On judicial deference

A reader seems perturbed by a column in last week’s Mail & Guardian commenting on the ANC discussion documents on the transformation of the judiciary. In it, the anonymous columnist focuses on the document’s obsession with the principle of the separation of powers and asks why this is happening.

One answer is to be found in the document's recommendations: there is a desire to guarantee a judiciary that will be as cooperative with the government as possible, nd that will produce a body of law as deferential as is constitutionally permissible.

The reader suggests this is a disturbing possibility and comments: “The word ‘objective’ would be much more comforting. There is a degree of submission associated with the word ‘deference’.”

This is a fascinating question. In the pre-democratic South African legal discourse, “deference” was used as byword to describe what judges did who uncritically applied the apartheid legislation and generally did not ask any questions.

Some more traditional commentators still use “deference” as the measure to decide how independent and progressive the members of, say, the Constitutional Court really are and often argue that they are too deferential and to eager to agree with the ANC government.

Some judges of the Constitutional Court – most notably now retired Richard Goldstone – told me that the new Constitutional Court judges were acutely aware that unlike the new Parliament, it had not been democratically elected. The judges therefore had a duty not to act as a force unto itself, but had to show respect for the other branches of government.

But respect does not mean always agreeing with the legislature or the executive. The Constitutional Court has declared invalid numerous legal provisions and numerous decisions taken by Ministers and the President. They are deferent in style, but not deferent in the orders they make.

Of course the Mail & Guardian columnist suggests that the ANC wants a Court that always agrees with it and never criticises it. If that is indeed, the impulse behind the document it is troubling. Judges are the guardians of the Constitution and must act as referees to interpret the rules of the game and to ensure that the other players (legislature and executive) stick to the rules as interpreted.

If they merely become a rubber stamp of the President, say, we have come to the end of a true constitutional state. Of course most governments want courts to agree with them and try to influence them in that regard. So far the judges of South Africa’s Constitutional Court has shown a remarkable independence and although we criticise some of their judgments as reactionary or unimaginative that they been, on balance, quite wise in striking the balance between judicial activism and showing the appropriate deference.

In doing so, they have not acted “objectively” because, I believe that is not possible. Every judge brings his or her own view to the table and has to interpret extraordinary broad and vague provisions such as “Everyone has a right to human dignity”, which is impossible to do in an “objective” manner.

What is required is to act in a more or less principled manner and not on a whim because it is thus that the Court earns respect and enhances its legitimacy, which after all, is all the Court has to defend itself against the might of the other two branches of government.

Judge Hlophe and the transformation of the Judiciary

Cape Judge President, John Hlophe, is a perfect example of what is wrong with our discussion about the transformation of the Judiciary in South Africa. Today the Cape Times reports (subscription needed) that Judge Hlophe once again failed to answer questions put to him by the Judicial Services Commission (JSC) regarding the almost R500 000 he had received from the Oasis investment group.

As I have said before, it is very difficult to understand why Judge Hlophe is still on the bench. Most other people in his position would have resigned long ago – even if only out of embarrassment.

I suspect his tenacity has a lot to do with the discourse on judicial transformation in South Africa and points to what is wrong with that discourse. When Judge Hlophe was first accused of wrongdoing, he pointed to the racism (but not the sexism) prevalent at the Cape Bar and among some of his judicial colleagues as if to say: “See, they are racist so their criticism is unfounded”.

I was (and I still am) of the view that some of the traditional lawyers and judges in the Cape have ingrained attitudes about “standards” and “competence” that emasculate new black lawyers and judges and that is really based on racist assumptions about white excellence and black incompetence. (No different from most other workplaces dominated by elite whites.) It is a subtle but devastating assault on the integrity of black lawyers and judges.

But the fact that some of the white lawyers and judges have deeply ingrained racist attitudes (without even knowing it) cannot excuse or justify wrongdoing by a black judge (or lawyer for that matter). By pointing out the racism, however, judge Hlophe made it very difficult for honest, reasonable and sensible people to criticize him because they would know that they run the risk of being tarred by the racist or anti-transformation brush.

It was a masterstroke in self-defense because it suggests that Judge Hlophe is the champion of transformation while those who think he should rather have not taken the bribe "out of pocket expenses" from Oasis can be painted as anti-transformation. Given the fact that he had championed the appointment of especially black African judges to the Cape Bench, this strategy was particularly plausible.

But this strategy is deeply problematic for reasons that go beyond the question of whether Judge Hlophe is fit to be a Judge or not. I contend that by employing this strategy Judge Hlophe displays a distinct contempt for true transformation as envisaged by the Constitution in at least two ways.

First, he discredits the very notion of transformation because he so blatantly uses it to gain a personal advantage. Like the boy who cried wolf, he trivializes the real problems of racism and resistance to transformation that is clearly present in the Cape legal system. By lashing out at others just when he is being charged with wrongdoing, he makes it easy for “the other side” to dismiss the claims and to go on as if racism and prejudice is not a problem at the Cape Bar and on the Bench.

Second, his approach completely misconstrues the nature of transformation itself. The Constitutional Court has emphasized that the Constitution requires far more than a change of the racial composition of the bench. It requires a radical transformation of the mind-set of judges and lawyers – away from the formalistic, patriarchal and hierarchical view of law, towards a more open and value based approach.

It requires judges to be attuned to issues of power as it relates to, yes, race, but also to class, and gender and sexual orientation. Replacing sexist, homophobic white men with sexist, homophobic black men does not constitute a true and complete transformation of the judiciary. How many of the new black judges appointed under Judge Hlophe embrace the values of openness, transparency and respect for difference so eloquently propagated by some judges of the Constitutional Court?

Maybe some or even most do, but this is not part of the discourse espoused by Judge Hlophe. When the ANC therefore said at their policy conference that the transformation of the judiciary should be speeded up, I hope they did not have in mind the kind of transformation represented by Judge Hlophe.

Of course more black judges and women judges should be appointed to the bench. But all the judges that are appointed should also have embraced the values of the Constitution. They should be individuals who reject the death penalty, cheer on the achievement of same-sex marriage and eagerly strike down patriarchal provisions in the common law and customary law. They should eschew narrow identity politics and should embrace the notion that diversity must be celebrated.

It is probably too late to change the values of some of the old style judges appointed before 1994, so it is exactly these newly appointed judges who have a duty to change the legal discourse. Sadly, on the available evidence, this does not always happen. Sadly, also, as long as we deal with transformation in the Judge President Hlophe way, this is not going to change.