Enough of the side-show. Let us return to the bussiness at hand, namely who should be appointed as Chief Justice and to the other positions opening on the Constitutional Court later this year. Regular readers of this Blog will recall that I have started a “competition” to allow for some informed debate on this crucial question.
For the rules of the “competition”, and for the contributions thus far click here.
Maybe it is time to focus not on the negative (who are not suited) but on the positive (who are those great legal minds with progressive views who will stand up for the downtrodden and marginalised while respecting the separation of powers).
So far it seems there is a strong feeling that Belinda Van Heerden, a judge on the Supreme Court of Appeal, should be appointed to the highest court. Sello S Alcock – one of the best reporters on legal matters in South Africa – also published an interesting article on possible candidates last week in the Mail & Guardian.
Azhar Cachalia, Dennis Davis, Mandisa Maya and Leona Theron are also mentioned as good candidates by him. To me this list seems like quite a good one as it contains the names of several good female candidates as well as one wild card (Davis) who could fill the shoes of Justice Albie Sachs, probably the most interesting and consistently progressive voice on the court today.
As faras the competition is concerned, so far we have two front-runners.
First, on a serious note, Allistair writes:
I would like to see Belinda van Heerden appointed to the Court. She is a very impressive lawyer, with an outstanding academic history as a student and later as a Professor. She is also an experienced judge, at HC and SCA level. She has also acted for the CC. She’s demonstrated a commitment to justice beyond her judicial work, especially for children and families, and for the Black Sash during the 80s. With two women leaving the court (O’Regan and Mokgoro JJ), it is very important that female candidates be nominated and appointed. Although I don’t know Judge van Heerden personally, it seems to me that she is an ideal candidate for the highest judicial office.
Second, on a more irreverent note, an Advocate writes:
Section 174(2) of the Constitution asks that race and gender be considered. There are too few women, will be no Jews, and a paucity of pale males after the retirements take effect. So it makes perfect sense to promote women and Jews and perhaps Jewish women too. Now it becomes necessary to look around for suitable candidates having taken the constitutional concerns into account. Kill two birds with one stone by giving Dennis Davis the nod. Not only does this take care of the pale male and Jewish vacancies in one fell swoop, it may even have the effect of terminating his tv personality role in the interests of the jurisprudence of the Court. That can’t be a bad thing. [It has always worked for Springbok rugby to have a Jewish player on board, lets keep the Concourt similarly lucky.] Now for three women: eenie mienie mynie mo: Leona Theron, for her persistence, Belinda van Heerden for her all round brilliance and Cora Hoexter for auld times sake. Where and when do I collect my dinner?
It is heartening to be reminded again that there are truly impressive legal minds who share a commitment to the values of non-racism and non-sexism enshrined in our Constitution, understands the transformative nature of the Constitution, and will uphold the rule of law, who will serve with distinction on the highest court.
Let us hope the unpleasant fights around certain candidates have not scared off these worthy candidates from applying.
The competition is still running, so post your motivation for your preferred candidates in the comments section of this post. I said I would buy the winner a meal. (Some wags would probably comment that the runner up should get two meals in my company.)
This is our democracy and our court and we should take part in a serious debate about the best candidates for appointment. That is surely what the “active citizenship” that Mamphele Ramphela talks of, is all about.
In South Africa we have a tendency not to debate, but rather to shout and scream. That cannot be good for democracy. The more voices engage, surely, the better.
Sello S Alcock does offer an impressive list. However, I’m concerned with the gender bias going the wrong side. We are at risk of going from a state where judges aren’t hired because they are women to a state where judges are hired because they are women. This is the same kind of silliness.
Only your merit should determine whether you get hired or not, and not what is between your legs or the colour of your skin. Once we as South Africans stop this nonsense, the likes of Hlophe and Ngobeni won’t get away with their get-out-of-jail-race cards and the likes of Malema would think twice about his disrespectful comments towards rape victims.
Giving someone taxi money does not absolve you from an atrocious, violent deed that happens in South Africa disproportionately to the rest of the world.
