JUDGING ACCORDING TO PERSONAL ATTRIBUTES, OUTLOOK ON LIFE AND LIFE EXPERIENCE: ANY PRACTICAL VALUE? MBUYISELI R MADLANGA Justice of the Constitutional Court of South Africa

Judging – in the judicial sense – is a fine art and an imprecise science. There is rarely one “correct” answer in the resolution of a legal dispute between or among litigants. That is why a decision even of a Full Bench of three judges of the High Court can be reversed on appeal by the Appeal Court, and a unanimous decision of five judges of the Appeal Court in turn reversed by 8 to 11 judges of the Constitutional Court, the highest court in the South African court hierarchy.

It is also why 8 to 11 judges of the Constitutional Court can be split on an issue. On two occasions thus far, the Constitutional Court has even delivered a 5-5 evenly split opinion.

So imprecise is the science of judging that even a unanimous decision of 11 judges of the Constitutional Court is not necessarily the “correct” answer to a given legal question that serves before them. Thus, Ulpian – a prominent Roman jurist considered one of the great legal authorities of his time in the First Century – was probably right when he wrote (in Dig.49.1.1)

“an appeal sometimes alters a well-delivered judgment for the worse, as it is not necessarily the case that the last person to pronounce judgment judges better”

In fact, a court is not there to provide answers to difficult questions of law; there is a bevy of practising advocates and attorneys for that. The role of the courts, through the judges who preside there, is to resolve legal disputes between or among litigants.

The judges who decide legal disputes in our courts are not machines (the much-vaunted Fifth Industrial Revolution has not progressed that far). They are fallible humans with mood swings, political and religious beliefs, and personal prejudices which follow them wherever they may tread.

So, if we accept that judicial judging is an imprecise science, and that judges are fallible and carry their  personal prejudices to the bench, can it confidently be said that judges who decide cases from the prism not of the law as it is but rather from the prism of their personal prejudices (the law as they wish it to be or “Palm Tree Justice”) do so fairly, without favour or prejudice, as their Oath of Office or solemn affirmation enjoins them to do?

Enter Justice of the Constitutional Court of South Africa, Mbuyiseli R Madlanga, and offers this thesis:

“A judge’s make-up, outlook on life and indeed entire being follow her or him. Judges cannot be expected to entirely jettison all of their [subconscious] biases and perspectives about the world upon stepping into their judicial roles because meeting such a standard would be a super-human feat.”

This is a sentiment also expressed by Rebecca K Lee, an Associate Professor of law at the Thomas Jefferson School of Law in the United States in a paper titled, “Judging Judges: Empathy as the Litmus Test for Impartiality”, referenced by Justice Madlanga in this contribution with approval. It is available at https://www.anchoredinlaw.net/wp-content/uploads/2019/11/Judging-Judges_-Empathy-as-the-Litmus-Test-for-Impartiality.pdf.

As a sociological proposition, Justice Madlanga’s thesis raises an interesting question about human ability to self-correct. But as a jurisprudential proposition (or theoretical study of law) it raises difficult questions about ethics and the integrity of the rule of law.

For example, if a judge’s “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” is rooted in racism or sexism or religious fundamentalism or homophobia, is there a place in our judiciary – for the sake of judicial diversity – for a judge who believes that black people are inherently incompetent, lazy and dishonest; or that white men are the salt of the earth and that life in Africa without them would be unbearable; or that same-sex relationships are a sin before God; or that women counsel belong at home raising children and not in court arguing cases against men?

Jurisprudentially, the thesis also raises a vexed question that has been in the minds and mouths of many political and legal activists since the advent of the Truth and Reconciliation Commission of South Africa (the TRC) and it is this: Since the TRC seems to have elected not to investigate the role that the judiciary (or some judges) played in the enforcement of apartheid “laws” (some of which are still in the statute books almost 30 years after the formal abolition of apartheid in South Africa) or in facilitating the achievement of apartheid goals, how are we to know – short of a judge’s confession – that a judge’s decision in a case was not informed by his or her political or religious views, or by racist or sexist or homophobic prejudices that “followed her or him” to the bench?

