/ 14 November 2008

‘Pitchforked into a crisis …’

What is your view of the Nicholson judgement?
That case is on appeal so I don’t want to talk on the merits. But one thing one can say is that you learn very early on in legal practice, and even more forcefully on the Bench, that you say only what you have to say. If you go beyond what is necessary, as in this context, you get into trouble. You ask an unnecessary question in cross-examination, you get an answer that harms your case.

Wasn’t he asked to address the issue of political meddling in law enforcement?
I wasn’t there and he did it according to his lights and he may well be right. But I would need a lot of persuasion by counsel if I have before me an application to permanently stay prosecution or alternatively suspend it pending an opportunity to make representations. If I come to the conclusion that a stay is not on but a conditional suspension is, I say just that – I don’t have to decide anything else. I don’t have to go into terrain which is uncertain, political.

You wrote an open letter in which you said Western Cape Judge President John Hlophe is unfit to be a judge, and were heavily criticised for it —
I was also quite heavily supported. I knew it was going to be controversial and not universally popular, but I believed it was necessary that it be said. I think so all the more now that Hlophe has pitchforked us into a constitutional crisis. If he’d been dealt with properly in the first place none of this would have happened. If you don’t grasp the nettle it grows and it becomes ungraspable. Nobody in the Judicial Service Commission didn’t know at the time that Hlophe was not telling the truth about having been given permission by [former justice minister] Dullah Omar [to consult for private company Oasis Asset Management], the story doesn’t make sense. It was so awkward; he is the most senior black judge in the country. But once you don’t do your job according to what the book tells you, you are in trouble.

Your view on the Constitutional Court vacancies?
I’ve been concerned for some time — and I’m by no means the only one — at the fact that there is a very substantial exodus from the court next year. That’s been on the cards for a long time and nobody has done anything about it.

Are you saying the appointments should have been staggered?
Yes, the body politic should have made sure this happens.

Should we ensure succession planning by giving acting stints to some of the brightest?
The question of acting judges is not an easy one; it’s not a universally applauded practice — whether it’s taking people from private practice and giving them time on the high court Benches as acting judges and then they go away again, or having judges from the high court in the Supreme Court of Appeal. If you really are a separation of powers purist you shouldn’t have people on the Bench on probation. Who must decide whether they are good enough? Who must they satisfy?

How healthy is our democracy?
We’re are going through a very rough patch at the moment — I work hard against a deep sense of depression at the moment about our jurisprudence, the state of the rule of law, the respect that the judiciary is entitled to get from the executive and the legislature that it isn’t getting. I think we’re in a hole at the moment, but I also think we’re going to get out of it. I have too much confidence in too many people in public life to think they’ll let us go down the drain.