Dennis Davis
In his celebrated work on the judicial process, Ronald Dworkin illustrated the implications of legal theory by the use of a model judge, Hercules J Hercules, who is able to take legal precedent seriously, while developing the law in harmony with its proclaimed values and commitments, no matter how complex the case.
In real life such a task is almost unattainable in every situation. But if ever South Africa had a Judge Hercules on the Bench during the past 20 years, including the worst of the apartheid era, it was John Didcott. His commitment to principle, intellect, integrity and courage over a sustained period of judicial office represented a beacon of hope when many questioned the role of law in the country.
Didcott was appointed to the Bench in June 1975. From early in his judicial career he exhibited the ability to uphold the law to its innermost commitments. He was not afraid to develop the common law even as a relatively junior judge.
As Didcott himself said in a public lecture in 1988: ”Crises in society make it all the more imperative for the law to do the balancing between society’s competing interests. For this the conflicts between society’s various interests are at their starkest – and the need for balance that is impartial is at its greatest.”
During the emergency in the 1980s, Didcott showed what judges of courage and jurisprudential integrity could do when he upheld the earliest challenge against the emergency regulations in the Mawu case.
His ability to develop the law by shaping it in terms of its most fundamental principles and to employ comparative law to support this line of reasoning was, perhaps, best illustrated in the Rudman case. He found that, in specific circumstances an accused did have a right to legal representation. The compelling logic of this argument stood in sharp contrast to the impoverished approach adopted by the Appellate Division in rejecting this finding.
In 1994 Didcott was appointed as a member of the Constitutional Court. Amazingly he was not one of the four sitting judges that the president was required to appoint. This disgraceful omission elicited much critical comment from human rights organisations. The injustice was rectified when Didcott was appointed from the 10 nominees put to the president by the Judicial Service Commission.
It must have been a great satisfaction to Didcott – as a lifelong opponent of the death penalty – that the Constitutional Court unanimously declared the death penalty to be unconstitutional.
Didcott’s judgments were invariably well crafted and elegantly drafted. He knew when to develop the law and when to be more cautious. He defied the tradition of the monastic judge. He spoke out publicly against the death penalty, against executive encroachment on the judicial function and was always supportive of dialogue between the Bench, the legal profession and academics.
Fierce in court, intolerant of mediocrity, he was approachable, lacking in pomposity and engaging outside the court. He was a great judge, whose death at 67 is a huge loss to all who treasure human rights.
Judge Dennis Davis sits on the Cape High Court Bench