Address delivered by Judge Phineas Mojapelo at the launch of The Judiciary In South Africa

Address delivered by Judge Phineas Mojapelo, Deputy Judge President, South Gauteng High Court, at the launch of The Judiciary In South Africa at the Chalsty Centre, Oliver Schreiner School of Law, University of the Witwatersrand, on Wednesday 21 May 2014.

Greetings and Thanks
Programme Director, Ladies and Gentlemen
Thank you for allowing me the opportunity to share with you this important event, the launch of The Judiciary in South Africa (published by Juta Law). Let me make it clear that I mean more than the usual formal customary courtesy in stating that I am delighted to be part of this evening. The subject of the book is overdue and it is heartily welcomed. Its release coincides with the celebration of the 20th anniversary of democracy in South Africa. The authors therefore have ample material to consider to the judiciary post apartheid. The fact that the book in fact starts with a brief examination of the judiciary under apartheid South Africa makes the field even wider.

The launch of JSC

The invitation for me to come and speak here took me down memory lane back to the formation of the Judicial Services Commission, the negotiations and teething problems around composition of the Commission under the chairman of Chief Justice Corbett. When the Constitution of the democratic South Africa was adopted with the formation of the Judicial Services Commission, I remarked as the then President of the Black Lawyers Association that next in importance to the fundamental human rights enshrined in the Bill of Rights under the Constitution, the second most important thing was the formation of the Judicial Services Commission which was to oversee the shaping of the judiciary under the democratic order. The prospects of a judiciary which would play a supervisory and adjudicative role in an open society based on democratic values, social justice and fundamental human rights was just exciting. Parliamentary supremacy under which all South Africans had grown up had come to an end finally. At last the law had to be just. Parliament could no longer legislate and enforce its laws as it wished. There was now a supreme law premised on justice and equality before the law and equal protection under the law. The judiciary was tasked with the task of presiding over justice, not just legality.

Before the first interview conducted by the Judicial Services Commission, the first Commission, of which I was privileged to be a member, had a brief discussion to establish its understanding of its task is appointing judges. What makes a Judge? We looked at the key concepts of “appropriately qualified”, “fit and proper” and “the need for the Judiciary to reflect broadly racial and gender composition of South Africa”. The Commission quickly developed a common understanding of appropriately qualified and fit and proper person. There was sufficient shared understanding of those concepts to enable us to start a process of appointment of judges.

There was however some extended debate over section 174(2) that talks of “the need for the judiciary to reflect broadly the racial and gender composition of South Africa” that had to be considered when judicial officers are appointed. It was on this topic that the late Prof Etienne Murenick and I locked horns for some time before we ultimately became friends. For me the meaning was simple and straightforward: black people and women who were previously not considered for judicial appointment had to be appointed this time around. Prof Murenick however took somewhat of an academic or philosophical approach to the subject which worried me for a while. The Constitution, he said, did not require the Commission to take a statistical view of the composition of South Africa to determine how many women there were, how many black people there were, how many Chinese people, how many Afrikaners, how many Indian people, and so on and so forth, and then take a percentage and seek to appoint a judiciary which reflected that composition. What subsection (2) required, articulated the late Professor, was that the Judicial Services Commission should seek to put in place a judiciary which would have capacity to empathise with the various genders and racial compositions. He argued that it was for instance possible to have a black person who did not empathise with black aspirations. The latter statement made sense to me for a while. I remembered Bantustan leaders and urban black councillors who effectively collaborated in the oppression of their own and promoted the apartheid rule which operated against black people. I nevertheless remained worried that on his approach we were now going to look for persons empathetic to black people and women rather than women and black people themselves from the various racial segments which make up South Africa. I remembered many white bantu affairs commissioners who, in the apartheid white perspective of our time, professed and were generally accepted as understanding and empathising with black people. They had become “experts” on black lives and black aspirations.

After a long and protracted debate on the subject, I requested the Commission to allow me an opportunity to sleep on the formulation. The following day Prof Murenick and I finally reached a compromise. We included, at my request a further statement to the effect that the capacity to understand and emphasise with the aspirations of a particular race or gender would be found in the fullest and purest form in those who have lived the experience as opposed to those who have studied or grown to understand it. Another convoluted formulation. However, it was, I felt, a victory for transformation.

