Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
Can Judicial Independence Survive Transformation? – A public lecture delivered by Judge Johann Kriegler at the Wits School of Law on 18 August 2009
Thank you very much, Professor, for those kind words. I hope that at the end of the evening you will think that at least some of them were deserved. May I also say thank you for inviting me to your Law Faculty, the Law School, as you fancily call it nowadays – excuse my generation of old terminology. The Wits Law Faculty or Law School does not need me to sing its praises. Its alumni around the world are a monument. I only mention it because it underscores why I regard it as such an honour to be invited to speak here. The topic we discussed nearly two months ago, I should imagine, and it seemed like a good idea at the time. I’m not so sure that it still is such a goodidea. In fact, if the truth be told I would much rather be somewhere else. Or, I suppose more honestly, I would much rather have somebody else address this topic, with me sitting in the audience, ready to ask clever questions. In any event, when I was invited, I accepted because I looked forward to the opportunity to clarify some questions that had been spinning around in my mind – some questions relating to judicial independence and transformation, particularly, as we have been witnessing it in this country. And the public debate had created a good deal of heat and I thought it would be as well to try to interrogate the subject and see whether we could bring some light instead of so much heat. The heat does make it difficult. Even in the changed circumstances, however, my objective has remained the same.
The attention that has been lavished on the judiciary over the last couple of weeks, I think virtually all of it unfavourable, has made the topic very much more sensitive, very much more difficult, and the ham-fisted way in which the President’s Office saw fit to spoil the announcement of the new Chief Justice of the country hasn’t made it any easier. There is hardly a public relations mistake that they could have made, that they didn’t make. And in the result, my heart goes out to Sandile Ngcobo for having his party very nearly spoilt before it had even started. And then, of course, we’ve had the endless, endless Hlophe soap opera with yet another chapter, and another chapter, and there doesn’t seem to be any end to it. And with all of this going on there has been unwonted public debate, discussion, overwhelmingly speculative, very, very little of it founded on any sound analysis of either the facts that are known or the law that founds the processes that have been going on. I must say, Professor Hoexter said to me earlier this evening that it was a very good turn-out and she hoped that this wouldn’t be the last time. I took that as a little bit of a dampener myself. Let me put it the other way round. I strongly suspect that the overwhelming majority of the people here are here to hear Hlophe-related fireworks and not some discussion of legal principle by a journeyman lawyer like myself. Well, I would have loved to have taken that opportunity to deal with Judge Hlophe, once and for all, dispositively. He is such a sitting duck. And I would have loved to have pricked his bubble. But I don’t think it’s the right time and I don’t think it’s the right place and I don’t think I’m the right person to do so. So I am going to resist that temptation and take a more serious angle this particular evening. In any event, I hold Chief Justice Langa and his colleagues on the Constitutional Court Bench in too much esteem and affection to want to make waves at a time when there are more than enough waves that they have got to try to negotiate at the present time. I want to pay tribute to them. I want to pay tribute to each one of them on that Bench, for the quiet dignity and the judicial composure with which they have continued, quietly, to perform their burdensome duties. It must have been exceedingly difficult. My wife Betty mentioned to me a couple of minutes ago – quoted to me from Kipling’s If about everybody losing their head around you and you keeping yours, and that means that you’re ill-informed. In the case of the judges of the Constitutional Court, they have maintained their composure and their direction, not because they are ignorant but because they are supremely informed and courageous people. And because they have been so exemplary in their restraint, I don’t think it would be appropriate for me to descend to emotive language and I therefore wish to deal with the threat to the judiciary and its independence in the context of transformation as dispassionately as I can. Which I must confess is not particularly dispassionately. I am not an academic. I am not a jurist. I’m a journeyman lawyer who has done some fifty-five years in the courts of this land and the neighbouring territories, in just about every capacity. Even as an accused. I know the courts. I know the administration of justice. I know it from inside. I know the texture and the feel of it and I love it. And therefore, I do get passionate when I see something that I hold dear being threatened and endangered for causes that I regard as unworthy. So, to an extent, yes, I am emotional, but I will avoid excessive language and I will discipline myself so that Betty will drive me home this evening without lecturing me!
But I must say Hlophe’s latest foray into the headlines and the editorials and the commentaries and the cartoons, has made it very difficult. There’s one consolation though and I want to share this with you right here at the beginning. Hlophe is not the problem. Hlophe – Judge Hlophe, let me not speak disrespectfully – Judge Hlophe is a manifestation of the problem. He merely evidences an underlying problem. And I hope to be able to identify the underlying malaise for you in the course of the next couple of minutes. The topic around which I intend doing so has been phrased as a question. Can judicial independence survive transformation?
Now, obviously the question as posed is quite straightforward. It’s rhetorical. It really answers itself. Both transformation of the judiciary and the preservation of its independence are constitutional imperatives. The Constitution nowhere mentions transformation as such, and doesn’t use the word at all. But the Constitution is indubitably a transformational document. It is, in the old phraseology that we are familiar with, a bridge. A bridge between the old and the new. It expressly, at the threshold, sets out that we are to heal the wounds of the past, to build a new society, to lay the foundations and to build on them. And that is inherently then transition. And it’s logical that it is transitional because it was the document, not recording what we had achieved, but what the negotiating parties had agreed should be achieved in future: that which they had contracted with one another to strive to attain jointly.
I would just remind you, because I think it’s relevant to something that I’ll be saying later, that we were heading, in the eighties, for the biggest racial conflagration that the world had ever seen. The bookmakers were taking odds on that, and if you had, even until mid-1989, suggested in serious political circles in any embassy in the world that by 1994 we would be sitting at the Union Buildings watching Nelson Mandela taking the oath of office while the South African Defence Force did a fly-past, they would have locked you up as a lunatic. And we did it. We negotiated a revolution. We settled this enormous battle. But to believe that by settling the conflict, we had erased the past would be self-delusory. Of course, the past is still with us and the Constitution tells us to heal those wounds and that is part of the transition in which we are engaged.
