Courage of principle

2012-08-18 12:48

As a judge, the high price paid by Ruth First and others like her has inspired me in the pursuit of justice

The agonising question I have chosen to ask is in what way the heroic life of Ruth First should ­inspire my role as a judge in a post-conflict society.

People who are bent on changing their world require courage of ­principle, which has three fundamental and interconnected patterns of behaviour: a vision, concrete steps to pursue and realise the vision, and the preparedness to pay the price in pursuit of the vision.

At different times in our long struggle we have seen the movement of the people stake the claim for freedom, equality and democracy.

One of the earliest articulations occurred in 1912 with the formation of the ANC and thereafter a variety of charters.

A vision is a lodestar that lights up the way to a just society. Ruth First was consumed until her demise by the high notions of a nonracial, nonsexist, equal society. Her activism sought to banish underdevelopment, the uneven spread of means of ­production and distribution, and the resultant human indignity to the working people and the poor, both at home and in the rest of the world.

For me, as a judge, the most recent and coherent articulation of our collective convictions arising from our revolution must be the high principles enshrined in our Constitution. The unanimous representatives of the people installed it as our first joint ideal of a just society.

Of course, the people, through their representatives, may change it. They have done so at least 15 times before – which is the prerogative of the people, provided the requisite majority is present and the Constitution’s formalities are followed.

When Parliament enacts a law consistent with the Constitution, as a judge I am duty-bound to give effect to it. As a judge I must hold dear and cherish the collective vision of the people I am required to serve. I must know and understand the high principles that animate it.

I must commit without reservation to help migrate society from its dim past to a just social order. Fidelity, therefore, to the Constitution – the supreme law – and other laws of our country is indispensable. As a judge I owe a duty to the rest of our people to police compliance with the law.

This I should do, recalling the long and heroic struggles against past social injustice, with the full recognition of its mission to afford a better life to all.

We cannot defeat the triple burden of unemployment, poverty and disease without bare social minimums. We sorely need the rule of law and not mob rule. All public power must be sourced in law.

The exercise of public power, and indeed of private power where it serves the same purpose as public power, must be rational, it must pursue a public good or a legitimate government purpose.

The Constitution enjoins us to ­observe good governance within an effective state. It insists that the business of government and indeed of all organs of state must be transparent, accountable and responsive. These values cannot dissipate under the madness of whoever is in charge.

These stringent requirements ­apply equally to judges. It is welcome that public debate ensues on the merits of the reasoning and outcome of my judgments. Yet it is singularly ­unhelpful to suggest that because one differs with a judgment or outcome, the judge concerned is serving an ulterior goal or political party. Judges are accountable to all our people and to no political or ideological tendency.

I am proud to say that virtually all my judicial sisters and brothers take seriously this obligation and live by it. In some instances judges get the facts or the law wrong. That tells us nothing about their judicial integrity. Our democratic system, like most in the world, acknowledges judicial fallibility and arrests that risk by creating a hierarchy of courts with appellate responsibility.

For us the lesson must be that we must give our all to protect the integrity and effectiveness our institutions of democracy, including the ­judiciary. A narrow and sectarian ­interest to make any public institution compliant or pliable ultimately results in disadvantaging our people.

Properly, these institutions have to survive intergenerational and party political changes as we continue to pursue our collective good.

Courage of principle requires judges to do what is to be done. It is no exaggeration to state that the people have installed the judiciary as the ultimate guardians of the Constitution.

At its barest, judicial function is not anything more than an instrument to advance these cherished values. By implication the judicial function is always invited to mediate conflict.

It is always required to enforce standards that we have imposed upon ourselves in pursuit of a collective vision. Judges must be alive to the history, social context and contradictions of the society they live in. And when all public and private functionaries are performing at the height of sincerity with appropriate competence, judges must refuse to trespass into those terrains; they must stand by and applaud as society flourishes.

Courts are relevant only in the event of system failure. Our role is not proactive, but reactive. We step in only when a breach of a vital right or interest is alleged and only when other forms of mediation have failed. We don’t choose cases, they choose us.

We have neither the purse nor the sword, but are entrusted with vast policing duties. Courts must be wary not to intrude into the terrain of the legislature, the executive and other state institutions. This they must do only in the clearest of cases and only when the Constitution permits it.

