Tribute: A brave, ‘activist’  judge

It troubled Judge Ramon Leon when he was unable to avoid imposing the compulsory death penalty, a fellow judge writes.

It troubled Judge Ramon Leon when he was unable to avoid imposing the compulsory death penalty, a fellow judge writes.

TRIBUTE

Judge Ramon (Ray) Leon (1925-2018)

The death of Judge Ramon (Ray) Leon recently at the age of 93 years is a cause for grief for a number of reasons. For his sons, Peter and Tony, and his stepsons, Alan and Nigel Downing, it is a matter of a deeply felt personal loss for a man who was a warm-hearted father and friend.

His life was littered with achievements and he excelled academically, first at Durban High School and later at the University of Natal.
His was a full life from the start, embracing politics as the president of the student representative council, and sport, playing tennis and cricket for the first team of the university.

Because of his passion for justice, he was called to the Bar in Johannesburg and appointed Queen’s Counsel at age 33, one of the very youngest in the Commonwealth. Afterwards he moved to the Durban Bar, and chaired the Durban and coastal branch of the Progressive Party in 1959. His undoubted ability led to his appointment as a judge in Natal on January 1 1967, serving with great distinction until April 1 1987.

For the legal profession, there is sadness for the passing of a judge who rose above his peers in a time when others shrank back. I speak as an advocate who represented litigants and detainees during the darkest days of apartheid. In 1985, Leon was appointed deputy judge president of the division but, in truth and in fact, he ought to have been made judge president when judge Neville James retired. In those days, such appointments were made by the minister of justice and Leon was overlooked because the National Party feared his independence.

The law is not an exact science and is given to subtle nuances and interpretations. Law professor John Dugard has noted the difference between “activist” and “positivist” judges, especially in troubled political times. An “activist” judge would try to do justice where the law had harsh consequences, whereas a “positivist” one would enforce that law with unnecessary vigour. Dugard gives two examples. “The unequal application of the Group Areas Act by administrative fiat was approved by the appellate division, despite the absence of clear statutory authority; and the detention-without-trial laws of the 1960s were made still harsher by judicial interpretation in favour of the executive.”

In numerous civil and criminal cases Leon gave exemplary judgments and he was noted for his wisdom, fairness and justice. So it would be fair to regard him as an “activist” judge.

There are obviously limits to how far a court can go in achieving social justice, especially when the laws are strict. Judge Leon has been criticised for sentencing Andrew Zondo to death after a bomb was exploded in a crowded shopping centre in Amanzimtoti, outside Durban. That tragic act on December 23 1985 resulted in the death of three adults and two children, and 40 others were injured.

Oliver Tambo, the former president of the ANC, indicated that the killing of civilians was against ANC policy and, accordingly, he disapproved of the bombing.

At that time, the death penalty was compulsory and a judge was obliged to impose it, unless extenuating circumstances were present. In other matters Leon had managed to avoid the death penalty, but in this particular case he found no extenuating circumstances. Leon was compelled to pass the death penalty, though we all knew it troubled him deeply to have to do so.

Other enlightened judges were placed in a similar dilemma. In the Magoo’s Bar case, Judge Doug Shearer sentenced Robert McBride to death for the Durban beachfront bombing, which took place on June 14 1986, killing three civilians and injuring 69. McBride was later pardoned when the death penalty was outlawed.

In matters affecting personal liberty, race or inequality, Leon was among the best at finding ways to help the victims of those dark times. Many apartheid laws empowered an official to take action against a citizen in various circumstances, be it to detain him or take other prejudicial action. “Activist” judges imported the doctrine of audi alteram partem, requiring the victim to be given a hearing before action was taken against him. “Positivist” judges often watered down this important principle when they believed the safety of the country depended on it. 

During the states of emergency of the 1980s, the pressure became even greater. For a while, during the period when John Milne was judge president of Natal, many applications were brought concerning challenges to the laws passed and the detention of activists. Most were successful and the division acquired a reputation for a fearless judiciary that stood up against the forces of iniquity.

I was one of the advocates who challenged the detention of religious activist Paddy Kearney, who the police “had reason to believe’” was endangering law and order. The case was brought by the courageous archbishop Denis Hurley, who realised the importance of the issue. The police refused to give reasons because there were manifestly none, and it took a very brave decision by Leon to declare the detention invalid. The warm embrace I received from a beaming Hurley remains one of the highlights of my legal career. The case became a landmark decision and beacon of hope for the oppressed. In a riotous celebration after the case, the archbishop showed his eminence when I gave the toast: “In the hurly-burly, there is no one like the burly Hurley!”

After Leon retired, he served as chancellor of the University of Natal and as chairperson of the indemnity committee to facilitate the negotiations process in 1991. He chaired the Independent Media Commission to ensure equal access to public media in the first democratic election on April 27 1994 and sat as the president of the Swaziland and Lesotho courts of appeal.

So we salute our dear, departed jurist and hope, like the great German philosopher Friedrich Nietzsche, that “in your dying your spirit and your virtue shall blaze on like the afterglow of a wondrous sunset”. — Judge Chris Nicholson, retired

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