And then when we look at transformation, we must realize that it does not necessarily mean the same thing to all people in the country. Indeed, on the contrary. It means something very, very different to people depending upon whether they were oppressed or oppressors in the past. And they haven’t forgotten. The collective memory is still very much with us. So, transformation is essential, yes. It’s very, very important. But at the same time, the Constitution, equally by necessary implication rather than by express language, creates a triad of state power in which the judiciary’s independence, its institutional independence, is absolutely essential. The whole constitutional undertaking will collapse unless these three centres of state power are kept intact and alive and in equipoise with one another. Which means, of course, that judicial independence may not be sacrificed on the altar of transformation. However important transformation, judicial independence must always survive. And I believe that’s what the Constitution, when it deals with appointments to the Bench, recognizes. And I will revert to that shortly.
But now we know that there are, and for some time have been, serious threats to judicial independence within the country, often under the banner or, if you would like, the guise of transformation. Transformation is used as the disguise. And these threats emanate mainly from outside the judicial system but there are also threats from within. And all of these, in order to answer the rhetorical question satisfactorily, have to be identified, analysed and then combated
appropriately. The time available tonight unfortunately doesn’t allow us to deal with more than a few of those threats and the way to identify and challenge and defeat them. The external threats to the independence of the judiciary have emanated mainly from national office-bearers of the governing party. They have done so, latterly, in ostensible compliance with a package of resolutions that were adopted, and I believe it’s more correct to say were actually reaffirmed, at the celebrated Polokwane Conference in December 2007. The key elements of the resolutions in relation to the judiciary are of an older vintage, and they were refined and reiterated at Polokwane and they constitute a very impressive array of reforms that are envisaged. There are many of them. I can’t deal with fusion of the Bar and the attorneys’ profession. I can’t deal with an apex court – whatever that may mean – and how it is to be done. I can’t deal with the attempts to micro-manage the judiciary in their day-to-day operations, to the ludicrous extent of wanting to have the Rules of Court vetted by parliamentarians before they can become operative. Those are debates for another time. I will deal with slightly different aspects and only those that relate more specifically to the appointment of judges to the Bench.
When this package of Bills was presented the last time round, under the previous regime, which I have now come to believe doesn’t mean De Klerk and those guys, but actually means the ANC with a different chief, two years ago . . . those Bills were withdrawn under President Mbeki and I believe they were withdrawn because the judiciary and the legal profession succeeded in persuading the authorities either that they were wrong or that it wasn’t worth the candle to push any harder. I think that that can still be done, but we must be frank about it: there is a much more ominous undertone to the noises being made by senior politicians at this stage than before. And certainly the kind of scurrilous remarks about individual judges and their motivations were not made previously and are, on the one hand, possibly grounds for concern, but on the other hand …. after all we are tacticians in the legal profession. We may be able to use the excesses of the one wing of the ruling party to embarrass others within that same body. It is not necessarily a hegemonic monolith that we are confronting. But we must be reminded that these efforts are to be disciplined, co-ordinated, directed. The Chief Justice designate has already identified one of his key challenges, which he has to address early in his term of office, as the threat to the independence of the judiciary. I have no doubt that one of the items in that threat would constitute the envisaged legislation, and I believe that the legal profession should prepare itself to be able to assist the incoming Chief Justice to give him its concerted support, so that the executive can be confronted by a united judiciary, supported by a legal profession acting in concert with one another. I cannot recall when last the South African Bar and the South African Law Societies joined hands in some public-interest undertaking. I suggest that the independence of the judiciary may well be a challenge of sufficient magnitude to justify a reversion to that kind of joint responsibility for the support to the judiciary in what is going to be, and it clearly has started, a serious threat to its functional independence, its operational independence.
You know, these are words. I’ve gone and I’ve examined the judiciary in many other places. You don’t do that kind of examination by reading the statute book. Or Hansard. Or the public announcements of office-bearers of a party or members of government. First of all, you go and look at the buildings. The treatment a government gives its courts is an indication of the respect afforded the judiciary by the executive and the legislature who between them control the purse strings. In Palestine, for instance, under the PLO, theoretically the judiciary was independent and it was running on its own steam and it was recognized by the administration, but you found it very difficult to find the courts. And once you had found the building, you found it difficult to find the individual courtrooms because judges were sitting in offices, peering at litigants across the desk and people were looking round the corner of the door and they were the interested parties. They didn’t bother to give them courtrooms. They didn’t bother to give them a salary sufficient to have them live respectably. They didn’t provide funding for sheriffs or bailiffs of the Court to serve process. They didn’t give them security in the courtroom and the magistrates all carried firearms, because they were afraid. You go and have a look. Come with me downtown.
Let’s go and do a Tokyo Sexwale in Pritchard Street! Spend a night in the New Law Courts, as they used to be called. I would be frigtened. They’re dirty. In fact, they’re filthy. To some extent it’s excusable because part of the building is a building site, it’s under construction and there are shutters and such-like. But by and large the building is ill-maintained, neglected and, in some places, dilapidated. It’s not that easy to get from the ground floor, if you’re a member of the public, because there are one and a half lifts that operate. You’re lucky if you take the one lift. If you take the half lift, you may have a longer journey than you anticipated. Or a longer sojourn on a short journey. The courtrooms are ill-lit because many of the lights don’t work. They are oppressively stuffy because the air-conditioning generally doesn’t work. And the Lord help you if you have a call of nature in that building. Between my wife and myself we searched the public toilets . . . and not one was in proper working order. Don’t talk to me about lavatory paper or a wash basin with taps that function, I’m talking about the bare essentials. Now, you cannot tell me that the Department of Justice, which insists that it wants to take over the day-today management of judges’ lives, can stand on that track record and say that it can do the job it is aspiring to take over from the judges. It is a disgrace. The court building in Pretoria is slightly better. I haven’t recently visited any of the others, but when I was in Pritchard Street the other day, I was strongly reminded of the Temple of Justice in Monrovia in Liberia. The stacks of files and the broken windows were reminiscent of one another. On the notice board just outside the entrance to Judges’ Chambers in this impressive
eight-storey building in downtown Monrovia, there was a notice. A typed notice, over the signature of the Chief Justice, in which he said that it had come to his notice that litigants and practitioners were bribing the judges of his courts, and his patience was exhausted and this should now stop! I’ve worked in Kenya for six months. And the common talk among practitioners there, and the litigants, and members of the political parties is that it’s much cheaper to buy a judge than it is to pay a lawyer’s fees. The judiciary has no status, no recognition, no authority, no legitimacy. Can we come next door to our northern neighbour? I needn’t say any more than that the smartest 4x4s are seen in the parking area of the Supreme Court judges of Zimbabwe. The destruction of a very fine institution, which was the envy of
many African states and certainly at one stage had a track record, under Telford Georges and Enoch Dumbutshena and Chief Justice Gubbay, was an admirable track record. It is today an apology for a court. Let us not think that we are too good to go that way. There but for the grace of God go we. At this stage still, the difference between the South African judiciary and the Zimbabwean judiciary is the difference between Mandela and Mugabe. But Mugabe andMandela are old men and there are new people in charge nowadays and that distinction is perhaps no longer as valid as it was.
