6,4mm SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL SOUTH AFRICAN JUDICIAL EDUCATION SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL VOLUME 2, ISSUE 1, 2019 VOLUME 2, ISSUE 1, 2019 SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL VOLUME 2, ISSUE 1, 2019 SAJEJ Vol 2_Issue 1 Book.indb 1 2019/12/04 12:28 PM This journal is published under the auspices of the South African Judicial Education Institute. Published: December 2019 ISSN: 2616-7999 © South African Judicial Education Institute Office of the Chief Justice, 188 14th Road, Noordwyk, Midrand, 1687 This book is copyright under the Berne Convention. In terms of the Copyright Act, No. 98 of 1978, no part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the SAJEI. SAJEJ Vol 2_Issue 1 Book.indb 2 2019/12/04 12:28 PM CONTENTS ARTICLES The Transition to Democracy: Constitutional Norms and Constitutional Reasoning in Legal and Judicial Practice by Edwin Cameron ....................... 1 The Case for More Accessible Judgments by John Eldrid Smith ........................ 19 Transformation and the Intrinsic Value of a Diversified Bench by Mbulelo S Jolwana ........................................................................ 29 Language and Labels in Law and Life by J van der Westhuizen .......................... 37 Ethics as a Driver of Transformation of the Legal Profession by G Goosen ......... 61 Arbitrariness, Rationality and Reason: The Case of Minister of Justice and Constitutional Development v South African Restructuring and Insolvency Practitioners Association by S Budlender and M Mbikiwa ............................. 73 BOOK REVIEWS Yvette Joubert ..................................................................................................... 83 Dr Marius van Staden .......................................................................................... 86 Prof Peter Goss, (Professor in Practice) ............................................................... 88 Dr Jenny Hall ....................................................................................................... 92 Dr Elmarie S Fourie .............................................................................................. 95 SAJEJ Vol 2_Issue 1 Book.indb 3 2019/12/04 12:28 PM SAJEJ Vol 2_Issue 1 Book.indb 4 2019/12/04 12:28 PM 188 14th Road, Noordwyk, Midrand, 1687 Private Bag X10, Marshalltown, 2000 The South African Judicial Education Journal is published by the South African Judicial Education Institute (SAJEI), Office of the Chief Justice. The mandate of SAJEI is to provide judicial education to aspiring and serving Judicial Officers in order to enhance judicial accountability and transformation of the Judiciary. The journal is intended to consist of contributions, articles, case notes and book reviews. The views expressed by the authors or contributors do not reflect the views of SAJEI and Editorial Board. The Editorial Board invites unsolicited articles on topical issues relating to judicial education and the Judiciary. It may, in its discretion, accept articles that do not strictly deal with judicial education. The Editorial Board reserves the right to edit articles and circulate for double-blind peer review. Currently, the journal is not for sale. Requests for PDF electronic copies should be sent to [email protected]. SAJEJ Vol 2_Issue 1 Book.indb 5 2019/12/04 12:28 PM SAJEJ Vol 2_Issue 1 Book.indb 6 2019/12/04 12:28 PM MANUSCRIPT SUBMISSIONS GUIDELINES The Editorial Board welcomes original manuscript submission written in English. The articles should be on topical issues relating to Judicial education and the Judiciary that are between 3000 and 5000 words in length including footnotes. The format of the article should be 1.5 spacing, font Arial 11, justify and in MS Word. All submissions should be made online to [email protected]. Articles must be original in content. Any idea or quotation from another source must be fully acknowledged. All articles will be checked for originality through the use of a software. Details of the author/s: title, name, institutional affiliation, email address, postal address and telephone number should be included. Prospective author/s are requested to read Notes for Author/s and Contributors found in http://www.judiciary.org.za/, open link to SAJEI. SAJEJ Vol 2_Issue 1 Book.indb 7 2019/12/04 12:28 PM SAJEJ Vol 2_Issue 1 Book.indb 8 2019/12/04 12:28 PM EDITORIAL BOARD Editor-in-chief Mbuyiseli R Madlanga, Justice of the Constitutional Court of South Africa Managing editor Cagney Musi, Judge President, Free State Division of the High Court of South Africa