Lurking at the heart of these missives, it seems, is a narrow, completely diminished, understanding of democracy. Minister Nzimande seems unaware of (or he is ideologically opposed to) the fact that our Constitution establishes more than a representative form of democracy in which passive voters are given the opportunity every five years to vote for the party of their choice (which the state broadcaster tells them should be the ANC). In his latest missive, he has the following to say about a supposed liberal ideological third force:

As part of the ideological armoury of the anti-majoritarian liberal offensive are attempts to assemble elite voices in society that appear to be either neutral or authoritative to try and discredit the ANC. The mainstream liberal media, some liberal NGOs, and of late business voices like Reuel Khoza, are all part of an ‘ideological third force’, decrying the ‘threats’ to our constitution and ‘lack’ of leadership in the ANC and society. Similarly, all of our institutions supporting democracy are either affirmed or condemned in the media, purely on the basis of whether they find positively or negatively against the ANC or government, often irrespective of the issues at hand.

That, according to Nzimande, is why the masses should be mobilised behind the ANC/SACP programme of action (as if anyone belonging to the masses are not capable of thinking for themselves and having a view that contradicts that of the movement) and why cadres should not believe a word they read in the print media (the SABC being ideologically less problematic and therefore more believable – unless they report on Julius Malema).

It has not occurred to Minister Nzimande that there might be reasons why the print media are criticising the movement and why NGO’s are taking the government to court. There might be very good reasons for protesting when our government does something reactionary, venal, corrupt or undemocratic. Whether the criticism is provided by an 84 year old granny who voted for the ANC or a newspaper editor – it remains valid no matter what Nzimande thinks. He has not considered the possibility that many of the ANC critics are fighting for a better life for themselves or the communities they serve, something the government is not doing so well because many of its leaders are fighting with each other for positions, which will bring with them the status that a blue light convoy and stays at the Mount Nelson can bestow, along with immense wealth that flows from access to government tenders and bribes by others who wish to access these tenders.

When the President tells an interviewer of The Sowetan: “We don’t want to review the Constitutional Court, we want to review its powers,” a few days before his own case which might revive corruption charges against him is heard by the Supreme Court of Appeal (SCA), one need not have a special ideological hatred for the ANC to worry about a threat to the Constitution. When the President appoints the least qualified and most right-wing member of the Constitutional Court as Chief Justice, and is lauded by the social conservatives and by Blade Nzimande for doing so (Blade saying those who pointed out Mogoeng’s conservative anti-women and anti-gay credentials did so only to spite the President!), then one should surely be aware that liberal and conservative, progressive and reactionary has stopped meaning what it used to mean and that Blade’s rant about an ideological third force is utterly meaningless.

And when North West Human Settlements MEC, Desbo Mohono, says that municipalities need to create stringent by-laws to prevent the “mushrooming” of informal settlements, in effect declaring war on the poor and sounding remarkably like an apartheid era Minister, then any thinking person would surely take Blade Nzimande’s attack against NGO’s and liberals with a pinch of salt. How can one not and begin to think that he is hiding behind his revolutionary language to try and pull the wool over our eyes about the movements true ideology (and ideology that has more to do with wealth accumulation and demonization of the poor than with providing a better life for all)? By the way, the MEC seems to have given the game away on Saturday when he made the following statement:

I would like to urge all local municipalities, to come up with rigid by-laws that would ensure that we do not see another informal settlement mushrooming in our land… We cannot win this battle if we continue to be held to ransom by our people, who continue to occupy land illegally and continue to add numbers to the ever emerging informal settlements.

In this view, it is the people – especially the poor that comrade Blade claims to fight for – who have become the enemy and who is holding the government to ransom by having the cheek of existing and actually wanting to have some kind of roof over their heads every night when they go to sleep. I mean, these people must be part of the liberal ideological third force, cunningly relying on the Constitution which states that everyone has a right of access to housing and placing a positive obligation on the state to take reasonable steps progressively to provide such access to those who need it.

Now, the supposedly liberal NGO’s are the ones who often assist the homeless and those who live in informal settlements and help them to take the government to court when the government that Blade is part of heartlessly evicts the marginalised and vulnerable poor from their often makeshift homes or the dilapidated inner city buildings where they live, often in desperate conditions. The supposedly revolutionary movement of which comrade Blade is a member is often the one who demonises these same people (as the MEC did on the weekend) and who takes steps to try and get them out of sight. (I guess it must be distressing to have to see these informal settlements flash past as one is chauffeur driven in a blue light convoyed R1 million car to another party where one will sip champagne on hehalf of the masses to celebrate the 100 year birthday of the ANC – staying in the Mount Nelson far away from these horrible poor people who dare to want to get a roof over their heads must be so much more soothing and fun.)

