Recently our judiciary held its first meeting in more than 70 years. Not since 1930 have judges met as an institution to discuss matters affecting this important arm of the state.
It is difficult to know precisely what occurred during its two days of deliberations since even the legal public is dependent on press coverage — and the grapevine — to glean an understanding of the contents.
From these sources it is clear however that the conference was not called to deal with the brouhaha that had been caused recently by the musings of that legal pugilist, Johnny de Lange.
The agenda was designed to deal with the broad challenges facing the institution in the light of the legal revolution that took place but nine years ago. The judiciary appeared to be concerned, rightly so, with the challenges posed by a constitutional democracy to the manner in which they give content to the law, respond to the diversity of this nation, and maintain an independence as an institution in circumstances where the institution is now in possession of the awesome power of judicial review over the output of the other arms of government.
In this regard it is more than a shade unfortunate that at least one TV station and a national daily newspaper appeared to be determined to inform the public that the conference was about the crisis engendered by criticism of judges’ work habits — a conclusion that is not at all sustained by the speeches given at the conference, which were reported in the press, or the contents of the programme that I found easy to obtain.
On the topic of speeches, the opening address by President Thabo Mbeki was of particular interest. In his speech Mbeki provided a sketch of the balance that courts have to strike between being custodians, and teachers, of the foundational constitutional values and according deference to a democratically elected government in the implementation of the latter’s role in developing and implementing public policy. In this connection, the president hit upon the most important challenge facing a judiciary within a constitutional democracy. This is to promote the vision of the society painted on the constitutional text but in a manner in which the doctrine of separation of powers is safeguarded.
The second important aspect of the president’s speech concerned the following sentence: ”The members of our judicial magistracy must necessarily feel as, and be part of, the masses through whose sacrifices we are now able to describe ourselves as a democratic republic.”
There is both an oddity to this sentence within the context of his speech and an enigma at the same time.
The oddity is that nowhere in his speech was any reference made to South African or other African constitutional theory. Instead the president relied on the work of the 18th century American, Alexander Hamilton, quoting generously from his Federalist papers, as well as from two recent decisions of the United States Supreme Court, both delivered by exquisitely right-wing judges.
For a historical event such as this judges’ conference, such references were a decidedly odd choice of authority.
The enigma is what is meant by judges feeling a part of and being a part of the masses. I take this to mean that the president meant that judges in this country should possess a clear understanding and empathy with the lot of the mass of their fellow citizens and that the days of the judge closeted in his or her ivory tower are a thing of the apartheid past. If this is what was meant (as opposed to judges coming from a certain political pedigree), then the president most perceptively has put his finger on the core of the challenge facing the judiciary in the future.