Will the JSC debunk the myth of white judicial competence?

The stakes in the forthcoming Constitutional Court succession race are phenomenally high. In this atmosphere, lies paraded by white advocates and retired judges are accepted at face value without the benefit of scholarly refutation. Judges Carole Lewis and Kriegler have made despicable statements in which black judges were maligned under the guise of critiquing the pitfalls of affirmative action. The JSC will have to pierce through this veil of falsehoods this weekend.

Lewis delivered a lecture at the Institute of Race Relations around October 2008. She asserted that “lack of skills and experience is taking its toll on the judiciary, leading not only to poor commercial judgments but “horrifying” convictions and acquittals in criminal cases.” She reportedly “launched a scathing attack on government policy … saying the preoccupation with black economic empowerment was keeping worthy white applicants from applying for judicial positions.” Lewis said she felt that the “judiciary had ensured that all senior positions were held by black judges, and it was time for appointments to be based solely on skills and experience. … White applicants were reluctant to apply for positions as they believed they would be rejected in favour of black applicants …” As if to reveal the underlying political lobbying message in her speech she stated: “It was encouraging to see that for the first time in years senior white members of the bar are accepting nominations for positions, and are standing for positions in the Constitutional Court.” Further, she is reported to have said “We have seen horrifying convictions and acquittals, which do not follow the fundamental principles of law.”

In August 2009 Kriegler delivered a lecture at Wits University in which he regurgitated Lewis’ rambling statements condemning affirmative action and alleged black incompetence. He singled out Judge President Hlophe as a symbol of a malaise in the judiciary and stated competence was “sacrificed on the altar of transformation”. Kriegler claimed that the ANC-led government’s “misguided [methods of] transformation would have to be confronted fearlessly and honestly.” He blasted the JSC’s appointment of allegedly unqualified judges in line with the dictates of affirmative action and stated that it “eroded confidence” in the judiciary.

A scrutiny of judgments by Lewis shows her gross incompetence — she failed to follow the law and to impose minimum mandatory sentences even on rapists. In S v Nkomo 2007 (2) SACR 198 (SCA), Lewis sentenced a man who kidnapped, raped his victim five times and assaulted her to 16 years because he was employed and “relatively young”. The man was 29-years-old for crying out loud! Since when has one’s employment status been a license or excuse to be a marauding rapist? Even worse, why focus on the perpetrator’s employment status and not the devastating effects of the assault on the victim?

In S v Thebus and Another, the Concourt harshly criticized Lewis’s incompetence. She had justified the guilt of accused on the basis of his failure to advise the police of his alibi. The Concourt ruled that “An inference of guilt from the disclosure of an alibi defence only at trial unjustifiably limited the appellant’s right to pre-trial silence. Such an approach has, in effect, imputed guilt from pre-trial silence and thus trenched his constitutional guarantee to remain silent before his trial.” It concluded that this “impermissible approach adopted by the SCA adversely prejudiced or undermined the substantive fairness of the trial.” How does a white woman who publicly condemns the horrors of affirmative action and accompanying black incompetence explain her own failure to issue judgments in consonance with the values of our Constitution?

Lewis has revealed a predilection for unwarranted attacks on the integrity of black judges whose decisions she has overturned. In Sikhipha v State [2006] the accused was convicted of the rape of a thirteen-year old girl. The Venda High Court imposed a sentence of life imprisonment because there were no “substantial and compelling circumstances” that justified the imposition of a lesser sentence. On appeal, Lewis reversed the life sentence and proceeded to make excuses for the rapist by claiming that “the appellant is a first offender; that he has a wife and children dependent upon him; that he has a trade (he is a bricklayer) and makes a living from his work; that he was 31-years-old at the time of the trial, and that he is capable of rehabilitation”. Lewis minimised the horrific nature of the crime and the trauma suffered by the child — she baldly asserted that “the complainant was not seriously injured. She blithely ignored potentially devastating psychological injuries on the victim and disregarded the legislation mandating life imprisonment in such cases. In a typical “blame the black judge” or blame “affirmative action” stunt, Lewis added a bizarre peroration to her judgement: She claimed Hetisani held “a belief” that “women entice men to rape them simply by virtue of being women. Perhaps that is not what the judge meant to imply. But courts should be more cautious in their expression. It is never appropriate to suggest that men are entitled to have sex with women against their will simply because they are women, or because they have dressed or behaved seductively. A court should not condone such a view let alone express it.” Judge Hetisani certainly harboured no such despicable views — he demonstrated his strict approach by handing a life sentence. In contrast, Lewis, commiserated with the rapist and slashed the sentence on the grounds that the child victim did not sustain “serious” injuries during her ordeal.

