In a few months the Chief Justice and three Constitutional Court judges must retire. The President will then have to appoint a new Chief Justice as well as four new Constitutional Court Justices (assuming the Chief Justice will be appointed from among the existing members of the Constitutional Court).
Section 174(3) states that the President must appoint the Chief Justice and the Deputy Chief Justice “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”. This means the President has to consult but need not follow the advice of anyone he consulted before making these appointments.
Section 174(4) states that the other judges of the Constitutional Court must be appointed by the President, after consulting the Chief Justice and the leaders of parties represented in the National Assembly. But the Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made (probably seven names in this case), and submit the list to the President and the President will usually then appoint from this list.
As Judge Dennis Davis pointed out last week at a talk I chaired, this will be one of the defining moments for our democracy (and, I might add, of the Zuma Presidency). Four new judges will have a profound influence on the direction our highest court take and it is imperative that the “right” appointments will be made.
But what qualities would the “right” appointees have? I suppose we will all differ about this, but to get the ball rolling I will suggest what qualities such appointees should have.
First, such appointees should have demonstrated that they have internalised the values of the Constitution and, in particular, through their life and work, should have displayed an appreciation and respect for the human dignity of all. We do not need patriarchal sexists, racists, homophobes or other narrow minded individuals on our highest court. A respect for difference and for the “right to be different” (as justice Albie Sachs might say) is imperative.
Second, appointees should have a keen appreciation of (and should be concerned about) our social and economic context and the vast discrepancies between rich and poor in our society. They should understand that our “post-liberal” Constitution protects the marginalised and the poor and that the role of the Constitutional Court must often be to stand up for the poor and voiceless who do not have the power to stand up for themselves.
Third, appointees should have an understanding of the urgent need for (as well as the inherent danger of) transformation as set out in our Constitution. Social and economic transformation can either be hindered or facilitated by the Constitutional Court and we need judges that would not hinder transformation and would facilitate it by imposing the necessary discipline on the way in which it takes place.
Fourth, appointees must have a keen understanding of the need to uphold the separation of powers between the judiciary and the other two branches of government, without believing that judges should cravenly obey the dictates of the majority party (who, in the past, has often dressed up its own self-interest as the interests of “the masses of our people). In other words, to put it bluntly, judges should be brave and independent without displaying knee-jerk anti-government attitudes.
Lastly, appointees must have displayed some considerable emotional and academic intelligence, must be well versed in constitutional law and must have shown some respect for such law, must be disciplined and hard-working and, of course, ethically beyond reproach.
No guess which serving judge fails to meet every single of these requirements. None other than that reactionary, anti-poor, and ethically challenged judge president from the Western Cape. If he is appointed I would imagine Cosatu and the SACP would make a big stink, given the fact that he heartlessly ordered the eviction of shack dwellers living in Joe Slovo to little asbestos houses in far off Delft and co-owns a wine farm with probably the worst and most reactionary judge ever to have served during the apartheid era.
How President Zuma deals with the task of appointing these judges will say much about his commitment to progressive politics. We should not only hold our breath, but should also begin a conversation about this issue to ensure that comrade Zuma is well informed when he decides and we are not saddled with anti-poor reactionaries like John Hlophe on our highest court.
I did not realise that the President is permitted to appoint anyone he likes to the positions of CJ and DCJ. This is certainly worrying.
Prof, what do you think the ANC’s attitude to Hlophe is likely to be? Is he really so valuable to them that they would promote such an obviously depraved and incompetent judge? And if so, why? Finally, do you have any favoured candidates for CJ, DCJ and the remaining four spots?
Prof, I’ve found myself in full agreement with the qualities of a good judge, and indeed a CC Justice. That being said, I feel that the departure of Sachs and O’ regan JJ is unfortunate as they have so often been the voices of dissent which we need in the CC. If we could find justices who’re willing to voice their opinions so daringly and with such conviction as they have over the years then I would certainly be impressed.
Regarding Zuma, I’m worried he won’t appoint the people who’ll best serve the Constitution and embody the values set out in the Constitution as well as strict adherence to the Rule of Law. Zuma’s repeatedly made statements which serve to re-inforce my opinion that he has no regard for the Constitution or the laws of the land. I hope that I will be proven wrong.