It was President Nelson Mandela himself, addressing the then Law Society of the Transvaal in 1993, who said:

“But at the time of the worst excesses of apartheid, judges and lawyers on the whole remained silent. Judges, magistrates and prosecutors enforced apartheid laws without protest. Unwarranted sentences were called for and imposed for contravention of statutes passed to uphold apartheid.”

If judges are free to carry these prejudices to the bench for the sake of diversity, what mechanisms are there to ensure that they decide cases based on the law as it is – allowing only for differences of opinion in the forensic interpretation of the law which can, to an extent, be ironed out through the appeal and review processes – and not based on their prejudices and jaundiced perspectives about the world masquerading as law?

Is the presumption of judicial impartiality and the Oath of Office or solemn affirmation sufficient solace to a black South African litigant who feels prejudiced by a judge or magistrate who decides that apartheid was not a crime against humanity, despite a 1966 United Nations General Assembly Resolution to the contrary, a 1984 UN Security Council endorsement, and the 2002 definition of Apartheid in the Rome Statute of the International Criminal Court?

Is the Judicial Service Commission process of appointing and disciplining judges sufficiently robust to weed out candidates and serving judges who bring their toxic prejudices to the bench?

Can it be said with confidence that the integrity of the rule of law is in safe hands, and that the country’s equality jurisprudence is in fine fettle, when the outcome of a case depends entirely on the politics or personal prejudices of the judge the litigants draw?

Justice Madlanga is emphatically not advocating for a judge finding reasons in his or her “make-up, outlook on life and indeed entire being … [subconscious] biases and perspectives about the world” for a predetermined outcome. But where does that disclaimer leave judicial activism in appropriate cases? Is there a place for judicial activism in today’s South Africa? Can there be judicial activism without a predisposition to one outcome over another?

These are just some of the questions that this important contribution raises.

Read Full Analysis and Review here: Judging According to Personal Attributes – PDF

Related Documents:

SAJEI_Journal_-_Vol_1_-_Issue_1 Original article at page 48

Judging Judges_ Empathy as the Litmus Test for Impartiality

Is Land Reform a Political or Legal Question: Exploring Amendment of s 25 of the SA Constitution

Former Justice of the Constitutional Court, the late Justice Tembile Skweyiya, once wrote in a seminal judgment of the South African Constitutional Court dealing with the tussle between law and politics, “Courts deal with bad law; voters must deal with bad politics”.

Do South African courts too readily involve themselves in political questions? Is it desirable for the courts to decide political questions? Is the mooted amendment of the property clause, section 25, in the South African Constitution a political question that should be resolved by politicians in Parliament, or is it a question that must be resolved by the courts? Is the Land Question in South Africa one for the courts or one for politicians to resolve?

These are some of the questions that Professor Mtende Mhango, Professor of Law at the National University of Lesotho, teases out in this short analysis.

A more detailed analysis of this question is explored in his recent book, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) Eleven International Publishers ISBN 978-94-6236-918-4 Available athttps://www.elevenpub.com/law/catalogus/recent  or www.amazon.com

Read Full Analysis and Review Is-Land-Reform-a-Political-or-Legal-Question – PDF1

By |2019-08-29T11:21:20+00:00Aug 28th, 2019|Analyses and Reviews|3 Comments

Kill Zuma: By Any Means Necessary – A Review

A Judge once directed the jury as follows:

“Gentlemen of the jury, you’ve heard the evidence of the witnesses for the Crown and that of the accused. If you believe the evidence of the Crown witnesses you will convict the accused. If you believe the accused you will believe anything.”

The jury promptly acquitted the accused.

If current popular narrative sweeping urban South Africa is any indication, South Africans generally do not seem to be made of the stuff of which that jury was made. We seem generally to have abdicated our thinking and reasoning capacity to newspaper editors, reporters and self-styled analysts who all seem to agree on almost everything.

Witness how our analysts – at least those to whom media houses elect constantly to expose us on television and mainstream broadsheets – seem all to agree that President Jacob Zuma is “guilty” of “State Capture”, apparently a most serious criminal offence the elements of which, at least as far as I can gather in my 26 years of practising law, are yet to be defined in any judgment or Criminal Law textbook.

