Johannesburg - If the judiciary is to transform, the values of the Constitution should be of the most importance when judges apply their minds and when they are appointed, former Constitutional Court justice Zak Yacoob said on Wednesday.
Speaking at the Ahmed Kathrada Foundation's annual conference in Johannesburg, Yacoob said a problem within the judiciary during apartheid was that most judges were racist, sided with authority, and were affected by appearance.
“Judges in those days judged in favour of authority,” he said.
“... The rich and poor were certainly not treated equally in our courts... and not judged equally. There was a great deal of arrogance and rudeness.”
He urged judges today to apply their duties with more humanity, as they were judging human beings and should embody the values of the Constitution.
However, given the past tendencies of the judiciary, even though the majority of judges now sitting on the bench were appointed after 1994, some judges were still being appointed who were “guilty of the weaknesses of the past”.
“I'm afraid judges have been appointed from both sides of the divide and we should try and make sure we have some kind of reconstruction at that level,” he said.
“Everybody must be treated equally. The values of the Constitution are supreme... The government is not supreme at all, the Constitution is.”
Yacoob said that given the choice of appointing either a black or white person as a judge, where the black person did not accept principles of equality and Constitutional values, while the white person did, he would appoint the white person.
The appointment of judges who still favoured authority was the beginning of a slippery slope.
As such, judges before the Judicial Services Commission (JSC) should be quizzed on constitutional supremacy, parliamentary supremacy, and the distinctions between the two.
“All law, including the common law, has to be consistent with the Constitution,” Yacoob said.
“In a sense, our judiciary would improve if there is a concerted effort to square our common law with the Constitution.”
Judges needed to understand power, and that they were not simply umpires when deciding a case and should weigh in.
Judges needed to start judging in a new way, and while a measure of formality was needed, it should not be over-emphasised to the detriment of justice, he said.
Sapa