Recently I heard a story of a judge of a high court who had commented to a colleague that, as a black judge, he considered that the judicial institution wanted to convert him and other black judges into the image of a judge that we had inherited from England. In this way, the Africanism that he could bring to the Bench would be squeezed out of his performance as a judge.
This comment raises a vital question for the Bench. Apart from the imperative of building a judiciary that represents more completely the demographic character of this country, what is meant when we talk of transformation? All too often the answer ends with the appointment of judges. Little is spoken of the style of an institution that apes our colonial past with “may it please your lordship” and with gowns (but no wigs), the most sought after of which are still made in London. It is unlikely that more than a few white judges speak an African language. It does not appear that any attempt has been made to initiate language programmes for them so that at least some understanding of another of the official languages may be obtained.
The further question arises as to the substance of the law being developed by our courts. In being African rather than a replica of the colonial metropolis of our past, at the very least a development of all legal principle in accordance with the Constitution that reflects our nation’s aspirations is mandated. Too many lawyers consider that our sole challenge is to purge public law from all the cancerous growths caused by apartheid. Procedures and private law, including the law of contract and delict, are fine. After all, they are part of a different colonial heritage, being part of the body of Roman-Dutch law. Somehow this area of law is supposed to have come to us unscathed from the apartheid era. It is conveniently forgotten that the purism of our private law began as an Afrikaner nationalist project after 1948.
Here progress has been very slow. As an illustration, it required Alix Carmichelle to go from the Cape High Court to the Supreme Court of Appeal, on to the Constitutional Court and back to the Cape High Court before she won her claim for damages. It is worth remembering that her claim was ultimately based on a foundational principle of our new society, that being accountability of our public service to the public. Recently three members of the Supreme Court of Appeal showed how much work still remains. In Brisley v Drotsky the court was faced with the question of the validity of an anti-variation clause in terms of which all variations in a contract must be reduced to writing. To illustrate: assume that the contract of lease provides that rental must be paid by the 7th of the month. For a significant period, the lessor accepts rental cheques by the 10th of the month. Can the contract be considered as varied even though there is written agreement to the contrary?
Four members of the Supreme Court of Appeal said no, which may well be correct on the facts of this case. Insisting that changes to a contract be in writing may well protect the weaker party. However, Judges Harms, Streicher and Brand wrote a judgement in which they went much further. They effectively warn judges of the high court to curb any initiatives to alter common law principles of our law in accordance with the Constitution. These three judges caution against the employment of the principle of good faith to render more equitable the contractual concepts of our law.
This judgement represents a retreat to the private law of the 1960s — a defensive manoeuvre to protect such law from what it may require in part: radical overhaul in the image of the Constitution. It raises fresh questions about the Supreme Court of Appeal’s willingness to live up to the challenge posed by our constitutional society.
Are we minimising the perspective that black judges can bring to our law? This question raises again the meaning of transformation of the legal system. It surely is no answer to suggest that debating these questions undermines the independence of the judiciary that is obviously essential to our new democracy. A key to assessing change in our courts must be to evaluate whether the legal principles courts produce are sufficiently reflective of the mores of our society and the aspirations of our nation as encapsulated in our Constitution. If the judiciary is so alienated from the hopes, history and traditions of this society, it is doubtful whether the institution will sustain the very legitimacy required for the continued existence of an independent institution.