In any case, at the heart of all this is a deeply undemocratic attitude to the “masses of our people”, to debate and to criticism of any kind. Citizens are seen as passive voting fodder who must be galvanized every five years to vote for the movement and otherwise must shut up. In the Doctors for Life case, Justice Ngcobo made it clear that this is not the kind of democracy established by our Constitution. The commitment to principles of accountability, responsiveness and openness, wrote Ngcobo, shows that our constitutional democracy is not only representative but also contains participatory elements. This is a defining feature of the democracy that is contemplated. This means that all citizens (even the liberal ones) have a right to have their say and to participate in the discussion. Not even Minister Nzimande can try and shut up anyone who raises concerns about the manner in which the government is “governing” the country.

When the 84 year old granny, Ntombentsha Phama, who welcomed a TV news camera crew into her home and spoke about her plight, and was then berated by a delegation of ruling party councillors sent by Mbhashe Local Municipality Mayor Nonceba Mfecane, they are showing the same kind of lack of understanding or respect for democracy as Blade Nzimande. During a second visit, this time with Mfecane in tow, Phama was again scolded, given two blankets and a business card, and told to call the mayor – not the media – when she had problems.

Like Nzimande the mayor and his cronies never stopped to think that Phama had a RIGHT to invite the TV cameras into her home and that instead of berating her, they might have done something about the criticism. They never thought that the embarrassment to the ANC came not from the granny, but from the way in which the council had behaved. Similarly, Nzimande does not seem to understand that the criticism of the ANC in the media might – at least sometimes – be based on the fact that the ANC is stuffing up. I guess it is far easier to launch a tirade against the granny or against a so called ideological third force, than actually to governing responsibly and effectively and to deal with the criticism. I find that even those evil liberals in the media will praise the government when it does something well. The only problem is that there is not often that much to praise – unless we set our sights so low that anything the government does better than the apartheid state is seen as worthy of praise.

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative  attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.

In the first judgment, the SCA found that the Constitution requires the Premier of the Western Cape to sit on the JSC when it considers disciplinary action against a Western cape judge, with the effect that JSC had to reconsider both the Constitutional Court Justices’ complaint, and Hlophe’s counter-complaint.

In the second case, the SCA set aside the decision of the JSC “that the evidence in respect of the complaint does not justify a finding that HlopheJP is guilty of gross misconduct”, with the effect that the JSC had to reconsider the complaint against Hlophe by the judges of the Constitutional Court. In this second judgment it was pointed out that in a case like this where two versions of an event is presented it is required to cross-examine witnesses and make a determination on the preponderance of probabilities to determine who is lying and who is speaking the truth.

In a unanimous judgment by the Constitutional Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ writing as “The Court”), it was decided that acting judges could not be appointed to hear the case and that it was not in the interest of justice for the “compromised” Constitutional Court to hear the merits of the two appeals from the SCA judgments.

The Court pointed out that section 167(1) of the Constitution provides that the Court consists of eleven Judges and that the Court usually sits en banc (in other words, with all 11 judges). However, section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. The problem in this case arose because six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued (but one acting judge – Ray Zondo - is currently serving on the Court). This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation.

If these Judges were disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters. Because of this unusual situation all the parties accepted that it was necessary for the Court (even with its possible five “tainted” judges) to decide whether Acting Judges may be appointed to the Constitutional Court in terms of section 175 of the Constitution to hear the application for leave to appeal and the appeal; and, if not, whether the existing judges should adjudicate upon the substantive merits of the applications for leave to appeal.

In terms of section1 75, the President may, on the recommendation of the Minister of Justice and Constitutional Development acting with the concurrence of the Chief Justice, appoint a woman or a man to be an Acting Judge of the Constitutional Court “if there is a vacancy or if a Judge is absent”. Pointing out that the “ordinary meaning of the word ‘absent’ carries some ambiguity”, the Court nevertheless found that:

any possible ambiguity is removed when we consider that the recusal from a particular case does not preclude Constitutional Court Judges from continuing to perform duties of their office. A recused Judge remains required to perform the rest of her judicial duties. The action of recusal is the performance of a judicial duty. The effect of a recusal therefore cannot be considered to be an absence… Recusal leading to a lack of a necessary quorum in this Court is an exceptional occurrence. Vacancies of Constitutional Court posts resulting from retirement, possible ill-health and death are not. Nor are temporary physical absences of Justices of the Court, caused by periods of leave, personal circumstances or some illness unusual. Viewed in a general context, it is clear that the purpose of section 175(1) is to deal with these normal instances of vacancies and physical absences.

This interpretation is supported if one took into account the context of the Constitution as a whole. In this regard one must remember that constitutional provisions relating to the appointment of Judges must be interpreted with due regard to the constitutional imperatives of separation of powers and entrenchment of judicial independence. There was a potential danger to judicial independence and the separation of powers whenever individual  judges are appointment to hear a specific case. Mindful of this danger, it is not possible to interpret “absent” in section 175(1) as covering a situation where Constitutional Court Judges recuse themselves from hearing a specific matter.

