/ 11 September 2009

Kriegler saddles up for rough ride

A bitter battle has erupted over Freedom Under Law’s decision to take on review the Judicial Service Commission’s ruling on Judge John Hlophe. Sello S Alcock quizzed the group’s chairperson and former Constitutional Court judge Johann Kriegler about the decision

In the past you’ve said our democracy faces problems, but that you remain optimistic. Do you still feel that?
Judge Kriegler: Yes, I do. It would be silly to suggest that the recent events and strange decision of the Judicial Service Commission (JSC) in relation to the charges and counter-charges of the Constitutional Court/Hlophe incident are not disturbing.

Of course they are, and that is what generated the initiative taken by Freedom under Law (FUL). But it generated positive action and I think that if you are concerned about something that is happening, that’s your job. If you are a citizen you should be aware of what is happening, and if you happen to have particular skills, you must use them; if you happen to have particular sources of information and influence, you must use them.

I’m optimistic, yes, but I am not starry-eyed. There are problems, there are certainly problems, and I think that the current trend in the JSC is extremely serious.

But I think we will stop it. I think society will stop it. It is just too wrong to be allowed to continue and I think people of goodwill and common sense are still in the majority and we’ll fix it up.

When you gave a talk the other day at Wits you said the problem is not Western Cape Judge President John Hlophe, it’s that he seems to be a symptom of the system. Can you expand on that?
Well, first of all, in principle the current issue is about the JSC not doing its job. The issue that I spoke about at Wits was also the JSC not doing the other half of its job — its selection job.

Its investigatory job is what we are talking about now, that’s the issue. The issue arises in the current phase in relation to the charge laid by the Constitutional Court against Hlophe. It is obviously related to Judge Hlophe — you cannot think about the matter without thinking about Judge Hlophe, but he is not central to it. He is merely the trigger mechanism that got the JSC into operation, at which it malfunctioned — and its malfunction is the problem.

It’s not unrelated to the previous time it dealt with him, where it also malfunctioned, and I think this malfunction is a consequence or a predictable consequence of last time round.

If somebody young — and I do regard Judge Hlophe as young — and inexperienced and headstrong, who doesn’t easily listen to advice, if he had been dealt with much more firmly last time round, you may well not have had this subsequent event or series of events. You know the charges against Judge Hlophe are probably as serious as you can possibly level against a judicial officer — trying to subvert the integrity of the highest court in the land. I don’t know whether that is true or not, but what I do know is that nobody knows because the JSC would not examine it. That is the basic malfunction — it has left poor Judge Hlophe with a cloud over his head. I don’t know how he looks at the eyes of his colleagues …

What about Judge [Bess] Nkabinde, who stood firm about what allegedly transpired with Hlophe?
Of course Nkabinde is left in an impossible position. The way I read the JSC analysis of evidence, they discourage it largely, they take it out of context, they narrowed it down; he [Hlophe] didn’t in so many words say, ”I want to decide in favour of Zuma”, but her evidence never was that, it was the impression he had left.

It would be astounding if a man of his intelligence found it necessary to spell it out in big, block capital letters.

Anyway, to answer your question, it’s tragic that Pius Langa, with the grief of the death of his beloved wife, must go into the shadows of his retirement with these allegations hanging over his head — that he is a fraud, that he is a liar, that he has deliberately tried to persuade junior colleagues to perjure themselves in the pursuit of a political plot against the president.

But Pius — dear man, decent, honourable man, that he should go into retirement under that shadow is so undeserved.

And that is not Hlophe’s fault, that’s the JSC’s fault — they ducked the issue. I don’t why they did it.

How did the decision by FUL to challenge the JSC decision come about?
You know, I have been asked the question before and I tried to reconstruct it.

Frankly, so many things happened in such a hurry.

I was in Cape Town, where I was in poor email communication. Betty [Kriegler] was fortunately up here [Johannesburg] and she could bring me a printout that she had made. I had to read it on a notebook screen in Cape Town and I don’t read well from that.