I have no doubt in my mind that President Zuma will indeed make the right appointments. In fairness to the President, we need to give hime the time and space to apply his mind on this matter. He will obviously consult the JSC and all approriate stakeholders to the extent required (legally). At the end of the day and regardless of who he appoints, there will always be those who would profess knowing better and offeringex post facto “advice”. i for one have reason to believe that in spite of what his detractors say, publicly and in “muted versions”, the Prsident has full respect to the rule of law and further, he understands the importance thereof. We must not rush to factor in our own prejudices against him, or worse, bring into the equation the tactics employed by his legal team (rightly or wrongly) during his “trials and tribulations”. He did what any of us would have done if we were in his situation. He did not flout any of the “rules of the game”, In fact, he played by those selfsame rules to the end. He was and still is entitled to mall Constitutional protection just like all of us.
I also agree that the appointment of judicial officer is a matter that must be approached with a fair amount of circumspection to ensure that suitably qualified persons are appointed. I alse believe that the President is acutely aware of the need for accelarated transformation in the judiciary, regardless of his own “personal” brushes or c”colissions” (if you like) with the law.
I will watch those appointments with keen interest and with the full confidence in the President. i will also not hesitate to express a contrary view, where I feel one is warranted.
Zola Majavu
Prof
Don’y you think it’s a bit melo-dramatic to call a judge “anti-poor” simply because he gave a judgment you and the SCA disagree with? Are you not accusing the judge concerned of being mala fide in giving his judgment as opposed to simply getting the issues wrong – like most judges normally do?
Otherwise I agree with you on the qualities required from a CC judge.
I agree with your stated qualities of a fair judge but I must disagree with your attempt to continuously throw mud at Hlophe and influence some of your sycophants who treat you in a god-like manner even asking who you think is a good judge.
I think both Hlophe and Dennis Davis are good Judges, especially Davis, Let Davis be CJ and Hlophe be his Deputy and get rid of Moseneke.
Haha. Mdu, does one really need to be a ’sycophant’ to be interested in knowing who a constitutional law expert thinks would be a good Constitutional Court judge? I think all that it is needed is a minimal interest in broadening one’s mind through hearing other people’s opinions, although perhaps these are things to which you cannot relate. The irony is that you state that only ’sycophants’ who think Pierre is ‘god-like’ would want to know who he thinks would be a good judge, and yet you assume that we all want to know your opinion on the matter.
Pierre, I am pleasantly surprised that you melanin did not make it onto your list of criteria.
Great Mdu and we could make mshini wam our national anthem?
What makes a bad judge is allowing a judge whom you are in cahoots with to sue another judge.
Any bookmakers out there?
What kind of odds can one get for betting that Hlope is going to make the bench?
Paul Ngobeni is also a likely character. Seems like they take turns to stand on each side of the bench.
Despite you having written extensively on the Constitution and Law & Order, I must however must admit that this piece is one of the most brilliant I have come across. So far?
And appreciate your take on the subject without having taken side, or maybe just now.
Thank you, and hey, I’m a great follower of your Blog.
One more quality: Those judges should be women. Its important to say this because the norm in the judicature imagines, presumes, assumes, expects that judges are men. That imagination has to be countered, and then abolished.
Let us take judge Davis up and start speculating -(American style ):
The order of seniority of the remaining members at the CC would be:
1. Moseneke;
2. Ngcobo;
3. Skweyiya;
4. Van der Westhuizen;
5. Yacoob;
6. Nkabinde;
7. Cameron.
Moseneke might be out. Because of his PAC vice -President background (eish – that’s not the type of mind a CJ should have) and the dislike of the post – Polokwane ANC in him ( a few spats in the media).
But watch out, Mbeki “designated” him to be the next CJ when he was during 2005 elevated to the deputyship ( when Langa became CJ ) over the heads of the likes of O’regan, Sachs and Goldstone. Not appointing him as CJ would thus be a major upset.
So the next CJ could be Ngcobo. If not, it would be very strange to say the least – and potentially very revealling about the Zuma way of thinking about the courts.
For the four new faces, I believe it would be a massive boost for the stature of the CC if they’re drawn from the SCA. The last years SCA judges were drawn to fill acting positions at the CC, so that several of them obtained CC experience.
Main contenders, imho, should be Cachalia and Belinda van Heerden.
Runners up might be Navsa and Mthiyane.
Jafta should have been there – but with the Sloppy controversy still dragging on, it might snooker him for this round.
Nugent might also be interested.
Its a pity that practicing constitutional practitioners like Moerane, Gauntlet, Marcus and Trengove won’t easily be elevated over the heads of all serving judges at the divisions and the SCA.