But it’s not all gloom. Tension between the executive and the kind of legislative moves and civilservice grabs for power that we have been seeing is not unnatural in a constitutional state recognizing the separation of powers. It can even be said that tension is an essential characteristic of separation of powers functioning properly. There has to be a give and take, a respect, a deference, a judicial restraint and a protection and respect for the judiciary’s independence. I’m not going to go any further into the topic of the need for judicial deference. In the presence of Professor Hoexter, it would be an impertinence. We know what we’re talking about. There are limits. You’ve got to know where the boundaries are if you’re a judge. And at the same time, when you are a politician dealing with a judge, you’ve got to know where the limits of your powers are and where you must leave the judiciary to find its own direction, to exercise its own powers.
So, yes, there are noises being made. It’s a new administration trying to sweep clean, I should imagine, but there are cool heads and good people within the governing party. I’ve never been a member but I’ve long since admired their dedication, their adherence to principle, their stern and resolute defence of non-racialism when the temptations to go otherwise were very, very strong. Those principles are still very much alive within the ANC and I think that it would be
irresponsible not to try to rely upon them and to unite with them in order to see to it that this tension that is threatening between the judiciary and the executive and the legislature doesn’t spill over into something harmful to all of us. And, of course, if we’re right, if our resistance to these moves to change the method of appointment of judges and to have a closer control of the day-to-day running of the courts, various similar encroachments on what we regard as our preserve . . . if we’re right in our opposition, it’s certainly not beyond the realms of possibility that we will prevail. And if we don’t prevail entirely, it is certainly realistic to anticipate that if we do the job properly, if we insist that transformation of South Africa does not necessarily entail overthrowing the principle of judicial independence, I think we could find a via media – a liveable solution that everybody can find acceptable without loss of face. Incidentally, I know what I’m talking about. I started negotiating with the executive about encroachments on the independence of the judiciary at the time when the new Minister in power wasn’t Mr Radebe but Mr Vorster. He had the same shine in his eye. He had the same glint, the same ambition, to shine in the eyes of his boss. A little bit of Fabian tactics. A little bit of hamba kahle, a little bit of retreat and a little bit of this and a little bit of that and the enthusiasm may just flag a little and common sense may prevail. So, yes: let’s not go overboard. Let’s recognize that it is serious, but let’s also say that, as the old Free State President used to say to his people, ‘everything will come right provided everybody does his duty’. We’ve got to do our job.
So, we have the governmental, political threat to judicial independence which can be confronted tactically, strategically and, God willing, with success. The second external threat to judicial independence is a little more tricky. It’s a little more subtle. And it’s a little more difficult for me to talk about, particularly at this juncture. I’m talking of course, about the Judicial Service Commission. The Judicial Service Commission is an institution that I have proudly held up to colleagues abroad in debate as being far and away the best solution to this conundrum of how do you appoint judges to ensure integrity, competence, independence and a proper participation by all interested parties in society. And I’ve been very smug when talking to Americans, particularly when they have a Professor Bork dog-fight slaat-dood-sleep-weg kind of debate that they like to have in the Senate Judiciary Committee, when the Supreme Court appointments are being debated. I said ‘We’ve got the ideal solution. The Lord be praised!’ We may have the ideal solution on paper. But I regret to say we don’t have the ideal solution in practice. In fact, in my respectful view, the manner in which the JSC has performed both its primary function of selection of judges and its quasi-disciplinary function of monitoring judges with a view to reporting impeachable offences, the manner in which it has exercised those functions has increased the threat to the independence of the judiciary. That is sad and I will try to show why I have come to this harsh finding. And I know that the Judicial Service Commission is an essential organ of state. It is a very, very important institution, and I disparage it only after much heartsearching, because I believe that the time for pussy-footing around what we can all see has passed – and that we will not confront this particular threat to the independence of the judiciary unless we look at it frankly and fearlessly. Part of my heart-wrenching has been that I have had good friends, people whom I admire and people whom I love, serve on the Judicial Service Commission over the years: people for whom I have the utmost respect. And I speak of the institution in which they serve in harsh terms, therefore, with considerable regret. And I don’t want anything that I say to be taken as tarnishing in any respect the image of people such as Arthur Chaskalson, Pius Langa, George Bizos and the like, or Kgomotso Moroka, a remarkably courageous woman, whom you all know was the one hold-out when the last Hlophe decision was taken. I admire all of them, but the institution has drifted, and the institution has drifted in a way that has become an impediment rather than an aid to the future development of our country. It has to come to terms with the way it sees its job and the way it does its job. Now let’s be perfectly clear about this. No thinking person can possibly dispute that the pale-male, neocolonial face of the South African judiciary of 1994 had to change. It had to change and it had to change as quickly as was compatible with retention of the independence of the judiciary and the retention of its functionality. That change was necessary for a number of reasons.