I spoke to two other board members; one phoned me and I phoned the other. I couldn’t talk to Jeremy [Gauntlet]; you know we are good friends and we discuss FUL business quite often. He had actually phoned me and told me about the decision and we had then agreed that if FUL were to do anything he couldn’t be a party to it, which made it very difficult. But I spoke to Hugh Corder and I spoke to Frederick Mostert. Between the three of us we thought we would have a look at what it looks like on paper and, if it was as bizarre as we thought it was, we would rethink the issue.

I would, in the meantime, talk to our South African International Advisory panel to get their view because we couldn’t talk to Dumisa [Ntsebeza] or Kgomotso [Moroka] or Jeremy [Gauntlet], so we were a little short of heads. I couldn’t get hold of Elize Angula in Windhoek at that stage. I subsequently found out she was on holiday.

I spoke to Rahim Khan in Botswana; he was okay. I spoke to Ezra Jacobs only earlier in the week.

I first spoke to Dr [Mamphela] Ramphele on Sunday after she came back from church and I asked her, ”Where do we go? We are thinking about taking [the JSC decision] on review.” She was fully informed; she didn’t need to be told about the facts. She was ”incensed”, is the word she used, by the conduct of the JSC and said we would have her backing fully if we decided to proceed.

I went back from her home in Bantry Bay to my cottage, phoned Archbishop [Desmond] Tutu’s office, couldn’t get through, it was Sunday. I emailed and on Sunday night he phoned me and said he would see me on Monday morning. I saw him on Monday morning at his home in Goodwood. He was his own wonderful mixture of down-to-earthness and spirituality, all of it very articulate. He was vuur en vlam (passionate); he was, if anything, more determined. He made the point that I had not articulated for myself, that this was a fundamental undermining of the rule of law and if we can’t trust the JSC, who can we trust?

He said we must do this for the sake of our grandchildren, ”go ahead”, and he prayed for me. Uuuuh, I’m a lapsed Christian, but it grips you.

I also spoke to Jeffrey Jole in England — when precisely I can’t tell you — and I therefore had the eight of us.

I couldn’t get hold of Cyril [Ramaphosa], who is the other International Panel member resident in South Africa. He was abroad, his office said, and they couldn’t make contact and, of course, I spoke to Lord [Van Zyl] Steyn already on Saturday afternoon. We did not formally conclude that we should proceed until [last] Wednesday.

We took the decision, I did a wraparound on Wednesday and was authorised to proceed.

I’ve had a lot of phone calls, a lot of emails from current judges, applicants for appointment, ex-judges, members of the bar, attorneys. Obviously it’s no basis for doing an opinion poll — you do not know what the silent majority are thinking.

It’s a major step to challenge a constitutionally created body in public.

I was frightened at the prospect, I am still frightened at the prospect, but fortunately I had an old boer grandfather who taught me as jou voet in die stiebeuel is moet jy ry (when your foot is in the stirrup, you’ve got to ride). We’ve got to go with it now.

I don’t know what the JSC attitude will be, but ultimately there is a prospect of the JSC, having looked at the papers, taking the decision voluntarily to rethink the case.

I don’t think it’s a likelihood, but it’s a possibility. Nobody likes to be told in public that they were wrong and they like even less to have admit they were, but it’s certainly a possibility, and the stronger the case we make, the greater the prospect of that happening. Ultimately it can only be in Judge Hlophe’s favour, Judge Nkabinde’s favour, the other judges of the Constitutional Court’s favour if this fiasco is thoroughly examined and put to rest.

Are you not worried at the prospect that Luthuli House, which welcomed the JSC’s decision, will unleash their supporters on you?
Of course I am worried about it and, believe me, I’ve been a judge for a long time, I have a thin skin. I am not used to being attacked in public and named names … I don’t like it — in fact, I dread it — but what else, we’ve crossed the Rubicon.

