Minister Jeff Radebe. Photo: David Harrison
Four articles in last week’s edition of the Mail & Guardian highlight the nature of the potential crisis facing the judicial system and with it the future of constitutional democracy.
In an interview, the new minister of justice, Jeff Rabebe, sought to explain the recent unprecedented postponement of the Judicial Service Commission (JSC) hearings. While correctly emphasising the importance of demography in appointments and commendably committing the appointment of judges to greater gender sensitivity, the minister was vague as to whether transformation meant anything more — in particular the commitment to constitutional values in assessing candidates for judicial office.
After all, much has been achieved in transforming the racial composition of the Bench. At last count 112 judges out of 205 are black jurists and all the heads of court are black — figures that show, save for gender (there are only 42 women judges), the system is moving in the correct direction.
So when the minister talks so eloquently about judicial transformation but appears unwilling to include a commitment to the progressive nature of the Constitution as part of transformation, it raises the question of what the underlying agenda for the judiciary is.
In his column, M&G editor Nic Dawes suggests that the Judge John Hlophe saga affords elements within the ANC an opportunity to curb the progressive independence of the Bench, not by the risky strategy of the elevation of Hlophe, but by other appointments that will produce increased judicial deference to the executive. Each time Hlophe or his supporters attack the Constitutional Court, this provides a legitimation for this strategy.
Dawes advances a persuasive, if disturbing case, which is buttressed by the third article, that of Paul Ngobeni. Its title promised to make out a case for why Hlophe should be chief justice.
That it hardly does, save for the truly stretched analogy between Hlophe and President Jacob Zuma. As this column has noted previously, it was clear to all fair-minded people that, whatever the merits of the criminal case brought against Zuma, the legal system had become a site of political struggle to subvert his political ambitions.
By contrast, in Hlophe’s case there is no proof by which to infer that he is the subject of a judicial conspiracy to prevent his elevation — hence the importance of a speedy and definitive hearing by the JSC.
But unlike with Zuma, whose lifelong commitment to non-racial democracy was so obvious, Hlophe’s progressive credentials are not so clear; thus the attack by some critics on the judge’s approach to the eviction of some 25Â 000 squatters from the Joe Slovo settlement in Cape Town.
The decision to evict so huge a number of poor, black people from their informal dwellings was seen by some as the very antithesis of a progressive commitment to the Constitution and an almost obsequious deference to the executive.
Now, this case was a difficult one in that the evictions were designed to clear the way for a major housing programme for poor people. Yet contrast the approach adopted by the Constitutional Court when it determined the appeal from Hlophe’s judgment.
Both courts upheld the decision to evict but, whereas one searches in vain for even a suggestion of compassion for the evicted squatters in the approach adopted by Hlophe, the Constitutional Court was acutely aware of their plight, ordering that proper consultation take place with those affected by the order, that the squatters did have entitlements to the new housing to be constructed by government and that courts were required to temper injustice wherever possible.
Given that the 25 000 squatters represent a sizeable sample of a large constituency, can it seriously be argued that these huge constituencies would prefer the kind of jurisprudence of Hlophe to that of the Constitutional Court?
That brings me to the last of the four articles, a most thoughtful piece by Ronald Suresh Roberts about Barack Obama’s nomination of Judge Sonia Sotomayor to the United States Supreme Court.
By applying legal realism and critical race theory, Roberts shows the political nature of adjudication and the imperative for judges to understand the grinding inequality encountered by the masses of this country.
Our debates about race and law would do well to be informed by this literature. Suffice it now to say that if we debate judicial appointments without taking account of commitment to substantive redress of the millions who do not encounter the society promised in the Constitution, we trump a noble ideal of a just society with crude populism. That is the true danger of the present discourse.