Publication: Cape Times Issued: Date: 2005-06-06 Reporter: Anthony Holiday

Shaik Judge Shows Path to Change *1

 

Publication 

Cape Times

Date

2005-06-06

Reporter

Anthony Holiday

Web Link

www.capetimes.co.za

 

Letters

Liberty demands discipline, restraint and obedience to law

In Durban's High Court last week, a silver-haired judge with a mind even sharper than his temper showed South Africa something of the painfully frictional path it must tread to transform itself into a competitive modern democracy and its judicial system into an effective instrument of that form of governance.

When Justice Hilary Squires convicted Schabir Shaik of fraud and corruption, he did much more than issue a judgment in what must surely rank as one of the most fraught, intricate and portentous trials in this country's legal history.

He provided us with an invaluable insight into the dynamisms of modern jurisprudence, the value it sets on scrupulous attention to detail, its ruthless detachment and its ineluctable drive to follow an argument, wherever it leads.

This former University of Cape Town student athlete showed thousands of viewers, who watched him deliver his mammoth finding, something of the standards of intellectual fitness and control that service to the highest values of his profession demands.

Indeed control - of his courtroom and of himself - was a notable feature of the proceedings. Judge Squires kept a tight rein on conduct in his domain, checking any breach of decorum with a gimlet stare over the rims of his glasses.

But this meant he had also to curb his own evident tendency to irascibility. At one point, clearly annoyed by some spectator's infraction, he was heard to hiss under his breath: "What the bloody hell do you think you're doing?"

The whole performance was an exercise in discipline and self-discipline, such that no reflective observer could resist comparing its stately progress with the disordered emotionalism of the Truth and Reconciliation Commission, or this judge's forensic detachment with the tearful pleading and revivalist outpourings of the TRC chairman, Archbishop Desmond Tutu. The trial preserved a sobering gravity that the commission, with its crying rooms, comforters and cornucopia of compassion, conspicuously lacked.

The difference is not surprising. Judge Squires's conduct draws sustenance from a centuries-old tradition of Roman-Dutch law, a system designed precisely to allow conflicts between individuals, social groups and even states to be fought out in an arena constituted by an arrangement of evolving rules and precedents.

He was guided too, as his judgment shows, by our constitution, an instrument that subjects the state to the rule of law in a conception of politics that harks back to the philosophy of that great admirer of the French Revolution, Immanuel Kant.

The TRC, by contrast, originated in a political arrangement, intended specifically to prevent conflicts and minimise friction. Accordingly, it eschewed what Tutu called "cold" objectivity and the natural desire of injured parties for just retribution - which the TRC protagonists called "revenge" - concentrating instead on dispensing psychological "healing" to victims and victimisers alike.

The results of its ministrations were that some of apartheid's most notorious butchers went unpunished, the full truth about their machinations still awaits disclosure, and many of the system's victims and their relatives remain unreconciled to that state of affairs.

Be that as it may, the direct intention behind the TRC's creation was never to promote democracy. Rather, it was set up so that the work of promoting a democratic order could proceed in a relatively tranquil climate. Thus, the need to avoid conflict in the wider community, even at the cost of frustrating natural justice, was always in the minds of those directing its operations.

Judge Squires, by contrast, though he must have been intensely aware of the extrajudicial upshots of his judgment, paid no wit of heed to anything other than the evidence and arguments before him.

That his findings could spell death to the career of Deputy President Jacob Zuma, fracture the fragile unity that binds the ANC to its trade union and communist allies, and further enrage those populists who see the judiciary as an alien and hostile elite, mattered not a jot to him while he was doing his job.

A brand of justice blind to such eventualities was what a lifetime's training had taught him to aim at and that was what he achieved.

Unlike the TRC, moreover, Court A in Durban was not a place to seek solace or comfort from affliction. Shaik's clenched jaws and furrowed forehead as he listened to the 165-page judgment were ample witness to that.

The place was an intellectual cockpit where people, no less than evidence, were put to the test. It served to remind us that the legal instruments of democracy are painful to apply. They cauterise rather than heal.

Further, head ruled heart in the learned judge's courtroom. In Tutu's theatre, the reverse was true. This is not to say that the passions have no place in democracy. It is to say that they must be kept in their place and that often, when the chips are down and the stakes high, that place is emphatically a secondary one.

In South Africa at present the bidding is extremely high and hazardous. At issue is not only whether Zuma can continue to aim at the presidency or stays on in his present post, but whether we can cleanse our nation of corruption without killing off such solidarity as still prevails among our leaders and betwixt ourselves.

Had the National Prosecuting Authority allowed those risks to scare it, had it feared the friction this trial would undoubtedly provoke, this messy little millionaire might never have found himself in the dock.

The lesson of all this, I think, is that if our democracy is to flourish as the authors of the constitution intended and as the developed world we aspire to join expects, then we need more of the kind of medicine dispensed in Court A. We must learn that liberty, unlike licence, entails bridles and bits that may bite deeply; that the judgments and choices free persons make are restrained by intellectual habits, which many find difficult to acquire, and that there are far fewer comfort zones in a democratic community than those who wish to live in one often believe.

The Shaik hearing also has something to teach us about the vexed question of judicial transformation. It is agreed on almost all hands that the judiciary and the legal profession generally need to be more representative of the ethnic and socioeconomic mix that is South Africa. But representivity is only part of the sea change that needs to happen.

We need, through rigorous education and selection, to increase those qualities of objectivity, mental acuity and sobriety the Bench must have if it is to serve effectively the dispensation ushered in during 1994. Judge Squires has shown us the way.

• Dr Holiday teaches philosophy at the University of the Western Cape and is an associate researcher with the Centre Interdisciplinaire de Recherche in Paris.

With acknowledgements to Anthony Holiday and the Cape Times


*1  An old article, published on the Arms Deal VPO ( http://www.armsdeal-vpo.co.za), but not via the email list server.

A late Christmas gift of an excellent and foresightful article for anyone have withdrawal symptoms from the normal daily fare delivered throughout the year by our diligent media and observers.