Serjeant at the bar. Wouter Basson’s acquittal could not have come at a worse time for the judiciary. The Treatment Action Campaign (TAC) judgement of Judge Chris Botha had already focused attention on the judiciary’s role in transforming our society. As May 2 approaches and the nevirapine matter is heard by the Constitutional Court, debate on judges’ role in formulating public policy has increased. Many observers have contended that the courts should not interfere in the functions of elected politicians charged with developing policy.
This criticism forgets our Constitution contains a number of socio-economic rights, including the right of access to health care services. Once a Constitution incorporates such rights, courts seized with such disputes are obliged to examine the rationality of policy in light of the applicable socio-economic right. The merits of the attack on the TAC judgement aside, the controversy has focused attention on a judiciary’s extensive powers in a constitutional democracy.
Generally, our courts have developed law compatible with the Constitution. But not always. For example, the Supreme Court of Appeal recently rebuked the Deputy Judge President of the Witwatersrand Local Division, Monas Flemming, for comments in his judgement critical of the application of the Extension of Security of Tenure Act of 1997. Among his jurisprudential pearls was the comment that investors would view this Act with great disfavour. Judge Fritz Brand commendably issued the rebuke. But the perception remains that some judges are hostile to policies designed to transform our society.
The Basson judgement fits into this framework. Without an examination of Judge Willie Harzenberg’s judgement, we cannot comment on its merits. But, if press reports of the judge’s statements and rulings are accurate, the public is entitled to be disquieted.
Whoever allocated this sensitive case to the brother of Ferdie Hartzenberg? Judge Hartzenberg may be a splendid lawyer with a political outlook different from his brother’s. But the Basson case cried out for a judge with no baggage even if it was merely his brother’s. Public perception is as important as reality in a case like this.
The state can now lodge an appeal on only the most limited grounds namely on a question of law. The state cannot appeal the factual findings. If Judge Hartzenberg went as wrong as the state suggests, the outcome may not be curable by an appeal process.
The Basson judgement can only weaken the judiciary.
Understandably, there will be calls for more rapid transformation of the Bench. That may be easier said than done. The recent list of candidates for judicial appointment reveals few black female lawyers, or even progressive white male, applicants for vacant posts. If conservative white men continue to fill most vacancies, public disquiet about the judicial system may come to imperil our constitutional state.