Witness, too, how that same cohort of analysts seem all agreed that President Zuma is needlessly “playing victim” or mounting a “conspiracy theory” steed when reporting to the Zondo Commission of Inquiry into “State Capture” the death threats allegedly received by his personal assistant not only to himself but also to his lawyers, or of being mendacious when constantly clearing his throat during his testimony at the Zondo Commission – an irritating habit of his that we have had to bear, by the way, since we had the misfortune of being subjected to his 8 State of the Nation Addresses over a period of 9 years.

One journalist even made much of a photo image of President Zuma’s Senior Counsel’s hand resting on the shoulder of the ruling party’s Secretary-General during a short adjournment at the Zondo Commission, suggesting, by innuendo, a closer relationship than there may have been.

It is because of this thoroughly compromised landscape of our journalism that Gayton McKenzie’s book, “Kill Zuma: By Any Means Necessary” should be celebrated. But, alas, it is a cathartic book that is unlikely to earn him the Alan Paton Award nomination because eNCA newscasters and viewers, Radio702 talkshow hosts and listeners, and BusinessDay writers an readers have directed urban South Africa in terms not dissimilar to those of our rather presumptuous Judge to the jury – and found fertile ground.

This is rather ironic, given that the Alan Paton Award is conferred for books that present

“the illumination of truthfulness, especially those forms of it that are new, delicate, unfashionable and fly in the face of power”.

But it is precisely these qualities that have seemingly earned the book urban South Africa’s obloquy from people some of whom have not even read it.

Power – in Neo-Capitalist South Africa as in others – lies not in governments but in multinational corporations that brook no national boundaries. Governments in such societies tend, by and large, to do the bidding of multinational corporations, and the History books are littered with nationalistic leaders (mostly in developing economies) who have fallen, one way or another, for daring to stand in the way.

The book has been dismissed by the self-appointed police of our national narrative as “pure fiction”, and so urban South Africa, without even having read it, appears to have taken a cue from that. This is demonstrative of the creeping intolerance of those wedded to one world outlook toward another.

As our courts are now increasingly being turned into blunt instruments for quashing any world view that departs from the common narrative, I took the view when the book came out in December 2017 that litigation attempts might spring from its publication if sales should reach “unacceptable” levels thus posing a danger of its contents gaining some traction. That this has not happened is testimony, more likely than not, to the book not exactly flying off the shelves.

It does not take much in mainstream urban South Africa these days to be “outed” as “a bot” or “captured” or “Guptarised”. All you need do is train your searchlight on the suspicious dealings of those revered by mainstream media in urban South Africa. And if you can toss in a bit of common sense amid the mob-like opprobrium for one Indian family, pointing out the obvious that the “capture” of South African institutions did not begin with that family, well, then, you’ll be well and truly scarlet-lettered.

To this, McKenzie seems to have said to himself, “Sod it. Let’s do it!” And do it he did – and in fine fashion, too, on balance.

Fairly early on in the book he makes plain not only what the book is about and aims to achieve, but also what it is not about. The book, says McKenzie, is

“about why and how various agencies and the interests they represent have identified Jacob Gedleyihlekisa Zuma as their enemy”.

He then boldly asserts that the book

“will open your eyes to some of the deepest truths about South Africa that you have probably never thought about”.

He characterises these “deepest truths” as

“jarring and capable of overturning all the casual, everyday assumptions that we as South Africans have come to take for granted”.

He does not muck around either. In the very first page of the first chapter, McKenzie tells us of a cabinet minister being

“summoned to talk to a member of a family that has often found itself in the headlines for various reasons, including allegedly wielding an inordinate amount of influence over the state and the business sector as a whole”.

Three pages later you get a sense of exactly what he means by the “inordinate amount of influence” that he says this family wields, and the “jarring” truths he is talking about:

“I want you to go and tell your president that I looked after Mandela. But if he fires Pravin Gordhan and Mcebisi Jonas, I will destroy this economy. My friends and I will make it look worse than Zimbabwe”.

No. McKenzie is not quoting a member of the much-maligned Indian family. He is quoting a white man addressing a cabinet minister he had allegedly summoned to his lair during the first quarter of 2017.

This allegation has now been officially placed in the public domain, under oath, before the Zondo Commission of Inquiry by President Zuma. It remains to be seen whether anything will come of it, and whether those implicated will be invited by the Commission to give their side of the story thus far ignored in mainstream media.

