When judges aren’t

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Martin van Staden | Head | Policy | Free Market Foundation | mail me |


The Western (including South African) judiciary is a peculiar thing. To defy a judge is to commit an offence to society so great that most people do not even consider the merits of the defiance, and rush immediately to demand punishment.

The recent controversy around Judge Mandlenkosi Motha is a case in point.

On the one hand, this deference is good.

The judiciary is, in many respects, meant to be the barrier between vulnerable legal subjects and abuses by the state or powerful. It therefore must enjoy deference from all – powerful and powerless alike. This is partly why there is so much ceremony and symbolism associated with judges – from their robes to courtroom decorum, the way they are addressed, and so forth.

It is to establish that judges form a special class of society that stands aloof and in impartial judgment over disputes, bringing its one-of-a-kind wisdom to bear. Judges are not ‘ordinary people’.

On the other hand, this is not good.

Judges are, after all, only human. They make mistakes, just like anyone else. They also countenance state abuse more regularly than theory would require them to, meaning that to defer to them is on occasion to defer to naked tyranny.

Limiting judicial power

I am a firm believer in judicial supremacy as the only viable method of ensuring constitutional sovereignty. One requires powerful courts with teeth if one is to have a state that is governed by the rule of law. But just like any other coercive arm of the state, the judiciary must be limited. And it is.

Judges, formally, may not enact policy or legislation: they may only address themselves to the disputes that arise before them, and their judgments must be limited to those parties in fact appearing before them. They are also subject to the peer review of the appeal mechanism.

Nonetheless, one often finds that society’s zealous protection of the judiciary leads it to discount these necessary and crucial limitations upon judicial power.

Motha’s racial engineering

The recent saga around Judge Motha, who sits in the Gauteng Division of the High Court, serves as a pertinent example.

Motha, simply, conducted himself in an unjudicial and inappropriate fashion when he directed that a legal team before him explain why it was exclusively comprised of white lawyers.

While judges do play a vital role in ensuring that lawyers are competent, protecting clients when their lawyers are defrauding them or offering them a subpar service, it is nonetheless a sacrosanct principle of litigation that clients may choose their lawyers freely. Judges may certainly not look beyond the dispute before them and problematise the racial identity of the lawyers so chosen by the clients.

Some might point out that it is also an important principle of litigation that judges will consider all relevant facts. And they would be correct: sometimes, identity is relevant.

If a given lawyer has made himself guilty, in the past, of being dishonest to the court, then if that lawyer appears before a judge again that judge may consider that fact. When the state is litigating, the judge must also bear the nature (part of its identity) of the state in mind.

But in Motha’s case, he asked a team of white lawyers why there was no black lawyer among them. This is not a question a judge is entitled to ask. The constitution and the rule of law certainly do not entitle him to ask that question. If there is some piece of legislation, Department of Justice regulation, a policy or a court rule that entitles him to ask it, he must as a matter of conscience refuse to obey that instrument if he desires being a judge rather than a political yes-man.

The interpretation Motha ascribes to section 9 of the Constitution is plainly wrong, as neither section 9 nor any other provision of the Constitution requires so-called demographic representivity in legal teams. Only the public service, the judiciary itself, and the Chapter 9 commissions are required by the Constitution to broadly reflect the demographics of South Africa. Section 1(b) of the Constitution also entrenches the imperative of non-racialism.

Finally, and perhaps most importantly, it is a key principle of the rule of law that the law be applied (and be seen to be applied) equally. Stated otherwise: justice is blind, certainly to racial identity.

If representivity becomes judicial policy, perversion results

The notion of demographic representivity outside of the small range of (arguably) constitutional requirements is, then, nothing more or less than the policy of the African National Congress (ANC) and its National Democratic Revolution (NDR).

The NDR is an ideology of social engineering, which seeks to regiment society according to a pre-planned design. There is no room for diversity, difference, and freedom in such a society.

If the courts adopted ANC policy in the way Motha arguably did, the judiciary would be wading into a policy dispute, because there is widespread contention over ANC policy. Much of it is, in fact, constitutionally challengeable. The problem must be evident: if the courts adopt the challengeable policy preferences of specific political parties, how does one remedy that situation? It is, after all, in the courts where the constitutionality of public policy is challenged!

How does one sue the courts? Appeal is certainly not akin to litigating against the courts’ adoption of particular policies. If the courts themselves adopt unconstitutional policies, it is very unclear how one can respond to that in a constitutional state. That is why courts must stay aloof from the policy disputes against and around the government. Motha, it is submitted, is (perhaps inadvertently) attempting to enforce ANC transformania policy.