First and foremost, of course, it had to change because it just didn’t function properly in the new South Africa. It did need a makeover. Its composition had to change in order to bring new talents, new perspectives, new cultural values into the general mix on the Bench. It also had to change, of course, fundamentally for the reasons of legitimacy. You cannot have a judiciary that is manifestly unrepresentative of the society which it is supposed to serve. And that’s not a
peculiarly South African problem. The British have battled with it. The Americans have battled with it. The Australians, the New Zealanders, in Hong Kong . . . many kindred jurisdictions have grappled with this problem of how to make your judiciary more firmly rooted in the society in which it stands and works. And it’s not easy because lawyers tend to be of the middle and uppermiddle class. They are, by and large, well-to-do people and if you draw your judiciary from the ranks of experienced lawyers it’s going to be an elitist image that you create. And the problem has been how, in those other jurisdictions particularly, to introduce minority representation without losing the geist, the spirit of your judiciary. Here, of course, the problem is infinitely greater. Because here we had the reverse and here we had centuries of repression and oppression and gross discrimination, which meant not only that there were no, or very few, black judges, but that there were relatively few people in the country of the requisite degree of experience and skill who could be appointed to the judiciary.
That’s not a peculiarly South African problem but it was exacerbated here because of our history. And because of this history and because of this gross discrimination and the need to transform as quickly as possible, section 174(2) of the Constitution expressly requires that the need for gender and racial representivity be taken into account when judicial appointments are made. That’s fully understandable and nobody would challenge it, its legitimacy and its necessity. But, from where I look at the judiciary today, and the way I’ve been watching the Judicial Service Commission, this ethnic / gender balance criterion in section 174(2) of the Constitution has become the be-all and the end-all when the JSC makes its selections. And if it isn’t the be-all and end-all, at the very least it has been elevated to the overriding, fundamental requirement. It overrides subsection (1) of section 174, and I believe that that is a breach of the constitutional mandate. The constitutional mandate instructs the Judicial Service Commission in section 174(1) to appoint people that are appropriately qualified. That’s a precondition. That’s a mandatory requirement. And then subsection (2), as a rider to that, says: and in doing that, have regard to the racial and gender balance on the Bench. And it’s for obvious reasons that the Constitution, while mentioning the transformational criterion in subsection (2), demands in subsection (1) as the primary and essential requirement that appointees be appropriately qualified. Now these two essential factors, the one absolute and the other discretionary, have been turned on their heads.
Initially, it sounded very attractive and I supported it. In fact, I applauded it! We weren’t looking at what people actually had attained. We were looking at potential. Because they had been handicapped, because they had been artificially held back by discriminatory prescripts and societal customs and poverty. Because of that it was no less than right that you should say ‘Ja, well, he’s not quite there yet but he’s going to get there or he would have been there if he had not been nobbled by the Nats.’ Fine. It makes sense. And I supported it. It was done in good faith. It was done commendably. It was done in order to promote transformation and it was done at a cost. You get nothing for nothing! And you cannot play games with the appointment requirements for a job such as that of a judge without having a price to pay.
Oliver Wendell Holmes, a great American judge, rightly remarked that the stuff of the law is experience, not logic, and you don’t have to be rocket scientist or even an Oxbridge graduate with a pseudo-British accent to be able to function as a judge of first instance in this country. You can cope quite well. But what you do need is that you must have been around the block. You must know the game. You must have been around as a practitioner first. You must have learnt the lessons the hard way. You must have won cases. You must have lost cases. You must have acted for saints and sinners. You must have held your own against smart operators in the legal profession. And appeared before ogres . . . and survived. You need to build muscle in practice. The truth is that being a judge may not be a very, very difficult job, but it is a frightfully lonely job and you must be able to cope on your own.
You can appoint, ironically, you can appoint people to higher courts where they sit with others and they’ll manage. But the most difficult job of them all is to be a magistrate, where you don’t have counsel appearing before you, you don’t have the assistance of qualified lawyers and the equivalent here as far as the High Court is concerned and the Judicial Service Commission is the courts of first instance. The High Courts of the land. Because it is so difficult for somebody who’s been appointed to the High Court Bench. We tried. I was part of that. I worked on it for more than a year doing backroom monitoring, doing seminars over lunch hours, sitting around as a consultant being available for people who had problems. There was even a brief experiment with having new appointees going on the Bench with a more senior colleague where they would sit together as a sort of dual instruction as you do with pupil pilots. None of these experiments really worked and most of them fizzled out. I suspect, although I was never told to my face . . . I suspect that I was largely consulted by people of fifteen and twenty years’ standing on the Bench because they felt confident enough to consult me about problems. But new people, people who felt uncertain, people who felt that they were being condescended to, resented having to do so and didn’t. And in my case it didn’t work. It may be that it was a personality fault on my part, I don’t know. I don’t think so. I’ve managed in training in other instances without much of a problem. Anyway, it didn’t work.
And therefore I ask the question loudly: Do the members of the JSC really have no conception of how difficult a judge’s work is? How physically, intellectually and emotionally draining? Even for one who is equipped for the job? I was frightened out of my mind the first day I had to do the Johannesburg Motion Court. And I had twenty years in the courts before then, and I’d been in that court umpteen times, and my knees were shaking. It is a frightening proposition, and yet I know that there are some of these new youngsters in Johannesburg who run off the Motion Court
roll before lunch. There’s only one way that you can do that, and that is if you don’t deal with the cases on their merits. And you grant everything because it’s asked. And that’s not being a judge. We could have a registrar or a clerk sitting there doing that. It means that the independence of the judiciary in doing its job is being undermined. Do the members of the Judicial Service Commission realise how unfair it is to the litigating public to provide judicialofficers that are not competent to do the work?
