By Linda Stewart
The previous judgments of the designated chief justice speak for themselves. Justice Mogoeng’s approach to the law clearly emerged as that of a patriarch with little or no appreciation to the foundational constitutional values of human dignity and equality. It is undeniable that the judicial philosophy of a judge will surface once the reader is confronted with his judgments. What is particularly concerning is his denial of marital rape and of male rape (or at that time assault), his support of the death penalty and his arguments that the victims of sexual violent crimes contributed to the crime committed against them. From a feminist perspective these judgments contradict our very beliefs. It necessitates our outrage and criticism but is also forces us to investigate the underlying reasons for such views. It confronts us with the question what do we expect from a chief justice.
Traditionally approaches to law (legal formalism, liberal legalism or positivism) accept a strong divide between law and politics and law and morality. According to these approaches judges reach decisions by ‘applying the law’. In theory judges do not produce laws. Most legal scholars in South Africa are familiar with and proponents of legal formalism because of our inheritance from the British doctrine of parliamentary sovereignty, the majority of us received our tertiary education based on this his approach and during the apartheid years, as this approach suited the judicial approach of not questioning the content of the laws made by parliament.
The Constitution however expects more from the judiciary and legal scholars than merely applying the law. The Constitution and its transformative mandate requires that judges adopt new approaches to law recognising that law texts do not speak for themselves, rather judges need to engage with these texts to interpret and produce meaning to it. The implication is that judges are producers of law, and in doing so judges are positioned actors that draw on their personal and political choices. This approach to law, known as the critical approach to law, recognises the indeterminacy of legal text and the active role of the judiciary in providing meaning to legal materials.
Transformative constitutionalism envisioned by our Constitution has been described by former CJ Langa as a vision that ‘suggests change in society based on substantive equality’. Deputy CJ Moseneke has argued that transformative judicial adjudication should pursue social justice and central to this is the achievement of equality, an impossible goal unless current power structures in relation to society are addressed. In addition he comments that liberal legalism or formalism balks at the idea of transformative adjudication. At the centre of transformative constitutionalism is the idea that substantive equality can only be reached when the judge or scholar working with legal materials recognise that the law is a social construct that reinforces these inequalities and differences. Critical Feminist scholars have engaged with the law from this perspective to expose its gender bias, and have extended the argument for other disadvantaged categories such as race, sexual orientation and class. For Critical Feminists, the evil is not indifference but rather in the negative impact resulting from this differentiation. Critical Feminist Theory as part of the critical approach to law has valuable contributions to make in a judge’s interpretation and adjudication of the Bill of Rights especially when she needs to fill her mandate to produce meaning in relation to values of equality, dignity, ubuntu and freedom.
Despite of the constitutional imperative to adopt new approaches to law, law may change on paper but legal culture and approaches to law may remain stagnant. This is precisely the predicament we are facing in South Africa. With the exception of a number of judges, the majority of the judiciary (judges and magistrates) and the legal community are still confined within a legal culture where judgments are pursued from a strict approach to legal formalism and were judges still believe “the impossible”; that law and politics and law and morality can be separated.
We need a Chief Justice who:
- supports a critical approach to law
- recognises that law and politics as well as law and morality are interrelated and that this assumption is foundation to her judicial philosophy;
- is committed to transformative constitutionalism, and the foundational values of equality, human dignity, freedom and ubuntu in our Constitution;
- is critical to the power structures that maintain inequality and patriarchy;
Albertyn C & Glodblatt B ‘Facing the challenges of transformation: Difficulties in the development of an indigenous jurisprudence of equality’ (1998) SAJHR 248-276
Klare K ‘Legal culture and transformative constitutionalism’ (1998) SAJHR 146 -183
Langa P ‘Transformative Constitutionalism’ (2006) Stell LR 354-360
Moseneke D ‘Transformative Adjudication The Fourth Bram Fisher Memorial Lecture’ (2002) SAJHR 309-319
Pieterse M ‘What do we mean when we talk about transformative constitutionalism?’ (2005) SAPL 164-165
Van Marle K ‘Transformative Constitutionalism as/and Critique’ (2009) Stell LR 286-301
Van Marle K ‘Revisiting the politics of Post-Apartheid Constitutional Interpretation’ (2003) TSAR 549-557