transformation
SERJEANT AT THE BAR
The brouhaha that was occasioned by the statement of Smuts Ngonyama about the judiciary (that is, the first statement, in which he apparently did not mean to say what he was reported to have said!) has perhaps taken on rather more significance after the tragic loss to the judiciary of Chief Justice Ismail Mahomed.
The contents of Ngonyama’s statement dealing as it did with Allan Boesak are of but transient importance, perhaps marginally more than if the Dutch Reformed Church were to complain about the treatment of Hansie Cronje. But it did reflect a perspective of the role in which some within influential quarters view the institution of a judiciary in South Africa.
In terms of this position the judiciary is an institution that must support “the people’s” conception of justice. As the African National Congress represent the people’s aspirations for the new South Africa, the output of the judiciary must be tested against this set of values. In short, all institutions must support the development of democracy as viewed in this way and where they fail then they must be criticised accordingly.
Naturally this is not the only approach which is taken by influential members of the ANC to the institution of an independent judiciary in this country – if it had been we would not have enjoyed the Constitution or the judicial appointment procedures under which we now live. But the very assumptions underlying Ngonyama’s statement serve to confirm the presence of this perspective.
With all criticism of this kind there is a measure of reality upon which it is based. In short, the failings of the bench only serve to fuel this kind of attack. An independent judiciary is not merely something that is asserted; it has to be won by obtaining widespread legitimacy. The public is sensitive to judicial pronouncements whether they take the form of sentencing of rape offenders, or declarations of invalidity of legislative initiatives of government.
When judgements appear to make use of the Constitution to weaken the politics of social and economic transformation or when sentencing practices appear to take little heed of social reality the judicial institution is rendered vulnerable.
By its nature the enterprise of judging is fraught with difficulty. There is an inherent tension between the judiciary and the other arms of government. Thus courts will from time to time be required to make decisions which do not enjoy contemporary popularity. When they so perform, those aggrieved will seek to blame the judiciary for their own failings.
If the institution of the judiciary delivers such judgements within the context of clear, coherent and principled commitments to the foundations of the Constitution and hence is seen to be the public defender of the kind of society promised by the Constitution, it may well have sufficient stock of legitimacy capital to withstand attack. If not, we are all in trouble as the “people’s” conception of justice, as defined, will take over.
Judge Ismail Mahomed possessed the stature to have ensured that the judiciary moved purposively in this direction in the minimum amount of time. Unquestionably his relentless commitment to the integrity of the law meant that the rapid appointment of talented black and women jurists as judges was a necessary but not a sufficient condition to transform the legal system.
Of the challenge posed by our new constitutional state Mahomed once said: “The new Constitution … gives to the creativity of lawyers a demonstrable leverage in attacking – inconsistent with its ethos … it accords to lawyers an expanded field for real fulfilment in areas previously excluded by the sterility of the doctrine of parliamentary sovereignty and it provides them and the courts with teeth that are sharp and biting enough to snarl at and chew on visible manifestations of injustice.” In short, transformation is both about demographics and jurisprudence.
Sadly he was not in the office for sufficient time to complete the job. He leaves a Supreme Court of Appeal that continues to offer a diet of conservative jurisprudence and a judicial institution that is still in pressing need of the kind of change in legal approach that can earn it the capital to survive and prosper.
Ironically Judge Hennie van Heerden and Judge Joos Hefer (the very combination Judge Hefer wanted at the time of the controversy about Judge Mahomed’s appointment) are left to run the Supreme Court of Appeal – hardly a team to guide the bench in the journey which Mahomed had in mind.
That courts can gain legitimacy and still exist in a state of healthy tension with the legislature and executive is best exemplified by the performance of the Constitutional Court. Most recently, in another set-back for the Department of Home Affairs, the Constitutional Court in the case of Dawood has so extended the power of judicial review of legislation that it will be extremely difficult for the legislature to provide administrators with an unfettered discretion to take any decision which affects the lives of those so affected.
The Constitutional Court is slowly developing the kind of guarantees for a democracy to exist and prosper. But it cannot do this alone. As irreplaceable as Mahomed appears to be, someone is going to have to be appointed who can lead the transformation together with the Constitutional Court. We cannot develop a public law suited to a modern democracy and allow the Supreme Court of Appeal off the hook in not developing our private law in a similar fashion.
It is critical that leadership be found to ensure that the balance of the judiciary moves in a similar direction to give substance to our constitutional society. If not, the legitimacy of the institution will be compromised so that it will be defenceless against the “people’s conception” of a judiciary.