By Prakash Naidoo
One of society's most important institutions is as much a symptom of bitter division as a force for healing and leadership. Prakash Naidoo looks at a judiciary and a legal profession that are battling – often in public – to get over the past
On a hill in Johannesburg, where the melting pot of Hillbrow meets the upmarket suburb of Parktown and joins with the bustling precinct of Braamfontein, stands one of the more ugly reminders of SA's wretched past.
Known as the Johannesburg Fort, or Number Four, it was one of apartheid-SA's most notorious prisons, once boasting among its more famous political detainees Mahatma Gandhi, Albert Luthuli and Nelson Mandela.
The prison was closed in 1983, but two decades later it has become home to another historic and more symbolic building – the constitutional court. Once a place of forced incarceration, it is now a symbol of freedom.
As visitors to Constitutional Hill are told, it is most unusual for a court to be built on the site of a prison. Yet the judges of the court pointedly chose the Old Fort as the location, for the very reason of its history – a gesture both powerful and empowering to confront the pain of SA's repressive past.
Yet, one layer below, much of the judiciary and the broader legal profession finds itself weighed down by the residue of this same history. While the racial transformation of the judiciary has been ticking along steadily since 1994 (when there were just two black judges and two women on the bench), race continues to be the fault line that divides the legal profession.
And the ensuing cacophony is threatening to drown out and obscure equally important debates on more serious institutional and administrative problems that are potentially as dangerous to the judiciary and the legal process in SA.
Forced to deflect a barrage of provocative statements and resolutions from the ruling ANC and its allies, the judiciary is also doing battle with government over a bundle of justice bills.
Add to the mix growing public distaste over some ethical lapses and questionable conduct by some judges, and the judiciary, halfway through the second decade of democracy, is facing the most serious challenge to its independence and credibility in post-apartheid SA.
In interviews with members of the bar, the judiciary, government and legal professionals, it is clear that issues around transformation lie at the heart of this polarisation.
There is no dispute about the need, even urgency, to create a judiciary that reflects more accurately the race and gender profile of SA. But tensions arise from the fact that the legal fraternity remains deeply divided on just what this transformation entails and how it should be realised.
On one side of the divide there are those who broadly believe that the pace of transformation is too slow, that judicial appointments have to be much bolder to achieve diversity on the bench and that, if necessary, government should intervene and strong-arm the profession into the new SA.
Then there are others, such as former constitutional court judge Johann Kriegler, who fear that judicial independence is about to be sacrificed on the altar of transformation, and that the Judicial Service Commission (JSC), by focusing more on race and gender than on legal competence and qualifications when appointing to the bench, may have done so at a cost.
And simmering just beneath the surface of all of this is a widely held view that the legal fraternity remains one of the least transformed and conservative professions. This is ironic, given that many lawyers were leading opponents of apartheid. And it is dangerous, because legitimacy depends partly on a profession that is seen to be representative.
Richard Calland, law professor at the University of Cape Town, says the judiciary, like other institutions, will have to deal with transformation – and if it is managed wisely, the process can enhance legitimacy.
"The judiciary, led by the chief justice, needs to lead a conversation with the nation on transformation, in which major stakeholders such as government and civil society are part of a constructive debate," says Calland. "But this conversation has to be honest and robust, and will have to go beyond just the transformation of the bench."
Most agree that the drama around Western Cape judge president John Hlophe over the past five years – in particular, the complaint from the entire bench of the constitutional court alleging misconduct – has inflamed the discourse. "With Hlophe, not only did he taint the office and divide the bench, he also managed to ruin the credibility of the JSC," said one judge who was not involved in the matter.
But a number of black lawyers say the racial divide was also amplified by Kriegler's intervention on both occasions that Hlophe was before the JSC, and that the former judge's criticism of the JSC was as fatal to its credibility.
Jonathan Klaaren, law professor at Wits University, says the Hlophe matter, coupled with other incidents, was damaging to the point that it has forced the judiciary to redefine its position within SA's constitutional democracy.
Klaaren says race and racial tensions within the legal profession are not new, and the judiciary cannot be insulated from them. "But the fact that there is a debate at all on this issue shows that transformation is happening."
Transformation, of course, has a different meaning to different people, but sifting through the morass, it would appear that much of the debate is centred on a handful of key issues: the appointment process of judges, diversity, accountability and ethics.
Under apartheid the judiciary was virtually all male, white and largely Afrikaans-speaking and, having functioned under a system of parliamentary sovereignty, saw its role as merely interpreting and giving effect to the law. With a few exceptions, judicial officers never challenged or even questioned racist and unjust laws.
Because SA's democracy was conceived on a bed of political compromises, and for the sake of continuity, the judiciary was the only branch of government that remained largely unchanged after 1994, save for two significant additions – the creation of the constitutional court and the JSC. Once tasked with enforcing apartheid's laws, this same judiciary was now expected to give meaning to and develop a jurisprudence of a new constitutional democracy.
So it was only a matter of time before the lingering problems from the old era would prove difficult to manage against a deeper, overarching need to build a legal system more in line with SA's political and social transition.
It is against this backdrop that the current saga is being played out, and when the heated exchanges, rhetoric and provocative statements are distilled, it all comes down to one central concern: how to balance the demands for a more diverse and representative bench with protecting the integrity, independence and competence of the judiciary from the passions that drive this project.
