Rule of law deployed as sword to decapitate the JSC

Sep 12, 2009 10:57 PM | By Ngoako Ramatlhodi

Reprinted from the Sunday Times

Another View: If one must be blunt, Judge Johann Kriegler wants transformation that is created in his own image, writes Advocate Ngoako Ramatlhodi

The debates around the Judicial Service Commission have been followed with keen interest. Besides the obvious professional instinct, the truth is that the future of our democracy is an additional burden pulling one into the public arena of this mother of all debates.

Section 174(2) of the constitution demands that our judiciary must be generally representative of the society it serves. This injunction is peremptory, leaving the JSC with no discretion but to transform the judiciary. Therefore, all of us, including opponents of transformation, will begin by professing abiding allegiance to the constitution.

Judge Johann Kriegler’s support for transformation must be seen in this context. If one must be blunt, the learned judge is fundamentally opposed to the transformation that is taking place. He wants transformation that is created in his own image.

In his defence, some may argue that, under apartheid, he was a progressive judge. Let us grant that, and not seek to rewrite history.

At one level, Judge Kriegler avers that: “You cannot have a judiciary that is manifestly unrepresentative of the society which it is supposed to serve.” The aforegoing represents a residue of the erstwhile progressiveness, which I believe has long deserted the learned judge. In addition, this reinforces the earlier observation that all of us are bound to recite obedience to the constitution, if ever we were to be taken seriously.

Another dimension of the judge’s position is to look at those blacks who have been appointed to the bench with suspicion, as they do not meet the test of experience as set by him. This represents the prevailing retrogressive mind-set. In the past, practitioners of apartheid used to argue that blacks were not sufficiently civilised to fit into a white man’s world.

The decisions as made by a body racially dominated by blacks – such as the JSC – necessarily become suspect, and must, therefore, be challenged by experienced minds. In the opinion of this particular experienced mind, “the JSC has drifted in a way that it has become an impediment rather than an aid to the future development of our country”.

It is also important to note that Judge Kriegler contrasts section 174(2) with section 174(1), which makes appropriate qualification a requirement for appointment. In this regard, his view is that section 174(2), which entrenches transformation, is discretionary, while section 174(1) is absolute.

In this supposedly absolute section, there is no specific mention of the word “experience”. Here, a point needs to be made that change is the foundation stone upon which our nascent democracy is based. Therefore, any interpretation of the law which suggests that change and transformation is a matter of discretion runs the risk of being hostile to the basic law of our country.

On the Judge John Hlophe matter, Judge Kriegler has become a player and a referee. He is on record accusing Judge Hlophe of being an intelligent young man, who went about promoting his ambition in the wrong way. He went as far as to suggest that Judge Hlophe was using the race card to be elevated to higher office. It is then little wonder that Judge Kriegler found it impossible to swallow the decision of the JSC on this matter – hence the looming court case.

In this matter Judge Kriegler seeks to compel the JSC to conduct a public interrogation of all the judges involved, including the outgoing chief justice. All of them were appointed to the bench post-1994.

In that eventuality, there is bound to be public wrestling among the most senior black jurists in the country, as each side will seek to prove the other to be less forthcoming with the truth.

The opponents of transformation will then bask in glory as the self prophecy of “untrustworthiness” is fulfilled. Some will then say: “We told you that blacks cannot be trusted with the judiciary.”

What is frightening is that some of us cannot comprehend the damage being visited upon our fragile democracy by a systematic assault upon our nascent institutions such as the JSC. A rear-guard assault has been mounted against this body, under the guise of defending the rule of law. Indeed, the rule of law has been deployed as a sword to decapitate the JSC.

We can fold our arms and allow opponents of fundamental change to hold us hostage. We can allow them to destroy the JSC and replace it. But should such a fundamental pillar of our democracy be allowed to collapse, there will be neither winners nor losers as we shall all revert to the law of the jungle. Then it will be too late, as the fittest feed on the weakest. That is the reason why we have to stand up to defend our democracy, by ensuring that all institutions serving our people are representative.

Judge Kriegler’s assertion that “everybody knows that the only reason Judge John Hlophe was not prosecuted last time around was the colour of his skin” is deeply saddening and regrettable. Yet it could be argued that the call for Judge Hlophe to be publicly interrogated is being made precisely because of the colour of his skin.

Nation-building is a long process, which we must approach in a responsible, delicate way. The historic wounds are still bleeding. Our country needs to be assured that good race relations will be constructed on the basis of justice for all – in particular, justice for the victims of apartheid.

• Advocate Ramatlhodi is an MP and chairman of the Justice and Constitutional Development Portfolio Committee