Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
3 December 2009

Pulling a Menzi Simelane

In the past I have been critical of the way in which the Judicial Services Commission (JSC) has been fulfilling its constitutional obligations as required by the Constitution. The preposterous decision of a majority of members on the disciplinary committee of the JSC (all but one of the lawyers on the JSC committee voting with the minority) to gloss over the blatant lies of one or more of the parties in the battle between the Constitutional Court and Judge President Hlophe, is a case in point.

The JSC has not always covered itself in glory and some of its members, whose ego’s seem disproportionately large compared to their intellects, have made fools of themselves by bullying candidates for appointment or by making statements (including blatantly homophobic statements) which display a serious lack of commitment to the values of the Constitution.

Unlike Ngoako Ramatlhodi, who believes the JSC may not be criticised (unless the criticism emanates  from Judge President Hlophe or the ruling party, of course), I believe we all have a right and a patriotic duty to subject the actions of the JSC to critical scrutiny and to lambast it if we think it is not doing its job properly. That is what democracy is surely all about.

Yet, such criticism should be based on the facts and on a plausible interpretation of the Constitution and the law. That is why I take issue with an article written by James Myburgh and published on Politicsweb, in which he launches a scathing attack on judicial transformation in South Africa. Myburgh was upset with innocuous remarks made recently in Johannesburg by former South African, Margaret Marshall, who is now the Chief Justice of the Massachusetts Supreme Judicial Court, In the Bram Fisher Memorial Lecture at the Legal Resources Trust, Marshall said:

In its fifteen years of constitutional democracy, South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have…. The diversity of your courts is, and should be, great cause for pride and celebration.

Myburgh points to the entirely uncontroversial remarks by President Jacob Zuma in June this year to bolster his case that the appointment of judges is now an entirely racist affair. Zuma said then that the “transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country”. Myburgh then continues:

Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?

Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system.

In fact, he also ignores section 174(2) of the Constitution which states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.

Pulling a Menzi Simelane, Myburgh chooses to ignore the authoritative interpretation of the Constitution by our highest court in order to further a narrow political agenda. This is because he attacks the very principle enshrined in our Constitution that requires a racial transformation of the judiciary. He obviously believes that race should play NO role in the appointment of judges, a position that is legally untenable and unethical, given our history of racial oppression and the provisions in our Constitution.

This does not mean, of course, that the JSC should not be criticised for the manner in which it has gone about its constitutionally mandated task. It has made some really bad appointments in the name of judicial transformation. (The appointment of John Hlophe as Judge President of the Cape High Court and Carol Lewis to the Supreme Court of Appeal are two prime examples of this affirmative action policy going very wrong.)

What is needed is a more nuanced approach to this issue, including – as pointed out on this Blog before – an engagement with the way in which the legal profession is structured and the racially skewed briefing patters at the bar. (In this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.)

Making wild statements comparing South Africa and Nazi Germany detracts from these real issues with which we have so far not engaged with sufficiently.

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