But if JZ want to be steady and uncontroversial – given his history in the courts – he would simply appoint Moseneke. It might be the right move.
Mdu, Hlope fails on many counts, but the one that stands out in my mind is that he is co-owner of a wine farm together with one of the most infamous hanging judges of the apartheit era. If this make him suitable, hell, I don’t know then.
@ Mdu,
I would just like to know the basis upon which you assert that Hlophe would be a good judge.
He is currently embroiled in a dispute with the CC justices and the JSC. He has been called before the JSC in the Oasis matter. Surely someone with such a dubious record is not fit to hold office in the Constitutional Court. His son is at University riding on the back of his “connections” in a rather suspect nepotism situation
Furthermore, his association with Paul Ngobane further casts aspersions on his character, as Ngobane is listed on a “Wanted” website and has been disbarred in several states in US.
Casting your ANC loyalties aside, can you honestly say that this is the type of person we want to be making decisions in the highest court in the land?
Samantha // May 26, 2009 at 9:49 am
“He is currently embroiled in a dispute with the CC justices and the JSC”
Well, the rest of the CC judges are also embroiled in the same dispute, which as of to date has not yet been resolved – one way or the other. Accordingly, no reliance can be placed on this issue to discredit the guy. Otherwise we might as well argue that all the judges that are embroiled in this dispute (even the current serving judges) are not fit to be judges. Of course, that would be absurd!!
“He has been called before the JSC in the Oasis matter”
Yes, and no adverse finding against him – no matter what you may think. Therefore, no reliance can be placed on this either unless you are going to argue that you are guilty simply by reason of having been accused / charged.
“His son is at University riding on the back of his “connections” in a rather suspect nepotism situation”
The way I understand it, his son got a busury like any other child would from a certain law firm. Are judge’s children precluded from applying for and accepting busaries? I know of no such rule, please enlighten me.
I therefore find no basis for your statement that “someone with such a dubious record is not fit to hold office in the Constitutional Court”. I find nothing DUBIOUS on the instances you have raised.
Having said that, I do not believe that it would be in the interest of justice for him to apply for the vacant positions at the present moment. Similarly, I do not believe that Moseneke should be the CJ whilst Hlope’s allegations against him have not been finalised.
Prof, I agree with you on the qualities you have identified as being important for a CC judge.
Personally I have a particular individual in mind, who astonishingly has all these qualities. Im able to say so, because I know this man at a personal level-work colleague. He, just like outgoing Justice O’Reagan has a an academic background but his experience is so vast that he is not only sharp on the theoretical aspects of the application of our Constitution. This man is Prof. Karthy Govender.
Mzo, you are wrong on the Oasis matter. The JSC reprimanded the Judge President for accepting hundreds of thousands of Rands from Oasis and then giving permission for them to sue a fellow judge. With a majority of one vote (ironically delivered by the Chief Justice!) they decided, however, that a full impeachment hearing was not required and rebuked Hlophe without taking further action. So the JSC has already made an adverse finding against him because it was impossible to disprove his story that he had received permission from a dead man to take the money 18 months before he actually started receiving the money.
In the final analysis we place our faith in the human being and not in the institution. All rules may be invented but they may never prevent a corrupt or unjust person from ascending to judicial office.
Canons of Judicial Ethics (1924) :
“A Judge’s official conduct should be free from impropriety; he should avoid infractions of law; and his personal behaviour, not only upon the Bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach.”
In Deuteronomy 16:18-20, He said-
“You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.
The last part to do with land is of Zimbabwean relevance. But the Scriptures are fluid. Land may represent a Porche or several hundreds of thousands of Rands!
Pierre De Vos // May 26, 2009 at 11:39 am
I admit that I made the error of equating an “adverse finding” with something as severe as impeachment., hence my assertion that there was no adverse finding against him.
However, I am just not sure if, on this basis alone, we can really argue that he is not fit to be a judge of the CC. I know you Prof think that he is also anti-poor, a view I strongly have issues with.
At the present moment though (whilst he is still involved in all these legal battles) I would unreservedly agree that he should not be considered – assuming that he is interested of course!!
Prof could you please elaborate on the role/ responsibility provincial govt has in relation to the national? Specifically on implementation of national directives. I’m trying to understand the whether the outroar surrounding Helen Zille’s early provincial address is warranted?
If indeed it does exist, does this not flout the choice of the electorate in the province?
