of the past
Sergeant at the Bar
The past year may well prove to be a watershed in the history of the post- apartheid judiciary. In 1998, the Judicial Service Commission made a few appointments which were not only controversial, but perhaps precedent setting. As a result, Judge Bernard Ngoepe became the judge president of Gauteng and John Myburgh resigned. Questions were raised about both men.
Why was Judge Ngoepe not given a permanent position on the Supreme Court of Appeal where he had acted, rather than appointed judge president? A few years on the highest court would have been excellent training for him to have succeeded Ismail Mohamed as chief justice. Why was Myburgh lost to the judiciary – after all, he had proved a success as president of the Labour Court, both as an administrator and an initiator of transformation of the Bench?
These developments raise a critical question: what balance does the Judicial Service Commission try to achieve between colour and transformation?
It is a painful yet important matter. Its significance has been highlighted in a recently published book on the Truth and Reconcilliation Commission and the apartheid legal order by an eminent legal philosopher, David Dyzenhaus.
Dyzenhaus’s account represents more than a justified criticism of the reluctance of the profession to account for its role in the development and perpetuation of apartheid. It is a compelling read, particularly for those who insist there is no use in lamenting the past.
In particular, Dyzenhaus focuses his critical attention on submissions made to the truth commission by a number of judges; in particular a submission by appellate judges Smalberger, Howie, Marais and Scott, who argued that “if the implication (of the criticism against old order judges) is that judges were free to ignore even the plainly expressed meaning of a statute because it was enacted by a Parliament which was not elected by the majority of the country’s citizens, it is a quite untenable proposition”.
As Dyzenhaus correctly notes, it was not that the illegitimacy of the Parliament gave judges a lever to ignore the words of a statute, but rather that the legal techniques of interpretation which were employed in South Africa were wholly inappropriate, in that they owed their justification to the existence of a democratic legislature. Nowhere do these judges show any understanding of the inappropriateness of the methods they employed as judges in the context of a racial autocracy.
Those few lawyers who grasped the reality of the old order were faced with two choices. They could have rejected the legal system by concluding that the ideal of the rule of law was better served by a violation of the apartheid legal system – the most bold implementation of this principle being the actions of Bram Fischer. They could have remained in the system and tried to hold Parliament to the rule of law; that is they could have tried to marry the concepts of law and justice by implementing a belief in the intrinsically just nature of the law.
Dyzenhaus finds the four sitting members of the Supreme Court of Appeal to be totally lacking in an understanding of the nature of legality and its potential.
In this account it is not only the Bench that comes off badly. Dyzenhaus finds that the Bar was at best defensive in its account of its role, and, at worst, contemptuous of the process.
Significantly, he suggests that an independent judiciary requires an independent profession, but that this does not require of necessity a professional monopoly in the form of a Bar. As he says, “to assume that the hierarchy is essential to maintaining the rule of law betrays not only a highly parochial view of legal order, but one ill-suited to a society attempting to escape from an era of dominance by white elites”.
If this history is to guide the future, there must be a clear judicial commitment to “debate the past and the future”. Flowing from this, there must be a concern to promote the principle of legality where law and justice are meshed as best as is practically possible. Perhaps the Bar is not the only place to find such people, although Dyzenhaus shows ignorance of the Bar’s own ability to change.
But neither should appointments based on colour be the only criterion, as important as it is to change the racial and gender composition of the Bench. The Judicial Service Commission needs to show that it has learnt the lessons of the past by placing the importance of a belief in legality and an ability to transform the legal thinking of the past at the top of its list of qualities needed for the Bench.