By the end of the week, the public will have an insight into the views of the notoriously reticent South African judiciary. Judges will no longer speak only through their judgements but will also participate in regular conferences.
For the first time in 70 years, judges will engage in public discourse, taking positions on issues such as social transformation, the judiciary’s relationship with the media and the implications of the controversial Anti-Terrorism Bill.
Speaking earlier this week at a Judges Symposium in Boksburg on the East Rand, Chief Justice Arthur Chaskalson warned about the effects of failing to translate constitutionally guaranteed rights into action.
“If large sections of the community live in conditions in which they are unable to sustain their dignity, this raises not only moral concerns regarding the way we organise our lives, but also creates fault lines that can lead to the fragmentation of our society and a lack of respect for law and government,” he said.
In an apparent show of unity between the judiciary and the executive, President Thabo Mbeki and Judge Chaskalson acknowledged each other’s role in transforming society.
“The results of your deliberations will tell whether you have broken down the walls of reluctance, discarded old values, assimilated new values, and established mastery over your human emotions and prejudices, honestly, and taken to the road that John Marshall of revolutionary America chose, more than 200 years ago.
The ‘better angels of our nature’ must now take charge,” said Mbeki.
Quoting from Marshall’s American Revolution speech Mbeki added: “‘We proceed from the position that our Constitution reflects the genuine will of our people.
Accordingly, as it ensures respect for this vox populi, codified as our fundamental law, we must take it for granted that our judicial magistracy knows, unequivocally recognises, and unreservedly accepts the legitimacy and inviolability of the will of the people that Alexander Hamilton said had to take precedence over the desires even of the elected agents of the people.’”
Said Chaskalson: “Judges are not, do not aspire to, and can never be the main agents of the transformation of our society that our Constitution demands.
“It is one of our responsibilities to hold the other arms of government accountable for the way they exercise power. In one sense we are the umpires to ensure that growth, development, transformation, including the positive obligations that the Constitution imposes on the state, and the exercise of power in all its manifestations.”
Though grappling with the exact meaning of what transformation means, some in the judiciary believe that headway is being made.
Speaking at the Judges Symposium on Thursday, advocate Marumo Moerane, SC, said for some in the judiaciary, transformation meant that “judges can now get pregnant, something that was inconceivable 10 or 15 years ago”.
Moerane, who sits on the Judicial Service Commission (JSC) and whose tasks include advising Minister of Justice Penuell Maduna on who to appoint to the Bench, quantified some recent changes.
“As of April 27 1994, there were zero black female judges, three black males, two white females and 160 white males.”
He said the intervention of the JSC had seen the numbers change to 12 black (including coloured and Indian) women, 61 black males and 13 white females by June this year.
Speaking at the beginning of the symposium, Mbeki urged judges to reflect the intentions of the Constitution, rather than those of themselves or the legislators.