There are large elements of shadow boxing in the high-profile tiff between African National Congress MP Johnny de Lange and senior judges, and it is gross overreaction to suggest that the independence of the judiciary is under threat.
Judges are not above criticism, as long as the fundamental legitimacy of the judiciary is not impaired. In principle, it is perfectly in order for De Lange to raise questions about their performance, and hard to see how querying their work-rate undermines their autonomy. As elected tribunes of the people, MPs — and particularly those who sit on Parliament’s justice portfolio committee — have a duty to keep all aspects of the justice system under constant review.
Whether there is substance to De Lange’s beef is quite another issue. The consensus in legal circles is that a minority of judges do cruise, but that the three-and-a-half-hour day he accuses them of working, on average, is pure fiction.
As an advocate himself, De Lange ought to know that court sittings are curtailed for a host of reasons, many of them beyond the power of judicial officers, and that formal court appearances are the tip of the iceberg in the total spectrum of their responsibilities. External factors often delay court proceedings or result in them starting late or cut short.
De Lange deliberately overlooks the work judges do outside the courtroom, in researching and writing judgements and in keeping abreast of developments in the field of jurisprudence. In addition to their responsibilities in criminal cases, perhaps two-thirds of judges preside over civil cases. Critics have made much of the three-month “vacation” accorded judges each year. But two weeks of this is devoted to “vacation duty”, when they are on standby for urgent applications and the like, while a good chunk of the time is spent preparing for full bench appeals and in researching and writing reserved judgements.
So De Lange can be reproached for going public with a flimsy case. Of additional concern is his suggestion that the judges need unspecified “supervision”. If this means legislation, it is unacceptable as a clear case of interference by another arm of state. Under-performance by judges, and any remedial action, is a matter for the chief justice, not the Department of Justice or Parliament.
This presupposes that the chief justice — in charge of the court system — is providing the right kind of leadership. Perhaps the most disturbing aspect of the current controversy was the silence of Chief Justice Arthur Chaskalson when he appeared before the parliamentary committee session at which De Lange unleashed his broadside. This prompted the judges-president to voice the unprecedented grievance that he had failed to defend the judiciary when it was under attack by “ill-informed politicians”.
Insiders say discontentment with Chaskalson’s perceived failure to represent the institution of the judiciary has been boiling for some time. There is criticism that he appears more preoccupied with building and strengthening the Constitutional Court than with the court system as a whole.
But we should be concerned about the alarmism that sometimes characterises civil society’s reaction to the state. Too often media practitioners view every criticism of their profession as an assault on press freedom; the far left regards legitimate police operations as repressive actions akin to the behaviour of the apartheid security apparatus; and those in the legal fraternity see comments such as De Lange’s as threats to judicial independence.
Certainly, there is great merit in vigilance and building on the gains of April 27 1994. But the last thing we want is a hair-trigger society that cries wolf at every turn.
The sanctification of evil men
If you travel through the Eastern Cape you cannot help but notice the desolation that is the Transkei region. This desolation is borne out by official statistics and independent research studies that have found it to be one of the poorest corners of South Africa. NGOs working in the region tell horror stories of the dire poverty — and attendant disease — faced by the people of the Transkei.
This is the legacy left by the apartheid government’s Bantustan system, which made homelands such as the Transkei dumping grounds for “plurals”, “natives”, “Bantus” or whatever term Pretoria deemed appropriate for South Africa’s surplus people. This is the legacy of Kaizer Matanzima, one of the National Party’s most loyal servants.
Luckily Matanzima, who died this week at the age of 88, lived to see the devastation that he — together with his masters in Pretoria — wrought upon the people of the Eastern Cape. But it is doubtful whether it touched his conscience. As was the case with his counterparts in other Bantustans, Matanzima was a ruthless man who cared little for the welfare of those he presided over.
In the sickening revisionism that is sweeping across South Africa, glowing tributes poured out for Matanzima. So eager are South Africans to whitewash history that this weekend, he is being accorded a semi-official funeral by the Eastern Cape government.
One can understand the reluctance — for traditional or other reasons — of many to speak ill of the dead. The line is crossed, however, when we begin to confer sainthood on evil men.