CAN JUDICIAL INDEPENDENCE SURVIVE TRANSFORMATION?

Notes for address to the Wits Law School, Tuesday August 18 2009

Thank you for the kind words of introduction. I hope some of them are deserved.

Thank you also for the invitation to speak here tonight. The Wits Law School does not need me to sing its praises. Its thousands of alumni around the world are its monument.

The invitation was therefore an honour I hastened to accept. I looked forward to clarifying, first with myself and then with you, some questions of judicial independence and transformation that had created a good deal of public heat but little light.

That is still my principal objective but circumstances have changed quite radically since we made the arrangement. The last three weeks have seen unprecedented media attention being lavished on the judiciary, virtually none of it favourable. The ham-fisted manner in which the president's office handled the designation of the next chief justice generated a wave of contention and unwonted speculation. This was then compounded by the latest chapter of shocks in the seemingly endless Hlophe soap opera.

I hold the chief justice and his colleagues on the Constitutional Court bench in too much esteem and affection to make waves when they so clearly need time and space to negotiate the turbulent waters. I want to pay tribute to the quiet dignity and judicial composure with which they have continued to perform their burdensome duties. It is not the time for emotive language about this particular threat to the judiciary and its independence or transformation.

Judge Hlophe is not the problem. He is merely a symptom of a wider malaise to which I shall turn briefly later.

Can judicial independence survive transformation?

The question posed is actually quite straightforward and really answers itself. Both transformation of the judiciary and the preservation of its independence are constitutional imperatives. The Constitution, though nowhere expressly mentioning transformation, is transformational, a bridge: we are to heal the wounds of the past and build a new society.

The Constitution also creates a triad of state power in which the judiciary's institutional independence is essential. It follows that judicial independence may not be sacrificed on the altar of transformation.

Clearly there are - and for some time have been - serious threats to judicial independence, often under the banner (guise?) of transformation. These threats emanate mainly from outside the judicial system but there are also threats from within, all of which should be identified, analysed and combated appropriately. In the time available tonight we can unfortunately touch on only some of them.

The external threats to the independence of the judiciary have emanated mainly from national office bearers of the governing party in ostensible compliance with a package of resolutions that were adopted (some would say reaffirmed) at the celebrated Polokwane conference in December 2007. The draft legislation in question, when first it was presented some time ago, was debated publicly and I do not intend repeating what I said then. The legislation was withdrawn then and I believe should be shelved again. Now, however, there is an ominous undertone in the language used by the politicians and the incoming chief justice will need the concerted support of not only a united judiciary but of the legal profession as a whole. Micromanagement of the courts and monitoring of judicial officers by bureaucrats or politicians is unacceptable in principle and should be avoided if at all possible.

But there are cool heads and good people within the governing party and I am confident that, if the challenge is properly addressed, a satisfactory compromise can be found.

Tension between the judiciary and the executive or legislature does not spell disaster. It is inherent in a system of separation of powers and, properly handled, can only strengthen our constitutional undertaking and the transformation it envisages. If we are right, which I have no doubt we are, we should be able to persuade enough people of goodwill to find a solution.

The second main external threat to judicial independence emanates from the Judicial Service Commission, an institution that I have proudly held up to envious colleagues abroad as an ideal solution to the selection of judges, much better than the bruising dogfights seen in the US Senate Judiciary Committee when important federal court appointments are being considered.

In my respectful view the manner in which the JSC has performed both its primary function of selection and its disciplinary function has increased the threat to the independence of the judiciary. This is a harsh finding and I have arrived at it only after much heart-searching. A number of close friends of mine, fine men and women, have given loyal and unstinting service to the JSC over the years. Nothing I say should be allowed to tarnish their image.

Moreover, no thinking person can possibly dispute that the pale male, neo-colonial face of the South African judiciary had to change, if only to promote its legitimacy. The need for the judiciary to be broadly reflective of the society in which it functions, has been recognised in a number of kindred jurisdictions. In our country, with its history of gross discrimination, the need was and remains all the greater. Conformably s 174(2) of the Constitution requires that this need for gender and racial representivity to be taken into account when judicial appointments are made.

But from where I look at the judiciary today, the ethnic/gender-balance criterion in s 174(2) of the Constitution has become the be-all and end-all when the JSC makes its selections, overriding the fundamental requirements of sub-s (1). For obvious reasons the Constitution, while mentioning the transformational criterion in sub-s (2), demands in sub-s (1), as the primary and essential requirement, that appointees be appropriately qualified.

These two essential factors, one absolute and the other discretionary, have been turned on their heads. This was done in good faith and, commendably, in order to promote transformation of the ethnic and gender composition of the Bench. But this objective was attained at a cost.

Being a judge is a frighteningly lonely job.

Do the members of the JSC really have no conception of how difficult a judge's work is, how physically, intellectually and emotionally draining, even when one is equipped to do the job; of how unfair it is to appointees, let alone the litigating public, to appoint people of insufficient experience and training? It is not only a question of judges being filled with the spirit of the Constitution and inspired by its new vision of our country.

You simply cannot expect appointees of whatever ethnicity, gender or academic qualification, to cope with the hurly-burly of the Johannesburg motion court, unless they have had real exposure to the daily practice of commercial law.

And now, latterly, things in the JSC have taken a turn for the worse. Now it is no longer merely a white skin that is interrogated but also the political beliefs, existing or erstwhile, of aspirant judges. Recently a candidate for appointment to the high court, a respected practitioner of many years standing, was grilled by a politician on the JSC for his having defended a nationalist politician years ago and, even more improperly, questioned about the manner in which he had done so. He was then asked by another member why he had not apologised for having been a Conservative Party office bearer. Was this a legitimate exercise of the powers and duties of the JSC or some form of re-education Khmer Rougestyle?

In another instance an eminently suitable white applicant, a respected member of the Eastern Cape Bar, was asked, clearly not to elicit an answer but to hector and humiliate, whether in his opinion his appointment would enhance the demographic balance of the bench. To his credit the man kept his composure and gave a courteous answer to the purported question. Still not satisfied, the questioner then asked the candidate, a volunteer for judicial duty, why he had never joined AFT. Heaven knows how this line of questioning can be justified under s 174 of the Constitution.

These were by no means the only instances where humiliation was heaped on perfectly honourable people, senior advocates who were prepared to give up the financial benefits and freedom of successful private practice, for the drudgery of public service on the Bench. The JSC has by conduct of this kind alienated outstanding men and women who would have made good, possibly even great, judges. This reaction is quite widespread, as reported to me by members of the Bar whom I urged to let their names go forward for appointment, notwithstanding the notorious bias against white men. Non-selection they are prepared to face but not the demeaning treatment they would have to endure.

By depriving the High Court Bench of the services of these people the JSC has impoverished the judiciary and the country. In adhering too rigidly to its policy of preferring transformation over appropriate qualification, the JSC has not only misapplied its substantive selection power but has done so in a manner that is unacceptable in a society based on human dignity, equality and respect for human rights.

If the independence of the judiciary is to be preserved, this misguided transformation, this stalking horse for racial animosity, will have to be confronted.

Justice Johann Kriegler

(Justice Kriegler is a former High Court, Supreme Court of Appeal and Constitutional Court judge. These are his speaking notes for an address to the Wits Law Faculty last week)

Source: www.freedomunderlaw.org

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