Luthuli House, after welcoming the decision of the JSC, could view this as a direct challenge from you and the FUL
I am not a politician, I am not up to that, I am not interested in that. I think the FUL did what it was created to do, but if one has to be attacked, it’s eina (ouch).

You will have to grow to have a thick skin
I am far too vain an old man to grow a thick skin, but all I can do is wrap myself in the blanket of duty.

I did what I thought was right, we are doing what we think is right. If we are in due cause vindicated, fine; if in due course we fail, we did what we thought was right.

I think it would be highly undesirable of the ANC to make this a political issue. It isn’t a political issue or it shouldn’t be political issue. I don’t want to make it a political issue, it is a rule of law issue. Has the constitutionally created safeguarder of the integrity of the judiciary done its job? If it hasn’t done its job, it is in the ANC’s interest that that be established.

They are the government of the day and if an instrument of state is not functioning properly the ANC should be worried about it. Just as much as if the local authority in some country town in the North West is not functioning and tyres are being burned in the street, it’s not the problem of the people in the township, it’s a problem of the people in control and they’ve got to resolve it — and here it’s not our problem. The problem is not of our own making and the problem cannot be resolved by FUL. If it was of political making, then the politicians can resolve it; if it was merely a legal mistake, then the courts can correct it.

You have been outspoken on issues of transformation and, in fact, in your recent talk at Wits you said judicial independence should not be sacrificed on the altar of transformation. Are you not scared that your views could open you up to criticism and possible labelling as ”counter-revolutionary”?
Certainly there is a risk of that, but I have never been a member of the ANC. I didn’t support them for years because I was profoundly anti-communist — I’ve got a world of respect for the party; I’ve always had respect for their tremendous adherence to principle. I have had tremendous respect for the resistance to the temptation to become an Africanist organisation. Their adherence to non-racial principles, their adherence to pro-South Africa and broader reconciliation, it must have been extremely difficult, it must have taken a great deal.

I still have that respect for the party. I still believe that there are many people within this controlled structure of the ANC who would see that I am not a counter-revolutionary, that I am a technical expert talking about a field on which I really know what I am talking about. They may not agree with me, but they must take me seriously. They mustn’t label and ignore me because of that.

I think it would be bad for the party and tragic for the country if they were to write off well-meaning, well-directed criticism because they don’t like it. I think it’s dangerous for them and even more dangerous for the country. I am not looking for trouble, I am not going to put my finger in the hornet’s nest on purpose, but the hornet’s nest is there. It’s hanging over the door and somebody has got to knock it down, otherwise it’s going to start stinging the kids.

Do you agree on principle, for historical reasons, that the legal profession in this country has traditionally favoured white people?
Undoubtedly, and wrongly, and that there is a need for radical change …

And what modes do you think could be utilised to promote this radical change?
Number one, you must realise that you are dealing with a developmental problem and quick fixes lead to quick problems. There are no quick fixes, the bar is drawn throughout the world from the middle-class elite and that’s the way it works because the law is as it is. If you want to change that, you must do what they are doing in Britain, what they are doing in Canada, what they are doing in Australia. You must positively promote the candidature for the profession from the minority groupings, in other words, those that are under-represented …

So it’s a class thing then?
It is a class thing, it always has been — in fact it has been since Roman days, in fact just before the Romans.

Recognise that as a reality, don’t deny it or don’t say that it is bad or it’s wrong. That doesn’t help. Recognise it as a reality and work out mechanisms to deal with it. Consult with other similar bodies around the world and you will find out as they have done in Hong Kong, in particular, the bar was far too white and not enough Chinese were within the bar.

You then set out deliberately to popularise the bar at high schools. You know the bar normally draws the lowest echelons of graduates from university; the brightest ones get picked up by academics and the financial institutions, particularly if they are black, and the third echelons go to the attorney firms. The rest get picked by anybody to come to the bar and then they find it darn hard to make a living. I do a lot of advocacy training for pupils and for young advocates. The crop is getting much better, the pass rate is infinitely better than it was 10 years ago when I first became involved with the Jo’burg bar.

