Minister of Justice Penuell Maduna has not been our favourite politician in the past: the public protector’s marathon inquiry into the Central Energy Fund has made Maduna’s mouth arguably the most expensive in the country’s history. But he does deserve some applause for the controversy he has stirred up around the judiciary, not so much for sagacity, but for his success in getting at least some sort of debate going on a crucial issue.
The judiciary as a whole faces a series of problems. Among other things, the magistrates continue to be civil servants in the face of a constitutional requirement that the courts be independent. The Legal Aid Board, which underpins the right of representation before the courts, is in a state of collapse and – judging from the complete lack of reaction to a keynote speech given by its chair, Judge Mahomed Navsa, last week – nobody cares a damn.
Morale in the judiciary seems rock-bottom and to cap it all we have undercurrents of rivalry churning around the foundations of the two highest courts in the land, the Constitutional Court and the Supreme Court of Appeal.
Against that background a squabble over whether Judges Richard Goldstone and Johann Kriegler should be out of the country while their brethren toil away at a backlog of cases may seem to be petty stuff.
But petty or not, the row does encapsulate the central issue where the future of the judiciary is concerned – the independence of the institution, which is supposedly guaranteed by the Constitution.
The apparent intervention by the president of the Constitutional Court, Judge Arthur Chaskalson, to gain an apology from Maduna for his slights on Judges Kriegler and Goldstone represents one of the few firm acts of leadership we have seen on behalf of the judiciary, at a time when it has been sorely in need of them. And even then we are left confused by it.
Chaskalson, in a statement he issued on the subject, explained that Goldstone had approached the minister about an invitation to chair an international commission on Kosovo. The minister undertook to “raise the matter directly with the president” and reported that the president “gave his approval”. Later in the statement Chaskalson referred to Kriegler having taken long leave “with the permission of the former minister of justice”.
We are open to correction, but it would seem quite wrong, under the doctrine of a separation of powers, for the judges to go running to the executive to ask permission for anything, much less for approval with regard to leave. The president of the Constitutional Court or the chief justice might have been well advised to have “consulted” with the presidency or the Department of Foreign Affairs, in case the invitation to chair the Kosovo commission cut across foreign policy – but in order to inform and, if necessary, to be informed, not in search of “approval”.
As for running to the minister for permission to take a holiday we can only observe: no wonder Maduna treats the brethren of the Constitutional Court with the disrespect normally reserved for civil service lackeys.
Our respect and admiration for the country’s two most senior judges leads us to suspect the problem with the judiciary now is not so much a failure of leadership, but a sheer vacuum at the top created by uncertainty as to which is the senior man – Judge Chaskalson, in the comfort of his judicial enclave in Johannesburg, or Chief Justice Ismail Mahomed, brooding in the austerity of his wood-panelled rooms in Bloemfontein.
Whichever man it is to be, the country and judges should know that the Constitution may have granted the judiciary its independence, but only regular exercise will sustain it.
Bruce breaks wind
We had hoped to avoid reference to the Dolny affair in these columns this week, both because we found aspects of the recent exchanges with The Star distasteful and because we didn’t wish to be seen crowing at that newspaper’s self-evident discomfort at the outcome of the Katz inquiry.
We are driven to do so, however, by an editorial in the Financial Mail this week which advises that “everyone – Helena Dolny, her accuser, Bonile Jack, the media and the government – could learn something from this unhappy affair. Mainly that caution should be a byword in public life.”
Such advice ill becomes the editor of that publication, Peter Bruce.
Although he is not to be confused with his predecessor Nigel Bruce – who had such difficulty with people putting their thumbs in his soup and was incautious enough as to tell the public of his victimisation – the present editor of the Financial Mail was incautious enough to throw his publication’s considerable weight behind the United Democratic Movement in the recent general election. Sadly the experience appears to have won him to this stunted view of principle.
For our part we could plunder the books of quotations for endless authorities in contradiction of his advice. But we will limit ourselves to the articulation of what to us would appear a self-evident truth, that caution in the face of injustice is a miserable thing.