this is the real rule of law

An exclusive interview  with former Judge Johan Kriegler at his his house. Picture: SIMPHIWE NKWALI/ 04/09/2009------mainbody weekpicsfull colourW: 40cm
An exclusive interview with former Judge Johan Kriegler at his his house. Picture: SIMPHIWE NKWALI/ 04/09/2009------mainbody weekpicsfull colourW: 40cm

IN THE 1980s you had to be "counter-revolutionary", or worse, adjudged to be "causing confusion" to become a legitimate target for a mob lynching.

In present-day South Africa woe unto those who should be found guilty of the treasonous offence of being "anti-transformation".

Be very afraid when this charge is laced with that last refugee of scoundrels, charlatans and the illogical - race and identity politics.

Just as with other terms that evolved from the same space, being "anti-transformation" has come to mean disagreeing with what on the day happens to be a popularly held thought, especially within the ruling party alliance.

If apartheid had the godless communist as its ultimate bogeyman, democratic South Africa has the "anti-transformationist".

If you also happen to be white, then the charge of being anti-transformation is proved beyond all reasonable doubt.

Former Constitutional Court judge Johann Kriegler is the latest of these so-called anti-transformation heretics who must be burnt at the stake to appease the gods of the revolution.

We are told he is anti-transformation because he thinks there was something wrong with the Judicial Service Commission choosing not to weigh the contending versions of what really happened when Cape high court Judge President John Hlophe approached two Constitutional Court judges to a cross-examination.

Kriegler's accusers think that his being white and a judge during the apartheid era is enough to corroborate their suspicions of his credibility.

It might very well be that Kriegler is anti-transformation. But surely asking a court to look into a conclusion you are convinced is a wrong one cannot be the smoking gun that proves your case.

That is why I was shocked to hear a fellow, said to represent the Black Lawyers Association, denounce Kriegler as anti-transformation and not respecting institutions of democracy because he announced he was taking the JSC's decision to court.

You would think that lawyers know better than everybody else that half of counsels that appear before a court leave the chamber happy, while the other believe the judge to be a complete idiot.

No sensible person thinks that Pretoria high court judge Nkola Motata is showing contempt for the bench by appealing against his drinking and driving conviction.

It should be no different if Kriegler or whoever else who wishes to make a higher authority or tribunal rule over a matter another forum has decided on.

Hlophe has accused the JSC of being biased and violating his rights. It was his right and that did not make him anti-transformation.

When the JSC went ahead with hearings against him in his absence, Hlophe successfully got the Johannesburg high court to interdict the commission's intended hearing.

Kriegler therefore can be said to be copying Hlophe's behaviour.

Nobody complained and impugned motives on Hlophe, and correctly so. That is the beauty of living in a vibrant democracy based on the rule of law.

As with everyone else, Kriegler is not beyond criticism. Neither should we assume that he is any better or worse than the average person.

It might very well be that Kriegler is motivated by other reasons than the one he professes. But that is hardly the point. If he has a weak case, the state of his heart and the levels of his melanin content will not matter. The same applies if he has a strong case.

This is not and cannot be about Kriegler. It is about right and wrong and us deferring to the courts for that determination if we cannot agree.

It is what we understand the rule of law to be.