You get a lot of black advocates who are barely able to speak comprehensible English; now it’s damn unfair, they should be able to speak their mother tongue …

Judge Hlophe would agree with you on that …
Yes, and that’s right, look my boetie, I started as an Afrikaner at the bar; I had my office crashed in Johannesburg because I was a boertjie, but you cannot practice at the bar if you cannot speak English. You’ve got to make them [potential advocates] fit to do the job. They are not at the moment. If you are not articulate in English you can’t be a barrister, you can’t get up in court and represent somebody if you haven’t got the elocution. We don’t train people in that and [chairperson of the General council of the Bar] Patric [Mtshaulana] resists it; he says it is condescending, it’s white supremacist.

Of course it is because it is the Englishman’s language, but you’ve got to talk it in court, so it’s no good being angry about it — it’s the reality.

Okay, you’ve got to make it possible for bright youngsters financially by greater support than they are getting at the moment. It’s only the bar that supports them at the moment and the subsidies are not adequate for people with children to survive. You must positively go out and recruit bright people on the basis that if you come, we will help you; if you come we will help train you, we will make you fit for purpose — which you aren’t when you come out of university. You’ve got a bucket but it’s empty; we will help you put in the tools that you need.

Advocacy training is crucial, advocacy recruitment is crucial — but it’s a long job, it’s not going to change overnight — just as judicial training is crucial. Judicial education is compulsory in the UK now; if you have been on the bench for 20 years you’ve still got to go four days a year to training college. We do nothing; we give them three days at the beginning when they start — and I’ve researched this for years, so I know what I am talking about.

You can appoint young, inexperienced people to the bench, but lord alone knows you’ve got to give them back-up, you’ve got to give them support. You can’t expect an inexperienced person — white, green, black it doesn’t matter; working class, middle class, aristocracy, makes no bloody difference — [to do the job].

If you don’t know the job, you can’t do it and if you can’t do it, you will suffer tension, you do a bad job, you get worse, you retreat — so it’s a lonely job. So training, back-up, support, peer-group support is crucial and we must take it consistently and carry through with it.

Last question, what did you think of the opinion piece in the Sunday Times by Gauteng Judge President Bernard Ngoepe on the character traits needed in the prospective judges of the Constitutional Court?
I was surprised that Judge President Ngoepe chose news medium, a Sunday newspaper, to publish his views on questions of fundamental law.

I would have thought that if he wanted to influence the profession it would have been in a legal journal or at a lecture or at a judges’ conference. Ordinarily, serious matters of judicial policy are not addressed through the medium of the press, the lay press in particular.

Secondly, I noted a profound thread of conservatism, which doesn’t surprise me nor does it upset me. We all have different views.

I think Judge Ngoepe is much more conservative than I am, but I think the real difference between what I have read him to have written and my perspective is that I don’t believe I was free as a judge at the Constitutional Court to apply my norms, standards, values, world view, cultural perceptions.

I thought my obligation and my oath of office obliged me to apply the norms and standards of the Constitution. I did give judgements on an interpretation of the Constitution with which I personally disagreed — they weren’t my values and I am not going into details because I don’t think it is proper for a judge to do that — but I believe that is the major difference between the two of us; not conservatism vis-à-vis liberalism, and I don’t regard myself as a liberal, but I regard myself as an interpreter of the Constitution and I don’t think one can introduce cultural values in conflict with those values.

Thirdly, I detected a veiled suggestion that the change of composition of the Constitutional Court should have in mind, as a sub-theme, appointing people who would promote these more conservative, traditional African values. I don’t think that’s the JSC function.

The JSC function is quite clearly determined in the Constitution and, quite frankly, I think that Judge Ngoepe’s predecessors on the JSC did pretty well to ensure that the 11-member Constitutional Court was a representative cross-section of South African society. You know, to say that we applied Western standards, because the Constitution says so. The Bill of rights is a Western thing.