"I do not believe that these issues are mutually exclusive," says Calland. "But finding this balance will be one of the big challenges facing the judiciary in the next five years."
A research report by the Centre for the Study of Violence & Reconciliation found that, when analysed in terms of their underlying goals, none of the elements of transformation actually conflicts with judicial independence.
Justice minister Jeff Radebe agrees that a more balanced approach can be found, but dismisses the suggestion that the race and gender rule is being applied above all else when appointing to the bench. "The constitution states that judicial appointments should broadly reflect the demographics of our country, but it also states, very clearly, that only appropriately qualified people can be interviewed," he says.
Though the JSC interviews are open and public, the selection process is not, thus raising questions about the criteria used when selecting judges. Some JSC members have not helped its cause with crude, irrelevant and puerile questioning of some distinguished candidates for high judicial office.
This has fuelled the charge that race and gender have been elevated above other criteria. Critics allege that a number of experienced and eminently qualified white men have been passed over for less qualified and experienced black or women candidates – or have simply not applied because they do not trust the process.
But Radebe, who also sits on the JSC, says that while representivity is an important goal, other factors carry as much weight in the selection process. "We are looking for men and women of integrity who embrace the values of the constitution, but who also understand its transformative nature," says the minister.
The JSC interviews last month to fill the four vacancies on the constitutional court, while disappointing on several levels, were especially revealing of the subtleties that inform the debate on diversity. During his interview, supreme court of appeals judge Azhar Cachalia sparked one of the more interesting exchanges when he said he was against "the numbers game" when it came to deciding between a black or white candidate, and that the focus should rather be on appointing a competent, nonracist and non sexist judiciary.
"If me or my family or anybody who appears before a judge… I don't want a judge that looks like me, I want a judge who is fair," he said.
Judicial legitimacy is grounded in this perception of fairness and trust, which often takes years to build. And the Hlophe matter was a study in just how fast it can be eroded. Radebe describes the entire saga as "a very painful experience", saying it tarnished the image of the judiciary and was "a source of great embarrassment" for the nation. "We have turned a page and I hope that we never return to that time."
Several of those interviewed said that while the JSC's handling of the matter was far from satisfactory, many have drawn a line under the incident and moved on.
Senior people close to the JSC say the fact that Hlophe was very pointedly excluded from the short list of candidates for the constitutional court vacancies should be read as a public rebuke. It would also appear that the JSC's decision not to pursue a formal inquiry against Hlophe was motivated more by deepening despair for the collateral damage that the crisis was inflicting than a partiality towards the Cape judge president.
Business confidence and international respect for SA's democracy is grounded in an independent and functioning judiciary.
Hlophe's tangle with the JSC, which had dragged on for more than 18 months, was starting to reverberate outside the confines of the legal profession. The matter also exposed a glaring weakness in the system: there were no internal mechanisms to provide for judicial accountability and no enforceable code of conduct.
The JSC recognised the need to address this deficiency more than three years ago, when Hlophe was first hauled before the commission after it emerged that he was on a retainer for an asset management company, and then granted the same firm leave to sue a fellow judge for defamation. Hlophe escaped rebuke by insisting that the late former justice minister, Dullah Omar, had approved the arrangement verbally.
The criticism against the JSC was especially stinging because, in a similar matter involving the KwaZulu Natal judge president, Judge Vuka Tshabalala was asked to return shares worth almost R7m that he had received from businessman Tokyo Sexwale.
Both deficiencies are addressed by the JSC Amendment Act, which came into law this year and provides for a judicial conduct and ethics committee headed by the chief justice and made up mostly of judges. A separate judicial code of conduct will also be tabled before parliament and is expected to include regulations providing for disclosure of financial interests by judges.
But closing the door on this episode will not be easy. Kriegler's challenge of the JSC's decision not to hold a formal inquiry into the complaint against Hlophe is still to be heard, and will almost certainly open old wounds.
Tensions between the judiciary and government have been in a lull since the justice bills were withdrawn three years ago – but the bills, dealing with judicial education and ethics, were brought back in separate pieces of legislation. The most controversial aspects, dealing with judicial administration and rule-making, have been reworked and will be presented to the heads of court for comment when they meet Radebe later this month.
"I fully accept that the administration of the judiciary must reside with the judiciary," says Radebe. "Our intention here is to regulari se our system of judicial governance, which brings all our courts in line with the constitution."
For new chief justice Sandile Ngcobo, who took over from Judge Pius Langa this week, the leadership he gives on these issues will define his tenure.
"This is a job that needs courage," Ngcobo told the JSC last month. He started his legal career 30 years ago as a court clerk and interpreter, and has often been the lone dissenting voice in constitutional court judgments.
His interview before the JSC in Soweto last month gave some insight into his judicial philosophy: he believes that being a judge is a higher calling, and judges must have judicial temperament, scholarship, dignity and rationality.
Ngcobo identified the most important duties that come with the position: protecting the court's integrity, upholding the separation of powers, the administration of the country's courts and giving applicants to that court the sense that they had been heard. He was especially passionate about transformation, which for him includes making justice accessible to the most vulnerable.
It was a commendable start in an office where visionary and vigorous leadership is needed now more than ever.