IBA mission to Kenya (1996) and ICJ mission to Sri Lanka (1997)

The international Missions to Kenya and to Sri Lanka in 1996 and 1997 respectively were educative. The International Bar Association had sent a Mission to Kenya following complaints by lawyers in that country and on their invitation. A similar mission was sent to Sri Lanka in 1997 by CIJL (Centre for the Independence of the Judges and Lawyers), a division of ICJ (International Commission of Jurists). Lord William Goodhart and I were sent by IBA to Kenya; in the Mission to Sri Lanka former Chief Justice Bagwat (of India) led the two of us. Both Missions had to look at threats to the position of the judiciary under the respective troubled states. We found that some of the conditions and factors which undermined the effectiveness and independence of the judiciary were underfunding, corruption in the administration of the judiciary of the lower courts (Kenya), deliberate short-term appointments of the Chief Justices (often just before retirement) and utterances and pronouncement of senior members of the executive. Imagine how I felt when on arrival at the Johannesburg high court in 2005 I found rampant corruption in the administration section in the form of selling of trial dates. Other forms of corruption such as fraudulent court orders have since emerged. Several steps were taken to uproot corruption. Although several arrests have since been made and a number of convictions achieved, the root of the cancer has not yet been removed. What one needs is a dedicated and focused task team. We have made a call for this from the administrative authorities which we hope they will heed. Happily, the judiciary has not been tainted by these misdemeanours. I can with confidence state that no member of the judiciary has played any role. An important guarantee or assurance against such an eventuality is of course the constant appointment of people of absolute impeccable integrity. If we lose at that level we will lose at all levels.

An effective judiciary

An effective judiciary is one that holds true to the values of integrity and judicial independence as summed up in the oath of office: to be faithful to the Republic of South Africa (not to individuals), to uphold and protect the Constitution and the human rights entrenched in it, and to administer justice to all persons alike, without fear, favour or prejudice and in accordance with the Constitution and the law. Happily, judges in South Africa (in the high courts, Supreme Court of Appeal and the Constitutional Court) broadly speaking, act and adhere unwaveringly to these values. The judiciary has not hesitated to take unpopular decisions as long as such decisions were in accordance with the Constitution and the law. I should qualify this by stating that I speak as a member of the judiciary and that the true picture will emerge of course if one takes into consideration the views of objective observers such as the public, researchers and authors.

In the field of discipline, however the administrators of the judiciary have not always acted with the ideal swiftness. The extent of delay in acting on and disposing of serious complaints against members of the judiciary cannot escape just criticism.

Function of the judiciary in relation to the Constitution

As a third arm of the state the judiciary has its ordinary function which is adjudicatory. In carrying out this adjudicatory function the judiciary commits itself in the oath/affirmation of office to “administrative justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law”. The judiciary applies the law and the Constitution to the facts and disputes before it, at all times recognising and applying the Constitution as the supreme law of the land.

The judiciary however has an additional function in relation to the Constitution and its core principles which are imbedded in the bill of rights. While leaders of other organs of the state, and its members (including the Executive) take an oath in terms of the Constitution, and are obliged to commit themselves in their oaths of office to “obey, observe, uphold and maintain the Constitution”, the judiciary has an added and special function to protect the Constitution. Each judge therefore swears or makes a solemn affirmation to “uphold and protect the Constitution and the human rights entrenched in it”. In addition to the other functions which every organ of state has, the judiciary therefore has an added function. As final interpreters of the Constitution, they have this protective function in relation to the Constitution. The drafters of the Constitution must have contemplated that if, as is not inconceivable, the Constitution was ever to come under threat, the judiciary has to “protect the Constitution and the human rights entrenched in it” against all others or any attack which the Constitution may face. It is a supreme and fiduciary obligation that members of the judiciary have to be alive to at all times. Implicit in the duty to protect the Constitution is an assumption that the Constitution itself, as the supreme law of the land, may indeed face the threat and danger and thus require protection. The judiciary must stay alive and alert to the possibility and ready to rise to the protective duty when and if the need should arise.

Programme Director, I wish to congratulate the publisher, editors and all contributors for this publication. It is a frank look at the judiciary. It shall also allow the judiciary an opportunity to look at itself. Given the critical role played by the judiciary in a constitutional state, a book on the judiciary in South Africa is long overdue. The advent of the book must be of interest not only to the students of law and scholars generally, but literally to every member of the judiciary in this country. I personally found it difficult to put it down once I started browsing through its pages. I am delighted to note too that the various topics appear to have been approached and treated with frankness with no issue regarded as a holy cow. As one from amongst members of the judiciary, and not purporting to speak for anyone that may feel otherwise, I heartily welcome the publication and believe that its appearance will contribute to and enrich a healthy atmosphere in which the work of the judiciary and its governance is undertaken.

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