When anonymous, it's easy to stand for everything and nothing
In "Scales of justice could tip either way for judiciary in 2014", the Mail & Guardian's pseudonymous columnist Serjeant at the Bar refers to a commentator who describes Constitutional Court judges operating in terms of "humility". Serjeant venerates judges who show "humility". The opposite he labels as "timidity" – judges showing deference to "the other organs of state".
It appears that Serjeant favours a robust court; he cautions that the next appointments could move the court towards "timidness to power". Humility suggests circumspection, caution and a sense that judges do not have all the answers. But to hide behind a pseudonym, as Serjeant does, must be on account of timidity … Wait, perhaps it's because of modesty?
With the cover of anonymity, it's easy to stand for everything and nothing and to bamboozle. Employing all the right idioms, Serjeant may sound progressive to the naive and misinformed.
There is a narrative that is front and centre in analyses such as Serjeant's, a story of judges who are heroes and others who are not. It's a tale of good judges and bad judges. Without telling us which cases he has in mind, Serjeant offers an oversimplified prism that provides a gauge to nothing.
Serjeant's article is absolutely not in the same mould as the utterances of the Ku Klux Klan, but one wonders why adults, in a democracy, need to make statements behind a mask. The blogosphere is a grotesque reflection of this mind-set – such commentators would not dare speak these words in person. But, from behind the mask of anonymity, the blatant bigotry emerges. Many international newspapers have closed the space for anonymous comments.
In the interests of transparency, it would at least be helpful to know Serjeant's credentials.
The judicial philosophy and ideological orientation of judicial nominees, what informs their understanding of contested constitutional provisions or doctrine, and how they approach what some might consider policy choices by the co-equal branches of government are important questions. Serjeant laments the recent and pending retirement of judges at the Supreme Court of Appeal and raises a question about the future direction of this intermediate court.
Serjeant does not say which decisions of the appeal court stand out. This counterpoints the view shared by many progressives that the politics of the court as displayed in many decisions, including education and affirmative action cases, and its failure to develop the common law adequately over two decades, show a court institutionally tilted to the right.
We can ill afford a judiciary that runs off the rails. But how does Serjeant understand the rails? Some consider the rails in terms of outcomes favourable to an elite faction in society, to maintain historical privilege, even if the result or reasoning is that of a legal outlier unsupported by the interpretive community of scholars. It would be helpful if Serjeant gave us access to his thinking: Which cases does he have in mind?
There's another counterpoint. The appeal court has delivered one too many stray and random judgments, such as the recent judgment holding that, under international law, the South African police have an obligation to investigate gross human rights violations in Zimbabwe. This decision cannot be substantiated by any comparative or international precedent. There are other decisions that represent the views of a legal outlier unsupported by the disciplining rules recognised by the interpretive community of scholars.
As with his take on the Constitutional Court, Serjeant casually employs broad strokes over a wide judicial canvas when he applies his mind to the appeal court. If he does not identify concrete cases, aerated with facts, it is a distorted picture. It deflects a discussion of jurisprudence and contextualised results. It is utterly unproductive, but has its usefulness for those who wish to mislead.
Ziyad Motala is a law professor at Howard University, Washington DC.