Good morning bloggers. Yes I am back, rested and ready to tackle the issues at hand. I had an incredible holiday and I will be writing about it and sharing all with you over the weekend.
In the meantime, to the subject at hand. The only way I know how to deal with this is to say what I feel the need to say, without any kind of apology.
I have lived in apartheid SA and I did not enjoy the way that the people of colour were treated at all. Having said that, I now live in post apartheid SA and I do not enjoy the way white people are now being treated - it is as if there is racisim is back in a reverse sense of the word. It saddens me to see the colour of a person mentioned when there is a problem. To me corruption is corruption whether the person(s) involved are black, white, coloured, yellow, green or indifferent! How can corruption be measured by the colour of a skin, surely it must be measured by the very act itself.
Until such time, that we as a nation, walk away from the issues of colour and look at the issues at hand, we will never walk in the right direction!
Regards
Nikki
Will the judiciary ever catch up?
Serjeant at the Bar
27 February 2007 11:59
The Constitution promised a non-racial, non-sexist judiciary that would promote freedom, dignity, equality, transparency and accountability. Just over a decade later, we celebrate a body of law developed by the Constitutional Court.
Ranging from a rich set of judgements promoting equality to the protection of a deepened sense of democracy based on public participation, the court has propelled the country along the road leading to the promised constitutional democracy. But in almost inverse proportion to the speed and scope of these accomplishments, the development of a judicial institution in line with the vision that has powered the court’s jurisprudence has become an ever-distant prospect.
Take the past month. First, the public was confronted with the unprecedented spectacle of a judge being sued for defamation, where his first line of defence was that permission from the judge president for the plaintiff to proceed was improperly granted because of payments being made to the judge president by the plaintiff.
A few days later, 15 judges issued a petition complaining about “serious negative insinuations” made at the Judicial Service Commission (JSC) about recent appointments to the Bench. Then we learn that the Free State High Court cannot appoint white acting judges at this moment, even though there are vacancies in the division that have not been filled, even temporarily.
The revelations in court regarding payments by Oasis to Judge President John Hlophe have again raised the issue of transparency and accountability of the judiciary to the public it serves. It is true that the JSC does not possess powers to conduct a full investigation of judicial conduct (hence the importance of bringing into law the Bills dealing with judicial conduct with all due speed) and this made its task more difficult. But, as Norman Arendse SC commented when the JSC announced last year that it could not gainsay Hlophe’s version of events, the public was neither informed about the information the JSC had at its disposal, nor the process of reasoning to arrive at its conclusion.
We do not know whether the information provided to the court was different to that upon which the JSC acted, or how the JSC reasoned when evaluating the judicial decision to allow Oasis to sue Judge Siraj Desai in the circumstances of the payments. The lack of transparency was unfair to Hlophe, who was also entitled to certainty. Without transparency, the public is entitled to feel that the judiciary remains unaccountable.
The petition highlights the underlying problem of both the Oasis case and the grievances underlying the petition. We need a transformed judiciary. It must reflect the demography of our country. This can never be precise, because a judiciary should not be based on quotas, but on commitment to values. But values are not the preserve of a white male world view based on Oxbridge and Leiden; transformation means the construction of a public discourse compatible with our diverse society.
It would be surprising if we had achieved this vision in 13 short years of democracy. But what the petition and the debate around the Oasis issue reveals is the distance we still need to travel.
We appear to be as far away from a shared normative framework as we were in 1994. The 15 judges complain that the appeal court criticism is targeted against black judges, yet the Supreme Court of Appeal has been equally rude to a number of white judges. This is not to deflect the point made by the 15 judges, nor does it excuse rudeness, but it is to show that the pathology of which they complain may be owing more to a form of judicial arrogance than racism.
When a distinguished black judge with a far better struggle record then most on the Bench answers questions put to him by the JSC about judicial performance, is he supposed to duck the questions, rather than be brave and principled? The answer, sadly, is yes. In our haste to use race as a shield against criticism, we stifle any chance of developing the framework that can achieve a non-racial, non-sexist judiciary.
African values must transform the core of our legal system, but these values surely cannot support allegations of lack of accountability, corruption and arrogance -- if these are properly proved.
Until the country as a whole and the judiciary in particular can develop an agreed set of standards to evaluate performance, we will only experience a further absence of proper public debate and, more important, an implosion of precious institutions. Make no mistake: whatever the achievements of the Constitutional Court, the judiciary has a long way to travel
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