This narrative is delivered in suspenseful motif which would, at least by South Africa’s cinematic standards, come pretty close to making Alfred Hitchcock nod a hesitant approval. From there, I was hooked, and read on.

*******

The book is not a scorecard on the Zuma presidency or his numerous brushes with the law – real and imagined. Numerous other books, comparatively more warmly received (by all accounts), have cornered that market. It does not even pretend to rescue President Zuma’s image, or whatever is left of it. On the contrary, the book is rather critical of President Zuma for, among other things, doing very little to disturb the prevailing economic landscape in South Africa. McKenzie – in an understatement of which Oscar Wilde would have been proud – even expresses “doubt” that “all his actions as the president are above reproach”.

But concerning that about which you are unlikely to read or hear in privately owned mainstream media, the book is a fast-paced roller-coaster ride.

By the end of 73 pages, we have learnt of “Comrade Fear” and the existential panic he allegedly wrought upon the ruling party in exile.

By page 100 we have learnt how the negotiating team that was to represent the ANC at the CODESA talks had been gerrymandered while Zuma, Mbeki and the then ANC President Mandela were out of the country.

By page 128 we have been reminded of 12 compromises the ANC needlessly made at CODESA, each of which appears to be a capitulation rather than a compromise, and the deleterious effects of which are still plaguing the South African economy today.

The eponymous chapter of the book comes 129 pages into the book. In it we learn of the numerous attempts on President Zuma’s life. One such attempt, McKenzie tells us in remarkable detail, involved tampering with the official presidential jet. That jogged my memory.

I remembered jumping on the opposition DA and privately owned mainstream media bandwagon in criticising the wastage of the President chartering a plane while his presidential jet was perfectly fine. As it now turns out, it was not perfectly fine. Two South American Presidents had in 1981 died within two months of each other in plane crashes that were supposedly “perfectly fine” for apparently bucking the trend of the hegemonic overreach of Western powers and the multinational corporations that feed them.

The BRICS economic union, McKenzie tells us by page 180, is another inconvenience to the insatiable hegemonic pursuits of the West. It appears that the potential that BRICS holds in promise for the economic independence of emerging economies from the World Bank, IMF, EU and US stranglehold (detailed elsewhere in the book) is considered a threat to that hegemony. So, media reports have from inception of the union in 2006 pushed the line that BRICS is a fool’s folly.

The nuclear build programme that President Zuma’s government is rumoured to have negotiated with Russia’s state-owned nuclear agency, McKenzie tells us, plays directly into that space. The affordability of the build programme for South Africa appears to be an Aunt Sally argument. The real purpose seems to be to scupper any Russian involvement in the deal. If it were done with the US or UK that would have been more “acceptable”.

I pause here to mention that I have read many books and international journals about East-West relations covering the period 1947 to 1991. I am fortunate to have attended a well-resourced high school and university. Although the school did not exactly encourage independent thought in History class (I once had a mildly cantankerous exchange with my History teacher about the Yom Kippur War) there was enough information in the library to help one form an independent view instead of one aimed at passing an exam.

And Professor Robert Shrire was nothing if not engaging in his small International Politics classes at UCT during my academic struggles there.

So, thus privileged, I can pronounce that we have been lied to. The fall of the Berlin Wall did not mark the end of the Cold War; the Cold War simply morphed from being a race predominantly about arms and ideological propaganda into a race predominantly about the economy. Understood from that perspective, McKenzie’s ruminations regarding the West’s unease about BRICS and the nuclear build make a whole lot of sense.

*******

Privately owned mainstream media in South Africa is not spared in the book. An entire chapter is devoted to its predilection for scandal, provided it engulfs the usual suspects (namely, President Zuma and the Indian family) and does not touch its own revered champions.

This is not surprising. To make his point, McKenzie anchors this chapter of the book in a poignant quote from a celebrated journalist at a press banquet held in his honour in 1880 America:

“We are the tools and vassals of rich men behind the scenes. We are the jumping jacks, they pull the strings and we dance. Our talents, our possibilities and our lives are all the property of other men. We are intellectual prostitutes”.

McKenzie gives relatively recent examples of this journalistic “intellectual prostitution”. By now, the reader has learnt of the “jarring” and “deepest truths about South Africa” to which the author had promised to open our eyes in his foreword to the book. The intimate detail with which they are told makes nonsense of the naysayers’ dismissal of the book as “pure fiction”.

