Don’t play to the public gallery

2016-10-23 06:01
Leks Makua

Leks Makua

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In bidding farewell to retired Constitutional Court judge Justice Thembile Skweyiya – who passed away in September 2015 – Advocate Gcina Malindi SC said: “His judgments in this court – whether writing for the majority or in dissension – show those qualities of independence, impartiality and integrity in the discharge of his duties and obligations to the Constitution.” I support Malindi’s sentiments.

Independence, impartiality and integrity shape judges’ ­decisions, rather than their sociopolitical backgrounds and life experiences. An advocate’s political background and ­social orientation should not count against them in their ­application for consideration as a judge.

The appointment of senior black advocates to our courts is becoming imperative in light of political challenges that are disadvantaging ordinary people. We need senior black advocates to populate our courts and serve a key role in ensuring government is accountable. Our people, the majority of whom are poor, would appreciate courts avoiding sterile, automated interpretations of the law to effect the rights set down in our Constitution.

It is also helpful for black and white senior advocates to apply for judicial vacancies. We need their skills and expertise to ­interpret the Constitution in a way that facilitates social transformation. Research, interpretation of the law and reasons for judgments are attributes acquired through years of study, ­experimentation and the innovative system of collegiality ­within the ranks of practising advocates. The depth of knowledge and experience among senior advocates – which goes ­beyond colour lines – is what South Africa needs.

Our judges continue to creatively enforce rights entrenched in the Constitution to meet social expectations. They give meaning to our Constitution and make government account for its decisions – and, lately, indecision.

We should not be inhibited unnecessarily by political or social technicalities which work against appointing senior black advocates to our courts. A cursory look at the structure of our judiciary gives the thumbs up to transformation – but that is not the goal of transformation. The transformation of our judiciary should focus not only on how many black men or women are appointed in courts, but also be outcomes-based and serve ordinary people, since they are the primary consumers of legal services.

Reserve judgments and delays in the adjudication of ­disputes work against the poor, depriving them of the ­resolution they so desperately seek. A truly transformed ­judiciary should deliver easy access to justice for poor people, or such transformation will be inauthentic.

While judges should not be aloof from ordinary citizens and their legal problems, a pressing, if thorny, issue, which is on the brink of bringing our judiciary into disrepute, is that of retired judges making swift public pronouncements on matters before our courts or cases still under police investigation.

The Code of Judicial Conduct requires that:

> Retired judges should always act honourably and in a manner befitting their status; and

> A retired judge must not enter party politics.

A judge, even when retired, continues to be a judge and should continue to uphold his oath of office. Although such judges can express themselves on any matter in court, they should avoid the temptation of playing to the public gallery.

The temptation to speak truth to power is always there, especially in our current political situation, but this is no ­excuse for respected retired judges to make public comments which have the unintended consequences of tainting the ­noble calling of a judge. Judicial pronouncements outside court carry the risk of bringing our judiciary into disrepute and are a disservice to our cause of judicial independence.

Retired judges should express their views on issues of the day through books and public lectures. It is a dignified way for them to preserve their ideas for future generations.

Makua is an advocate in the Johannesburg Bar and a member of the National Planning Commission

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Read more on:    politics  |  constitution

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