Now I invite you to read Judge Hlophe’s memorandum on racism, which is a curate’s eggdocument. It’s good in parts, but only in parts. He makes the point that practitioners are grossly insulting when they tell him that the case that he has allocated to Judge X is being postponed. And he knows that they are postponing it because they don’t want it to come before Judge X. Now, thirty years ago, when I was a young Silk, it happened to me more than once that attorneys would come into my office and say ‘We’ve just been at the roll call across the road and we’ve been allocated Judge X. Are you prepared to arbitrate quickly? Because we don’t want the case to come before him’ – not because he was black; he was pure, pure white! But he was stupid, and he was experienced but they just didn’t trust him. Now, you cannot expect senior practitioners, any practitioners, who have the duty, the professional, ethical duty to look after the interests of their clients, to submit the adjudication of their client’s case to somebody whose complete capacity to deal with the case they do not trust. That’s not the conclusion to which Judge Hlophe comes. Judge Hlophe says they’re racists. Just like the people who after he had been on the Bench for three years didn’t support him for the Judge Presidentship, and said he was too inexperienced, are said to be racists. And, okay, it’s point of view. It’s a point of view.
There are, and we know it and nobody wants to say to in public, and I will say it in public, we are at the stage where the serious commercial litigation is not conducted in the High Courts. Certainly not in this town. It’s conducted before arbitrators. Large numbers of arbitrators. Many senior practitioners wouldn’t be able to find the Pritchard Street courts, and yet they have busy, large commercial practices before arbitrators. That is undermining the independence of the judiciary of South Africa. Not because these people are elitist or racist, but because they go where the market tells them they get the best service. It costs much more to go to arbitration in the short run, but it is much cheaper in the long run, because you have more confidence in the forum before which you are going to litigate – than that which is being eroded continually by the Judicial Service Commission. We know also – and this is another topic that is not necessarily mentioned in mixed company – we know that a heavy burden is carried, some say an essential burden is carried, by senior members of the Bar who accept short-term acting appointments in the WLD, as it used to be, now the South Gauteng High Court. It may be the same in other jurisdictions, I don’t know, I don’t want to speak of places where I don’t have personal knowledge – but the quality of the work that is being done, the weight, the specific gravity of the work that is being done in the courts, is dropping. And, of course, the body of authority is being eroded. Vital issues of law, new points, new questions are being determined by arbitrators in this city just about every day. But none of them is ever reported and they don’t add to the body of judge-made law that has made us so rich. Furthermore, I know of contracts that have come to near breakdown because foreign businessmen were not prepared to submit their disputes to the adjudication of South African courts.
Back in the ’sixties The General Tire and Rubber Company and The Firestone Company, two international giants based in America, decided to dispute and determine their intellectual property differences in the South African courts because they trusted them. Because they were the most convenient and the quickest. That’s a bygone day. In Hong Kong, a year or two ago we were told that they do a great deal of business in Hong Kong, because foreign businessmen are prepared to negotiate and contract with Hong Kong businessmen because the disputes will be determined in Hong Kong, where they have a legitimate judiciary. A trustworthy judiciary. The real sellers of the product are up the Yellow River, but the buyers are not prepared to buy from them and go and litigate in China. So, they have an added cost of a middleman in Hong Kong and a boon to the Hong Kong legal profession. If you do not have a legitimate, trusted, competent judiciary, your economy suffers. NEPAD cannot work if you don’t have a body of lawyers that are trusted to produce the goods, consistently across the board, quickly and relatively cheaply, and always honestly. That is being eroded at the moment by the practice that the JSC has adopted.
Now when you appear before the Judicial Service Commission you are asked stories about your political history: which bodies you belonged to, which activist groupings you supported. I’m sorry, I’m just too stupid. I don’t understand the relevance. I really don’t. I’ve tried very hard. I know I’m a product of my background. I know I have all of my prejudices and hang-ups. I’ve grappled with them all my life. But I cannot understand what it has to do with the capacity of somebody to be a good judge that fifteen or twenty years ago you happened to be a member of a particular youth political grouping or not. In fact, if the truth be told, however imbued you are with the spirit of the Constitution and however filled you may be with the new vision of our country, that doesn’t make you a good judge. Those are qualities that you do need, yes, but they in themselves get you nowhere. And the overwhelming majority of cases dealt with in this country, every single day, have got absolutely nothing to do with the eternal verities of the Constitution. It’s whether if somebody asks for a postponement because he’s changed lawyers at the last minute, he’s kicking for touch, he’s playing for time, you’re experienced enough to say ‘I’m not falling for that trick’. Or he produces through his new lawyer a medical certificate that he’s ill, and you say ‘I don’t buy that. We’re carrying on.’ Now, that’s what you learn and that’s what you need on the Bench. Not a PhD and certainly not the membership of an activist organization in the ’seventies or ’eighties. That doesn’t make you a better judge and it doesn’t advance the administration of justice. Being a judge is a difficult, lonely job and you need to be equipped to do it. Spiritual strength is fine but it’s not enough. You cannot expect appointees of whatever ethnicity or gender or academic qualification to cope with the hurly-burly of the Johannesburg Motion Court; not unless they’ve had real exposure to the daily practice of commercial law.
Latterly, of course, the Judicial Service Commission has taken a turn for the worse. Nowadays, it not only asks you whether you belonged to a particular organization, but it recently asked a senior member of the Pretoria Bar, a man with a very large practice who was prepared to give it up to go on the Bench, take an enormous knock in income, they grilled him because he was a member of the Conservative Party when it used to exist. And not only was he faulted for this but he was asked if he’d ever apologized for having been a member of that party. Furthermore, a politician sitting on the Judicial Service Commission saw fit to cross-examine this man about the manner in which he had conducted a particular defence and suggested that he had been dishonourable because he hadn’t put someone in the box in a criminal case where he would have supplemented gaps in the prosecution case. That’s what the JSC has come to.
We recently had the case in the Eastern Cape, and I don’t want to dwell on it, where a respected middle-aged man, a senior practitioner of that court was asked – clearly not to elicit an answer,but to humiliate and to hector – whether he thought he would enhance the ethnic composition of the Bench. And of course, the answer to that must clearly be no. But that’s not what the JSC is there for. It’s not there to humiliate practitioners. And I know from personal conversations with several members of the Johannesburg and Pretoria Bar that they will not allow their names to go forward for appointment to the Bench because they are not prepared to be dragged through the mud. That impoverishes the judiciary endlessly. And that is in the name of transformation? I suggest that transformation can never justify that kind of conduct. I should actually just add as a footnote that the gentleman in the Eastern Cape wasn’t only asked whether his appointment would darken the hue of the Eastern Cape Bench, but why he had never belonged to Advocates for Transformation. I know of people in Johannesburg who tried to join and were unsuccessful because their pigmentation was too low. Right. These weren’t the only instances, but I must cut it short.
