Right of reply: A concerted smear campaign

2013-04-28 14:00

Gratuitously ungracious, unsubstantiated allegations about my deficiency of skills, lack of independence, and being unprogressive cannot go unchallenged.

It is unacceptable that an ­advocate writing with such confident conviction ­dissembles behind anonymity. (“Which white judges?” City Press, April 21).

What is the agenda? There are a series of misleading and unfair statements about my fitness to assume appointment at the Supreme Court of Appeal (SCA), relating to the above, which I shall now tackle.

My track record of more than 250 reported judgments in the South Gauteng High Court, the busiest and largest court in the country, and with my having

the fewest reserved judgments, shows that there is not one that is executive-minded.

Several show the contrary, examples of which are the cases of Sasol v Metcalfe and Minister of Safety and Security v Seymour.

The anonymous advocate suggests that my worthy opponent, Clive Plasket, enjoys higher academic regard than I. This is puzzling since no other judge has a comparable record of having a BSc degree, an LLB, an MPhil, a fellowship at the Institute of Bankers and, most recently, acquiring a PhD (cum laude) from the University of Heidelberg, Germany.

As for my lack of progressiveness, my judgments on Saflii.org (an online legal resource) show that black and women advocates have an excellent record of winning ­cases before me.

I came out publicly in favour of gay rights as early as the 70s.

I delivered the first and widely ­acclaimed judgment in South Africa to hold that the courts should not be overly concerned about the sexual orientation of parents when making custody awards.

I delivered the leading judgment on ­fathers being awarded custody because of my belief in the role that fathers play in socialising children.

I have repeatedly underscored the importance of providing medication to combat HIV.

I have ­written internationally acclaimed judgments on the boundaries for ­social media and on rhino poaching.

These are on the internet for all to see.

I have consistently given effect to the will of Parliament by imposing among the most severe sentences upon those guilty of rape. I have relied on the fact that there is a great likelihood that a sexual offender will be a repeat offender.

My so-called lack of progressiveness is also belied by my personal history. I was a student leader on the University of Cape Town’s SRC as well as Nusas in the 70s, active in the “release all political prisoners” campaign.

In those days, most students at white universities had not even heard of Nelson Mandela and the other icons of the struggle against apartheid.

I was a founding panellist of the Independent Mediation Service of South Africa (and did trailblazing work in labour law in the mid-80s). Both trade union and business leaders will confirm this.

For a decade from the early 80s, I was instructed by struggle lawyers such as Dullah Omar and Priscilla Jana, and appeared in numerous political trials, defending people such as Oscar Mpetha and Gordon Webster, Robert McBride’s ­co-conspirator.

As a lawyer I did a lot of work pro bono. Plasket, according to the anonymous advocate and others, was “grilled” on transformation for more than an hour.

I was also confronted in interviews by the Judicial Service Commission (JSC) in 2008 and 2009, when I unsuccessfully stood for a seat on the Constitutional Court Bench. Similar questions were put to me when I stood successfully for the high court in 1998 (long before Plasket was appointed to the Bench), and in 1999, when I was appointed to the Labour Appeal Court (a position which Plasket has not held).

My views on transformation are well known to the JSC, and several of those on the commission who had not encountered me before this month, had taken the trouble to read the transcripts of my previous ­interviews.

I am the only judge who has publicly taken a stance in favour of the National Development Plan, as it has massive potential to be a unifying charter for the achievement of the socioeconomic rights enshrined in our Constitution.

It is untrue that I failed to have regard for the Prevention of ­Illegal Evictions Act.

My views on socioeconomic rights have been set out in the cases of Emfuleni Local Municipality v Builders Advancement Services CC and Johannesburg Housing Corporation v the Unlawful Occupiers of Newtown Village. They are readily accessible online. I stand by them.

I believe in private property rights but I do not believe in casting squatters into the chill of a winter’s night.

Vacuous orders in conflict with government’s own decisions about the allocation of resources create confusion for the government, false expectations among the poor and undermine the triadic separation of powers.

“Progressive” court orders are a poor substitute for the clarity, consistency, predictability and reliability upon which all great systems of law ­depend.

The concerted campaign by a disgruntled clique unhappy with my appointment is beginning to look not only obnoxious but also pernicious.

»?Willis is a judge at the Supreme Court

of Appeal

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