That being said, nobody on his list seems to be there in order to make the list demographically representative. I’ll second Belinda van Heerden because the SCA judgements I’ve followed all seemed to make sense, but I’d be happy with anyone on that list being chief justice.
You mean there’s someone other than John Hlope in the running?
I agree with Garg that the list is quite impressive. I am particularly happy that Davis J is viewed by some as a candidate. I personally think that he and Van Heerden are probably the strongest candidates in this list.
Having said that, I disagree with Garg fundamentally on the issue of the need to “balance the scales”, as it were – what he refers to as “nonsense”.
Just like most black are always quick to categorize things along racial lines and basically hide behind racism on many issues, I also think that there is a tendency amongst white population in SA to expect everyone to pretend as if racial issues are not important in SA. NB: THIS IS A GENERALISATION THAT DOES NOT HAVE TO APPLY TO EVERYONE!
The fact of the matter is that race is an issue in SA and it will be an issue for a long time to come. Charles Cilliers (in his book) reckons things are like that because of one racial group which decided to make it like that – but I don’t want us to start the blaming game.
Accordingly, I urge the Garg’s of this world to acknowledge that this is really not “nonsense”. It’s a social imperative and the sooner we all buy into it, the better for SA. Afterall, the very same constitution that we all claim allegiance to, demands that we always be mindful of this very important imperative. Let’s also stop this deliberate misinformation, that AA in the form of EE Act and BBBEE endorses skill colour above merit. That is patently not so and one needs to look no further than the applicable legislation.
I will preferential list the following candidates for CJ and CC, ID EST Hlophe JP and Dennis Davis and Belinda Van Heerden JJ. Dennis J is outstanding and so is Belinda both my former outstanding professors.Hlophe JP, i met him once at UCT when I was doing my final year LLB, a progressive and transformative personality who is hell-bent on seeing his felloe previously disadventaged people progress.
Mdu,
I remain of the view that, at this stage, Hlope JP should not be considered for any of the CC positions purely because his case with the CC judges is still pending. Once the case is finalised (and provided it is in his favour) I will have no issues with him being considered, just like everyone else!!
Just remember – the succession order within the the legal fraternaty has always [ the last 150 years ] been based on the order of seniority. That’s deep tradition, coming from the British heritage. It’s the way professionals are ordered.
So strictly speaking Moseneke is the default [ the obvious ] next CJ. If he does not get the nod it might {most probably will – or it will leave a very angry deputy on the CC Bench } spark his resignation. He’s a filthy rich man – so why should he endure the embarrassment of serving under a rank “junior”? And being passed over – leaving him as an “unwanted” {under the current ANC leadership} CC judge.
And should that upset occur, the next default CJ should be Ngcobo.
It would be a setback for the stature of the CC if some legal upstart like a JP or puisne judge gets elevated over all those heads { even SCA heads } to CJship!.
Thanks Mzo, but we can agree to disagree on that one. To see why your previously advantaged or disadvantaged status does not merit discrimination, see this:
Competition, from Human Action by Ludwig von Mises.
I’m talking purely from an economic standpoint. To paraphrase Ghandi, the key to building the kind of society we want to live in is to start being that society. AA and BEE do not contribute towards building a harmonious meritocracy where you get out what you put in. I’m not alone in my view, as Moeketsi Mbeki and Desmond Tutu have stated on numerous occasions. I refuse to believe that being black is a disability and that it merits special help.
I think it’s important to understand why we need a representative CC bench. The first reason is to ensure that a broad range of perspectives are brought to bear on constitutional questions, not only the perspective of one dominant demographic. The second reason is to promote the trust of ordinary South African people in the court. Sadly, much trust in South Africa runs along racial lines, so people of all backgrounds often feel they can only trust ‘their’ kind. The composition of the CC has to respond to that unfortunate fact, because the rule of law can’t survive without trust in the courts. These justifications are different to those advanced in favour of affirmative action more generally, which focus on economics, redistributing wealth, and compensating for past discrimination. ‘Merit’, in the courts, is partly constituted by one’s demographic. But only partly. Knowledge of the law, a commitment to social justice, etc, are just, if not far more, important.