The next question to be answered by the Court was whether the eight judges (three of them having been involved in lodging the complaint against Hlophe JP) nevertheless had to hear the substantive appeals because of section 34 of the Constitution, which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The Court found (once again as predicted) that they could not hear the case and pointed out that section 167(6) of the Constitution does not provide litigants with a right to have their case heard by the Constitutional Court. Litigants only have a right to consideration of any application for leave to appeal. As the Constitutional Court found in S v Pennington and Another litigants do not have an automatic right of appeal. Leave must only be granted if the Court concludes that it is in the interests of justice to do so.

A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. All the parties were in agreement that this matter cannot remain pending. There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.

As I have thus argued consistently throughout this process, there is no right for anybody to have their case heard by the Constitutional Court. It is only when it is in the interest of justice to dos o, that the Constitutional Court hears a case (if it deals with a constitutional matter, of course).

This means that Judge President Hlophe’s attempt to stall the investigation into his alleged gross misconduct has finally come to an end. The JSC will now have to consider the matter again and will have to call both Hlophe and the accusing judges who will then be cross-examined to try and determine whether it was Hlophe or the judges of the Constitutional Court who lied.

But of course the JSC has in fact already admitted that it believes it was Hlophe who lied and not his accusers as subsequent to the complaints being made it appointed one of his accusers (justice Chris Jafta) to a permanent post on the Constitutional Court, something it would surely not have done if it had thought that he had lied about the alleged attempt by Hlophe JP to influence the Constitutional Court.

It will be interesting to see how the JSC deals with this hot potato. Who knows, it might even act correctly and restore some of its lost credibility. One lives in hope.

I went on to questioned aspects of the statement which suggested that “appropriate mechanisms be developed to facilitate … regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals”. This criticism was recently echoed by Acting Deputy Chief Justice Zach Yacoob, who said in a speech delivered at UCT Constitution Week that he could not agree with any suggestion that the two political branches of government had to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it.

Because of statements like these about the need for debates and discussion between three branches of government, statements repeated in the discussion document released last month about the proposed review of the Constitutional Court, concerns were obviously raised about the proposed review of the Constitutional Court. Why assess the Constitutional Court when we all know that the reasons for the lack of economic transformation in South Africa are structural (a huge skills shortage and race-based inequality, amongst them) and political (the deployment of unqualified politically connected people to positions in the state sector)?

This anxiety was further exacerbated by previous irresponsible and uninformed statements made by ANC Secretary General Gwede Mantashe about the judiciary destabilising the government and being used to undermine Parliament as well as the more recent perplexing comment by President Zuma that government did not “want to review the Constitutional Court, we want to review its powers”.

Now the Department of Justice has finally announced the terms of reference for the review, and it is looking good for the judiciary. There are two big surprises in these terms of reference. First, the Supreme Court of Appeal (SCA) has now been included in the review along with the Constitutional Court. Of course, given the fact that the original announcement only spoke about assessing the judgments of the Constitutional Court, there will immediately be questions asked about the inclusion of the SCA in the review so shortly after that court had made an adverse finding (on technical issues) in a case that could affect the future political career of the President of the country. But such fears may be allayed by the actual terms of reference of the proposed assessment.

This brings me to the second big surprise of this announcement, namely the actual terms of reference of this proposed assessment. These terms of reference shy away from the controversial (some would say bizarre) proposals about the fundamental weakening of the separation of powers between the judiciary and the other branches of government in order to “facilitate debates” between the three branches of government to ensure they act towards a common goal. The previous two documents both contained talk of this, but the terms of reference avoid this altogether and focuses on many of the really important issues facing the development of our constitutional jurisprudence.

The assessment will be a mammoth (if not impossible) task to complete, and will require “a comprehensive analysis of the decisions of the Constitutional Court and the Supreme Court of Appeal since the advent of democracy” to try and establish:

the extent to which such decisions have contributed to the reform of South African jurisprudence and the law to advance the values embodied in the Constitution; to assess the evolving jurisprudence on socio-economic rights with a view to establishing its impact on eradicating inequality and poverty and enhancing human dignity; assess the impact on the development of a South African jurisprudence that upholds and entrenches the founding principles and values as espoused in the Constitution and how such jurisprudence contributes to and is enriched by the development of jurisprudence in the SADC region, the continent and globally; and assess the extent to which South Africa’s evolving jurisprudence has transformed and developed the common law and customary law in South Africa as envisaged by the Constitution.

The last aspect of this part of the brief is particularly welcome. Section 39(2) of the Constitution states that when courts develop the common law or customary law, they “must promote the spirit, purport and objects of the Bill of Rights”. Because there are not many lawyers and judges whose expertise lies outside the Constitutional Law field who actually engage with this provision seriously, there has been limited development of the common law, despite this powerful tool provided to lawyers to help mould the common law into a more egalitarian and fairer system or rules that focus more directly on whether the application of common law rules lead to just outcomes in particular cases.

In an article published in 2010 in the South African Journal on Human Rights, Dennis Davis and Karl Klare surveyed judgments over the first 15 years of the new dispensation, and found that although some leading judgments demonstrated the capability of the courts to transform the common law and provided glimpses of a more egalitarian, inclusive, and caring legal infrastructure, the jurisprudence is not without its limitations.

