Amid the changes in the judiciary, an old- style attitude still exists among some judges. Three months as an acting judge was a learning experience for academic and commentator Dennis Davis
THE demand for the transformation of the South African judiciary has become almost as plastic a concept as that of the rainbow nation. That the judicial system that was inherited from the apartheid system is ill- suited to the demands of a democratic society based on freedom, equality and human dignity is surely apparent to all but the most recalcitrant, some of whom re- emerged into the public limelight during the unfortunate controversy which preceded the appointment of the chief justice.
The war cry, unfortunately, has not been accompanied by sufficient analysis as to the kind of judicial system which will be suited to the demands of the egalitarian society envisaged by our Constitution. Perhaps the reason for the striking lack of substance in the debate lies in the truly problematic issues relating to the transformation of the institution. Recently, I was privileged to serve as an acting judge on the Cape Provincial Division of the Supreme Court.
Although a couple of months on the bench is hardly sufficient to gain adequate insight into the range of problems relating to judicial change, the experience was rather salutary for an academic who has been critical of the judicial system in revealing the complexity of the problems of transformation.
The first issue relates to the composition of the judiciary. It is trite that the judiciary is predominantly staffed by white males.
That this legacy of apartheid must change is equally obvious, but the means to be adopted are not quite as simple.
There had been some debate prior to 1994 that all judges should be interviewed by the Judicial Services Commission prior to re-appointment.
Doubtless this development would have led to a number of retirements. The politics of transition dictated otherwise. Accordingly, the only viable alternative which would give rise to more vacancies on the bench would be to adopt the so-called “Howard amendment”, in terms of which judges who have attained the age of 65 years would be able to retire with the same rights as presently apply at the retirement age of 70 years.
It appears unlikely that the “Howard amendment” will be approved, in which case fewer vacancies will arise and hence judges clearly uncomfortable with our new society will continue in office until they attain the age of 70.
For this reason, it is likely that the composition of the judiciary will change rather more slowly than some might expect. Even if the “Howard amendment” is adopted, considerable care should be taken to ensure that the core of experienced, competent judges who have shown remarkable adaptation to the constitutional state should continue in office.
Were these judges to resign immediately, it is unlikely that sufficient experienced judicial officers would be found to maintain a judicial system in which ordinary South Africans will obtain full benefit of their constitutional rights.
The brutal reality of apartheid was that its racism, together with the connivance – whether by omission or commission – of the legal profession, prevented women and black lawyers from being exposed to the full range of the complexity of law.
While the Nationalist government appointed many mediocrities (without much complaint from the legal profession), South Africans now deserve far better and, with some official imagination in looking for candidates outside the tradition pool, this can be attained, although probably over a somewhat longer period than was previously hoped.
While many of the recent appointments have been extremely successful, the existing pool of candidates is too small to effect wholesome change immediately. While I accept that my own experience as an academic lawyer is far inferior to many prospective candidates for judicial office, the assistance given to me by experienced judges in regard to a range of issues in which I have had no previous experience, was not only critical to my survival on the Bench, but indicated to me that experienced judges committed to change of the system are much needed to pass on assistance and guidance to those who assume judicial office. In short, these judges are crucial to the development of a Bench which adequately reflects the demography of this country.
Transformation also requires a change in support given to the judicial institution. At present, the judiciary is treated like a 19th-century institution in which a group of gentlemen use quill pens to produce their judgments. Judges do not obtain computers as of right. There is no research assistance available to members of the Bench who thus compete against practitioners equipped with the latest information technology and a team of juniors and attorneys.
It is quite unacceptable for the judiciary to operate in this parlous situation with poor libraries, an absence of research capacity and no access to information technology. I found it difficult to obtain a dictaphone in order to ensure that my judgments could be typed. These developments began many years before, when the old government reduced the judiciary in status and in resources.
Transformation is also about changing the nature of our legal thinking. The Constitution brought about a revolution to our legal system and this now requires that the judiciary be provided with research to enable our common law to reflect the values of our new society.
To a significant extent, the institution has been let down by the academic community. One example must suffice. In the area of crime, there is an extraordinary absence of decent research on sentencing options, concepts of punishment and general guidance to deal with the escalating crime wave.
It is unacceptable that, in a society faced with our crime rate, none of the criminology institutes has been able to produce the kind of rigorous research which would ensure that the principles of sentence, bail and punishment become coherent. The bench must be confronted with new thinking to ensure that it develops the law in accordance with the spirit of the underlying values of the Constitution.
A definite start has been made on the transformation road, with the appointment of Ismail Mahomed as chief justice, but the chief justice cannot do it alone. To me, it is clear that the judge presidents have a vital role in assisting the chief justice to change the system.
If one looks at the areas in which the judiciary has changed for the better, much of the credit for that should be given to the judge president of the division, a conclusion clearly borne out by my experience on the bench.
South Africa needs to concretise the debate around judicial transformation. Mere slogans and easy solutions will not suffice.
Professor Dennis Davis is the director of the Centre for Applied Legal Studies at Wits University and was a Cape Division acting judge from October to mid-December last year