Everybody would be satisfied with Azar Cachalia and Belinda van Heerden there. With Cameron already there, it might soon become a formidable Bench.
One could even start considering to qoute its decisions in heads again.
Otherwise its reference should be changed from “CC” to “LLH” [ Lackeys of Luthuli House ].
Maybe then there would sometimes be dissenting judgements! Those looong concurring cases with everybody oh so agreeing with everybody is so drab, so very, very boring and uninteresting. So monotonous, one colour – as if the law is obvious….
Very well-said indeed Alistair.
How about Eberhard BERTELSMANN of the Pretoria High Court?
Hlophe JP, i met him once at UCT when I was doing my final year LLB, a progressive and transformative personality who is hell-bent on seeing his felloe previously disadventaged people progress.
Mdu – what made you think that? What did he say to you? Has he ever written or been published on the topic? Have his naysayers been brainwashed by the media who portray him as a self serving pleasure seeker?
Well I’ve tried. But I cannot seem to fault Alister’s view which I take as follows (implications as I read them and all): a variety of perspectives on the bench is important when it comes to tackling constitutional questions as this helps place the Court in the strongest position to produce excellent juriprudence.
Let me just say that (a) I really like the view and find it convincing and (b), I merely started to interrogate it as something of a modest intellectual exercise.
At any rate, my question (embarrassingly long-winded as it is) is this: can anyone offer some kind of challenge to this prima facie very cogent view as a courtesy as I cannot help but suspect that it is founded on the assumption that variety in terms of perspective will naturally give rise to (a), rulings which reflect both a mix of content-sensitive views and more classical applications of law to fact and (b), better jurisprudence?
Leigh, I agree that Alistair has it about right. What I like about his view is that he sees racially – conscious appointment pragmatically – as a regrettable necessity. That is quite different in spirit to Pierre who sometimes seems to celebrate AA as a good in itself. (In practice, of course, the different approaches may yield the same result.)
Leigh, regarding your comments: racially-defined AA does not necessarily yield a “variety of perspectives.” Although, especially in SA, race and life-experience do very often coincide, people still think with their brains, rather than with their skins. (Or so I hope.)
Americans have found that the fact that Clarence Thomas is black does not render him progressive, or render him especially prone to identify with black civil rights plaintiffs. By the same token (!), female lawyers are not invariably more empathic than males. A U.S. study of a few years ago showed that female judges were actually more likely to impose the death penalty than their male counterparts.
My point is: Even as we embrace AA as an unfortunate necessity, I think we should be very careful to steer away from racial and gender essentialism of any kind.
Alistair // Jun 23, 2009 at 1:51 pm
My sentiments exactly.
Having a demographic representative bench is not something I would oppose; yes people tend to trust their own “kind” and perhaps we can learn a lot from a “broad range of perspectives.”
As long as merit does play a role in appointing judges to the bench.
And by ‘merit’ I do not mean Mzo’s (and Charles Cilliers’s) bizarre view of the definition of merit.
Well, I leave this debate for you learned collegues to entertain, save to say I m so far 100% Mdu. He is one of the most progressive comrade on this blog, followed by Ozone. The most Counter- R..(progressive) is my friend George GeldenHOUSE, situated next to CosatuHOUSE….(Just joking guys…see? Thanks to De Vos for coming up with a lawyer-friendly topic which us lay ones cant do much but to watch lawyers go at it!)…I m learning a lot of legal stuff from you guys I must say. Thanks
I am not entirely convinced by Alistair’s theory, as cogent as it may sound. Simply because the CC has not historically been a pro ANC court, despite whatever conservatives might say. In fact, the CC has shown itself to go against govt on a number of crucial judgments (I’m sure we can all mention 5 at the top of our heads). It follows then, under Alistair’s theory, that if the ANC holds a 66%majority, and the judgments of the court often go against the ANC as I have argued, that the people should have no confidence in the court.
But we all know that of all the institutions in SA which have been brought to question by the public, perhaps the one that remains in tact and beyond reproach is the CC.
