One of the more important themes to emerge from this week’s Judicial Service Commission hearings was the extent to which many judges are still failing to appreciate the importance of the 1994 Constitution. Having been steeped in Roman Dutch and English law for so long, they are still wary of a document that forces them to question the most basic of the principles and precedents that are the tools of their profession. One judicial body that has been particularly reluctant to apply the Constitution is none other than the Supreme Court of Appeal in Bloemfontein. This uneasiness about the Constitution in part explains the rivalry that has existed between the appeal court and the Constitutional Court in Johannesburg, both competing for the status of the highest court in the land. It has been said that some of the Bloemfontein judges – with other judges in high courts across the country – at first tended to perceive their Constitutional Court brethren as somewhat ponderous academics, removed from the daily struggle in the lower courts to maintain the rule of law in an increasingly lawless country. There is at the same time little doubt that such opinions of the Constitutional Court are gradually evaporating. The court, in a very short space of time, has developed considerable stature and gained much respect for its independence and the quality of judgements. The uneasiness towards the Constitution and the Constitutional Court on the part of the Supreme Court of Appeal has meanwhile given rise to the perception in some legal circles that the court is in some way antipathetic to the new South Africa – a perception that has been fuelled by the preponderance in the court of white males appointed under apartheid. The fact that many of the appeal court judges banded together to try to block the appointment of the former chief justice, Ismail Mahomed, in 1996, merely confirmed their reputation as recalcitrant representatives of the old order. Mahomed of course went on to give the court considerable credibility. The death of Mahomed this year has spotlighted these tensions – both because his departure has reduced the appeal court’s standing and because the search for his successor has raised the possibility of a merger between the Supreme Court of Appeal and the Constitutional Court. A merger of some sort would have two important practical implications – it would cut the administrative costs of running the two courts and would ease the task of finding suitable new judges for both courts. The Judicial Service Commission is charged, in terms of the Constitution, with fashioning a judiciary that is representative. For some time now the commission has signalled that race has joined seniority and experience as the most important factors determining appointment to the judiciary. For obvious reasons there is a short supply of experienced black lawyers – or indeed progressive white lawyers – who are willing to take up judicial office. The search for a replacement for Mahomed – who, in addition to being black, was one of the country’s finest legal minds – has highlighted the problem.
It is said that the exploration of a merger was one of Mahomed’s pet projects. The late chief justice, who was previously deputy president of the Constitutional Court, kept on an office at its building in Braamfontein and was an important bridge between the two courts. Minister of Justice and Constitutional Development Penuell Maduna has also expressed enthusiasm for the idea of a merger. Two possible models have been touted – a fully merged institution or one with two parallel chambers, presided over by the same chief justice. Talk of a merger was one of the main topics of discussion at last week’s gathering of judges, lawyers and government officials to discuss the judicial system. It comes as little surprise that many of those in attendance were prickly about what would constitute a massive shake-up of the judicial system. For now, therefore, the idea seems to have been dropped, although there is talk that the justice ministry has merely decided to explore the possibility more discreetly. The Judicial Service Commission this week grappled with the fact that “transforming” the judiciary is a much more complicated task than merely dressing it up with some black faces. What is arguably more important is equipping the Bench with the kind of jurists who will honour the Constitution and extend its relevance to ordinary South Africans. One of the main objections to a merger was that it would in some way undermine the stature of the Constitutional Court – a fear with which we sympathise. The problem is that one is still left with the rivalry between the two top courts, and, more specifically, the question of who out of the chief justice and the Constitutional Court president is the highest judge in the land. Bearing in mind the obstacles to any merger for now, we would propose that the Constitution be adjusted to make the Constitutional Court president head of both courts. It is a simple measure that would extinguish tension between the two courts, but that would also signal to other courts across the country the profound importance and supremacy of the document that in 1994 gave birth to the new South Africa.