An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
I see that Advocates for Transformation has resolved to lay a complaint of misconduct with the Judicial Service Commission (JSC) against the Supreme Court of Appeal’s Judge Carole Lewis. This follows a speech by Lewis last week in which she implicitly questioned the appointment of some black and female judges to the various courts since 1994.
She argued in a speech that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:
I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants….
Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.
She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”.
After reading the full speech I am sure that the complaint by Advocates for Transformation is not going to go anywhere. Lewis did not explicitly say that black judges were less qualified than white judges. Nor did she say that the transformation of the judiciary was not important. She also makes good points about the need for the independence of the judiciary.
But having said that, I have several very serious concerns about the remarks made by Judge Lewis and I think she was extremely unwise to wade into this debate in the way she did.
First, her remarks were made in the context of deeply entrenched racism in our society and will therefore certainly be interpreted by many as suggesting that black judges appointed to the bench are often unqualified for their positions. Whenever white people in South Africa talk about standards, many of us get the heebie-jeebies – not because we do not believe in high standards but because standards are often used by white people (sometimes unwittingly and unknowingly) to assert their cultural dominance and superiority over black people. Judge Lewis’s remarks have a whiff of that racial arrogance about it. Although I am sure she would be horrified by this assertion and would say she did not intend it as such, she should have known better.
Second, she compounds the problem by making a false contrast between merit, skill and experience on the one hand and the appointment of judges taking into account race on the other. She thereby creates the suggestion that white people have the merit, skill and experience and black people do not. Once again this is not said directly, but it is difficult not to read her words in that way.
Of course it is true that some people have been appointed to the bench that should not have been appointed and that some of them are black, but making generalisations linking merit and race is most unfortunate. It would be very easy to assume that Judge Lewis harbours unexamined and subliminal racism and even if this is not so, no judge should ever make remarks that give that impression. (That is also why I took issue with the remarks reportedly made by Judge Motata at the scene of his crash.)
Third, judges in our democracy are under attack. I think it is important for judges to stand up and be counted and to push back against politicians who call them counter-revolutionaries or drunks. But this should be done in a wise and politically astute manner. At the very least the remarks of Judge Lewis reflects a shocking political naivety and will do far more harm than good in protecting the judiciary.
Lastly, judge Lewis talks about the need to appoint independent minded judges, which is a good thing. But she seems to make the classic liberal mistake of not realising that many of those white lawyers with what she calls the skill, experience and merit are not more “independent” than the lawyers appointed at least partly in order to transform the racial composition of the judiciary. She seems to take her own views as neutral and objective, while she views “the other” as being politically beholden. This is a rather naive view of being in the world and disregards the ideological commitments that we all bring to the table,
That is why I think we should talk more about the nature of judicial transformation and the kinds of values we think judges should have that we need to appoint to the bench. No judge is truly independent (but judges must try and be fair and selfrelective) as every judge comes to his or her work with a set of (often unexamined) assumtions about the law, society and, yes, race. What we need is judges whose assumptions are closely aligned with the transformative vision of the Constitution – not judges who are classically liberal.BACK TO TOP