Alistair, many things go to make a good court and perhaps in different times and places different components and mix is required.
As a general principle I would add to the required elements the following: independance, intellectual honesty, moral rectitude and last, but most definitely not least, courage. The courage to do what is right and what is required in the face of all other opposition. Ultimately the courts although the weakest arm of the state is the arm which probably carries the greatest burden, that of guarding the guardians. It is true too that in order to achieve this goal the courts need to have the confidence and support of civil society and that in itself requires a high degree of trust.
George Gildenhuys // Jun 23, 2009 at 7:02 pm
“And by ‘merit’ I do not mean Mzo’s (and Charles Cilliers’s) bizarre view of the definition of merit.”
I seriously think that you really need do need to take some time to read and UNDERSTAND the CONSTITUTION, THE EE ACT and the BBBEE Act. I am convinced that once you do, you will be in a position to properly understand what the people of SA wanted for this country.
On your version of “merit” I have no doubt that even the current CJ and DCJ would not be holding those positions because when they were appointed, I am convinced that there were other non-black judges that were more “experienced” than them. Make no mistake, but for the govt policies, these two judges would probably not be where they are and it is doubful whether I would be writing this post this very moment.
Catch a wake up, there can never be equal treatment of people who are not equal!!
Michael, after some consideration I find that I agree for the most part with both you and Alistair inasmuch as it is rather unfortunate that racially-conscious appointments are of practical import.
I also welcome the information you have provided supportive of the view that a bench constituted with a view to making for race and gender-based diversity will not necessarily yield a variety of perspectives.
You make out (and rightly in my view) that the production of praiseworthy jurisprudence has far more to do with the ability of the justices than with skin colour. Afterall, where for instance two good judges (one black and one white) confine their functions to dealing with the cases presented, they may very well come up with highly similar holdings. And even where their views part ways, why should we assume that such departure is imputable to their different ‘perspectives’? That is, say the black judge disagrees with the white judge, who is to say that some other equally competent white judge would not concur with the black judge’s reasoning?
But to turn more fully to your description of racially-conscious appointments as being regrettable, I mostly agree with you but find that I cannot shake one tension.
Your view (and Alistairs also I expect if some implications thereof are accounted for) is cogent to me for two reasons. First, and as you lucidly made out, a wealth of ‘perspectives’ will not necessarily yield a wealth of perspectives.
And secondly, while I accept Alistair’s reasoning that race-premised appointments go to preserving the rule of law (to an undefined extent I expect), such appointments are a little unfair and even irrational. It is somewhat unfair to the many seasoned white male advocates in the country that could, if appointed, make immediate and substantial contributions to out jurisprudence. And I would argue further that effectively excluding a number of them is irrational given the sorts of contributions they could make.
Now I’ll bet some would construe my views as being anti-transformative. They are not. Transformation is constitutionally -contemplated and in my view, desirable in itself. But I put forward that strides towards transformation that are not incremental are irrational.
Here’s a good case in point. Jeremy Gauntlett SC has regularly acted as leading counsel in Constitutional Court cases for 15 years. He also has more judicial experinece as an acting judge than many if not most advocates. And yet, it strikes me that he is not being taken very seriously for the Constitutional Court bench. Now I hope all will forgive me for being rather blunt. And mabe, and with all respect, Gauntlett is the kind of lawyer people only go to if it’s that serious. But given that he could make a difference from the outset, the apparent failure to consider him presumably because his appearance runs counter to the vision of transformation is a little stupid.
The foregoing notwithstanding, I do have one slight tension with the view to which you, Alistair and me (for the most part) subscribe. I would ask, and do so merely with a view to promoting some debate, the following: even if it is true to say that very many of the leading litigators in the country and thus suitable candidates for judcial office are white men, can we reasonably have a predominantly white Constitutional Court bench in a predominantly black country? Or, would such an occurence be so at odds with the reality of South African life as to be untenbale? I know, all very political. But as I understand things, keeping the powers separate does not mean that politics should never bear upon the bench and vise verse.
