Azhar Cachalia in conversation with Ann Bernstein
- Azhar Cachalia, former judge of South Africa’s Supreme Court of Appeal and now a visiting professor at Rhodes University, joined Ann Bernstein in this CDE Conversation to discuss the current state of the nation and the rule of law.
- While acknowledging that it was never going to be an easy task to build a democratic post-apartheid society, Cachalia rejected the idea that our present difficulties were inevitable. He acknowledged that the legacy of apartheid would endure for some time, but maintained that many of our problems today stem from poor political and policy choices in the present. The failure to build on a rich tradition of non-racialism, which in the past drew on the best from all communities, is also part of the problem, he said.
- Cachalia noted that a strong and independent judiciary remains a pillar of South African democracy, but cautioned that not all judges who have been appointed have the necessary experience or expertise. While we have highly capable judges in all our courts, there is a particular weakness in commercial law.
- In the first decade of democracy, the system of judicial appointments – overseen by the Judicial Service Commission (JSC) – worked reasonably well according to Cachalia. After Jacob Zuma was elected President, there was a sea change: the judiciary and the JSC became highly politicised. Many candidates who went through the JSC interview process felt uncomfortable and abused. Several good candidates were overlooked, and others did not apply. That resulted in a diminution in the judiciary’s status and standing.
- Cachalia stressed that the JSC needs to be able to justify appointing one person over another through a rational process that balances the weighting given to race and gender, while maintaining competence as non-negotiable. He argued that 30 years into democracy, we should have reached the stage where we can intelligently apply constitutional criteria in the appointment process to ensure a competent, diverse judiciary.
- He argued that black economic empowerment, focused on wealth transfers from white capital to the politically connected black elite, has drifted from its original goal of promoting the inclusion of black people into the mainstream economy. He called for a rational debate on transformation focused on addressing unemployment and advancing non-racialism.
- In his final reflection, Cachalia urged judges to speak out on abuses of the rule of law, and called on citizens to be actively involved in defending our constitution and building an inclusive, democratic society.