His criticism of South African media is fair. He does single out a few instances of journalistic intrepidity in the late Barry Sergeant whom he describes as

“a pre-eminent example of a journalist who went against the flow and wrote about the state capture attempts of the kind of big firms that few in our media have had the courage to write about”.

He then proceeds to share some of the stories Barry Sergeant pursued and reported on. It’s jaw-dropping stuff for those accustomed to tales of corporate probity in South Africa.

*******

Now, what are the negatives?

In the final chapter, written in the style of a letter, McKenzie addresses black people in language that rather clumsily conjures up the spectre of Biko’s I Write What I Like, Mandela’s Long Walk to Freedom, and Chika Onyeani’s Capitalist Nigger all rolled up into one. The man seemed unsure whose character among these three he should adopt. So he went with all three.

The chapter reads more like a whistle-stop political speech on a campaign trail in Alexandra than a heartfelt call to economic arms by the oppressed masses across the country.

But the trouble with the book does not end there. I have noted at least 28 instances of rudimentary literary faux pas, ranging from simple spelling mistakes to incomplete and incoherent sentences. One wonders whether his proof-readers were on Regmakers or on a placebo.

These embarrassing mistakes are in addition to at least two factual inaccuracies that I picked up. Maria Ramos was never Governor of the Reserve Bank, and Paul Hoffman SC was never evidence leader in the Arms Deal Commission. Nevertheless, neither of these detract from the force of the book’s content. Perhaps McKenzie will do a Bonang Matheba and publish a more refined second or revised edition of the book.

Judging by the reluctance of some of the major book outlets to stock the book (one white man at a major outlet with national footprint told me they don’t stock it because they “don’t like its cover”) and the general dismissal of it by many who have not even read it, the very idea of the book seems to have touched a raw nerve as people appear to have conceived of it as providing a counter to that other book by a retired journalist-turned-cook-and-now-back again seemingly to push a narrative on the “Rogue Unit”. So, any attempt – real or imagined – at salvaging President Zuma’s image appears to be considered an act of sacrilege by mainstream urban South Africa.

That, if nothing else, is enough for the curious and independent-minded to read the book and judge it on its own merits, not by the identity of its author – an unfortunate favourite South African pastime.

*******

McKenzie, as he himself admits in the book, is a convicted bank robber. But then so, too, were three white South African men, Andre Stander, Patrick McCall and Allan Heyl, now immortalised in a big screen movie production. Does that fact alone render McKenzie incapable of research and writing a book? Of course not. Read the book, not the man’s past.

The book is not a work of art. Very few non-fiction books are. It simply gives you information you would not otherwise obtain from mainstream publications. If you like, it is almost like a book version of Noseweek, giving you “the news you’re not supposed to know” in less than 250 pages. Like Noseweek, it is an easy read. I am a slow and deliberate reader when I read to comprehend rather than to impress. Reading to comprehend, I consumed the book in about five hours, including time spent rechecking some of the facts and highlighting excerpts to which I knew I would want to return – and did.

So, you have a choice: either find out for yourself what lies beneath the cover that a national book outlet finds so offensive, or allow privately owned mainstream media, and others who haven’t read the book, decide for you that the book is “pure fiction”. For me, the book is a breath of fresh air from the staleness of our Guptified existence. I wish more such books become available.

By |2019-07-17T20:58:30+00:00Jul 17th, 2019|Analyses and Reviews|4 Comments

Fronting: The Ugly Long Shadow Over South Africa’s Constitutional Imperative

Fronting is a criminal enterprise not only because it is fraudulent but also because it is an affront to the human dignity of black people whom the South African Constitution has targeted for an especial economic advancement and protection. The Constitutional Court has at least twice – in 1995 and in 2018 – identified the human dignity of black people as requiring an especial protection. So, why is fronting not prosecuted as the criminal offence that it is?

The state, in all its forms, seems either impotent or disinterested in the economic crimes committed against black people in South Africa. It seems caught up still in the “reconciliation” warp, refusing to address emotional and political blackmail (where black people who point out racial exploitation are accused of “playing the race card”) at the expense of the economic redress that the Constitution demands for black people.