Lewis, the supposed champion of women’s rights, showed her true colours again in the case of Makatu v State. The appellant pleaded guilty to murdering his wife at her workplace and was sentenced life imprisonment. Lewis focussed on what she claimed was “evidence in mitigation of sentence”. Lewis accepted the nonsense by the accused that he had decided to go to the deceased’s office “to tell her that he had a firearm belonging to her brother”. Upon arrival the deceased immediately told him that she was not interested in him and asked that he leave. This triggered bad memories of what she had done and said in the past — he executed her. Lewis made excuses for the obsessive jealous murderer. She claimed: “There are other inferences to be drawn, however, and the evidence does not support a finding that the appellant had taken the firearm with the intention of shooting his wife … the conclusion of the court below that the murder was premeditated is wrong.” Her search for “premeditation” sends her into the world of legal metaphysics — she ignores all evidence and clutches on to transparent excuses proffered by the killer. She imposed a sentence of 12 years’ imprisonment claiming it “would send a strong deterrent message to the community”.

DPP, Transvaal v Mtshweni, highlights Lewis’ troublesome approach to decisions by black judges. There, Judge Willie Seriti, an accomplished black jurist, presided over a criminal trial involving a young black man, Eric Mtshweni, charged with the murder of a white woman, a Mrs A C Hennop, and attempted murder of her husband. Justice Seriti acquitted the accused on all counts. The state reserved a question of law for decision by the SCA. The SCA panel that heard the appeal consisted of exclusively white judges, Lewis, (who authored the judgement), Cloete and Farlam. Lewis’ judgement is very condescending toward Judge Seriti. She states: “In argument at the end of the trial Mr Broughton for the state tried to explain to Seriti J the decision not to call the ballistics expert to give evidence. Regrettably, the trial judge did not understand the argument. A judge’s rejection of a litigant’s argument does not amount to failure to “understand” the argument. Judge Lewis reached a bizarre and startling conclusion. She stated that Seriti “had a duty, in view of his belief that it was essential to the just decision of the case, himself to call the witness … The trial court in this case, given its firm view on the importance of the ballistics report, was therefore under a legal duty to call the ballistics expert. Its failure to do so amounted to an error of law.” In an adversarial system of justice, the judge is not expected to do the prosecutor’s job.

Lewis ordered a retrial of the accused. She concocted a transparently artificial solution around the iron-clad “double jeopardy” principle and stated: ” … the trial in which the accused was acquitted was vitiated by an irregularity such that the acquittal was not one on the merits of the charge. … Thus where an acquittal is based on the wrong answer to a legal question a retrial does not in fact amount to double jeopardy.” An acquittal of a black man for alleged killing of a white was not going to be allowed to stand. Lewis conjured up a grossly incompetent interpretation of Justice Seriti’s judgement in order to rule that the acquittal of the accused was not on the merits. She concluded: ” … the acquittal was based on the trial judge’s failure to call a witness whose evidence he thought was essential to a just decision in the case. … There was thus a serious defect in the proceedings that vitiates the trial. A retrial on the same charges will not place Mtshweni in jeopardy again: he was not in jeopardy in the trial before the court below because of that court’s error of law.” To arrive at this nonsense Lewis claimed that “neither in English law, nor in Canadian or American law has the protection against double jeopardy been extended to cases where an acquittal had resulted due to technical mistakes, lack of jurisdiction or a reason other than a wrong finding on the merits of the case.” A flagrant falsehood! That a defendant may not be retried following an acquittal is the most fundamental rule in the history of double jeopardy jurisprudence. While in other areas of double jeopardy doctrine consideration is given to the public-safety interest in having a criminal trial proceed to an error-free conclusion, no such balancing of interests is permitted with respect to acquittals, “no matter how erroneous”, no matter even if they were “egregiously erroneous.” Burks v. United States. In Sanabria v United States, the US Supreme Court ruled that “when a defendant has been acquitted at trial he may not be retried on the same offence, even if the legal rulings underlying the acquittal were erroneous”. Contrary to Lewis’ patently false statement, the question of whether a defendant was “in jeopardy” in the first trial is not determined by the nature of the errors allegedly committed by the trial judge. In a bench trial, jeopardy attaches when the court begins to hear evidence.

And finally, Lewis did something that has now become a pastime for the judges on the SCA — she deliberately impugned the integrity of Judge Seriti. She ordered a retrial “provided that no judge or assessor before whom the original trial took place shall take part in the proceedings” even though there was no allegation that Justice Seriti was biased.

The cases discussed above are sufficient examples of instances where Lewis demonstrated her gross incompetence even as she was railing against the horrors of “affirmative action” judges — a case of the pot calling the kettle black. Alleged errors by individual white judges are denied while those of black judges are ascribed to the horrors of affirmative action policy. The rubbish advocated by Kriegler and Lewis about the horrors of affirmative action appointments must be exposed and be rejected emphatically. The myth that whites enter the JSC interview room with a presumption of competence whereas blacks are only affirmative action candidates who defensively have to prove their qualifications must be abandoned. This new approach is pivotal in the battle for the heart and soul of the South African judiciary.