In pursuit of a just society

LAW SOCIETY ANNUAL GENERAL MEETING: 8 – 10 NOVEMBER 2013

1. The law has always been used as an instrument to bring about and maintain peace and prosperity in any nation; that is, democracy. It is lawyers who draft laws; good and bad. It is lawyers who are charged with the duty to interpret and apply all those laws. Since I aim to talk essentially about protecting democracy in our country, I must therefore be speaking to the right audience.

1. In a constitutional dispensation like ours, the duty to protect democracy falls even more heavily on the lawyers. It is required of us, in our endeavour to execute this sacred task, to pause from time to time, and look back on the journey travelled; we need to do so in order to assess whether we are on the right track. There may arise, from time to time, a need for us as lawyers, and thus ultimate guardians of the Constitution, to confront issues frankly. It has always been, from time immemorial, the duty of a lawyer to speak out courageously.

1. There are reasons for this plea. The reflection I have called for, namely, to look back, will reveal that, although some commendable achievements have been made since 1994, serious challenges to contend with are emerging. Given the limited time we have tonight, we can only mention a few of them.

1. Corruption has permeated almost all sectors of our society, as well as various levels of government. A casual interaction with various institutions and individuals involved, will reveal that the level and extent of corruption you read about in the media, is but the tip of an iceberg; whether you speak of tenders, housing, government employment etc. Various government departments have, and are being, implicated. Nepotism and political patronage, to give a few examples, are embedded. I don’t want to talk about crime, let alone violent crime on children and women, all of which, by the way, raise serious questions about the efficiency of our legal system, from the beginning to the end. It has been said that we have the best Constitution in the world. Yet we are described as the most “imbalanced” nation, with the worst divide between the rich and the poor. We rank amongst the worst in crime; we have an ever increasing number of unemployed.

We are a country where people can simply illegally grab a piece of land, put up a shack, and may not be removed unless you give them an alternative place, and if you dare destroy their structures, you run the risk of being made to rebuild them before sunset; people can “highjack” an office block and turn it illegally into a residential building without proper sanitation; the crime of “building hijacking” was invented and perfected in this country; again, in violation of municipal laws, people set up shops on the pavements meant for pedestrians; indeed, they even set up barbershops on the pavements or sell some edibles in violation of health regulations. Buildings are being erected with total disregard of municipal or city council regulations, and the wanton destruction of public facilities is rampant. There is a worrisome state of lawlessness. We cannot put all the blame on the government. If for example ours is indeed the best Constitution in the world, perhaps the fault lies with those of us whose responsibility it is to interpret, apply and enforce it; from the most junior police officer, to the highest court in the land. Maybe we do not do so properly. Why do we have so many incidents of people taking the law into their own hands? Why do we have all these things if ours is the best Constitution in the world?

5. We are, with some apprehension, entering a pre-election period. During the period leading to previous elections, we witnessed very serious incidents of political intolerance, with some parties behaving as if they owned the electorate and that no other contestant had the right to campaign, either at all, or in certain areas. At that time, the only significant new kid on the block was COPE. We are, this time round, even more concerned because there are a few more new kids on the block, some of whom are quite excitable, and animated. During previous elections, municipal facilities which had been timeously booked and confirmed by certain parties, we were told, suddenly became unavailable; this resulted in dangerous confrontations. And not everybody agreed that the Independent Electoral Commission did enough to level the playing fields. We are already witnessing sporadic incidents of political intolerance, accompanied by violence. One shudders to think what is going to happen nearer the elections if the trend is not arrested. At some point it would fool nobody to say that we have had free and fair elections, a not so insignificant cause of instability on the continent. Can we afford to head in that direction? Political intolerance must stop. One can go on about these challenges we face. I submit that these examples justify the call made on us.

6. The erosion of democracy can be gradual and insidious. It can come in small but fatal doses. It therefore behoves all of us who cherish democracy to be vigilant. The question may be asked what it is that lawyers, or any responsible citizen for that matter, should do. As I have just said, it has always been in the nature of a lawyer to speak out courageously, whenever the need arises. That duty becomes even more imperative in a constitutional state. We should, in particular, defend and respect constitutional institutions, such as but not limited to, Chapter 9 institutions, as also the judiciary; the latter being the ultimate interpreter and enforcer of the Constitution, a point which is hugely important in a constitutional state. These institutions help translate our constitutional rights into reality. I should, however, clear one misconception which usually reposes in those in power and authority. That misconception is that speaking in defence of democracy is only to the benefit of the poor and the powerless. Those in power and authority often think that speaking in defence of democracy is done to undermine them. Although the poor and powerless are certainly the most vulnerable, the defence of constitutional institutions also operates to the benefit of those in power. This is because throughout the history of mankind, there has never been anybody who did not lose power; the difference lies only in how it is lost. The wheel of life always turns. The not so lucky ones lose power through violent revolutions. The luckiest lose it by choice, or democratically, or as a result of ill-health or just at the moment of death; but lose it you will. Power is gained to be lost. It therefore behoves particularly those in positions of power and authority, to make sure that while they are still able to do so, they give unwavering support and protection to those institutions which, as I have said, translate our constitutional rights into reality. That the powerful may also need protection, has been illustrated by the fact that all of our immediate past Presidents, including the present, have sought relief from the courts; each at his own time.