There are just three Achilles heels to Alistair’s view:
The death penalty, which most of the public support but the judges do not.
Induced abortion, which most of the public do not support but the judges do.
Gay marriage, which most of the public do not support (I stand corrected on this) but the judges do.
If the faith of the public were really the overriding factor, these issues would have been decided differently. I agree with the way they were decided, namely as objectively as possible according to the constitution. Whether it was decided by someone of my ethnicity or of a particular gender is not important to me, as long as I can agree with what they decided.
I don’t rate Davis at all. I think he is actually a mediocre intellect. Sorry. Being reactionary doesn’t cut it for me. I also think he has give some extremely worrying judgements, when I think of the stick the JP got over the Joe Slovo Judgement I wonder why the selective attacks?
Leigh: re your final paragraph, I think this is the point that Alistair was making. If one view legitimacy as essential to the job of being a judge, then “race” is part and parcel of “merit.” The bench is in this sense like the police force – the most technically accomplished officer will not get the job done if her skin colour renders it impossible for the population he serves to trust him. (Technical specialists, like pilots and heart surgeons, are in a different category; “legitimacy” is irrelevant to their functioning. They can be appointed without reference to race.)
Yes, it may be unfair to exclude from the bench a candidate whose race is such that his appointment would not carry the requisite legitimacy. But if legitimacy is a bona fide occupational requirement, is that any more unfair than the automatic exclusion of a woman who is less than 5.5 foot tall from being a ramp model?
Mpho you don’t convice me, work on it
Mpho you don’t convince me, work on it
Just a quick point: I expect many accept the view that many great judges were raised by the bar. Indeed it seems like such an obvious point that I wonder whether many of us simply gloss over the content thereof.
Even though transformation would no doubt be prejudiced if we were to confine our prospective judges to mostly current judges who went to the bench from the bar and seasoned advocates with some judicial experience, I would say that such an approach would not be unjustifiable. And I’ll add briefly that none of what follows is to be construed as a rejection of the import of judicial transformation.
Hopefully those of you with more experience will correct me where I drop the ball, but the following strikes me as fairly clear: when a judge hears a case, he or she considers what counsel says and certain implications thereof. Yes, this is a very general statement but I trust it will suffice for present purposes.
Advocates are different. Counsel may well consider a few cases in respect of a single suit if only to dismiss the less sensible or less meritorious ones.
My basic point is this: if it’s fair to say that many if not most of the best judges emerge from the bar, well mabe it’s because in the litigation sense thereof, advocates consider more law than anyone else. They have to be logical, daring, imaginative and coldly analytical. No wonder the bar produces many great thinkers. Thinkers we could well use on the bench instead of seeing so much ability squandered in favour of what I respectfully see as an excessively speedy approach to transformation.
So that’s my case for advocay. I think it was Justice Kriegler once said, ‘A bench is as good as it’s bar.’ I think that a bench is as good as and largely good because of its bar. Or at the very least these positions are true often enough for more people to advance cases in support of advocates as regards the consideration of Constitutional Court justices.
Leigh // Jun 24, 2009 at 9:13 am
I take your point and Michael’s point “that a bench constituted with a view to making for race and gender-based diversity will not necessarily yield a variety of perspectives”.
However, I think recent history would seem to suggest that one’s cultural background (which more often than not is racially based, especially in the SA context) does in fact play a role in how judges view certain conduct and actions.
In the recent matter of Hlope v JSC & Others Willis J said the following in a footnote: “The author acknowledges, however, that he may be influenced by a strong cultural tradition that views with disdain the inconveniencing of others on account of one’s own indisposition. The philosophy underlying this tradition seems to work: in the period of approximately 30 years that the author has been a lawyer he has never
missed a consultation, professional appointment or court appearance on account of ill-health. The author has not, however, been immune from mischievous bouts of influenza, coughs and splutters, sniffles and snuffles”.
Now I do not wish to debate the appropriateness of this statement and the implication it might carry but I think it does confirm that a judge’s “cultural traditions” play a role in decisions they make.
