Azhar Cachalia, former judge of South Africa’s Supreme Court of Appeal from 2006 until his retirement in 2021, and now a visiting professor at Rhodes University and chairman of Freedom Under Law, joined me in a discussion about the current state of the nation and the rule of law.

Cachalia noted that a strong and independent judiciary remains a pillar of South African democracy but cautioned that not all the judges who have been appointed have the necessary experience or competence.

In his view, after Jacob Zuma was elected President the judiciary and the JSC became highly politicised. Many candidates who went through the JSC interview process felt uncomfortable, abused and disregarded. Several good candidates were overlooked, and others simply refused to apply. That resulted in a diminution in the judiciary’s status and standing.

There is a need to reform the JSC to ensure a strengthened judiciary, according to Cachalia. He stressed that the JSC must 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.

Cachalia outlined that from a constitutional and a policy perspective redress is accepted as a proper mechanism to advance human rights. But when redress policies are adopted, the law requires that they must be carefully tailored, have a limited duration, and, most importantly, assess whether the negative and unintended consequences of various policies outweigh any possible benefits. He called for a rethinking of the debate on black economic empowerment, focused on addressing unemployment and advancing non-racialism. A rational debate on those terms, without name-calling, may lead to better economic policies.