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
16 October 2008

Transformation of the judiciary: Bizos gets it

Business Day reports that veteran human rights lawyer and member of the Judicial Service Commission (JSC) George Bizos said yesterday that “people who aspire to become judges should have shown some concern for their society as a whole”. Some of the less politically active aspirants for positions as judges apparently squirmed under Bizos’s scrutiny at the JSC interviews. According to Business Day:

He [Bizos] went into cross-examination mode, asking directly why one candidate was “ not prepared to make a contribution to your liberation”. And when an applicant responded that he was also historically disadvantaged, Bizos asked: “ But what did you do?”

Justice Minister Enver Surty clarified that “the expectation was not that you have to have been a political activist to be appointed to the bench”. Rather, the question was whether a candidate had contributed to transformation because it showed a type of consciousness that would enable a person to be a better judicial officer.

Senior counsel Aslam Motala was grilled extensively after lobby group Advocates for Transformation (AFT) submitted to the JSC that his appointment would not further the cause of transformation. Motala said that while he was not a formal member of the Black Lawyers’ Association (BLA) or the National Association of Democratic Lawyers (Nadel), he was a member of AFT.

It’s a pity not all the candidates got the same grilling on their transformation credentials. It is true that section 174(2) of the Constitution 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”. But I would argue this can not be the only or even the most pressing consideration when appointing judges.

Although it is absolutely imperative for the legitimacy of our judiciary (and to rectify past injustice and oppression) that the judiciary should as soon as possible reflect the racial and gender composition of our society, it is of course also important that judges should have the requisite experience and knowledge of the law and judicial ethics to allow them to do their job without bringing the judiciary into disrepute.

But just as important is that new appointments should have internalised the transformative values inherent in the Constitution. That is why I think the questions asked by Bizos were pertinent. It recognises the fact that candidates – even female or black candidates – may be inherently conservative and may lack an understanding of, or an affinity for, the transformative values of the Constitution. Such candidates should not be appointed – even when they are black or female – because their appoinment would not contribute to the “true transformation” of the judiciary.

When such candidates without a commitment to gender equality, to diversity and respect for difference, to human dignity of others are appointed, it sets back the transformation of our judiciary – regardless of the race or sex of the candidate. A black, sexist and homophobic patriarch on the bench is hardly any better than a white one. It’s just the colour of the shoes that might differ (grey versus black!?).

It is sad that the members of the JSC do not ask more questions about the views of canidates regarding women’s issues as sexism is alive and well in our society and one wonders whether some candidates may not perhaps be less than liberated as far as sex and gender issues are concerned.

That is also why I thought it was not inappropriate to ask Judge Lious Harms about his involvement in the Broederbond and the fact that he chaired a Commission of Enquiry in the early nineteen nineties that astonishingly found no evidence of police hit squads. That Commission was a true whitewash – with members of the Burgerlike Samewerkingsburo (BSB) testifying in wigs and false moustaches and telling such obvious lies that any person with two brain cells knew that they were lying.

Unless Judge Harms has had a change of heart and personality since then, I am not sure he would be a suitable candidate for the Deputy Presidency of the Supreme Court of Appeal (SCA) exactly because he would not have demonstrated through his judgments and actions that he has now internalised the values of non-racisms, non-sexism and openness and transparency embodied in the Constitution.

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