The authors found that the chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of powers issues. The authors argued that while the inhibiting effect of mainstream legal culture was not entirely responsible for these difficulties, it is nevertheless true that concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well taken.

It is also welcome to see that the review envisages a study of the implementation of the decisions of the Constitutional Court and the Supreme Court of Appeal by the State and would aim to determine:

progress made and challenges encountered in the implementation of the decisions of these courts; legislation, policies and government programmes that have been put in place to give effect to these decisions; and capacity of the state within the available resources to realise the outcome envisaged by such court decisions.

This is indeed a huge and complex task, both in terms of the sheer volume of judgments that would have to be scrutinised but also because of the methodological challenges that will arise in deciding how progress by the State should be measured. How does one measure whether a particular decision about an unreasonable housing policy, say, was indeed implemented by the various departments (including provincial housing departments)? Would the study focus only on national government, or would it also focus on provincial government and local government (where most of the “delivery” happens and where most of the problems in implementing social and economic rights occur)? The terms of reference are unclear on this point.

Of course, one of the biggest problems in South Africa relating to the promotion and protection of the rights in the Bill of Rights is that most South Africans do not have access to courts. Poor people almost never get their cases heard by the Constitutional Court unless they can persuade an NGO’s (not a group of institutions much loved by the government) to take up a case on their behalf. Without NGO’s our jurisprudence would have been much impoverished – both in the field of social and economic rights jurisprudence and more general Rule of Law jurisprudence.

The review therefore requires that a study be conducted on direct access to the Constitutional Court through a comparative study of other jurisdictions, to identify factors that inhibit access to justice in relation to:

the costs of litigation; legislative frameworks, structures and processes that inhibit access; the right of access to the Constitutional Court by indigent and unrepresented persons; and whether the rules and the practices with regard to direct access to the Constitutional Court promote access to justice in particular to the indigent and unrepresented persons.

The Constitutional Court discourages direct access to the highest court as such an approach will fail to ensure that the ordinary High Courts and the SCA deal with Constitutional Law cases and engage vigorously with Constitutional issues. It will also make it very difficult for the Constitutional Court to deal properly with cases that come before it. In the absence of a comprehensive programme to fund human rights litigation ordinary people will often not be able to get to the highest court. Of course, another option is to amalgamate the various Chapter 9 institutions dealing with human rights and to create a super Human Rights Commission that will take up cases on behalf of indigent people whose rights have been infringed by the state or private institutions. This was proposed by the Asmal Report, but the proposal has never been taken up by the government or by Parliament.

Judging from the terms of reference of the assessment of the Constitutional Court (and now the SCA), the government has retreated from its innitial far more problematic position about why the review was needed. Gone is the threatening tone and any mention of the assessment being needed “to ensure the judiciary conforms to the transformation mandate as envisaged in the Constitution of the Republic in terms of non-racialism, gender, disability and other transformational variables”. Gone is any talk of the review being needed to promote “interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution”.

In short, as is often the case with the ANC-led government, there are obviously two competing views about the judiciary inside the government represented by the various statements about this assessment. The one faction is deeply hostile to the judiciary (after all, judges review and set aside unlawful and unconstitutional actions by the President and unconstitutional laws made by Parliament and judges also convict and send to prison those who have been proven to be corrupt). The other faction understands the importance of an independent judiciary that is eager and empowered to implement the many progressive aspects of the Constitution. The original cabinet statement seemed to be influenced by the first faction, while the latter faction seemed to have had a bigger hand in preparing the terms of reference.

If done well, it might well assist the government to provide better access to justice and to create the mechanism that would help it to better implement progressive court judgments.

It remains an open question whether any institution or a number of institutions will actually be able to complete this review in the 18 month period envisaged by the terms of reference. After all the SCA delivers over 250 judgments each year while the Constitutional Court hands down between 30 and 40 judgments a year. That means the reviewers will potentially have to consider more than 5000 judgments and will then have to ask how all the relevant judgements (selected from these 5000) have impacted on the state and to what extent the state has actually implemented the relevant judgments. Quite frankly, I am not sure this is practically possible at all.

All I can say is: I am glad it’s not a job I will have to do.

In the memorandum I concluded that the proposed amendments fall far short of the minimum requirements as set out in the majority judgment in the Glenister case. (The full memo can be accessed here.)

What is clear from the draft is that there is no political will to create an independent body free from political influence or interference to fight corruption. It would be far too dangerous for the kleptocratic members of the political elite to create such a body, hence the minimalist attempts contained in the draft Bill which attempts to create a partly independent body, but one which will retain “sufficient” political control over it to ensure that the body does not investigate the “wrong” people.

But creating a partly independent corruption fighting body is like making a woman half pregnant – not something that seems possible at present. (Not that I am an expert on that particular score.)

As the Glenister judgment set out, at the heart of the inquiry is whether the body will be free from political influence and interference so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions. To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence.

Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment.

Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine.

Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination.

The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence.

Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above.

No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate.

These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate.

No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions.

The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”.

There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee).

The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. Such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

The judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns.

Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

First up, “Dr” David Molapo:

Second up, “Dr” John Maxwell

The email sent on his behalf reads as follows:

Or do they use the term rather disingenuously to try and justify the appointment of essentially anti-poor, deeply formalistic judges whose judgments will disregard the interests of the marginalised and might even champion the interests of the rich and powerful? Moreover, which judges are best placed to take on the challenges of legal transformation — within the disciplining boundaries of the separation of powers doctrine — and which judges merely cling to notions of legal formalism to the detriment of the poor and marginalised and in resistance to the transformation of the legal culture?

These questions are all raised by the fascinating Constitutional Court judgment in the case of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd, which was handed down today.

The majority judgment, written by Justice Edwin Cameron (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concurring), grapples with the transformative effects of the Constitution and the Rental Housing Act on the relationship between landlords and tenants. The judgment also attempts to empower Rental Housing Tribunals, Tribunals created by the democratic legislature to protect the rental housing market while also addressing the unequal power relations between landlords and tenants.

The minority judgment, written by acting judge Ray Zondo, who has reportedly been earmarked for appointment to the Constitutional Court (Mogoeng CJ and Jafta J concurring), displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants. The minority judgment, relying on what seems to me to be misguided technical arguments, would have upheld the freedom of a landlord to cancel a lease, hike rents or have tenants evicted who cannot afford the steep hikes on rentals, regardless of how unfair the landlord might have acted (all because they supposedly failed to plead their case correctly). The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.

The narrow question in this case seemed to turn on the question of when a landlord could legally cancel a lease and evict its tenants. But behind this formal question lurked the larger question of how the constitutional protection against arbitrary eviction (enshrined in section 26(3)), as well as the protections afforded to tenants by the Rental Housing Act, limited the discretion of the landlord to evict tenants or raise rents.

The applicants are tenants in Lowliebenhof, a ten-storey block of flats in Braamfontein, in the inner city of Johannesburg. The flats are their homes, and they live there in terms of various leases. The respondent landlord bought the building, upgraded it, and then wanted to increase the rent. To do so, it cancelled the tenants’ leases, but offered them new tenancies, on identical terms, though at rents of between 100% and 150% higher than the original rents. The tenants resisted and the landlord brought eviction proceedings. The original lease only allowed an annual rent increase of between 10% and 15% and the cancellation of the leases were aimed at circumventing these clauses.

The tenants put forward several arguments about why the landlord was not permitted to cancel the leases to raise the rents, based on the Constitution, contract law and public policy as well as on the interpretation of certain provisions of the Rental Housing Act. In the end the majority argued that it was unnecessary to develop the common law of contract to deal with this case. Instead it relied on the provisions in Rental Housing Act, which state that the landlord may not engage in “unfair practices” in its dealings with tenants. The Supreme Court of Appeal (SCA) had found that this phrase did not apply to a case like the present because an unfair practice contemplated in the relevant section was “incessant and systemic conduct”, not a once off termination of a contract aimed at hiking the rents.

The majority rejected this view and said that the Rental Housing Tribunal should have decided whether there was an unfair practice in this case. It pointed out that the Act provides that an unfair practice ruling “may include a determination regarding the amount of rental payable by a tenant” or may relate to any termination of the lease in respect of rental housing property “on grounds that do not constitute an unfair practice “.

The Act states that when a Tribunal makes a determination about the rent to be charged, it “must be made in a manner that is just and equitable to both tenant and landlord”. In addition, the rent determination must take “due cognisance” of “(a) prevailing economic conditions of supply and demand; (b) the need for a realistic return on investment for investors in rental housing; and (c) incentives, mechanisms, norms and standards and other measures introduced by the Minister in terms of the policy framework on rental housing…”.

The majority thus found that the Act demands that a ground of termination must always be specified in the lease, but even where it is specified, the Act requires that the ground of termination must not constitute an unfair practice. A Tribunal can decide whether such a termination constituted an unfair practice — regardless of what the lease might have stipulated. The effect of these provisions is that contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with them as unfair practices.

It means that unfair practices are not determined by taking into account only the common law legal rights of a tenant or landlord, but by considering also their statutory interests. This makes it even clearer that the statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights to scrutiny for unfairness in the light of both parties’ rights and interests.

Given this expansive interpretation of the Rental Housing Act (an interpretation influenced by the provisions in the Constitution that prohibits arbitrary evictions from housing and guarantees for everyone the right of access to housing), the majority held over final determination of the appeal (which was originally based on the request to have the tenants evicted) to enable the landlord and tenants, if so advised, to bring suitable proceedings before the Tribunal.

If the Tribunal should hold that the termination of the tenants’ leases was an unfair practice, and should the relief it grants include an order setting aside the termination, the eviction order granted against the applicants may have to be set aside. The parties must be granted leave to set the matter down in this Court for finalisation of the appeal on papers supplemented as they think fit.

