The judiciary, the National Prosecuting Authority and the legal profession are important pillars of our democratic order. To perform their respective functions their independence should be respected and protected from the executive, the media and the public at large.
In return for such protection and respect the integrity of the bodies as a whole should be beyond question.
Exceptions by a very small number of individuals should not be attributed to the group as a whole.
The Judicial Services Commission (JSC) is accused by some of not doing enough to transform the judiciary.
More recently a debate is raging about its majority decision not to take steps against the judge president of the Cape Provincial Division. At times it is an acrimonious debate which endangers the unity of the legal profession.
We in the legal profession, both as lawyers and members of our professional organisations, owe a duty to ourselves to protect these structures.
Let us look at the recent case in which a black judge convicted a white farmer in which he admitted that the body of the deceased was thrown to a pride of lions. He sentenced the accused to life imprisonment.
The Supreme Court of Appeal (SCA) unanimously held that the evidence that the deceased was alive was insufficient but, in the farmer’s version, he was guilty of being an accessory after the fact to murder. This gruesome act was intended to conceal the unlawful death of the deceased.
The SCA imposed a sentence of five years’ imprisonment. The criticism of the trial judge by some was that he, being black, deliberately and wrongly convicted the accused of murder either because he was a racist, incompetent or both. They would not accord to the trial judge that he mistakenly and in good faith did not properly assess the evidence.
The judgement and sentence of the SCA was criticised by some as being a judgement given by apartheid judges. Most of the critics on both sides probably did not read the judgements. Each group expressed its own prejudices.
The expression “apartheid judge” is often used in a derogatory sense: as one who wholeheartedly approved of the apartheid system and applied it — not as a mere indication as to when he was appointed a judge.
It is assumed by those using it in a derogatory sense that all judges appointed by the apartheid regime were its enthusiastic supporters. Like most other generalisations those of us who practised from the 1950s to the 1990s are of the view that a significant number of judges made valiant attempts to avoid the inequities of apartheid.
For example:
o Judges Ramsbottom and Murray refused the Law Society’s application in 1953 to strike Nelson Mandela off the roll after he was convicted of taking part in the defiance campaign — because he did it for political reasons and they found that there was no moral turpitude in his behaviour;
o In the Abdurahman case the equitable principle of Roman Dutch Law of equality was used to declare as invalid regulations prohibiting non-whites from using certain coaches on trains;
o Chief Justice Centlivers and the other court of appeal judges declared invalid the National Party’s attempts to deprive the coloured people of the right to vote. They cannot be said to have behaved as apartheid judges — particularly Oliver Schreiner JA, who held that the enlargement of the Senate was a fraudulent act committed by Parliament; and
o Could anyone call Justice Michael Corbett an apartheid judge? Certainly not. About 15 years before the end of apartheid even talk about human rights was considered almost subversive behaviour. As a judge of the court of appeal he delivered a public lecture in Cape Town primarily to practising and academic lawyers.
Judge Corbett said the country’s future depended on the adoption of a Bill of Rights, respect for the rule of law and an end to human rights violations.
This led to the formation of Lawyers for Human Rights by a group of us under the chairmanship of Johann Kriegler, including the former Chief Justice Arthur Chaskalson and Sir Sydney Kentridge.
His term as chief justice was about to expire when President Nelson Mandela took office in 1994. He was asked by the president to accept an extension of his appointment because of his record and the president’s belief that he was the best person to chair the JSC and ensure a modus vivendi between the Constitutional Court and the SCA.
Some of the members of the court felt uncomfortable with the establishment of the Constitutional Court – which could overrule their decisions. Judge Corbett’s wisdom prevailed upon all concerned to achieve the necessary result.
In the mid-1970s an academic debate considered whether or not one should accept an appointment to the bench and whether those who are already appointed should resign. It was suggested that judges who found it difficult to apply a law — particularly the oppressive statutes passed by Parliament — are obliged to do so or say how they justify their continued participation.
The label of apartheid judge in relation to Kriegler can’t possibly be used by anyone who has taken the trouble to find out what he did. He was the first judge to find that a South African army general supplied poisons to be used against opponents of apartheid.
He was right as a judge of the first instance, according to subsequent revelations, but the court of appeal set aside his judgement on the facts. Kriegler also took part in advocacy training and judicial skills organised among others by the Black Lawyers’ Association.
The security police through Chief Justice Rabie asked Kriegler to resign from the Board of Trustees of the Legal Resources Centre (LRC) founded by Chaskalson, and for which I have been working for the past 15 years.
The police wanted to declare the LRC an unlawful organisation. They thought it unbecoming to ban an organisation while the judge was one of its trustees. He refused to do so. The LRC was not banned.
For this and many other reasons Johann Kriegler has been and remains my friend. I am offended to hear him called an apartheid judge.
This is a shortened version of Advocate Bizos’ address to the last AGM of the Law Society of the Northern Provinces