In The Idea of Justice, political economist Amartya Sen states that democracy “is no longer seen just in terms of the demands for public balloting, but much more capaciously, in terms of what [American political philosopher] John Rawls calls ‘the exercise of public reason'”.
That was something recognised by the Constitutional Court in 2006 when it set out a public participation test for the performance of the legislative functions of the national and provincial assemblies and the National Council of Provinces in its “doctors for life” judgment.
But Sen says that, although “the idea of seeing democracy as ‘government by discussion'” is “widely accepted” in contemporary political philosophy, it is “not always [accepted] by political institutionalists” or those in government.
It is an observation that became apparent in Cape Town last week during the Judicial Service Commission’s interviews of candidates for positions on the Bench.
It was particularly acute in an exchange between ANC parliamentarian and Deputy Minister for Home Affairs Fatima Chohan and Eastern Cape Judge Xola Petse.
(The commission announced this week that Petse and Judge Ronnie Pillay had been nominated to President Jacob Zuma for the two vacancies in the Supreme Court of Appeal).
Referring to the current public concern about the separation of powers, Chohan said that it “seemed” that the judiciary was “tied up in the notion” that the “executive wants to impede its independent functioning”.
Reflecting on the concept of majoritarianism and how, during the struggle against apartheid, “participation in elections was the primary goal for many people of colour in this country”, Chohan asked Petse to comment on the perception that the judiciary was encroaching on the legislative’s role by making and changing laws.
Petse was unequivocal in “aligning” himself with the position that all three arms of government “seek to transform society” according to the Constitution and that “everything the legislature and executive does to achieve that objective should be welcomed”, but that judicial independence remained integral to a constitutional democracy.
It was a response reflected by several other judges who were asked to comment broadly on the separation of powers during the interviews.
The effectiveness and aim of such questioning is moot, but many of the questions did have the unintended result of revealing more about the interviewers than about those being interviewed.
The commission is a microcosm of sorts of South African society and, much like society at large, sometimes defaults along fault lines ranging from party political to race and conceptions of transformation.
A source familiar with commission interviews said that Chohan had, for example, shifted in her approach from being a commissioner who was “almost always guaranteed” to ask questions about gender issues and transformation to someone who now rarely did and instead appeared to be toeing her party’s line.
The majoritarian argument is often used by politicians, including ANC secretary general Gwede Mantashe, to suggest that “counter-revolutionary” judges are working against the will of the people.
In its submissions to the commission for this round of interviews, the University of Cape Town’s Democratic Governance and Rights Unit was critical of the commissioners’ lack of emphasis on judgments during the previous round of interviews in October last year.
The DGRU’s Chris Oxtoby told the M&G that Mogoeng, as chair, runs a tighter JSC ship than some of his predecessors “with generally shorter interviews and “less meandering lines of questioning,” but there remained a paucity of questions about jurisprudence in last week’s interviews. Although Mogoeng’s predecessor, Sandile Ngcobo, would set out a jurisprudential “stall” early on in commission interviews, the current chief justice’s approach appears to revolve around his own professional favourites, including access to justice and judges’ management of case flows. In an exchange with Petse, Mogoeng’s feelings were made evident on the impact the proposed Constitution 17th Amendment Bill, making the Constitutional Court the apex court in the country, would have on that court’s workload.
Petse, who has acted on the appeal court Bench, was asked by commissioner Carel “CP” Fourie who, with KwaZulu-Natal state attorney Krish Govender, is one of two representatives of the attorney’s professions on the commission, whether he had dealt with any constitutional matters in the appeal court.
Petse said no, to which Mogoeng commented that was why he believed that “nothing new will be added to the workload” of the Constitutional Court as litigants who failed at the appeal court and wanted to pursue the matter “always find something [to use to litigate] at the Constitutional Court”.
Justice Minister Jeff Radebe had said earlier that the “genesis of the Constitutional Court — may have given rise to this dilemma in people’s minds” that some matters were beyond the court’s purvey.
If the likes of Radebe were dogged in their statements, overt or otherwise, that government or ANC positions had to be defended in the appeal court, others such as the National Council of Provinces’s Peace Mabe and Mmatlala Boroto took a somnambulant approach to the interview — they did not utter a single word all of last week.
Another interesting dynamic emerged among commissioners regarding academic articles published by judges.
The three opposition party commissioners — from the Congress of the People, the Democratic Alliance and the Inkatha Freedom Party — appeared enamoured of judges such as Clive Plasket, a progressive Eastern Cape judge who has published widely and has had stints on the appeal court.
Although publication points to the intellectual rigour of judges, it has been used, according to a well-placed legal source, as part of the “standards” argument by those opposed to the transformation of the judiciary to argue against black candidates’ suitability.
As Govender pointed out during Plasket’s interview, judgments, with the level of research they usually entailed, were also considered publications and pointed equally to a judge’s intellectual capacity.
Nevertheless, the impression that intellectualism is sometimes racialised within the commission is hard to escape.
For all its faults and fault lines, ascendant groups and apathy, rigour and compromise, the commission remains a microcosm of a neurotic society.