Our Constitution is pro-poor. It is cognisant of vulnerability in society. It is premised on a past that has ­entrenched vacuous but real divisions along lines of race, gender, class, religion, conscience and belief, culture, language, origin and sexual orientation.

Like Ruth First, our Constitution seeks to achieve a ­caring, sharing and empathetic ­society. It rejects the notion of mere political might ­being right, and seeks to restrain and control all public ­power and private power within the constraints of an overarching basic law.

In a series of notable cases, courts have refused to tolerate inequality and discrimination. They have struck down scores of laws that ­undermined appropriate respect for diversity or that harbour antiquated prejudices. Amid many rumblings, courts would not tolerate, for ­example, homophobia or gender ­inequality inspired by religious or cultural patriarchy.

They have fashioned the notion of substantive equality that travels well beyond ­liberal notions of formal equality.

We have insisted that laws and ­policy must provide for adequate protection of children, root out ­domestic violence, and help people with disability, and refugees as well as migrants.

We have required government to provide appropriate access to healthcare. We have reminded the executive of its duty to provide ­access to housing. Courts have ­insisted drinkable water be made available to vulnerable people.

We have protected learners from being subjected to a medium of instruction they don’t want. We have ­required that learners be furnished with study material. We have mediated differences around rampant eviction of homeless, urban and rural occupiers who are said to be unlawful. Courts have required ­that social grants reach all, including migrants, and that they are paid promptly.

Our courts have ­developed a proud jurisprudence on justice in the workplace. We have refused to sacrifice workplace justice on the back of claims of ­economic growth that a so-called open labour market will bring.

We have been properly preoccupied with the right to free expression, including a free press, and the right to impart and receive information and art. Our judgmen

ts point to the intrinsic worth of free expression and the many public and private blessings of a free, open and debating society. And yet we have warned that free expression has limits, particularly when it encroaches on dignity and ­privacy.

However, when public interest is an issue, other more pressing considerations come to the fore. That balance can be struck only on a case-by-case basis.

Competition law has a niche in our courts. Some of our manufacturing and retail businesses have been found to have engaged in collusive practices including price-fixing. The Competition Commission and its tribunals have done much to remedy or reduce commercial injustices to consumers.

Sadly, very few cases on land restitution or expropriation or acquisition for public use have reached our court. It may be that the property and restitutionary provisions in section 25 of the Constitution on land have been underworked.

Courts have intervened where valid allegations have been made about wrongful procurement of goods and services by government. Our Constitution is properly inimical and intolerant of ­public or private corruption.

Courts only deal with prosecutions that come before them. These may be fewer than they should be. When prosecutors do venture into courts, the record shows my judicial sisters and brothers have not wavered.

I have regrets about the past 18 years of judicial functions stemming from the continued chasm between our collective promise to our people and the reality of the majority. About that, judges can’t do much more. We must keep the faith and try to keep other state ­actors to practise the faith.

The second and biggest sadness I bear is that access to justice has become unaffordable. In this context, much of our jurisprudence flows from innovative and caring intervention of public interest entities and organs of civil society. We owe them a debt of gratitude. They have taken on many trendsetting cases that have brought respite to the poor and ­vulnerable.

Justice must be made more accessible. On this score, alone Ruth First would have wondered what this struggle business was all about.

I am also saddened by frightening overcrowding of awaiting-trial prisoners. Three to four people share a bed meant for one.

The ­authorities suggested to me that the average time to await a final trial is approximately two years and yet the intake of additional people awaiting trial occurs daily. The department responsible for correctional centres may be doing its best in trying circumstances, but courts must devise a more effective case-load management system to honour constitutional guarantees to a fair and speedy trial.

The inevitable outcome of the principle of courage must be a ­willingness to bear consequences. Ruth First paid that ultimate price.

Judges, and certainly all of us, cannot back off from our duty to educate and train the young, to transmit to them the very best values of our heroic struggle. We must keep our collective vision in sight. We must garner the courage and comfort to speak out, and act on it. We must require our public functionaries to pursue a better life for all. The price we are to pay for social activism is small compared with Ruth First’s supreme price.

We must be truthful and rigorous in the pursuit of a more equal and just society, and we must have the courage to call it right in difficult circumstances because our collective vision is not open to debate. 

Its primacy has been settled by a long line of virtuous struggle.

» Moseneke is Deputy Chief Justice. This is an edited version of his speech on Friday of the annual Ruth First Memorial Lecture.

For the full version, click here

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