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The judiciary as a mistress.

31 December 2011, 08:21

In recent times the judiciary has been lectured, lambasted and repeatedly warned to maintain its place and to refrain from overruling the will of the people, as manifest in our ANC government’s decisions and laws.

The President, the ANC Chief Whip and ANC Secretary General have all taken turns at this. This has happened even though the reality is that, if any judge does not understand that a judge must be apolitical, he/she is incompetent and should not be on the Bench. As an Acting Judge in the Eastern Cape I met many judges. I can give the categorical assurance that not one of them needs such lectures or advice. In fact it is grossly insulting. See “South Africa – a Constitutional Democracy under attack..”

There is now also a credible perception that, in addition, ANC leadership is implementing an agenda to “pack” the judiciary with “onside” judges, starting with the controversial appointment of Mogoeng Mogoeng, who was undoubtedly carefully handpicked for the post of Chief Justice, even though he was not the best candidate by a very long way. It is supposed that by having onside judges dodgy legislation, like the now internationally infamous Protection of State Information Bill, will be upheld by the courts.

If this is indeed the agenda, might I humbly, but passionately, advise and counsel ANC leadership to abandon it. It won’t work. It will not work! It will fail! I base my advice on my experiences as a judge and having attended international judicial conferences.

You see, once a human being is appointed as a judge, the psychological climate that he/she is then operating in is incredibly unique and different from that of the rest of us. It is a truism that judges lead lonely lives. Indeed they do, even though it is an incredibly fulfilling life. However it is not fulfilled by anything that any politician is able to offer. Once you appoint a person as a judge there is nothing more that you are able to offer, give or favour him/her with. Judges exist outside the circles in which assets, power and influence are traded in and dispensed.

Like any human being a judge needs personal affirmation on a continuous basis. That affirmation can only come from within judicial circles, not from outside. The judge becomes immersed in a world in which he/she is divorced from the hum drum of ordinary life and becomes preoccupied with developing a love for that which is good, that which is right, that which can be held up as truth for all to see. Truth becomes both the objective and the journey travelled, not polemics.

In addition, the way the system works, ensures that diversion from this path is quickly exposed. It is very difficult for a judge to give a bad judgment without soon knowing that he/she has stepped off the path and is losing the affirmation that we all crave. Your decisions and judgments are necessarily seen, considered and studied by your local and international community of judges, the legal sector, including legal scholars. It is members of this community that will react.

You will then know, beyond doubt, whether or not you are in step or starting on a maverick path. Probably the worst maverick path a judge can chose to take is one in which he/she is then seen by his/her peers as beholden to a politician. It is about as reprehensible as incest. The psychological pressure is both overarching and subconsciously enormously insistent.

It was therefore not at all surprising to me when, despite the highly visible and loud warnings, admonitions and counsel, the Supreme Court of Appeal handed down a very keenly worded judgment that the appointment of Menzi Simelane as the Director of the National Prosecuting Authority was unconstitutional for being irrational.

Put simply, once a person is appointed as a judge he/she will feel compelled to start acting like a judge --- not a politician. Ask the previous Nationalist Party that burnt its finger very badly when it tried to “take over the Bench” by appointed “onside” people as judges. In my book “The Other – without fear, favour or prejudice” I explain how I always felt a “dual personality”. 

There was Chris Greenland, an ordinary man, pretty terrified of the very Court he was presiding over, and there was Judge Greenland, who carried out a sacred office with due decorum. There were decisions that I handed down, which I did not “personally” support. However, as a judge, I was satisfied that they were right.
Lady Justice

So my appeal to ANC leadership is that, if that is your plan, don’t do it. Appointing people other than on merit will only result in South Africa having a mediocre Bench. As a result all citizens will eventually suffer.

It is not possible to have the judiciary as a mistress. The mistress will find love, comfort and satisfaction elsewhere. There is nothing you will be able to offer to keep her loyal.

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