By Edmond Phiri
As a country deeply marred by its past, institutions such as the judiciary stand as a bastion of fairness and justice as well as guardians of our democracy.
However, recent developments compel us to scrutinise the notion of judicial impartiality. Lately, we have witnessed the rise of 'lawfare' and contentious decisions that raise profound questions about the impartiality of this august institution.
The concept of 'lawfare', as explored in-depth by Kate Dent, a PhD graduate from the University of Cape Town, highlights the judiciary's increasingly prominent role in settling contentious political disputes.
Lawfare, in this context, refers to the strategic use of legal proceedings in political battles, often bypassing traditional, non-judicial avenues of conflict resolution.
This trend places enormous pressure on the judiciary, challenging its ability to remain impartial amidst the tumultuous currents of political agendas and public sentiment.
A striking example of a potential judicial conflict of interest is the case involving Judge Trevor Richard Gorven, currently a Supreme Court of Appeal (SCA) judge. In the recent SCA interim appeal on the “bank account closures” matter involving JSE-listed black-owned company, Sekunjalo against Nedbank, he ruled in favour of Nedbank.
Judge Govern is the co-founder and Treasurer of Pietermaritzburg-based NGO Dusi Umngeni Conservation Trust (DUCT), which lists WWF Nedbank Green Trust as one of its funders and sponsors. His ruling in favour of Nedbank raises critical questions about the possibility of bias and conflict of interest, casting a shadow over the perceived impartiality of judicial proceedings.
Furthermore, the composition of the judiciary in racial discrimination cases calls for serious scrutiny. The decision to appoint a panel of five white judges by the SCA in a racial discrimination case, in a country with an 80% black population, appears tone-deaf to the nation's historical and ongoing struggles with racial inequality. Sekunjalo’s case is about unfair discrimination based on race (which is black) and raises serious questions judiciary's sensitivity to South Africa's diverse racial fabric as well as perceived impartiality. For this type of case, the composition of the SCA bench cannot be ignored.
In the case, the SCA overruled Western Cape High Court Judge Dalamo’s interim interdict judgement – stating that Sekunjalo did not prove that it was discriminated against because it was black when Nedbank closed its accounts. “A plausible inference could not be drawn that [Sekunjalo] was the victim of unfair racial discrimination by Nedbank,” the SCA said.
In a journal titled 'Are Judges Human?', the issue of judicial impartiality is closely examined. American legal theorist and judge, Jerome Frank, delves into the complex interplay between a judge's personal biases, experiences, and their interpretations of the law. His examination reveals that while judges strive to embody the principles of fairness and impartiality, their decisions are inevitably influenced by their individual perspectives and human nature.
Furthermore, Frank’s analysis underscores the reality that judicial decision-making, despite its objective aspirations, is not immune to the subtleties of human emotion and cognitive biases. That understanding calls for a nuanced approach to judicial impartiality, one that recognizes the efforts of the judiciary to balance their human attributes with the demands of legal objectivity and fairness.
Chief Justice Raymond Zondo has emphasized the importance of the judiciary’s duty not only to being impartial but also to appear to be so. His leadership in the State Capture Commission has been pivotal in demonstrating the judiciary's potential to act as a check against corruption and uphold the democratic values enshrined in the Constitution.
However, allegations of corruption and political manipulation within the judiciary, as highlighted by Johannesburg lawyer Raymond Edward Chalom, indicate a troubling undercurrent. The appointment of judges, influenced by personal connections, political affiliations, and other non-legal factors, undermines the integrity and independence of the judiciary.
Despite these challenges, the Constitutional Court has demonstrated a remarkable commitment to upholding the rule of law. It has navigated the era of lawfare with a resolute stance, maintaining its integrity even under intense political and societal pressures. This steadfastness is a testament to the judiciary's crucial role in preserving democracy and justice in South Africa.
The judiciary's journey is, however, not without obstacles. The need for introspection and reform is evident. Transparency in judicial appointments, diversification of the bench in race-relations cases, and strengthening conflict-of-interest mechanisms are essential steps toward reinforcing public confidence in the judiciary. These reforms would not only enhance the judiciary's credibility but also ensure that it reflects the complex and diverse society it serves.
Moreover, the judiciary must navigate the delicate balance between upholding the law and being sensitive to the socio-political context of South Africa. Decisions must be grounded in legal principles while also being cognizant of their broader impact on society. The judiciary's role in shaping public perception and influencing the course of South Africa's democratic journey cannot be understated, especially coming from our apartheid past.
The health and legitimacy of the legal system are implicated at the core when Judge Govern’s “real” or “perceived” conflict of interest and the SCA lily-white bench in the racial discrimination matter of Sekunjalo is looked into. The case further brings to light the intricate challenges faced by judges in applying the law within a society marked by historical and systemic injustices - raising pivotal questions about the attainability of true judicial impartiality in such a context.
Will the ideals of impartial justice be fully realised in a society still confronting the shadows of its past, or will judicial impartiality remain a myth?
* Edmond Phiri is an independent writer and commentator.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.