As for Gauntlett SC, perhaps you know more on the issue than I do. I do not know if “he is not being taken very seriously for the Constitutional Court bench” or if there is a “failure to consider him” or, if so, that failure is “because his appearance runs counter to the vision of transformation”.
Personallyr, I do believe that he is one of our greatest legal minds and any court will be all the richer with him at the bench. However, I do not know if he is interested in being a CC judge and, if so, whether he has been overlooked BECAUSE of his appearance. Certainly looking at the recent appointment of Cameron J to the CC, it would appear that the appearance is not a complete bar to being appointed to the CC.
As for your question, my answer would be a BIG no. We certainly need a judiciary that is reflective of our population. However, what I think needs to be debated and looked at more, is how we achieve that result. I personally believe we are not going to achieve that by pushing useless black people up the ranks at the expense of competent white people. However, whenever we do the “pushing” we should always be mindful of the result we are trying to achieve.
Michael, as regards your post at 10:12am: fair play. If judges must necessarily enjoy legitimacy, then race is a relevant factor. And as you say, if legitimacy is a requisite, then it cannot be objectionable to exclude people on the basis of race.
Still giving some thought to everyone’s challenging responses about the justification of representative benches…
But more importantly, what do people think about the other SCA judges being appointed? The discussion seems to have focused on HC judges and advocates. But arguably the normal route (but not the only route) to the CC should be through the SCA. It seems to me that Mpati, Navsa, and Ponnan are excellent candidates. The first two have acted on the CC. Does anyone know much about them, or other SCA judges, more generally? (If not, perhaps that’s a good sign, because I reckon it’s generally better when judges don’t make the headlines.)
Morning Mzo. And thank you for your thoughtful comments. It is a pleasure to debate points of interest with one as articulate and keen as you are.
I think you and I enjoy much in the way of common ground inasmuch as we seem to agree on the following: I have not said that a judge’s cultural background can never bear upon the way in which he or she rules, only that this is not necessarily the case. And I think this is perfectly consistent with (a) points which you accepted and (b) points which you advanced.
As for my comments about Gauntlett SC, I deliberately chose my words carefully. You will no doubt have seen my use of words and phrases such as ‘strikes me’, ‘apparent failure’ and ‘presumably’. All I really meant to convey is that if he is being seriously considered, then I have seen nothing to that effect in the press and if he is not serious considered, someone should have a brilliant reason as to why. And whether or not he wants the gig is something of a separate consideration I believe. In other words, some people are so competent that they should be given the chance to say no.
As regards your point about what the recent appointment of Cameron J might indicate, I certainly hope you are right. But regrettably I cannot comment further on this score.
And finally, I read you as believing that a representative bench is important but that the realisation thereof is to be pursued in some sort of sensible way. Now if your view can embrace incremental transformation willing to see at least some fairly unpopular trends emerge for a time, then you and I agree very much.
Thanks Leigh
I agree, I think we are pretty much on the same page. I noted your choice of words on the Gauntlett SC issue, but I was simply making a point that I don’t know if he is interested at all. If he is not, or if he is overlooked, it would be a great shame indeed because, like I said, I think he is one of our brilliant advocates.
I think your last paragraph captures my views correctly.
Mzo // Jun 24, 2009 at 9:10 am
“Catch a wake up, there can never be equal treatment of people who are not equal!!”
EXACTLY my point fool!
So stop creating inequality by applying race in every sphere of society.
Spuy // Jun 23, 2009 at 7:43 pm
Spuy, being labelled a counter revolutionary by you I take as a compliment and wear that badge with pride!
George Gildenhuys // Jun 24, 2009 at 11:38 am
I refuse to get into that muddy place that you are in. Accordingly, I will not be debating this issue with you again.
Mpho, please give examples of Davis J’s “reactionary” judgments. Grootboom, perhaps?
Mzo, I want to take up your suggestion that “one’s cultural background (which more often than not is racially based, especially in the SA context) does in fact play a role in how judges view certain conduct and actions.”
I am sure this is right. But I wonder what concrete implications your insight has for judicial appointment, in light of the constitutional imperative of transformation.