@ Mzo,
Thank you for your considered and detailed response to my posting. I wish to respond as follows:
With regard to the current CC situation, Hlophe has admitted that he spoke to the two judges about the Zuma case. We all know this – it is not an allegation. This situation has been debated ad nauseam on this site, so I will refrain from repeating it. Suffice to say, the CC judges are embroiled in this saga as a RESULT of Hlophe’s actions and not their own. Accordingly, your statement is without merit. This case does cast aspersions on his character, as he did, by his own admission, approach the two judges in Zuma’s case.
The Oasis matter has been cleared up between you and the Prof, who underlined my point on this issue.
The story with regard to his son is not as cut and dried as you wish to make it appear. I have no issue with judges’ children getting bursaries. What I do have issues with is judges’ sons getting bursaries from law firms, at which their parents’ university pals are partners, where the bursaries have been created for “previously disadvantaged” students. I appreciate the discussions we have recently had on this website re AA and what constitutes “previously disadvantaged”, however, where the father of the student earns in excess of R 1m per annum and drives a Porsche Cayenne, I do not perceive this student as “previously disadvantaged”. Judge Hlophe’s daughter was at the same school as my daughter in Cape Town, which is a former Model C school with high school fees. When this case was reported to the JSC as a possible conflict of interest, Hlophe claimed that he had no idea who was paying for his son’s education (???). The JSC accepted this.
While Hlophe did much to reveal racism in the legal fraternity in Cape Town, he has been accused on several occasions of racist and abusive statements to members of the Bar – all of which he has denied.
My feeling is that someone who has this amount of controversy surrounding them is not a fit and proper person to hold the office of a Constitutional Court justice.
President Barack Obama is nominating Judge Sonia Sotomayor to the US Supreme Court. See the extensive coverage of this in The New York Times: http://www.nytimes.com/2009/05/27/us/politics/27court.html?_r=1&hp
From the Bronx to the Scotus!
Impressive.
I read somewhere that Obama is also a lawyer – and with a special interest in constitutional law.
He must have loved selecting a nomination.
I’ve found this one of the most interesting, less political, topics in recent times. I must first say I cannot see any reasonable justification for Hlophe JP’s appointment to the CC. The man is just DODGY and that would not be useful for the image of justice being done, as much as it is done. And I’d have to imagine how he’d be entertaining fellow judges – of the lower courts – about discussions and suggestions relating to matters currently before the CC. One should also note that in light of the current “spat” it may be a tricky working relationship. How do you work with someone who you don’t trust and who is perfectly open to improper influence? It really would be a faux pas if Zuma appointed him within 1km of the CC.
I doubt Zuma would appoint Moseneke DCJ as CJ. This is due to what appeared in The Star on 09 Apri 09: Asked if he would consider Justice Moseneke, given his clash with the ANC shortly after the ruling party’s conference, Zuma said that although he would appoint competent people, he could not ignore the judge’s statement.
“I think I will be very sensitive (to Justice Moseneke’s statement). And I think that is precisely the reason why we always say judges should know what they say… You can’t just stand up and say I don’t care what this ANC (sic), and it is a ruling party. You are just declaring war. Why should you say that when you are a judge,” he said.
The full article is at: http://www.iol.co.za/index.php?set_id=1&click_id=6&art_id=vn20090409050224266C609125
I now turn to who is suitable for the court. I’d really LOVE to hear Prof’s suggestions. Who’s considered that Nicholson might be an unexpected contender? I think there are a great deal of people who deserve consideration. There are many academics who could well be appointed, they did it the first time, and who would do just as well as Mogkoro, O’ Regan JJ. But there is a notion that academics are not always the best people to the bench, such as Hlophe JP and Lewis JA. So, my jury’s out. Having met Prof Karthy Govender (UKZN HC), member of the SAHRC who has delivered a few judgements of his own I can see no real reason to exclude him from the list of possibilities to the bench. I am worried that Zuma would want to influence the “ideology” of the CC (they are’t meant to have one in the strict sense).
The fact that Moseneke DCJ had PAC leanings is not quite relevant in light of the fact that his judgements reflected a fair and balanced view on the law. The same applies to a pro-ANC judge, as most Justices once were – any possibly still are. As long as a judge shows a level of dissociation with his or her political mindset and considers matters objectively, with a touch of personal experience then I se no true problem with them.
