O ver 54% of our judges are black in the generic sense. Leadership of the judiciary – at least on the face of it – is firmly in African hands. The Chief Justice is African. So is his deputy. The President of the Supreme Court of Appeal is African. All the Heads of the High Courts are African. If transformation of the judiciary were a simple matter of packing the courts with black judges, then we might as well pat ourselves on the back for a job well-done, and move on.
But in my view transformation of the judiciary is not simply a numbers game as regards racial representation. It is, more importantly, a matter of attitude. That attitude was captured by the ANC in its Polokwane conference when it adopted the resolution that: “Appropriate mechanisms must be urgently established to pursue the priority of establishing an adequate pool of judicial officers who are steeped in and reflect the progressive values of our constitution”.
This is the single most important and truly transformational resolution that has been taken since the dawn of our constitutional revolution. Strikingly, since 1994 the ANC has never once taken a resolution at its national conferences that makes race the central theme in the endeavours to transform our judiciary. That is not to say race is not relevant. In the bigger scheme of things, it is.
But what are the “progressive values of our constitution” in which the new breed of judges must be steeped? The answer lies ineluctably in our national constitution. The progressive values of our constitution are human dignity, equality and freedom. They are not what politicians say they are from time to time, which may change according to the agenda sought to be achieved at a given time.
For example, the constitution says South Africa is founded on “human dignity, the achievement of equality and the advancement of human rights and freedoms”.
These three constitutional values are the foundation of the Bill of Rights Chapter in our national constitution. They are also the measure by which the reasonableness and justifiability of the limitation of other rights in the Bill of Rights Chapter must be gauged. In other words, in order to determine whether or not the limitation of, say, freedom of expression is reasonable and justifiable, a judge must have regard to the effect that such limitation has on human dignity, equality and freedom.
What is more, these three values are also a central feature in the interpretation of the Bill of Rights Chapter. In this regard, the Constitution enjoins the courts when interpreting the Bill of Rights to “promote the values that underlie an open and democratic society based on human dignity, equality and freedom”.
So, these three values are not only in themselves fundamental rights under the Bill of Rights Chapter. They are also the values on which the country called South Africa is founded. And they are the essence with regard to which the Bill of Rights Chapter must be interpreted. In short, without human dignity, without equality, and without freedom there is no country and the rights in Bill of Rights Chapter are meaningless.
These constitutional values in which all judicial officers must be steeped are not the sole preserve of any one racial or gender group. I am not aware of any empirical evidence that a black judge is more likely to espouse and apply these values than a white judge.
In fact, if one considers at face value some of the things done in recent times by the constitutional court, which is 72% black, one finds that these things may not be consistent with these values.
These values are not the sole preserve of white persons either. There is no empirical evidence that a white judge is better equipped to apply these constitutional values than a black judge. In fact, in October last year the Supreme Court of Appeal, which is 60% white, issued a ruling that where an employee had been found guilty of misconduct the determination of a sanction is the sole preserve of the employer and that the CCMA cannot interfere with the employer’s decision in that regard – however unfair. The author of that judgment was the very judge now being championed by a lobby group for appointment to the constitutional court.
Now, equality includes equal protection and benefit of the law, and equality is one of the values on which South Africa is founded. If only the employer has a say as regards whether or not an employee must be fired (under the guise of a reasonable employer test), then how on earth can the employee enjoy equal protection of the law when he cannot challenge the employer’s decision to fire him at the CCMA without reference to what a “reasonable employer” would have done in the circumstances? Thankfully, the constitutional court has corrected that abomination of our constitutional jurisprudence.
Before that, the Supreme Court of Appeal had attributed to the trial court the phrase “generally corrupt relationship” to describe the relationship between Mr Schabir Shaik and the president of the ANC. It later emerged that the trial court judge apparently never made that remark in his judgment in the Schabir Shaik asset forfeiture case. But the way had been paved, on wrong facts, by the Supreme Court of Appeal for an inference that the ANC president is corrupt. This was an affront on his human dignity – and human dignity is one of the values on which our constitution is founded. This demonstrates that a white judge (or a group of white judges) is not necessarily better equipped than a black judge to reflect the progressive values of our constitution.
So, if racial considerations are either inadequate for the establishment of an adequate pool of judicial officers who are steeped in the progressive values of our constitution, then how does an ANC-led government hope to achieve this without being accused of packing the judiciary with people considered to be sympathetic to it? The answer lies in the “appropriate mechanisms” that the ANC establishes in pursuit of that very important goal.
In my view, it is relatively easier to gauge the progressiveness of candidates coming up for appointment to the constitutional court, the Supreme Court of Appeal and the High Court where those candidates have previously acted as judges or held judicial office in the lower courts. From their written judgments one can determine whether or not, and the extent to which, they are “steeped in and reflect the progressive values of our constitution”.
The difficulty arises where the candidates are academics, attorneys or advocates who have never before acted as judges or magistrates. I believe that such people should never be considered for permanent judicial office. A clever academic does not a wise judge make. Instead you tend to get long judgments with elusive rationes.
When considering the appointment of a candidate the President will do well to bear in mind that appointing a judge is like giving birth; once done, it cannot be undone. Firing a judge is not a matter of labour relations (no pun intended). It is considerably more serious than that and so, fittingly, considerably difficult to do.
So if the President should make a mistake in appointing a judge who does not reflect the “progressive values of our constitution” but simply says he does, we shall be stuck with that judge until he or she reaches retirement age. That is eminently undesirable.
In conclusion then, the essence of judicial transformation lies not in packing the courts with black judges. It lies rather in packing the courts with judges who are genuinely beholden to the constitution and the fundamental values thereof. It is not difficult to ascertain whether candidates are so beholden or not. It is time we, the citizens, helped the JSC and the President make appropriate appointments.