Heerden’s behalf, attempting to steamroller the judicial services commission.
Certainly the action of Judge Joos Hefer, in calling for Judge Ismail Mahomed to withdraw his nomination, is little short of disgraceful. Chief Justice Michael Corbett did not refer to him by name in his statement this week, when he said calls for either candidate to withdraw were “an improper interference with the procedures of the commission”. But the comment clearly embraced the extraordinary demand by Judge Hefer that Judge Mahomed show himself to be an “honourable” man by withdrawing. As such it surely represents the most biting criticism of a member of the Appellate Division by a chief justice.
We can only hope Judge Hefer, the former chief justice of the Transkei, will now do the “honourable” thing and submit his resignation.
An equally worrying aspect of the Appellate Division’s performance with regard to the post of chief justice is its apparent inability to recognise where the interests of the judiciary lie.
It has often been said that South Africa has been through a negotiated revolution. That is true about two arms of the government — the legislature and the executive, which have effectively been replaced. The judiciary has survived the “revolution” unscathed, however, the judges appointed by the ancien regime having been “deemed” to be appointed under the new Constitution.
But it is extremely short-sighted of the judges if they fail to appreciate the price the judiciary as a whole has to pay for their easy passage — by way of diminished credibility in the new South Africa. If the judges were put to the test of a popular vote there is little doubt they would be wiped out of office as completely as the Nationalists, as the “hand-maidens” of apartheid (unfair though such an appellation may be to many incumbents).
Obviously it is highly undesirable that the judiciary should be put to such an electoral test. But in retrospect it is perhaps unfortunate that judges were not required to at least re-apply for office and subject themselves to hearings of the judicial services commission. That, at least, would have gone some way towards buttressing their credibility in the new dispensation.
As it is they are left with a need — which might well be described as desperate — to find some symbolic act which will signal their identification with the new South Africa. Along comes the undisguised blessing, in the shape of Judge Corbett’s retirement and Judge Mahomed’s candidacy, and they reject it!
The Appellate Division’s apparent antagonism towards Judge Mahomed is bewildering. It is possible to share its sympathy for Judge van Heerden. He is, by all accounts, an admirable judge. It would be something of a shame that he should have laboured in the judicial vineyards for so many years under the (much abused) rule that seniority secures the chief justice’s post, only to have the fruits of his service snatched from him at the last minute. But both he and his colleagues on the Appellate Division need appreciate that, not only have the goal posts been moved, but an entirely new game is being played.
If Judge Mahomed did not exist the judiciary would have been well-advised to find a black jurist to fill the post, even if it meant diluting the standards of the bench by way of affirmative action. But Judge Mahomed does exist and that is a blessing indeed. His standing in the judiciary is such that it would be quite wrong to describe his appointment to the post as affirmative action.
There has, admittedly, been some muted criticism of Judge Mahomed as a judge. He is said to talk too much on the Bench; but when a man has such a golden voice that is of little matter. He is said to be too pushy, overly enjoying the limelight and publicity. But that is understandable in a man who has had to battle for recognition against extraordinary odds to reach his high position. And when one considers the personal triumph over racism which his life represents there is surely no man, or woman, better qualified to lead the supreme court into a new era.
Plato once said that a judge “should have learned to know evil, not from his own soul, but from late and long observation of the nature of evil in others”. He might have been speaking of Judge Mahomed’s unique qualifications to be the chief justice of South Africa.