Operating in accordance with the law or with justice?

IT IS appointment of judges season in South Africa, and all manner of candidates are pitching for the coveted jobs. On the 2019/20 figures, the annual remuneration of judges was: Chief Justice – R2 896 107; Deputy Chief Justice – R2 606 428; judges of the Constitutional Court – R2 316 919; President of the Supreme Court of Appeal – R2 606 428; his/her Deputy – R2 461 674; judges of the SCA – R2 316 919; Judge President of the High Court – R2 172 165; his/her deputy – R2 027 241; a judge of the High Court – R1 882 486 (Government Gazette, March 25, 2020).

The Booklet on the Conditions and Benefits for Judges indicates that a judge has a choice between the following cars (“within the class concerned”): Mercedes-Benz S350; BMW 740iA or any less expensive sedan.

There are other benefits too numerous to mention. Judges typically remain in service up to the age of 70 – compare that with the retirement age of other employees. A judge who has been discharged from active service continues to draw a salary up to the first day of the month in which he/she dies. The salary is calculated by dividing the actual salary he/she earned while in service by 15, then multiplying that by the number of years he/she served. Let’s take the lowest of the figures mentioned above as an example, and suppose the judge worked for eight years: R1 882 486 ÷ 15x8 = R1 003 992.53 a year.

When you consider these payments and benefits, which are borne by the taxpayer, you might hope that only the best legal brains would pitch for judgeship. You would have been wrong – if what we have seen on social media is anything to go by.

Because of space constraints,I shall debate only two aspects of the responses apparently provided by advocate BR Tokota to questions asked by EFF leader Julius Malema.

Pressed on his history as a magistrate under apartheid rule, he argued that the law is the law. Therefore, by implication, he had no choice but to enforce it even though he might not agree with it. He also contended that some judges under apartheid did not apply certain apartheid laws. He suggested that such judges might develop the law into something more humane.

Interestingly, he made the point that the law is the law after asking what he should have done during apartheid. Should he have decided not to become a magistrate? That, exactly, is the issue. He had the choice to be part of the system or not to be part of it. He chose to be part of the system and enforce its laws in much the same way many lawyers and judges elected to be part of Adolf Hitler’s law machinery in Germany. Instructively, they also argued: Das Gesetz ist das Gesetz – the law is the law!

The tribunal held them accountable to a higher legal standard: when the law denies natural justice, it must be denied the nature of law! And lawyers and judges must find the moral courage to do the right thing.

The second point advocate Tokota argues is just as dubious. I have gathered from the interview that he is about 64 years old. It is safe to suppose that he would know something about Professor Barend van Niekerk and his misfortunes with the South African judiciary during apartheid.

Those misfortunes arose from his persistence that judges should allow section 6 of the Terrorism Act to fall into disuse by refusing to admit statements extracted from people detained under that law. Precisely the point advocate Tokota argues about judges having the ability to “develop” the law and make it more humane! To the best of my recollection Professor Van Niekerk was convicted twice by the judges he urged to “develop the law”, for making that argument.

Another illustration that advocate Tokota has hold of the wrong end of the stick is the case in re Dube (1979). Under the Black Urban Areas Consolidation Act, a policeman could arrest an African man who appeared to him to be idle, and make him appear before a Bantu Affairs Commissioner.

If you could not give a good account of yourself, the commissioner could declare you “an idle and undesirable Bantu” and sentence you to a “labour colony”. Your case had to be sent to a judge to certify that what happened to you appeared (to the judge) to have been in accordance with justice.

Dube’s case was reviewed by Judge John Didcott. He said what had happened to Dube “may have been in accordance with the legislation and, because what appears in legislation is the law, in accordance with that too. But it can hardly be said to have been ‘in accordance with justice’”.

He released Dube because the law required him to certify that he had been treated justly.