Serjeant at the Bar
Anthony Gubbay is a principled person of great courage and integrity. He is also a fine jurist as is evident to anyone who examines the pages of the South African law reports. He is the stuff of a great judicial leader of whom any country would be proud. Until a couple of weeks ago he was Chief Justice of Zimbabwe. Although he brought great distinction to that country, Robert Mugabe’s government has forced his removal from office. Now the same government, flushed in triumph at ridding the country of the principle defender of a society governed by law, seeks the removal of the other members of the country’s highest court. Tyrants the world over hate legal controls after all, law inhibits their desire for absolute, unbridled power. Hence these actions probably caught few by surprise. But the shock is in the silence of the relevant bodies in South Africa. Is not the idea of the renewal of the African continent based on human rights and accountable government? Are we not justly proud of our constitutional democracy monitored at the apex by the Constitutional Court, which has ushered in a creative and transformed jurisprudence? If so, why is the official silence so deafening? Is this not the paradigmatic case where we should be telling Zimbabwe and the world of the tenacity of our belief in a constitutional state and thus of the independence of the judiciary? But if the official silence has been disappointing, the legal reaction has been shocking. There has been no response from the judiciary, except for expressions of regret about Gubbay’s resignation. The judiciary has clearly adopted the approach that judges have nothing to say, save through their judgements, even when the existence of the judicial institution on our northern borders and of whose judgements are cited in our courts, is imperiled. Such silence does not augur well for the future and the ability of a judiciary to mount much of a defence against attacks upon its integrity in this country. While the government has done much to promote an independent judiciary since 1994, constitutional democracy does not lift itself unaided into legitimacy. A tradition has to be created so that, heaven forbid we are ever faced with a Mugabe in this country, public commitment to the independent judiciary will protect the institution. For this reason alone our judiciary should be putting its stake in the sand and proclaiming the importance of the institution and the dangers inherent in its destruction even if that destruction is to a sister institution on our borders. This is hardly a controversial position in this country. We all agree about the importance of a constitutional state. So why the silence? But the judiciary may yet be excused for its traditional reluctance to speak. The same does not apply to the rest of the legal community, particularly the academic community. Once the academic community was at the ramparts, with Barend van Niekerk, Tony Mathews and John Dugard courageously helping to keep alive the values of a human rights order. Today there is hardly a peep out of academic lawyers on any issue that may threaten our legal system. Save for the odd, inane interview to the media, few academic lawyers contribute to public education or general awareness of the importance of our Constitution. The majority are simply too busy with post-modernist musing or the securing of government contracts as consultants to continue the work of the Dugards. So only the Bar is left to say anything of consequence about legal matters. It alone has been public and sensibly vocal. Heaven forbid that we ever have to confront the destruction of a fine judiciary as is now the case with Zimbabwe! The majority of lawyers will simply have forgotten how to speak to the public and hence secure legitimacy for our own system.