Sunday Times (Johannesburg) - January 11, 2009
Chris Barron

Judge Edwin Cameron tried for the Constitutional Court so many times, it became a standing joke among his friends.

When another vacancy arose last year, the man acknowledged by peers as one of the best legal brains in the country decided enough was enough. At the age of almost 56, he wasn't going to be let down again.

Had he been miffed?

"I promise you from my heart I wasn't," he says, his voice coming in windblown snatches from a cellphone on a beach in Simon's Town, where he is holidaying with his sister and her family before assuming his duties later this month.

One believes him. In his memoir, Witness to Aids, nothing is too trivial to be honest about, or, indeed, too important.

Ten years ago, Judge Cameron was one of the first high-profile South Africans to disclose that he was HIV-positive, something hard enough for anyone to do, let alone a High Court judge known as much for his ambition as his integrity.

But if he wasn't miffed, why, according to reports, did he have to be "begged" to accept nomination this time round?

"That overstates it. I was reluctant because the judge retiring was black and I wasn't sure that the racial balance of the court was ready to be disturbed."

In addition to thinking he was too white, he thought that with then president Thabo Mbeki likely to make the final call, "I didn't have a chance."

Mbeki blocked his appointment in 1999 after then president Nelson Mandela signalled that Judge Cameron was his first choice.

And his sharp criticism of Mbeki's Aids denialism since then had done nothing to repair a relationship that began in London when Mbeki was in exile.

Like many South African intellectuals who met Mbeki then, Judge Cameron was bowled over by his charm, intellect and apparently sensitive grasp of the looming Aids catastrophe.

They met again to discuss Aids after Mbeki became deputy president, and Judge Cameron's favourable impression was strengthened.

So what happened?

"It was his racial demons that led him to reject medical science on Aids which said that we have an epidemic of sexually spread viral illness in Africa. He regarded that as a racial insult."

Judge Cameron was roughly rebuked in parliament by Mbeki's justice minister, Penuell Maduna, for putting the government's Aids denialism on a moral par with those who deny the Holocaust.

According to a recent Harvard study, time lost in fighting HIV/Aids has cost the lives of 300000 people - which Judge Cameron calls a "very conservative" figure.

He blames Mbeki's lack of political leadership for the majority of Aids deaths in the country.

Most of those were and are being killed by the stigma of Aids, which stopped them from being tested.

Mbeki's role "has been catastrophic in terms of suffering and death", he said.

Not hard to see why he thanks Mbeki's "recall" by the ANC for the realisation of his Constitutional Court dream.

He also thanks President Kgalema Motlanthe, who he believes "may have had a personal hand in this appointment".

They got to know each other in the '90s when Judge Cameron did legal work for the National Union of Mineworkers; Motlanthe was NUM general secretary.

Apart from the fact that Motlanthe may have fond memories of him, what does Judge Cameron read into his appointment ?

"The trade unionist in Motlanthe, I think, deeply values the importance of thoroughgoing democracy, of thoroughgoing debate, and thoroughgoing independence," he says , somehow without sounding immodest.

If he thinks his old friend is such a valiant democrat, how does he explain his decision to fire former national prosecutions boss Vusi Pikoli?

Every time he is asked what he calls a "snarky" question, Judge Cameron laughs and says, "I love it" before contriving a delicate escape.

"Bingo," he chortles this time. "I can do a genuine, authentic, integrity-laden duck on that because it might come before the court."

What, then, about the president's refusal to appoint an inquiry into the arms deal?

"Ditto," he says.

"Also, there's the political controversy doctrine, where judges should shut up about political questions except on Aids, when it's morally imperative."

Judge Cameron spent one year as an acting judge in the Constitutional Court and eight years at the Supreme Court of Appeal in Bloemfontein.

What did he think of the quality of the judgments he had to review?

"Judges, black and white, are troubled by some of the judgments we've seen coming from the high courts," he says carefully, mindful of the fire storm his colleague, Judge Carole Lewis, triggered recently.

She criticised the quality of judges, suggesting that the problem arose when political connections and race took precedence over merit in appointments to the bench.

Does Cameron agree?

"Let me phrase this carefully," he says, sounding like he'd much rather be playing beach ball with the children whose shrieks of joy are loudly audible in the background.

"I think that she rightly signalled a widely held concern.

"Being a judge is a tough job technically, a tough job emotionally, a tough job intellectually, and we need tough men and women who can do it."

Why aren't they being appointed?

"It's the tension between racial and gender transformation and technical ability."

Has transformation been pushed too quickly?

Long pause. "I've got to give you an answer with integrity that doesn't dance between the egg shells ...

"I think the goals aren't incompatible," he says after another pause. "But I think more attention has to be paid to the tough technical and personal capabilities required of a judge."

After 1994, racial transformation was "an imperative. If the bench had remained overwhelmingly white after 1994 we would have had a political problem. Now we've got a technical output problem."

Judge Cameron's route to the top has been anything but easy.

At the age of six, he was sent, with his two sisters, to a school for orphans and the children of parents who couldn't afford to keep them, 700km from home.

His mother managed to get him into Pretoria Boys' High when he was 14, and he shone.

He won a scholarship to Stellenbosch University where he read law, English, Latin and Greek, and then a Rhodes Scholarship to Oxford University - where he won the prestigious law prize, the Vinerian. He studied for his LLB through Unisa.

After an unsatisfying stint in commercial law, he happily sacrificed the chance of making loads of money for the sense of fulfilment he found as a public service lawyer helping apartheid victims.

While his appointment to the Constitutional Court hardly suggests a government intent on emasculating it, he admits to being concerned about the ANC's occasional denigration of judges.

But the separation of powers causes tension in all democracies because judges curb political power - "that's their job".

"It is crucial in South Africa for it to be widely understood that judges can't do their job without from time to time pulling up politicians on their exercise of power."

At the same time, he thinks that "when politicians sound off about judges, we shouldn't be crying crisis every time".

"There's a natural rhetoric out there that we shouldn't think signals the end of independence or democracy every time it occurs."

He calls the South African constitution "one of the most visionary in the world" - but what good is this if the rights it contains are not enforced, most basically the right to personal safety?

"The legal system and the administration of justice is failing the people," he says.

"Our problem is that we have an understaffed, under-trained and under-managed police force.

"Our problem is that there is a gaping disjunct between law and order and the court system."

Deputy justice minister Johnny de Lange had expressed "a career moment of truth when he said how horrified he was to see how things were. It was a realisation late in coming, and hurrah for it.

"Every judge in every division of the High Court of South Africa knows that from about 1995, the detective services in the police started to be lamentably neglected and mismanaged, and now there is an extreme paucity of competent detective work in the police.

"And without that, you can't begin to have crime prevention and detection.

"That was a political responsibility."

Having said that, however, he does not think the Constitutional Court should or could have done more to protect the right to personal safety by holding politicians to account.

The Constitutional Court reacts to issues, he says , it does not initiate them.

What about its reaction to the disbanding of the Scorpions when that issue was taken to the Constitutional Court?

"I must honestly duck that because I'm not acquainted with the legal issue; I did not read the judgment."

The "real difficulty" for judges is that they "can only do so much and then it's up to the democratic system".

"The Constitutional Court must play its role in upholding rights," says Judge Cameron, "but the primary focus for the attainment and resolution of rights is necessarily the political sphere."

Ultimately, the voters?

"Precisely."

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