7. The constitutional institutions which we have to defend are well known; for example the Public Protector, the Human Rights Commission and the Independent Electoral Commission. As we cannot devote time to all of them tonight, I have chosen, with some reason, to focus on only one, namely, the Judicial Service Commission; it is a body directly relevant to the legal profession, and before which some of you are going to appear. It is a body in which I had the honour to serve for over 12 years until my retirement; notwithstanding that I hold no brief for it. After all, I have also had my personal disagreements, and fought my own battles, with it.

8. We have seen some unjustified attacks on the JSC; its only sin having been not to recommend certain individuals, notably Senior Counsel, for judicial appointment. After my appointment as Judge President, I deliberately went out of my way to appoint attorneys as Acting Judges; amongst them the two current Deputy Judges President of this Division. Yes, I could have continued with the practice of consistently appointing Senior Counsel only. But I knew then, as I still know today, that you did not have to be Senior Counsel to make for a good judge. In fact, I knew more than that: throughout my career, both as an attorney and especially advocate, as also in my period as Judge President and a member of the JSC, I came to realise that not every successful and competed SC would necessarily make for a good judge. The truth of this has been proved many times. I also came to realise that Senior Counsel who were not so highly rated, turned out to be very good judges.

9. The JSC will occasionally make weak appointments; that should be expected, as the members thereof are merely human. I do, however, take serious issue with anybody who creates champion candidates of their own, and then suggest that their appearance before the JSC should be a mere formality. That is, in effect, the import of an argument which says that once certain candidates are not recommended, the JSC is necessarily wrong. Nobody’s appearance before the JSC should be a mere formality; no candidate should be assured of an appointment. That kind of attitude discloses a fundamental lack of understanding as to what is required of a judge. In this respect, let me repeat something I have said before: nobody should litigate their way to the Bench, not even by proxy. It is an office of honour; you do not fight for it. There is another reason why one should not litigate one’s way to the Bench: Judges cannot appoint judges; they are too poorly qualified, if at all, to make a good judicial appointment. One reason for is this: in this country, judges serve diverse communities; communities with vastly different backgrounds and cultures; a rainbow nation. Mostly, we do not even understand each other’s language, let alone our very different cultures. Indeed, through no fault of mine, there are areas I could never enter in this country as the law then would not allow me to; so too everyone of you. I know of judges in Johannesburg for example, who, though born and bred in that city, have never been to Soweto; those who have done so, have never had the good fortune of living there and experiencing conditions and circumstances prevailing; in their case too, through no fault of theirs. Do you, as a judge, know the hopes, fears and expectations of those people? Do you know them enough to decide who is best qualified to be a judge over them? Judges are not qualified to appoint judges. They should not even, through their judgments, try to influence the outcomes of the JSC. We will not allow them to do that. Should they do that, some of us will openly criticize them. Some of us were there when the 1993 Interim Constitution was drafted. One of the priorities was to wrestle the power to appoint judges from the Executive; this was done. But the power was not to be given to Parliament or to the Judiciary: it was to be given to an independent and representative body of no less than twenty something people; richly representative of the diversity of our nation. The Executive, Parliament or the Judiciary, may not usurp this power. There may be a point in saying that the JSC is dominated by politicians; if that is the problem, we should direct our effort towards changing that, instead of making it our pastime to criticize the JSC whenever our own perceived champions are not appointed, or whenever we begin to panic and want to halt the process of representivity. Actually, I am amazed that nearly 20 years down the line, it is only now that we begin not to know or understand what the criteria are for the appointment of a judge, or how these criteria are applied. Really? Were these criteria not known and applied during the period of Chief Justices Corbett, Mohammed, Chaskalson, and all those who followed? Why is it that, suddenly, they are not known or are vague, or it is not clear how they are being applied? As I have said, I hold no brief for the JSC; indeed, in my view, it does not and cannot always make perfect appointments, comprising as it does mere mortals. Sometimes it amazingly appoints very old people. We should criticize it when we feel it is necessary; but we must do so for the right reasons and with the right motive. Care must be taken not to delegitimize constitutional institutions by attacking them for wrong reasons, and with nefarious ulterior motive. That would not help us make our country what we want it to be; well-meaning lawyers would have to speak out, and it is encouraging that some have done so, and will hopefully continue to do so.

Judge B M Ngoepe,
9 November 2013