Hi Prof,
I just read President Obama’s remarks that he made yesterday when he announced his nomination for the US Supreme Court. I thought they partially echoed some the criteria you set out in your post (see attached link). I would be interested in hearing people’s views on the two processes (US and SA). Will SA’s nomination process become as politicized as the US one (or is it already?), should SA’s nominees face the kind of scrutiny that US judges face before congress? etc etc
http://www.msnbc.msn.com/id/30943237//
Zola,
I was quite offended that you think we all would have done what Zuma did if we were in his situation. That supposes I’d be stupid enough to take money I have no business taking. He did not quite play by the rules of the game. No rules support a citizen’s possession of illegally obtained documents that pertain to national security. If they fired Pikoli for the lack of national security (or whatever they claim) then whoever handed Zuma (and his team) those documents should also be fired.
I’ve ranted and forgotten my original point. Oh, I am quite impressed with the cover given to the US Supreme Court Judge Sotomayor. Its great that academics have put in their comments and I think that such a tradition should be encouraged in SA. I also find it shocking that of 111 judges appointed to the Supreme Court over the years, there’s only been 4 women. And to think we’re busy complaining of transformation of the judiciary (found my point again). What kind of transformation should we value most in our CC? The transformation of the gender, race, sexual orientation and age of the image of respected jurists OR a transformation in the school of thought? It has been suggested that Hlophe JP is an example of racial transformation and not a new school of thought. Cameron J on the other hand is an embodiment of both and Chaskalson P, Ackerman, Goldstone, Sachs, Dodcott JJ were all examples of a transformed school of thought. I doubt we can afford to play race and gender cards in the CC. All the ladies and gentlemen of the CC know what they are doing, not because of how they look but how they think.
If we REALLY wnat to be pc we should make sure there’s a Coloured justice and a justice of Indian extraction.
A “liberal judicial activist of the first order who thinks her own personal political agenda is more important than the law as written.”
One of the soundbites hurled around in American politics regarding the Sotomayor confirmation hearings. Thought it actually apposite to some SA judges.
She herself said that “the aspiration to impartiality is just that – an aspiration because it denies the fact that we are by our experiences making different choices than others.”
Wow! Where’s an objective legal position – the rule of law? Applied to objectively established facts?.
As you’ve read henri, it was the Republicans who used such words. It allows them to unjustifiably attack the credibility of a judge. Sachs J once noted that judges are not “ideological virgins”. Sotomayor has simply acknowledged the fact that judges are humans and their lives and experiences do affort some weight in their decisions. To say that such factors are viewed more significant than the rule of law is, I’d imagine, entirely unfair. What the judge said was a display of true objectivity.
[...] for one, passionately believe in (and have written about) the appointment of judges who have internalised the values of the Constitution, have a keen [...]
Unless naive, we all understand that a judge’s background influences her or her world view.
The real debate is whether that undeniable fact is something (a) to be regretted, and guarded against or; (b) to be celebrated, cultivated and encouraged.
I fear that option (b) leads quickly to essentialism and the insulting assumption that people think with their epidermises, and with their their genitals.
Pierre, maybe I am just obtuse, but I just do not get it when you go on about it being important to determine whether judges have “internalised the values of the Constitiution.”
[Do you think the day will ever come when a candidate will tell the JSC: "Actually, I don't give a damn about our Constitutional values -- I will do everything in my power to undermine them."]
Like Motherhood and Apple Pie, and other “values” about which the Senate Judiciary Committee asks, the “values” of the Constitution are all to broad and open-ended to serve as meaningful criteria.
The debates in Braamfontein are not about fealty to fundamental values. That is taken for granted. It is about how these are to be balanced and implemented in practice, in particular contexts. And very rarely is there ever a simple, straightfoward answer to these difficult questions that will allow us to say that one candidate is more committed to fundamenta l”values” than another..
Michael, pardon me saying so but I think you are a bit naive. Surely you do not think that all judges have embraced the values of human dignity equality and freedom esnhrined by the Constitution? If you do, how do you explain the comments by some judges to bring back the death penalty? Judges who sentence rich white defendents to much shorter terms than poor black one’s? Judges who talk about married women as if they are the property of their husbands?
Pierre, my point is that EVERY candidate will profess fealty to the “values.”
The true question is what weight one assigns to these often
conflicting values in concete cases. As to that, reasonable minds can
almost always differ.
So comrades http://www.isjohnhlophechiefjusticeyet.com/
Pierre, you must love the prospect!