Why judges matter: beyond the Dewani case

The constitution stipulates that “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

But the ‘courts’ in this case are comprised of many functionaries not least of which is the judge. To mandate them to act impartially and without fear, favour and prejudice is not to say that they must not have fear, favour or prejudice. They have fears, they have favourites and they certainly have prejudices. In fact the constitutional requirement is an acknowledgement of precisely that.

The plain fact is that judges are human – prone to the same vices of life as the next person. And judges do not act in a vacuum with no pressures. The people who decide our law and its interpretation are from particular backgrounds with world views that inform what they see and how they translate the law.

Though the constitution does put into place mechanisms that attempt to remove fear, favour, and prejudice – security of tenure and remuneration for example – it is still imperative that we seek ways to keep the courts, that is to say judges, accountable to their constitutional obligations.

The selection process provides a potentially robust and dynamic way to do just that. Critical questions put to judges can unmask fears, favours and prejudices.

Questions can be put about past judgements, political views, fundamental democratic principles such as judicial independence and separation of powers, socio-economic issues such a housing, violence against women and children, customary law. All this and more should be canvassed. Only then will we begin to test deep-seated views and begin to approach the open justice that we demand.

Ultimately, judicial decisions and pronouncements on those issues can and do affect our lives.

The issue of access to justice is well discussed within the South African context – legal fees are notoriously high, court procedures often inaccessible to lay persons, and in a country in which almost half the population live under customary law the judicial system does not necessarily give expression to customary norms.

Many of us will never step into a courtroom, nor will we be parties to a legal matter.

This can tempt us to conclude that events in courtrooms and deliberations in judges’ chambers are far removed from our lives and have no impact. But nothing could be further from the truth.

Court room decisions necessarily and inevitably impact our lives.

A few examples (all available on the SAFLII, legal database for South African cases):

• In Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC), the court (the judges) decided to declare the rule of male primogeniture unconstitutional – a decision that had major implications for customary law adherent throughout South Africa.

• In Volks NO v Robinson and Others 2005 (5) BCLR 446 (CC), which concerned the status of permanent life partnership for the purpose of maintenance claims, the court chose, perhaps conservatively, to prioritise the traditional notion of marriage over life partnerships. Persons in life partnerships were potentially affected by this decision – they could not claim maintenance as long as they were not married.

• In Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another 2013 (12) BCLR 1429 (CC), the newly enacted Sexual Offences Act was challenged as it related to children. The parties successfully challenged the statutory rape laws that in essence criminalised the conduct of consensual minors. This case clearly had massive implications for the conduct of young persons in the developmental stages of their lives.

• In Christian Education South Africa v Minister of Education 2000 (10) BCLR 1051 the court upheld the general applicability of the law against corporal punishment in schools. Independent schools founded on Christian principles were not exempt from the prohibition because of their religious and moral beliefs. This judgement clearly affected thinking about discipline and parental and school roles.

All these judgements actioned constitutional rights, and many others have affected society at a deep level - eviction matters and rape cases, to name but two.

A diverse judiciary that is representative of the country has a stronger claim to legitimacy. Indeed, our constitution demands that the judiciary be representative - it states that “the racial and gender composition of South Africa must be considered when judicial officers are appointed”.

But the constitution reveals that transformation as envisioned for this democracy is much more robust than a cosmetic remake. Judicial selection offers an opportunity to test that robustness.

This week the case against Shrien Dewani, accused of murdering his fiancée on honeymoon, began in the Cape Town High Court. Not far away at the Twelve Apostles Hotel, the Judicial Service Commission convened once again to begin interviews for court vacancies in the Free State High Court and the Western Cape High Court. Both are open to the public and both could have implications for you as a person – the Dewani case for the law that it considers and the JSC meeting for the judges it selects.

If open justice and a legally informed public are important, then the selection of the judges who define the parameters of that justice matters.

Chitapi is registered at UCT for an LLM in Law and Society, working on a dissertation about women in the legal profession.