The reaction of the Bar to much of this has been negative and the harsh conclusion to which I have come is that the Judicial Service Commission, in adhering too rigidly to its policy of preferring transformation over appropriate qualification, has not only misapplied its substantive selection power but has done so in a manner that is unacceptable in a society based on human dignity, equality and respect for human rights. Its other function, its quasi-disciplinary function, we need not dwell on but I want to make one further point before I stop.
The Judicial Service Commission has been allowed to behave like this because the legalprofession has done nought! Not the lawyers. Not the Law Society. Not the Bar. Not the General Council of the Bar. Nobody has done anything to protect the members of honourable professions from this kind of harassment. Nobody has suggested that the diminution of quality in the judiciary is a dangerous feature which should be addressed actively. There has been a deafening silence from the legal profession while politicians were attacking the judiciary and individual judges. It has been left to courageous journalists to step into the breach and to defend them. What did the legal profession do in the Hlophe case? Did it insist that this man was unfit for public office? On the contrary, it ran a mile. It knew what the facts were. There is not a lawyer in the country who has studied the facts who doesn’t know as well as I do, and Judge Hlophe knows what the situation was with his secret payment of close to half a million rands. We know! The legal profession looked the other way. And they left me to stand there alone. And I hold it against the legal profession – not because they did me an injustice. I’m prepared, as you can see, to take the slings and arrows again because I believe it has to be said. But I think that it did the administration of justice and the independence of the judiciary and the cause of transformation harm, in not speaking out when it should have spoken out. Because everybody knows that the only reason John Hlophe was not prosecuted last time round was because of the colour of his skin. And the Bar did nothing!
I want to end with a quote from the Iliad (Alexander Pope’s translation). He’s talking about a man, Thersites, a foot-soldier, a warrior:
‘Thersites only clamoured in the throng,
Loquacious, loud and turbulent of tongue;
Awed by no shame, by no respect controll’d,
In scandal busy, in reproaches bold;
With witty malice studious to defame;
. . .
Spleen to mankind his envious heart possess’d,
And much he hated all, but most the best.’
If the independence of the judiciary is to be preserved, this misguided transformation, this stalking horse for racial animosity, will have to be confronted fearlessly and honestly.
Professor Albertyn: Thank you very much, Judge Kriegler. Thank you very much. Judge Kriegler has very kindly agreed to take about twenty minutes of questions – kindly and courageously. So, if anyone does have any questions or comments, now is your time. [Aside] Or maybe you’ve silenced them.
Questions and answers:
Q: Judge Kriegler, thank you very much for calling a spade a spade. About ten days ago President Zuma made the statement that the Pretoria High Court shouldn’t interfere in his decision to appoint a new head of the National Prosecuting Authority. Then after the judgment he said that he . . . well, the judgment went in favour of Pikoli, and then after the judgment he said that he respects the judgment. Now, I would be very curious to hear what you make of this? Shouldn’t it be taken for granted that the President respects a judgment?
A: I make nothing of it. I don’t think it’s noteworthy. In the first instance he was the deponent to an affidavit in which the Pikoli side had asked for an urgent interdict to preclude him, to prevent him pendente the main application in November, from appointing anybody else. It was his perfectly good right to file an affidavit in those circumstances, setting out his attitude to the appointment of a replacement for Vusi Pikoli. In the second instance, I think he behaved with restraint. He behaved like President Mandela behaved in the Executive Council, Western Cape case back in 1995. That’s the way we expect the President to behave. I would give him two and a half cheers because conceding an interim interdict is no great shakes.
Q: Judge Kriegler, I am also wondering . . . you also mentioned a variety of threats to judicial independence. Could not another angle that we might want to consider, at an even broader level . . . and that is considering the Rule of Law generally and the fact that across the board, the population on the one hand appears not to have much concern for Rule of Law but also linked to that, I would think that perhaps the Rule of Law is rather arcane and somewhat unknown.
A: I think you are right to some extent but I disagree with you fundamentally. I don’t believe that the Rule of Law, in its essentials, is alien to the cultural values of any segment of the South African community. I think we all accept the essential components of what it means to live in a state where the law governs and not men. I think everybody understands that perfectly well. But, at the same time, I underestimated, and I think most whites underestimate, the depths of the pain, the humiliation, and the residual anger left by hundreds of years of apartheid and before that colonial rule. And that didn’t go away overnight. And it wasn’t washed away by the Constitution. It is there! And John Hlophe has support because he’s an icon. He represents to a large segment of the thinking, decent black community ‘There but for the grace of God go I. The whiteys are kicking him again.’ It’s not logical. In my view, it’s irrational. He fights with Moseneke and Langa. There’s no race involved in that. He defiles their names and grossly abuses the facilities of litigation to smear them. But he is still the endangered one. He’s the threatened one. And I can understand that solidarity. We’ve got to address it. So, yes and no. The Rule of Law must make sense to people who are angry and hurt, still to this day. And therefore, what is really required is for one leading, honest black man to stand up and say ‘Hlophe, you’re a disgrace to all of us.’ Not me. It shouldn’t come from me. I don’t represent the voice of the Rule of Law to many people. Somebody who does should do it.
Q: Thank you. I’ll be standing. (In my culture, you stand when you talk.) Judge, I just want to ask one question. If Judge Hlophe wouldn’t have done such things or all these occurrences, do you think that we would be still having this debate? Because some time ago he spoke on the Zulu radio station, which I am told has got close to six to seven million listeners . . . about the transformation of the judiciary, usage of language in court and indicated that a little spat with the Constitutional Court justices. Do you think that if this story of John Hlophe did not come up we would be having a debate like this? The newpapers, stories and all those things? Thank you.
