The retirement of Judge Johann Kriegler from the Constitutional Court offers a welcome opportunity to reflect on the performance of our judiciary, particularly those members who served during the apartheid era. As a member of the first Constitutional Court Judge Kriegler took office in 1995. With the exception of Judge John Didcott, he was alone among judges who presided during the apartheid era of whom it could truly be said there were no major moral blemishes on their legal records. Judge Kriegler and Judge Didcott were great common law jurists; that is, judges who were invariably guided by the principles of equality and dignity, which lay at the heart of our common law even during the dark days of PW Botha.
Before he took a judicial appointment Judge Kriegler chaired Lawyers for Human Rights — a bold and principled initiative, particularly when viewed within the political context of its launch in 1979. This boldness characterised his career on the Bench in general and at the Constitutional Court in particular. Thus in the case of The President v Hugo, it was Judge Kriegler who sought to break gender stereotypes by insisting that single-parent fathers should be treated equally with single parent mothers when the president exercised a power of pardon of prisoners.
In Du Plessis v De Klerk, Judge Kriegler, Judge Didcott and Judge Tholakele Madala were the only judges who understood that the nature of private power had a pernicious role in shaping apartheid society. Judge Kriegler’s judgement is a classic exposition of the role of law, including private law, in the shaping of power structures in society. That his views were effectively accepted by the Constitutional Assembly when the latter body settled the final Constitution in 1996 is testament to the manner in which Judge Kriegler’s conception of law fitted within the mores of a post-apartheid society.
Perhaps the best accolade that can be paid to Judge Kriegler is that he (together with a number of other judges situated in the various divisions of the high court and Constitutional Court) exploded the myth that judges who had been on the Bench during the dark days of apartheid could not develop a progressive jurisprudence for a new South Africa. Sadly there are some judges from this period who have not risen to this challenge. For example, there have been cases where judges have adopted an excessively generous approach to individual rights with the effect that the legislature and executive’s efforts to transform society have been stultified. In these judgements no engagement between individual rights and the needs of an open and democratic society take place. The result is that some judges who, on their record as members of the Bench during apartheid, would not have been thought to be pro-individual liberty, hand down judgements that have the effect of entrenching previous privilege.
Equally disturbing is the manner in which judges feel the need to call for the reintroduction of the death penalty. The problem lies not with the right of judges to participate in constitutional and legal debate. The objection is that when judges call for the death penalty, they adopt a position that is unconstitutional in that the Constitutional Court has held that the death penalty is incongruent with our Constitution. Furthermore these calls pander to arguments that our highest court has rejected after careful consideration. Surely when judges enter the public domain, the public should expect that they promote the Constitution and its spirit as opposed to unintentionally giving succour to groups of the nature of the ”hang ’em high lobby”.
Eight years is too short a time in the life of a nation to expect that our constitutional society is yet safe for our children. The way in which the Constitution is seen to help in the shaping of an open and democratic society, which can bring redress to the millions who suffered under apartheid, is critical to its long-term legitimacy and hence success. Viewed in this light, the country owes Judge Kriegler a massive debt in pointing the jurisprudential way ahead.