Fronting is principally a race issue in South Africa. Uncomfortable though the implications and impact of the race question may be to some, race being a central factor is a truth from which there is no escape. It has to be confronted and dealt with decisively, not avoided in the hope that it will go away. The Constitutional Court, no less, appreciates this when it says in Bato Star

“measures that bring about transformation will inevitably affect some members of the society adversely, particularly those coming from the previously advantaged communities”.

There is no escaping that when the Constitutional Court refers to “those coming from the previously advantaged communities” it is making an unmistakable reference to white people, whether or not they were born during apartheid. No point in quibbling about this. The question is: how do South Africans bring about the constitutional promise of the achievement of equality despite the inevitable discomfort that white people must of necessity suffer through the process?

Read Full Analysis and Review here

By |2019-04-25T09:25:29+00:00Apr 24th, 2019|Analyses and Reviews|2 Comments

Land. Equality. Dignity: A Look at Land Expropriation Without Compensation

If we are to realise at least two of the Constitution’s Foundational Values – the achievement of equality and human dignity – then land expropriation without compensation is an absolute necessity in South Africa.

But is that possible under the 1996 Constitution in its current form? What does the Constitutional Court’s jurisprudence and academic treatment of the subject tell us about the possibilities?

Must section 25 of the Constitution be amended in order to enable an orderly and lawful land expropriation without compensation, or is all we need the enactment of legislation in order to give effect to its provisions?

These, and more, are the questions that are explored in this paper.

Read Full Analysis and Review here

By |2019-04-06T11:30:01+00:00Apr 6th, 2019|Analyses and Reviews|0 Comments

Commissions of Inquiry

W

ith the proliferation of Commissions of Inquiry in recent years in South Africa there appears to be much confusion among consumers of news as regards what exactly the purpose of these things is. Allied to that is the confusion about what the role of evidence leaders in Commissions of Inquiry is and that of the media in its coverage and analysis of Commissions of Inquiry. This opinion piece seeks to answer each of these questions based on the experience that the author has had with Commissions and other similar interventions. The point made in the opinion is this: a Commission of Inquiry is not a court of law. Rules of evidence do not apply as strictly as they do in a trial court. The Commissioner does not make judgment; s/he makes recommendations which are not binding on the President. There are no accused persons, prosecutors, defence teams, convictions or acquittals. Every witness must be treated the same by evidence leaders and by the Commissioner. Talk of cross-examination in a Commission of Inquiry is inappropriate. This opinion piece in intended to help the reader think more critically about what s/he reads in the media about the goings-on at Commissions of Inquiry.

The purpose is not to persuade the reader to see things the author’s way as the author appreciates that there may be other more compelling arguments about the role of each of the role-players discussed in this opinion piece.

Read Full Analysis and Review here

By |2019-02-08T23:38:30+00:00Jan 22nd, 2019|Analyses and Reviews|1 Comment

When Expedience Trumps the Rule of Law

This is a critical analysis of a judgment of the Constitutional Court. The analysis criticises Constitutional Court Justices for being judge in their own cause in flagrant breach of a well-worn principle of law that is universally recognised, namely, nemo iudex in sua causa debet (no one should be judge in his or her own cause). In brief, Justices of the Constitutional Court had in May 2008 lodged a complaint of gross misconduct against a Judge President of the Western Cape High Court that has its seat in Cape Town. Like Dickensian Jarndyce and Jarndyce, the complaint is still not resolved despite the Judicial Service Commission finding that the conduct complained of did not deserve the ultimate censure of impeachment. Ultimately, issues arising from that complaint ended up before the Constitutional Court for determination. A number of the complainant Justices recused themselves but others did not and sat in judgment of the Judge President’s application for leave to appeal against a judgment of the Supreme Court of Appeal, dismissing it. That paved a way for the Justices’ complaint to be investigated again by the Judicial Service Commission with the possibility that the Judge President may, at the conclusion of the process, be impeached.

The author expresses the view that the Justices should have automatically disqualified themselves from hearing the Judge President’s application for leave to appeal, so that it could be heard by Acting Judges. It is not uncommon for the Constitutional Court bench to comprise more Acting Judges than permanent Justices of that court.”

Read Full Analysis and Review here

By |2019-02-08T15:20:47+00:00Jun 12th, 2012|Analyses and Reviews|1 Comment