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September 08 2008 at 08:10AM

By Thami ka Plaatjie

There has been much talk about the judiciary, and a number of persons and organisations have cast aspersions on them for various reasons.

The student organisation led a march to the Constitutional Court to add their disenchantment, albeit for other reasons.

Others like Professor Kader Asmal have come out with blazing guns in support of the judiciary, painfully mouthing slogans of its proverbial independence.

In truth, the judiciary and Constitutional Court play a central role in the life of society, especially one like our burgeoning democracy.

It is entrusted with the pivotal role of upholding the sanctity of the constitution, that piece of paper on whose pages the nation s values are enshrined.

Professor Mogobe Bernard Ramose, writing in his book Zimbabwe After Lancaster, makes a telling case about the role of the constitution in the life of a nation. "History shows that the struggle for justice leads to constitution-making. The constitution is made to embody and protect the principles of justice accepted by those governed by it. Justice comes before the constitution.

"Accordingly, the constitution can never be absolute and above criticism."

Put differently, the judiciary cannot be above criticism and in the same breath the constitution cannot be above rebuke.

The constitution and the judiciary are not God-ordained entities that function outside the realm and exigencies of an evolving society.

It is salutary to note from the above that since justice comes before the constitution, it may as well follow that the constitution is not the only expression and manifestation of justice.

The struggle to uphold and protect justice rests with broader society, and the constitution is but one of its mitigating entities.

In this case the conduct of the members of the judiciary, especially the Constitutional Court, is therefore not beyond reproach.

Just like the very constitution that they are supposed to protect, their position is open to scrutiny. To illustrate this fact based on practical experience is the matter that we brought before the Judicial Service Commission.

On May 7 2007 we sent a letter of complaint against Judge Siraj Desai to Judge Pius Langa in his capacity as head of the Judicial Service Commission. Another one that we wrote on May 18 2007 followed up this letter.

There was one acknowledgment that we received to this end. Another letter was served to the JSC on October 8 2007.

No practical action was taken to address our concerns. We were not called to substantiate or even test the veracity of our allegation.

In the letter written to Judge Pius Langa on October 8 I raised concerns about the lack of expeditious rejoinder. Chief Justice, it is now more than four months since we formally lodged these complaints with your esteemed office.

We expected the JSC to deal with these complaints when it sat in Cape Town on October 1 2007. May we enquire from you when the complaint against Judge Desai will be heard by the JSC?

We wish to place it on record that we only received one acknowledgement to our two letters.

The judiciary is supposed to be independent, objective and impartial. It is supposed to exhibit a sagacious attitude in its deliberation. Its verdicts are supposed to be respected as they are viewed to be apodeictic (proven by demonstration) because they have been arrived at by those who command the ability to think beyond the mundane.

The fact that judges are human beings implies that they are or can be open to subjectivity. It can be said that even in the most considered of circumstances, unavoidable subjectivity creeps in.

But the quest to balance, to be fair and to come to a dispassionate conclusion guides our respect for the judiciary.

While the JSC was acting with judicious prevarication on our concerns, in other matters they were decisive and prompt.

We are compelled to conclude that the conduct of Judge Pius Langa in a matter that we brought before his office involving Judge Siraj Desai was not handled with the necessary judicious attention.

There was flagrant disregard of our complaint and an impression of partiality in favour of Judge Desai was exhibited.

We therefore conclude that the JSC is not neutral. It is handling cases selectively and in a biased manner.

We can argue they are displaying favouritism and selective justice. We are compelled by experience to conclude that the confidence we have placed in the JSC was both misplaced and abused.

The conduct of Judge Pius Langa is both deleterious to our democracy and constitutes a serious national travesty. That the fate of the many sits - precariously - in the hands of the JSC is both worrisome and regrettable.

To quote George Orwell s Animal Farm: All are equal before the law but some are more equal than others. We favour a letter of no confidence to the JSC. n Thami Ka Plaatjie is acting president of the PAC.

http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20080908055746169C766146

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