Khadija Magardie
The decision last month by a magistrate to acquit 15 white parents on charges of assaulting black pupils in Vryburg, in the North West province, should be used to refocus attention on legislation bringing judicial officers to book for racist judgements.
This was one of the issues raised at a public hearing this week on the role of the judiciary in delivering non-racialism in South Africa. It formed part of the “Speak Out against Racism” hearings organised by the South African National NGO Coalition in the run-up to the World Conference Against Racism to be held in Durban later this month.
According to Professor Shadrack Gutto of the Centre for Applied Legal Studies at the University of the Witwatersrand, laws providing for the disciplining of the judiciary remain dormant the result being “not a strategic civil society, but a mob”.
Though acknowledging there had been transformation at many levels, especially in the higher courts, Gutto said the lower echelons of the judiciary remained largely unaffected. And as evidenced in the Vryburg case, they continue to hand down, with impunity, judgements that have “a clear racial bias”.
Gutto said that instead of using legislation to hold judicial officers who are “Constitution violators” accountable, the public resorted instead to “empty demonstrations”.
The white parents were accused of leading an attack on black pupils at Vryburg High School in 1998.
A year later clashes erupted between students at the school, after the highly publicised stabbing of a white pupil by a black pupil. Nearly three years later the Vryburg Magistrate’s Court found there was not enough evidence to convict the white parents. The black pupil, Andrew Babeile, was jailed for three years.
Vryburg’s black community has expressed anger at the judgement through repeated protests and marches. But, says Gutto, “we have the laws on paper, but since 1994, nobody has taken a single magistrate or judge to task”.
For example, Section 8 of the Constitution includes several clauses relating to the suspension or removal of a judge. It says that a judge may be removed from office if the body tasked with judicial appointments, the Judicial Services Commission, finds the judge suffers from “an incapacity, is grossly incompetent, or is guilty of gross misconduct”. Complaints relating to magistrates can be referred to the Magistrates’ Commission.
Castigating the notion that judges were “untouchable” Gutto said judicial independence was being used as a smokescreen by certain racist judges. However he acknowledged there was a thin line between contempt of court and legitimate criticism.
The draft legislation suggested to regulate “wayward” judges has not, however, been favourably received. Judicial officers have suggested their own draft law, in favour of self-regulation.
Gutto said that judicial corruption referred not only to an exchange of money but also to “moral corruption”, including racism.
“Judicial independence should always be accompanied by judicial responsibility to society,” he said.
At least they’re talking, Page 17; Leader, Page 18