When trouble hits, just rouse a judge from retirement

Our morbid fascination with judges must end.

Whenever an organisation is in trouble, we call these otherwise good men and women out of retirement to solve complex social problems for which they are decidedly not qualified.

The quick recourse to judicial rescue is an act of intellectual laziness, an attempt to give a veneer of objectivity to a problem that could have been resolved through other kinds of expertise. Let me explain.

Judge Sisi Khampepe investigated racism at Stellenbosch University.

Three judges (retired Supreme Court of Appeal president Lex Mpati, assisted by Khampepe and retired judge Azhar Cachalia) now head a five-person panel to determine whether university leaders (the vicechancellor and the chair of council) lied to key organs of the University of Cape Town (UCT) about a senior appointment.

A panel headed by former chief justice Sandile Ngcobo was tasked with determining whether President Cyril Ramaphosa has a case to answer with regard to the Phala Phala debacle where hundreds of thousands of dollars were found stitched up in a couch on our leader’s farm.

When in trouble, whether on a campus or a farm, rouse a judge from retirement. Let me be clear, all these judges are probably great jurists. They know the law and no doubt they are good at their craft.

Having testified before Khampepe as an expert witness on racism at SU, I can say that I was very impressed with both the knowledge and generosity of this amazing legal mind.

I have no doubt that future generations of law students will study and recite her words with deserved admiration for a rare ruling that sent an African president to prison: “The only appropriate sanction is a direct, unsuspended order of imprisonment.

“The alternative is to effectively sentence the legitimacy of the judiciary to inevitable decay,” Khampepe and her colleagues might well have saved the SA judiciary with that wellreasoned judgment.

My point, however, is a different one, if I may stick with Khampepe. To ask the good judge to investigate something as complex as institutional racism within a short period of time is to stretch the limits of her expertise.

The judge is not a sociologist of institutions, an organisational theorist or a higher-education analyst of racism who could provide the depth, nuance and layers of qualitative data to bolster her bold claim that SU has made only “theoretical strides towards transformation”.

For this complex phenomenon we could have benefited from the expertise of organisational specialists, social psychologists, and scholars of institutional culture. Similarly, three judges in the case of the UCT investigation is clearly a case of judicial overkill.

You need expertise on the operations and culture of an academic senate, understanding of the institutional rules determined by council and someone with insights into the qualities of leadership required for an institution of higher education.

I am sorry, but those kinds of insights lie beyond the expertise of judicial officers. Nor is the appointment of a judge a guarantee of high-quality reports.

I got into some trouble for saying this, but I repeat: If a group of my honours’ students had written the Phala Phala report, I would have failed all of them and barred them from any further studies at a respectable university. It is a lousy report even if the standards of evidence required by the brief is low.

Hearsay can never substitute for a chain of evidence, the very basic requirement for acceptable research in any field.

Someone responded on Twitter that Ngcobo got a degree from Harvard but would not qualify for one at SU. What a silly remark. Judges are humans who must be respected, but sometimes they deliver substandard work, as in the investigation of the president, and we must have the courage to call it out.

Underlying our obsession with judges is the misguided perception that they alone can be objective in making decisions on complex problems.

Objectivity can come from other forms of expertise as well, including the scientist in the Covid-19 laboratory and the humanities scholar who studies ancient literatures.

Objectivity resides in how reasoned judgments are made based on the qualities of evidence available, not on a judicial appointment per ipsum.

The problem is us, members of society.

We have come to give judges the kind of elevation that allows them to have the final word on everything from dollars-in-couches to vice-chancellor behaviours.

Again, this reflection is not meant to undermine the role of judges in a democratic society; that would be dangerous.

My simple plea is that we extend the range of expertise that we draw on, always appropriate for a particular inquiry where specific kinds of knowledge might be required.

Most of all, do not lose faith in the ability of ‘we the people’ to make good decisions about right and wrong when it comes to public misbehaviour.

Or in the signature sign-off of our favourite television judge, Dennis Davis: You be the judge.