The minority had no truck with this airy-fairy, bleeding heart, approach to the old fashioned area of contract law, which would have shown some deference to the democratically elected Parliament who passed the Rental Housing Act. Instead the minority would have preferred to rely on traditional contract law principles that would have allowed the landlord to cancel the lease, and to evict the tenants unless they agreed to a 150% hike in their rents. The minority argued that this case was never argued on the basis of the Rental Housing Act (although the SCA interpreted this Act narrowly in making a finding in favour of the landlord) and hence that the majority was wrong now to rely on this progressive piece of legislation to come to the assistance of the tenants.

The minority, seemingly channeling early twentieth Century British attitudes about the distinction between law, on the one hand, and values and morals, on the other, (as if there was an absolute distinction between these), argued that whether the landlord had engaged in unfair practices was not a legal question at all, but rather a value judgment requiring a judge to rely on moral values (not “law”). The Constitutional Court should therefore not have engaged with this issue at all, according to the minority.

Relying on the legal fiction that the parties “freely and voluntarily entered into leases with clauses that allowed either party to terminate them on notice and which did not say that the termination would not be permissible when effected for a certain purpose or when effected with a certain motive”, the minority would not have referred the matter back to the Rental Housing Tribunal (as the majority did).

Zondo AJ argued that:

the applicants may also have insisted on clauses that excluded certain reasons or motives for the termination of their leases. They did not do so and they have not put up any case to suggest that their bargaining position did not allow them to do so. The matter must then be decided upon the basis that, like the two tenants who included the unusual clauses that their leases could only be terminated at their discretion, the applicants, too, could have included a clause to the effect that their leases could not be terminated to enable the landlord to increase rents by amounts higher than those permitted by their leases. They failed to do so.

As Justice Froneman (in a concurring judgment) pointed out, this denial that it was permissible for the Constitutional Court to consider the interpretation of the Rental Housing Act (which might protect the tenants) in this case, was difficult to square with the law and the facts of this case.

Both the High Court and the Supreme Court of Appeal interpreted the Act and came to the conclusion that the respondent’s right to cancel the leases was unaffected by its provisions. The majority found “that interpretation to be wrong. That the interpretation of the Act lies at the heart of this matter, however pleaded, has never been doubted… I thus have considerable difficulty in understanding how this appeal can be determined in this Court without interpreting the Act. Whether the Act applies to leases in general is a matter of law. So is the question whether the cancellation.”

Moreover, justice Froneman also dispensed with the deeply conservative and formalistic argument about the distinction between morals and value judgments on the one hand and legal questions on the other:

It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an “unfair practice” under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone.

The various judgments therefore illustrate a clear distinction between one set of judges who are engaged with the transformative project and with the transformation of legal culture and the interpretation and application of law (all done while displaying suitable respect for the elected branches of government who passed the Rental Housing Act) and another set of judges stuck in a colonial-inspired formalist mindset (with potentially adverse consequences for disempowered tenants) who rejected the notion that constitutional values and the morals underpinning them, have any role to play in the adjudicating process in this case.

For those of us studying court judgments and legal articles produced by a (still largely) conservative academia, this insight will perhaps not come as a surprise. The surprising aspect of the judgement arise from discovering which judges came out on which side of this profoundly important judicial and philosophical divide.

The Judicial Service Commission (JSC) announced yesterday that no one was shortlisted for the vacant position on the Constitutional Court because there were not a sufficient number of suitable candidates to shortlist for this job (despite an extension of the deadline for nomination to the highest court).

Apparently not even Justice Mandisa Maya of the Supreme Court of Appeal (who is currently acting on the Constitutional Court) put her name forward for nomination to the highest court. Neither did any of the other female candidates who might plausible stand a chance of being appointed to the Constitutional Court.

This might seem curious, as currently only two of the eleven serving judges on the Constitutional Court are female. If one were to take seriously the claim by the government and some members of the JSC that they were committed to apply section 174(2) of the Constitution when they considered judges for appointment – a section that states that “[t]he need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed” – then one would have thought that the JSC would clamour to  recommend a number of credible and competent female judges for appointment and that the President would appoint a woman judge to the vacant position.

Section 174(4) prescribes the procedure for the appointment of ordinary judges to the Constitutional Court (that is, Constitutional Court judges other than the Chief Justice and the Deputy Chief Justice):

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

1. The Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President.
2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made.
3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

This means that when there is  one vacancy on the Court (as is presently the case), the JSC must select four appointable candidates and must submit this list of four names to the President who can then select one of the four names nominated by the JSC after the requisite consultation with the Chief Justice (and opposition parties). One assumes that the JSC decided that there were not four appointable nominees and the process was thus aborted. The reluctance of suitably qualified women judges or academics to put their names forward during this round could be explained in several ways.

First, it might be that all the strongest women candidates currently believe that the JSC and the President are not serious about gender transformation of the bench. If this were to be so, the question would arise as to why this perception could have taken hold. Some might argue that the appointment of a Chief Justice (whose previous judgments exhibited a rather lenient approach to sexual violence against women) might have helped to create this perception. The perception could also have been fostered by the previous round of appointments when only one of the four candidates appointed to the Constitutional Court was a woman, despite the fact that several strong female candidates were in the running for appointment.