A: I think the answer to your question is I don’t know. Probably somewhere, somebody else would have arisen and maybe not quite so flamboyantly and so dramatically. There are, fortunately or unfortunately, few John Hlophes around. But it’s not an unhealthy debate. The fact that it is now there causes all of us to relook at our own preconceptions and our own values and our own fundamental loyalty to the Rule of Law. What I do find sad . . . what I do find sad is that a talented man like Judge Hlophe, who talks about promoting the extension of traditional law in our courts, giving it its rightful place, giving a rightful place to the use of vernacular languages in the courts of the land . . . he’s right . . . of course he’s right, those things must be addressed. It’s a damned disgrace that we’re fifteen years into the new South Africa and we haven’t touched on them! But what has he done? Has he written one word on the topic? Has he read one learned article and shared with us his perspectives? It’s not time for populist talk about issues and soundbite problems that you can mention. Let’s get down to doing a serious job. I think the problem of the use of the vernacular is a very real one. In the courts it makes no sense for complainant Zulu speaker, accused Zulu speaker, magistrate Zulu speaker, prosecutor Zulu speaker, defence counsel Zulu speaker, court orderly Zulu speaker, recording operator Zulu speaker to speak English to one another through an interpreter that probably speaks both Zulu and English worse than most of the people in the courtroom. It must be addressed. It must be addressed by good, clever people who’ve got time on their hands, who can’t sit on the Bench because they are, at the moment, precluded from doing so. It’s a lovely, fruitful thing to be done.
Q: I just wanted to know how is it possible . . . how are we expected to maintain judicial independence given the fact that South Africa has this tendency of wanting to infuse itself within the international system which brings about detrimental impurities within our judiciary’s independence as it is? How exactly do we go about that and strive at the same time to be internationally recognized?
A: I’m sorry, I’m not following you.
Q: I said that given the fact that we . . . as an Asian South African . . . are so dedicated in infusing our legal system . . . making it on par with the international system, how are we then supposed to maintain our judicial independence?
A: I don’t think the two are in conflict with one another whatsoever. Our adherence to international norms in certain areas, our accession to certain treaties and the obligations flowing from them, don’t undermine the independence of our judiciary or the independence of our legislature to make our laws according to our constitutional values and norms. I don’t see them in conflict with one another, I’m sorry.
Q: Judge Kriegler, we all know the adage about what happens when good men do nothing and I think you’ve spoken very poignantly about feeling and being essentially a voice in the wilderness. But as a lawyer I have a sense of powerlessness, a sense of impotence. What can we do? How can we right-thinking lawyers band together and speak out with one voice? Because there is a sense that it’s difficult to create a cohesive approach as we stand at the moment. And I would like to know if you have any advice on that score.
A: Madam, I’m very tempted to respond to your quotation with another one. You are only one. But you are one. I do believe that there is a body of expertise, of skill, of power, of capacity within the legal profession, particularly within your Bar, that can most certainly do a great deal to bring pressure to bear. Is there a liaison body between the Bar and the Bench in Johannesburg? No. Is there a liaison body between the judges within Johannesburg with one another? No. Do they ever meet with one another? No. We speak of a judiciary. We know there is no such thing as a judiciary, there are two hundred judges each doing their own thing. They’re rugged individualists. It’s in the nature of the job. The heads of court meet periodically . . . purport to speak on behalf of the judges, some of the good JPs actually consult the members in their courts before they go and speak on their behalf, but not necessarily. There are all sorts of lacunae within the structure of the Bench, the Bar, internally and between them that can and should be addressed. And I’m not talking about heady Rule-of-Law stuff. I’m talking about ‘Let’s just get down to a good working relationship with one another.’You know better than I do that the Johannesburg Bar, since it left a few buildings closely adjacent to one another in downtown Johannesburg, has suffered a very, very material diminution in its sense of purpose, in its cohesion and in its power. I think that you can start working on that, for instance. I think that the relationship between black and white members of the Johannesburg Bar is an uncomfortable, suspicious one, one in which much is not said and much is thought or said afterwards in a different forum. Those things must be addressed. So, there’s work.
Q: Thank you Judge Kriegler. My question is . . . was . . . more of a statement really. And it’s something that worries me. I’m not so concerned about the structures which we’ve just heard about in relation to the Bar Council and the Law Society, it’s rather a question about why there is a lack of willingness to do something about this. And I don’t purport to know the answer to that, but what concerns me is if there’s a possibility that it’s because law firms are businesses. And
there’s perhaps a feeling that it’s important to ingratiate oneself with businesses who are associated with government and if that isn’t perhaps something which we, as practitioners, should be reflecting on and thinking about. Because I don’t know how long we can sustain that kind of dichotomy between trying to ingratiate ourselves with our customers and in so doing eroding the Rule of Law. And, in fact, it seems something that is unsustainable for the reason that it’s our customers, our clients who trust us. And you’ve spoken about trust and how important it is in the legal system. So, it’s not a question, it’s a statement and I think it’s something that the people sitting here today should think about. Thanks.
A: Thank you.
Q: There’s many things I’d like to say and I don’t know how to say them, but I’ll try. You described the conditions of the courts and it strikes a chord with me. Because the conditions that you describe of the courts are the conditions of the Home Affairs Department, of the hospitals . . . they’re the conditions of the public service generally. And there is an indignity of public service that infects the courts, that infects all of our life. And what troubles me is that we need the independence of the judiciary and the Constitution to protect the public service, but we need the public servants to protect the Constitution. And yet, ne’er the twain do meet. They do not understand each other and the importance of each other. And it’s . . . the biggest threat for me to the independence of the judiciary is the disconnect between the profession and the people of this country who need the Rule of Law and who need the judiciary. So, to answer the question of the person who spoke a few minutes ago . . . you know, what can we do? Well, for me the answer is: Don’t wait to be transformed. Transform yourself. There is transformation that is needed. How do you defend the independence of the judiciary? We need to publicize judgments that are relevant to the people of this country. Not just to the members of the law schools but to the populace of this country. We need to provide legal services to ordinary people . . . you need to provide legal services to ordinary people to make this profession and the principles that Judge Kriegler and others stand for, relevant. This is a fantastic debate, but I ask myself: Why is Kriegler not debating with Vavi? Why do they see different paths to ultimately the same objectives which are about equality and dignity for the people of this country? Sorry to go on . . . .
