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.
Last year Supreme Court of Appeal judge Carol Lewis created a storm when she seemed to suggest that racial transformation of the bench had led to a lowering of the quality of judgments issued by High Court judges. It was therefore interesting to see that newly appointed Constitutional Court Justice Edwin Cameron made similar remarks in an interview in today’s Sunday Times:
“Judges, black and white, are troubled by some of the judgments we’ve seen coming from the high courts,” he says carefully, mindful of the fire storm his colleague, Judge Carole Lewis, triggered recently.
She criticised the quality of judges, suggesting that the problem arose when political connections and race took precedence over merit in appointments to the bench. Does Cameron agree?
“Let me phrase this carefully,” he says, sounding like he’d much rather be playing beach ball with the children whose shrieks of joy are loudly audible in the background. “I think that she rightly signalled a widely held concern.
“Being a judge is a tough job technically, a tough job emotionally, a tough job intellectually, and we need tough men and women who can do it.”
Why aren’t they being appointed?
“It’s the tension between racial and gender transformation and technical ability.”
Has transformation been pushed too quickly?
Long pause. “I’ve got to give you an answer with integrity that doesn’t dance between the egg shells …
“I think the goals aren’t incompatible,” he says after another pause. “But I think more attention has to be paid to the tough technical and personal capabilities required of a judge.”
After 1994, racial transformation was “an imperative. If the bench had remained overwhelmingly white after 1994 we would have had a political problem. Now we’ve got a technical output problem.”
Yet I suspect these comments will illicit far less unhappiness because Cameron makes clear that he thinks transformation and technical expertise on the bench are not incompatible. Unlike Lewis, whose remarks could have been interpreted as racist because it suggested that black lawyers were inherently incapable of mastering the kind of technical legal issues required to be a good judge, Cameron shows he is acutely aware of the racial politics in our country and signals this clearly in the interview.
Maybe demonstrates the difference between a garden variety white liberal on the one hand, and someone like Cameron on the other, who has done work for the National Union of Mine Workers and has a keen understanding of the racial injustices in our country.
Perhaps this kind of sensitivity is also strenghtened if one is an outsider – gay and HIV positive? It will be interesting indeed to see how Cameron deals with the difficult gender issues that the Court might be faced with: a clash between gender equality and polygamy, say! I suspect on these social justice issues Cameron will be closer to Sachs, O’Reagan and Mokgoro, than to Ncgobo and Skweyia – despite being quite a traditional black letter lawyer.BACK TO TOP