Second, a perception might have been created that the Chief Justice and the majority of members of the JSC had already decided who it wanted to appoint to the Constitutional Court this time around and that any process in which candidates were interviewed would be little more than a sham aimed at providing some credibility to a formal exercise whose outcome was predetermined. (I have no credible information indicating that such a perception had been created or if it had been created, how it might have arisen and who the preferred candidate might be.)

Third, the fact that so few candidates were prepared to put their names forward for appointment to the Constitutional Court may well be based on a lack of trust in the JSC and the process it follows to decide who to nominate for appointment. Given the way in which it has conducted itself in the past, this body is perhaps suffering from a serious lack of credibility. The sycophantic behaviour of some members of the JSC during the interview conducted last year with the only “nominee” for the post of Chief Justice, might have helped to create this distrust in the ability or willingness of members of the JSC to conduct real and helpful interviews with candidates.

Moreover, the persistent failure by almost all JSC members to engage nominees on their judicial philosophy and their attitudes to the substantive legal issues, may have disheartened most credible candidates who may have felt that their intellectual abilities, their progressive judicial philosophy and their compassion will not be noticed because of a lack of substantive probing questioning put to them and, if it were to be noticed, would play no role in the decision on who to nominate or appoint.

Why do JSC members seldom ask a nominee about his or her views about the role of the courts in transforming the common law by applying section 39(2) of the Constitution to interpret and develop the common law in order to bring it in line with the spirit, purport and objects of the Bill of Rights? Such questioning would provide the JSC with telling information about the transformation credentials of the candidate. Why do members of the JSC almost never ask a candidate about his or her views on “reasonableness review” in social and economic rights cases and whether this standard of review was appropriate? Why are candidates almost never asked how they view hate speech and its limits?

Why are candidates not confronted with questions about the nature of our democracy established by our Constitution? It would be helpful to know whether a candidate is a strong supporter of the view that our Constitution requires a form of participatory democracy and that it requires judges to act decisively to protect and advance the rights of citizens to enable them to participate in our democracy. It would also, surely, be helpful, to know whether a candidate slavishly supports a narrow notion of representative democracy and envisages a limited role for courts in safeguarding the democratic rights of citizens.

Surely both the Chief Justice and the other members of the JSC need to do serious introspection about the process through which Constitutional Court judges are nominated and appointed to the Constitutional Court? Surely one can find a way to balance the requirement to appoint an intellectually curious, highly intelligent, technically competent and principled judge on the one hand, with the requirement to appoint a compassionate, progressive judge imbued with the transformative values of the Constitution on the other?

But to do that, one will have to be prepared to appoint judges that are capable and willing to engage in robust intellectual debates with the members of the JSC and incumbent members of the Constitutional Court (after appointment) and will interpret and apply the Constitution with integrity and in a fearless manner. The question inevitably arise whether the JSC is prepared to nominate and the President is prepared to appoint such judges, or whether they would rather appoint an altogether more timid, conservative and intellectually pliant crop of judges.

This is not surprising.

In a one-party dominant democracy in which access to state power also potentially provides undeserved access to immense financial wealth, acquired legally or illegally through the tender process or through high-end government jobs (with its accompanying perks), independent institutions (especially powerful independent institutions staffed by people of integrity) can easily be seen as a mortal threat to the acquisitive ambitions of the looting classes.

In order to maintain their political dominance and in order not to lose all legitimacy in the eyes of ordinary citizens, the looting classes need to draw a veil over their venal actions, by uttering platitudes about their abiding concern for the poor (on whose behalf they so enthusiastically sip champagne) and by expressing concerns about the slow pace of transformation and the “undemocratic” nature of those independent institutions that stand between them and the enjoyment of immense wealth and, perhaps as an afterthought, political power.

After all, no one wishes to spend 15 years in jail (or, in a best case scenario, a few years in a prison hospital), so it is imperative that the “right” person heads the National Prosecuting Authority and the “right” person heads the office of the Public Protector in order to immunise the looters from criminal prosecution for corruption. And of course, it can turn into a terrible bother when cheeky judges declare invalid an Act of Parliament or an appointment of the President, especially when these judgements threaten to destroy the carefully crafted legal mechanisms and structures put in place to protect the political leadership and those who are close enough to the leadership to benefit financially from an emerging kleptocratic state.

It is therefore tempting to dismiss all the talk of a review of the powers of the courts and the expressed yearning for a return to a system of parliamentary sovereignty in which Parliament would be able to make any law – no matter how drastic it infringes on the rights of ordinary voters and no matter how much unbridled power it grants to any of the politicians who “serve” in the Executive – as nothing more than the self-serving attempt at grabbing and consolidating unchecked power.

But this would be wrong. Given South Africa’s apartheid history in which the vast majority of citizens were disenfranchised and given the general distrust in legal processes and in members of the judiciary amongst many voters, arguments about the essential undemocratic nature of judicial review may well have some traction amongst ordinary voters who may not realise that the judiciary – for better or for worse – can (at the moment, at least) probably be trusted far more than can the politicians for whom we vote out of a sense of nostalgia for a better time (that might never have been) and out of a fear of a return to white domination and oppression.