Take the decision of Hlophe JP in the recent Joe Slovo matter. Did the fact that the JP hails from a given “cultural background” make it more or less likely that he would rule as he did? More precisely, would the fact that a judge is black render him on balance more or less prone to empathise with the plight of shack dwellers? The answer is not obvious. One may say that a black judge is more likely to look with favour upon the government’s program of housing renewal — even if that means short term hardship to particular individuals. And would any given “white” judge (like Davis J, for example), be more or less likely to have ruled the way Hlophe JP did?
Pierre apparently starts with the premise that, in any case where the might of the state is arrayed against vulnerable individuals, the demands of social justice weigh against the state. If that is so, for a black judge to rule in favour of the state seems anomalous. But if that is not your starting point, the role of judicial race and culture is considerably more complex.
To make the same point in a different way: If you think of transformation primarily in terms of the racial demographics of the bench, the imperative of transformation is quite simple: just appoint more black judges. And if you assume that race is more or less a proxy for sensitivity to the demands of social justice you can, notionally, kill two birds with one stone, by appointing more black men and women as judges. On the other hand, if you think (as I do), that race is under-determinative of an inclination in favour of social justice, the imperatives of transformation with respect to judicial appointment are far from clear.
I do hope that Pierre, who quite often uses the term “transformation” in a way that it not very clear to me, will at some point address this question.
Michael, I must concede that your post at 2:19pm is thought-provoking.
I read your view as follows: many people appear to understand judicial transformation as little beyond the appointment of more black judges with a view to building benches more sensitive to the dictates of social justice.
And drawing from your views, the foregoing conception of transformation is highly questionable for two reasons. First, even if one accepts that a judge’s background can bear upon his or her judicial decision making, it is very unclear as to whether one can substantiate any predictions as to how that judge may rule on the sole basis of that judge’s cultural background.
And secondly, if the first of the reasons passes muster, then it seems that a seemingly compelling reason offered by those in favour of transformation amounts to little beyond an assumption that when tested is revealved to be rather unconvincing.
I cannot fault this logic. But I do have a question for you. And if you would prefer to either (a) avoid answering it or (b) answer it in a way that sees tact prevail over clarity, I for one would understand. Do you think that transformation, at the heart of it, amounts to mere window dressing? To getting the bench to look a certain way?
Michael, I will be the first to admit that I do not know where the answer lies in this whole transformation issue. However, as you pointed out earlier, legitimacy is important in the job of being a judge. Therefore, having a bench that is more representative must surely be a plus for that legitimacy.
However, when it comes to the actual decisions made, I am not sure if the appearance of the bench has much, if anything, to do with the decision that a judge actually takes (Willis J’s comment notwithstanding). It becomes even more difficult at the stage when you have to appoint judges, particularly those candidates from academia, who may not have acted before because you have very little to work on in terms of knowing which way they might rule in a particular matter. This is exactly why I tend to agree with those that argue that only those people who have acted before should be appointed to the bench.
For me therefore, the appearance of the bench seems to be more important from a legitimacy point of view (which I think is critical, particularly in our society) and less so on the actual decisons taken by individual judges.
Michael and Mzo, I do not know if anyone has directly posed all of the questions which I shall set out below. I expect at least some of the answers have been suggested earlier so I apologise in advance if I am merely covering points already canvassed. I am also aware that the questions do overlapp.
First, why is it desirable that the Court enjoys legitimacy?
Secondly, what might reaslistically happen if the Court was insufficiently representative? Admittedly, this question is potentially unfair insofar if neither of you has any facts suggestive of what might happen to go on, then neither of you can be expected to venture predictions.
Leigh
Let me offer no more than what can only be my personal opinion:
Without a doubt, I think it is critical that a Court enjoys legitimacy. If we are to expect people to respect Rule of Law, surely the institution charged with dispensing that Rule of Law shall be seen to be legitimate.
If the bench is not representative, then the legitimacy suffers and you hear people complaining that certain judgments are given because the bench is constituted in a particular way.
