Judges cannot, simply by virtue of their office, be trusted with dispensing justice in South African courts. In October we saw at least two examples of judges whose integrity was questioned, or whose pronouncements were not befitting of the ”your honour” status bestowed on them.
The first example relates to the Constitutional Court attempt to reopen the case against chemical warfare expert Dr Wouter Basson.
The state has said in papers filed with the Constitutional Court that presiding Judge Ferdi Hartzenberg’s acquittal of Basson was ”as a result of actual or perceived bias and prejudgement”.
The state lists about 15 examples of alleged bias on Judge Hartzenberg’s part.
Can we, as the general public, or as an accused appearing before Judge Hartzenberg, trust that the hearing will be fair — given that the state says he has, on at least one occasion, shown himself to be unjust?
Then there is Judge Johan Els of the Pretoria High Court who, in October, lamented that he had no authority to impose the death sentence.
”I want to emphasise that as a result of my experience as an advocate for many years and as a judge in criminal courts, I am convinced that the death penalty has a deterrent effect. Hopefully it will be brought back one day,” said Judge Els before sentencing two murderers to life imprisonment.
But the Constitutional Court differs about the deterrent effects of the noose.
”The rights to life and dignity are the most important of all human rights, and the source of all other personal rights. By committing ourselves to a society founded on the recognition of human rights we are required to value these two rights above all others.
”It has not been shown that the death sentence would be materially more effective to deter or prevent murder than the alternative sentence of life imprisonment would be. Taking these factors into account, as well as the elements of arbitrariness and the possibility of error in enforcing the death penalty, the clear and convincing case that is required to justify the death sentence as a penalty for murder, has not been made out,” reasoned the Constitutional Court when declaring that state execution would no longer be part of our law.
If judges such as Judge Els neglect to state that the above was part of the rationale behind doing away with the death penalty, they are guilty of political grandstanding from the bench.
Even worse, the public may be left with the feeling that Constitutional Court judges have ignored ”evidence” that could help rid the country of crime, to pursue their liberal viewpoints. Politicians and the public may be forgiven for pronouncements that play to the emotions, but judges ought to know better.
Like all of us, Judge Els has the right to voice his disagreement with any court ruling, but not when such pronouncements have the potential effect of undermining public confidence in the supremacy of the Constitution.
It is a pity that Judge Els and other like-minded judges got to the bench before the Judicial Service Commission was established. It is unlikely that he would have passed its criterion of being a ”transformed” candidate.
By transformed, the commission means that candidates must demonstrate a commitment to the values that underpin the Constitution, such as respect for the dignity of each person.
Fortunately, the Constitution gives the commission the authority to remove judges who are ”grossly incompetent” or who are ”guilty of gross misconduct”.
We may not like the Constitutional Court judges’ brand of liberalism, but we are bound to abide by the wisdom we believe they will dispense when it comes to matters such as the death penalty.