So when the Young Communist League issues a statement demanding that judges become accountable to “the people”, one may take it slightly more seriously than one would normally have done.  The statement makes for fun reading, so I quote a sizable part of it here:

We have recently called for the transformation of the judiciary as part of our National Lekgotla resolutions and have stated strongly that our judges are not perfect and that since they are human; they are bound to err, to be biased and influenced by various social and political ambiances… [W]e have found it to be our revolutionary duty to highlight that the members of the judiciary must in exercising their duty understand and respect the political authority of the legislature and the executive; as the powers vested in them are mandated and legitimised by members of society through a democratic process enshrined in our constitution.

We have called for a judiciary system that is accountable to the people and that we will campaign for amendments in the Constitution for the judiciary to be subjected to popular and democratic elections. If the judiciary, like the other branches of government serves the public, then the public must determine who should serve in such offices at all levels of the judiciary.

There are judgements that necessitate that the judiciary be transformed as they leave much to taste relating to transformation of our state and society; it cannot be normal that the courts serve as stumbling blocks of transformation and hide under the protection of the media. The judiciary is not immune from public scrutiny and its independence should never be elevated above the other branches
of government which are democratically elected by the people and are accountable to the people.

Unfortunately the young comrades did not provide any examples of specific judgments of, say, the Constitutional Court, which might have left “much to taste” and which might have acted as a stumbling block to transformation (however defined). Perhaps it has in mind the Mazibuko judgment (which I had previously criticised) where the Constitutional Court endorsed the “pay-as-you-go” water policies of the City of Johannesburg – despite the fact that section 27(1)(b) of the Constitution guarantees for everyone the right of access to water.

But that policy was implemented, as I said, by the democratically elected City Council of Johannesburg (run by the ANC, who is in alliance with the Communist Party) in line with the water policies of the democratically elected national government (a government in which Communist Party serves and whose perks – including long stays in the Mount Nelson and revolutionary free travel to Cuba – its leader seems to enjoy rather a lot). It is therefore unclear how the election of judges would make such judgments more “transformed”. The case nicely illustrates that the problem is not the judges at all, but rather the neo-liberal policies of the very government in which the Communists continue to serve and continue to benefit from.

The problem is that the voters have actually elected this government who has implemented these anti-transformation policies. One can never trust the bloody voters to do the right thing, ne? What is needed, so it seems, is to take a leaf out of the book of Berthold Brecht, and demand that the electorate be replaced. In his poem, The Solution, Brecht mocked an unnamed Communist regime’s pretensions to being democratic in the following manner: “After the uprising of the 17th June/ The Secretary of the Writers Union/ Had leaflets distributed in the Stalinallee/ Stating that the people/ Had forfeited the confidence of the government/ And could win it back only/ By redoubled efforts./ Would it not be easier/ In that case for the government/ To dissolve the people/ And elect another?”

Perhaps the young comrades also did not realise that in a constitutional state (in which the judiciary is required to interpret and enforce the Constitution and thus to check the power of the other branches of government to ensure that those branches do not abuse their power or infringe on the rights of citizens), elected judges would be superfluous. Why have another elected branch of government if that branch is going to do no more than confirm the policies (like the neo-liberal policies around the pay-as-you-go supply of water) devised by the other elected branches of the state.

But, to be fair, at first glance I did not realise how brilliant this plan might turn out to be. As the young comrades pointed out, the problem with judges is that “they are bound to err, to be biased and influenced by various social and political ambiances”.

Goodness, I for one would not want to have any case about the constitutionality of an act by the President heard by judges influenced by various social and political “ambiances”. That is why the election of judges might turn out to be a brilliant idea. After all, at present the other branches of government are staffed by elected officials and we all know that they never err, that they are never biased and that they would never think of being influenced by social or political “ambiences”. No one who has ever attended a debate in the National Assembly would be able to deny that these elected representatives are always impeccable objective and diligent and that their decisions are always correct and never influenced by the wrong kind of “ambiences”.

Who would not want to take their chances in court with an elected judge – as long as that elected judge demonstrates the high degree of objectivity, and the unfailing ability always to make the correct decision, for which our members of Parliament are so well known (give or take a hundred or so Travelgate crooks).

I only have one question: how are we going to protect these elected judges from exposure to social and political “ambiances”? Oh, of course, we only need to lock them up where they can be kept safe from the corrupting influences of the Sowetan and the Mail & Guardian and ETV News to keep them safe from such dangerous influences. Then we can wheel them out whenever a show trial, I mean a constitutional decision, demands it. That will leave plenty of time for the well-connected to loot the state and to spend their money on worthwhile projects – like champagne drinking appreciation classes, visits to drug mule girlfriends in foreign prisons and attending revolutionary parties organised by Kenny Kunene or the intellectual heirs of Brett Kebble.

PS: Apologies for the frivolous nature of this post. I just could not resist it.