THE SOUNDS OF SILENCE? - Jeremy Gauntlett
CONFERENCE OF THE SOCIETY OF LAW TEACHERS
STELLENBOSCH, 17 JANUARY 2011
PLENARY ADDRESS:
THE SOUNDS OF SILENCE?
Thank you for the honour this invitation constitutes. It stirred many feelings in me. The first was doubt as to how your Society took that decision. I say this because I know the way my own profession takes decisions. This is best exemplified by the decision of the Johannesburg Bar Council some 40 years ago. A well-regarded but cantankerous judge was hospitalised. A delegation was despatched by the Bar Council to his hospital bedside. The leader cleared his throat and told the judge that the Johannesburg Bar Council had mandated him to convey two messages. The first was that he was asked to wish the judge on behalf of the Johannesburg Bar a speedy recovery. The second was to tell the judge that this was on a vote of six to five.
My second feeling was one of nostalgia: nostalgia for those who taught me here, and who either as teachers or as fellow students became my friends for life; and those who taught me, or with whom I worked, in my own postgraduate life. Allow me to mention JC de Wet, Willem Joubert and Tony Honoré – now in his 62nd year of teaching at Oxford. I and many of my colleagues in practice owe an inexpressible debt to you and to your predecessors. It concerns me that often law teachers seem to doubt the worth of what they do. Their task is ancient and vital. As CP Snow writes of Cambridge in his elegaic novel about university ambition, The Masters, it “[i]s hard not to think of other men walking as we did, of the chain of lives going back so long a time, of others walking those same narrow streets in the rain”.
That is not to say that law teachers at times lack brutality. I remember Sir Rupert Cross, great writer and teacher on the law of evidence, handing back collections (essays) at Oxford and saying: “I know you can’t help your laziness, but you should really try to do something about your stupidity”.
When you invite a practitioner to speak, you should know that his own scholarship will not have been sustained by the bits of writing and lecturing which only earlier years at the Bar readily allowed. So I do not venture a scholarly theme. On the other hand, if you expect me to speak about things that matter to the profession, I shall do so, but only in part. For what I want to talk about today is a common malaise: a lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa. My thesis is that, for all lawyers, there are disturbing developments about which we are insufficiently articulate and active.
I have often thought that the trouble with political revolution, velvet or otherwise, is that it gives rise to the same illusions as university graduation. There is the sense of attainment and finality, of a status achieved and no more to be learnt or done. I believe the converse is true. It is just a beginning. That is true of the commencement of constitutionalism in 1994.
Let me illustrate my point with scattered examples from three different areas of our shared complacency. The first concerns adjudication. The second concerns legal practice. And the third concerns you, law teachers, what you do in legal education and what we, the legal profession, do or should ourselves do in legal education.
Time does not permit today to speak in detail of the many challenges with which I believe courts in Southern Africa are confronted. I would however like to say two things in this respect. The first is that it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function. I do not mean by this that there should be anything less than professional respect for judges, and least of all that there should be the kind of attacks on courts, chiefly by political figures, which from time to time have been manifested. But other than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court?
Those of you who are public lawyers may not agree with it all. You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so. Do you have nothing to say when the Constitutional Court, in the New Clicks case, produced 446 pages of judgments (deciding the matter, like the Johannesburg Bar Council, “by six to five”). Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?
This is not a matter of words, although as lawyers we know that there can scarcely be expressed thought without them. As Lord Hoffmann has written, our legal lives are, as TS Eliot suggested, essentially an “intolerable wrestle with words and meanings”.
No, what we are concerned with is the lack of legal clarity. And as Lord Bingham has recently written in his wonderful book on the rule of law, which I commend to all of you, one of the first requisites for the rule of law is clarity in the law. The consequence, we have seen too often in recent years, has been decisions in which one battles to find a ratio, when there is a self-indulgent multiplicity of voices, and when, as Nugent JA stated in Makambi v Member of Executive Council, various Constitutional Court decisions on the same issue require the courts to go “in diametrically opposed directions”.
Beyond this, there are other institutional issues relating to the courts. One is the gross disparity in funding. The Constitutional Court draws on R8 million in funding for its library. The Supreme Court of Appeal, having to cover all fields in the law, submitted a budget for R1,2 million this year. It has received just R100 000. That includes acquisitions for the chambers of the 22 judges. Obviously no text books can be bought, or subscriptions to law journals sustained. The Johannesburg High Court is in a similar crisis. Yet in recent months we found R71 million to subvent a gathering of world youth on the not-new topic of imperialism. It was Heine who said (with deadly prescience) that the nation that begins by burning books ends by burning people. Perhaps we can say that the nation that begins by disparaging legal scholarship risks renouncing law itself....
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Jeremy Gauntlett SC is a Beit and Rhodes Scholar, and was awarded a Harvard Graduate Fellowship. He is an advocate and senior counsel admitted to Cape and Johannesburg Bars, and member of Gray's Inn, London. He has been a Judge of Appeal of Lesotho since1996. He is a former chair of the General Council of the Bar of South Africa, president of the Cape Bar and commissioner of the SA Law Reform Commission. He is currently co-chair of the Forum for Barristers and Advocates of the International Bar Association. He has been a member of the UCT Council since 1996.