On X (formerly Twitter), I mentioned that any white lawyer, or even white client, who has Motha as a judge in their case would rationally not have a choice but to apply for his recusal. This is because all of them now know that Motha has certain prejudices regarding the skin-colour of those who appear before him.

He is by no means the only South African judge ostensibly guilty of this.

To be sure, judges are expected to have prejudices – they are only human – but part of the judicial role is that they must never allow those prejudices to influence their judgments (at least not to a significant extent) and they must never, ever, reveal those prejudices. Motha has revealed that his prejudice does spur him to judicial action – to the point of asking the lawyers to submit heads of argument on their teams’ racial composition.

This was off the reservation.

The defenders

Everyone who has thrown their weight behind Motha has done so as a matter of policy, not as a matter of law or the appropriate role of the judiciary. They wish to submit arguments about the need for transformania and ‘change,’ but do not modify those sentiments to apply in the special judicial domain.

The courtroom is a place where conflicting parties bring a dispute to be resolved impartially. The dispute might very well be about the very policy that Motha’s supporters defend, meaning it would be inappropriate – in the extreme – for judges to identify themselves with the policy before the matter even begins.

To ensure parties always get a fair hearing, judges and the courtroom must be seen as immune to any policy preferences not explicitly entrenched in the constitution.

It might be true that Johan Brand SC did not utilise the appropriate channel to deal with the controversy. But I am not convinced that his chosen path – defiance – was inappropriate. This is because Motha was not engaged in the judicial role when he issued his directive.

In other words, if the judge, for example, directed that the advocates before him undress and dance the ‘Harlem Shake’ – even in the courtroom – they could have ‘defied’ him because his direction was not a judicial one.

Judges are only entitled to issue judicial directions. When they issue another direction, they are not doing so as a judge.

De Vos’s conspiracy theory

Pierre de Vos, ‘constitutional expert,’ also waded into the discussion and (predictably) found himself on the wrong side of it. His entire opinion effectively comes down to a conspiracy theory: that there is a huge cabal of attorneys and advocates out there who make sure they only engage the services of their white colleagues for no reason other than the fact that they are white.

This view does not reflect the reality of corporate and wealthy South Africa. In this world, everyone is busying themselves with the hiring of black employees, and in the legal world, with instructing black colleagues where viable. They do this because they are aware of the political class’s insistence on racial engineering.

Under normal circumstances, of course, they would appoint and instruct black professionals for their competence and alignment of interests exclusively (and there are many such black professionals), rather than taking the state’s racialised imperatives into account.

Even in the non-racial, liberal think tank world of which I have been a part for a decade, lily white supporters, clients, funders, and, on occasion, even colleagues, have not infrequently requested or even insisted that we engage in racial engineering. And even among the most conservative white lawyers, you will not find anyone who goes out of their way to find just another paleskin to work with, because they know the judicial-political reality that they traffic in.

To the extent that certain – many, even – teams of lawyers are exclusively white it is therefore not due to race, but coincidental in the true meaning of ‘co-incidental.’

Speaking for my own context – having been desperate for experienced attorneys and advocates who feel as strongly about the classical liberal values of private property, limited constitutional government, and individual freedom as I do – the ones on offer have been white. I have never gone out of my way to find white lawyers because they are white. It is, simply, a coincidence, and as a committed non-racialist, I will never regard racial coincidences as ‘problematic.’

I have offered an explanation, but I would not offer an explanation to a judge. It is not the place of a judge to inquire into it. As far as a judge is concerned, the parties before him are the parties before him – A is A – and he must limit himself to the arguments submitted.

A sorry story

This is all a sorry story that would have been avoided – as I have previously argued in these pages – had judges and society appreciated the classical liberal (and therefore non-racial) character of constitutionalism in general and of the judiciary in particular.

As I wrote last year: ‘I am not saying judges must be dyed-in-the-wool liberals – I am saying judges must appreciate the liberal foundations of their constitutional profession. If they fail to do so, their exercise of the judicial power will tend to lack coherence and result in absurdities’.

We now see an example of just that absurdity. Liberalism is itself an outgrowth of the logic of law, and in turn constitutionalism is a product of liberalism. This reality means that a judge – whether an apartheid judge or a transformania judge – trying to engage in racial engineering is not simply inappropriate, but ab initio invalid.

The reality is that Motha removed his judicial cap when he requested heads of argument on this point. There is no dimension of the judicial role that includes or can include a responsibility to inquire into racial realities or preferences. He was under those circumstances wearing the cap of a policy commentator and no lawyer is required to submit anything to a policy commentator.

We must respect the judicial office, but we must never turn off our scepticism of power, including when exercised by judicial officers. Judges, too, must be held accountable – not only in the halls of Parliament, but in the minds of legal subjects.


 



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