Production editor Dr Gomolemo Moshoeu, Chief Executive Officer, SAJEI Tanya Golden SC, Member of the Cape and Johannesburg Bars Mpopelele Bruce Langa, Regional Court President, Western Cape Tati Makgoka, Judge of the Supreme Court of Appeal of South Africa Letlhokwa George Mpedi, Professor of Law and Executive Dean, Faculty of Law, University of Johannesburg Mohammed Randera, Attorney of the High Court, Republic of South Africa Managay Reddi, Professor of Law and Dean of the Faculty of Law, University of KwaZulu-Natal Gerhard van Rooyen, Magistrate, Emlazi ADVISORY PANEL C ALBERTYN, Professor of Law, University of the Witwatersrand PE ANDREWS, Professor of Law, University of Cape Town E CAMERON, Retired Justice of the Constitutional Court of South Africa A GOVINDJEE, Professor of Law, Nelson Mandela University R KRUGER, Professor of Law, Rhodes University A LANSINK, Senior Lecturer of Law, University of Venda N LUBISI (Dr), Dean of Law, University of Fort Hare SM MBENENGE, Judge President, Eastern Cape Division of the High Court MB MOLEMELA, Judge of the Supreme Court of Appeal of South Africa CMA NICHOLSON, Professor and Registrar, University of the Free State N NTLAMA, Professor of Law, University of Fort Hare CME O’REGAN, Retired Justice of the Constitutional Court of South Africa OL ROGERS, Judge of the High Court, Western Cape Division OS SIBANDA, Professor of Law, University of Limpopo SAJEJ Vol 2_Issue 1 Book.indb 9 2019/12/04 12:28 PM SAJEJ Vol 2_Issue 1 Book.indb 10 2019/12/04 12:28 PM THE SOUTH AFRICAN JUDICIAL VOLUME 2 EDUCATION ISSUE 1 2019 JOURNAL THE TRANSITION TO DEMOCRACY: CONSTITUTIONAL NORMS AND CONSTITUTIONAL REASONING IN LEGAL AND JUDICIAL PRACTICE1 EDWIN CAMERON Retired Justice of the Constitutional Court of South Africa I INTRODUCTION South Africa’s Constitution has been lauded as one of the world’s most admirable,2 but trying to make it work required very considerable adjustments of mindset, application and methodology on the part of lawyers and judges. These happened painfully, sometimes resistantly and often slowly. The primary revolution wrought by the Constitution was to replace a system of legislative supremacy, embedded in a received Roman- Dutch common law, with a constitutional apparatus of norms, values and democratic power structures. Those working within the law had to adjust the methods of applying their craft. In addition, they had to confront new 1 I am grateful to my law clerks, Kate Paterson, Mfundo Salukazana and Martin Willner, for invaluable help in conceiving and completing this article. 2 In 2012 during an interview on the best model for post-revolutionary Egypt, United States Supreme Court Justice Ruth Bader Ginsburg said: ‘[I]f I were drafting a Constitution in the year 2012, I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done.’ 1 SAJEJ Vol 2_Issue 1 Book.indb 1 2019/12/04 12:28 PM 2 (2019) 2 (1) SOUTH AFRICAN JUDICIAL EDUCATION JOURNAL defences by opponents invoking the Constitution. And they had to expand their armoury of legal weaponry to include constitutional remedies. For judges, the revolution was gradual but no less encompassing. This article examines the way in which the radical innovation the Constitution constituted confronted the thinking and practice of practitioners and judges to broaden and enrich both. II 1994 AND THE TRANSITION TO DEMOCRACY It is a quarter-century since 27 April 1994, when South Africa became a democracy. The changes have been big,3 even though, for those on the harsh end of discrimination, poverty and dispossession, they have not been big enough. One of the biggest changes the transition demanded was in legal thinking and legal practice. Lawyers and judges schooled in the old style of precedent, statute and common law now had to factor in the radical shift in concept and methodology which the Constitution wrought. Although both the interim Constitution4 and the Constitution5 embraced and 3 Some of the practical changes in people’s lives that constitutionalism and democracy have brought about are considered in Edwin Cameron ‘What you can do with rights’ (2012) 2 European Human Rights Law Review 147–159, http:// www.lawcom.gov.uk/wp-content/uploads/2015/05/Scarman_2012_Justice_ Cameron_What_you_can_do_with_rights.pdf (accessed 7 November 2019). 4 Act 200 of 1993. The limitation provision, s 33, provided that save as provided in subsec (1) or any other provision of the interim Constitution, ‘no law, whether a rule of the common law, customary law or legislation, shall limit any right entrenched in this Chapter’ (s 33(2)). Section 33(3) provided that the entrenchment