Take the Scott-Crossley (I think it was) for example. Most people (predominantly black) who complained about the decision never even bothered to read the judgment, they simply said he got off lightly because he is white in a society where the investigating officers were white (and probably botched the whole thing), the prosecutor was probably white and the presiding officers were in all likelihood also white.
Now, as a person who read the judgment (admittedly a while back), I am convinced that the Court got it right. But the issue is that some (if not most) people out there simply believe that he got out because “the system is white”. That to me is the legitimacy issue!
Mzo, I accept both (a) your reasoning and (b) that these points have been made out or at least clearly intimated by you and others that participated in this discussion. So in respect of (b), I apologise again for belabouring this point.
Mabe I am making a bigger deal out of this than I should. But in an admittedly simplified sense, something sought of bothers me about the view that the composition of the bench should have, as a goal, keeping masses of people happy. And my discomfort with this is only amplified by two things. The first of those things is Michael’s views to the effect that apparently we cannot premise predictions as to whether judge’s will be especially sociallyy-sensitive on the basis of ethnicity.
And secondly, a point which something you said in your last post sparked: most people probably don’t even read case law.
So in a nutshell, I see the following picture: it seems race, of itself, is not a reliable indicator of judicial sensitivity to social justice. And moreover, many people would question rulings on the basis of the racial composition of the bench, but in ignorance of whether the court’s legal and factual holdings were sound.
Now there just has to be something wrong with this picture. I just can’t seem to put the proverbial finger on it. I would greatly appreciate any suggestions.
Davis must be a reactionary because his views are informed by a Marxist analysis…..
If your views are informed by Marxist analysis, you should read more.
Mzo,
I agree with you that if you want people to respect the Rule of Law; it must have legitimacy. I, personaly, have no respect for the South African Criminal Justice system, for the Rule of Law yes, and a few brave souls therein yes, but not the system. I have respect for the few, who with a growl, let me know where I stood, as for the rest, they are foxes, with fake smiles, who stabbed me in the back, lied etc. They are very, very dangerous. Mark my words.
The liberal differs from the conservative only in one way: the liberal is more deceitful than the conservative. The liberal is more hypocritical than the conservative.
Both want power, but the liberal is the one who has perfected the art of posing as the ‘Voter’s’ friend and benefactor; and by winning the friendship, allegiance, and support of the ‘Voter’, the liberal is able to use the Voter as a pawn or tool in this political “football game” that is constantly raging between the liberals and conservatives.
The conservatives aren’t friends of the Voters either, but they at least don’t try to hide it. They are like wolves; they show their teeth in a snarl that keeps the voter always aware of where he stands with them. But the liberals are foxes, who also show their teeth to the Voter but pretend that they are smiling. The liberals are more dangerous than the conservatives; they lure the Voter, and as the voter runs from the growling wolf, he flees into the open jaws of the “smiling” fox.
– Adaptation of Malcolm X, on White Liberals
The constitutional Court is — of course — important; but when do we discuss moving from a demockery to a Republic; from a system of Voters with one ballot box vote, to check tyranny; to a system where voters have three votes to check tyranny.
When do we South Africans discuss or demand our other two votes? Our vote at a Grand Jury; and our vote on a Jury. When you have educated citizens who partake in the legal process; who make the final decisions; not only about guilt and innocence, but in case of Jury Nullification; a Jury — you and me, as citizens — can decide, whether ANY LAW, IS ‘GOOD LAW’ and if we do not think it is good law, then our Jury Vote can nullfify it! Now that is a vote, that means something!
Think about it.
[[a Jury — you and me, as citizens — can decide, whether ANY LAW, IS ‘GOOD LAW’ and if we do not think it is good law, then our Jury Vote can nullfify it! Now that is a vote, that means something!]]
A jury doesn’t decide what the law is or should be. It simply decides on the facts and applies the law as it stands to those facts.
Leigh, your discription of a liberal only applies to a liberal who were voted into power and not us critics who refuse to be mainstream and second, South Africa doesn’t have a jury system, we have a presiding officer.
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