A: I take it, Mark, that that was a rhetorical question?
Q: Judge Kriegler, my question is twofold. I was quite worried earlier on when most of the talk was on Judge Hlophe because I thought ‘Here we go again . . ..’ But then what I want to ask is how do you envision the independence of the judiciary separately from political influence, first of all. And then secondly, you spoke about the threats that are going to compromise the independence of the judiciary but at the same time I lacked a sense of recommendation from you of what it is that we are going to do moving forward. Thanks.
A: You’re quite right. You and I could arrange a series of lectures on the topic, a series of workshops – the time does not permit us to go to any other . . . in fact, I already abused my invitation by going well over my time. You’re quite right. There is much more to it than Hlophe, there is much more to the independence of the judiciary than the conflict with transformation, there are very many aspects of it that concern one, starting with the body of persons from whom you appoint judges in the first place. Secondly, then, how you treat them once you’ve appointed them, thirdly, how they treat one another. Are they a professional body proud of their job? Do they have a library? Do they have interconnection with one another? Do they have training schools? Are they obliged or at least invited to go for continuous legal education on new issues, new prospects, new perceptions, new judgments? Are we strengthening the judiciary sufficiently as a cohesive body of professional people performing an essential role under the Constitution? No, we aren’t. You’re quite right. But that’s a topic for another day or another week.
Q: I refer to you as U Edele from 1983. U Edele, when I came to introduce myself to you in 1983 you put your hand around me like an Afrikaner grandfather, as you told me that time, and you gave me a long speech as to how to be a good advocate and what I must do and the problems of the profession and the judiciary. In 2009, again you gave us a decent speech about what you think is wrong with the judiciary and what needs to be done. We must be conscious and we must be cognisant of the fact that the pain and the humiliation of the past must not be brought into our new constitutional dispensation. It’s beginning to hurt us as black judges, appointed by the Judicial Service Commission, when people of stature stand up and say, ‘Well, the commercial sector is going away and doing their work in an arbitration forum. Arbitration is an international phenomenon. Parties want to arbitrate. Bodies which want to utilize alternative dispute mechanisms will do that.’ I know for a fact. U Edele, that the judges in our court, despite the frustrations that you have articulated so clearly, work very hard.
A: I have never denied that. On the contrary, they work too hard.
Q: In particular, those judges who have been appointed post-1994.
A: Yes. Yes!
Q: So the question that’s being asked regularly at these intervals is about extending the pain and the humiliation in respect of many of us. I think we must be guarded about those things.
A: I’m not unaware of that and I wasn’t unaware of that when I decided that this was a topic I had to address. Because everybody is saying it privately, and nobody is saying it publicly. Let’s get it out on the table and talk about it. But you know as well as I do that within the ranks of the judiciary in Johannesburg, there is division. You know it! Let’s not deny it, and the division is not unrelated to the pigmentation of the skin of the people. We know that! You know and I know that when a three-judge Bench splits along the line of ethnicity everybody comments on it privately. Nobody publicly. But we all comment on it. Why not have the appointment of a threejudge court on the role of dice? Spin for it! Make it a game of chance! Avoid that kind of issue. Why not have very much more active interaction between judges in your division? I’m not suggesting that they’re not doing their job. I’m saying that they’re finding it extremely difficult, particularly the youngsters who don’t have the background. I’m not denigrating them at all! And if you thought I did that, I didn’t. And I didn’t mean to hurt anybody but I think that we’ve got to recognize the fact that arbitrations are increasing. I have Judge Hlophe’s authority for that. In his division he has noticed it. They have actually introduced legislation to stop retired judges from doing arbitrations because Hlophe says we’re taking away the work of his judges. And obviously the Department accepted that. That’s why the amendment to the Judicial Service Commission Act in section 11 is now devised as it is! It’s because that is happening. Whistling in the dark is not going to help us. Painful though it may be, let’s look at it, let’s deal with it and let’s transcend it eventually.
Q: The judge has emphasized section 174(1) [of the Constitution] as more important than its rider, which is section 174(2), and if my memory serves me correctly it emphasizes competencies such as experience and qualification, is that . . .
A: Hmm mm (affirming).
Q: May the judge just recap that, as I want to engage the judge with what he said.
A: The section says nothing about experience. It says ‘appropriately qualified’. That’s it! Qualified.
Q: Okay, then on the basis of that, Honourable Judge, wouldn’t it also be credible of you, I mean, to also be a voice of those people there in the wilderness. Rather than for the judge to say, ‘We need one black, clever honest person to stand up and say Judge Hlophe must just shut up!’ I mean, you’re also a credible person, I mean amongst the communities across the board and on the other side. I also want to ask the Judge whether has he in any way tried to engage the JSC? I think he is also credible in that regard to engage or to lobby other people, you know, of his social standing so that we have a voice from the legal profession. If you have done any initiative with regard to that, Honourable Judge? Thanks.
A: I appreciate what you say and I see what’s behind the isibongo part of it. Thank you. I can assure you that early in September when the Judicial Service Commission meets, I am going to be there. I haven’t been able to go to Cape Town. It’s a little bit fancy and I can’t get to those fancy hotels that they go to. But if they’re in Kliptown . . . my town, I’ll go. And I’ll be there. I think public interest in what happens there is important and ja, thanks for your observation.
Professor Albertyn: Judge Kriegler, thank you so much for sharing your views, your passion; but for me, most of all thank you for talking about very difficult things. And for . . . hopefully, not opening a debate, because I think it is there, but certainly getting more people to talk and maybe encouraging debate and from here, hopefully, we’ll take things away with us and move forward. Thank you very much.
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