Constitutional Hill

Dikgang Moseneke

Moseneke story still no scandal

Nov 20th, 2009
by Pierre De Vos.
32 comments

The Mail & Guardian continues its “expose” of the alleged dubious business dealings of Deputy Chief Justice Dikgang Moseneke in their paper this week. It claims that “the Moseneke family” has Congolese Oil Rights which were facilitated by “an alleged fraudster extraordinaire”, stating that:

Nozi Mwamba, the facilitator who helped pave the way for the Moseneke family’s Encha Group to obtain Congolese oil concessions, is wanted in France on charges that he was key to a multibillion-rand currency swindle. Mwamba, who lives in South Africa and his native Democratic Republic of the Congo (DRC), denies the charges, but has not returned to attend a trial under way in Paris.

After implicitly questioning the ethics of the Mail & Guardian for publishing the story last week and suggesting that there is far less of a scandal here than the sensational headlines suggest (at least a scandal involving the Deputy Chief Justice), I was taken to task by some who suggested that I am merely defending Moseneke because I am a fan of the Deputy Chief Justice.

After the most recent “revelations”, I am even more convinced that the way in which the newspaper has attempted to link Moseneke to unsavoury characters because his family trust owns shares in a company in which Moseneke’s brother is involved and who has done deals with questionable characters, really does not make much sense. I would expect better from my favourite newspaper.

In order for the story to make sense and to have any impact, Moseneke has to be linked to the unsavoury characters and the shenanigans of the people who do business with a company in which his family trust owns 18% of the shares. This is why the story has to fudge the issue by talking about the Moseneke family being involved with an alleged crook - as if the company in which Moseneke’s trust has an 18% stake is  a family business in which Moseneke is an active participant – as a prominent member of the family.

But a few paragraphs into the story one finds the following extraordinary statement which really nullifies the attempts of the newspaper to link Moseneke to the shady Mwamba: “There is no suggestion that he [Moseneke] was personally aware of Mwamba’s role.” I also searched in vain for any reference in the story to evidence that Moseneke plays an active role in the company in which his family trust owns 18% (so where is the family business?) or any suggestions that Moseneke as an 18% shareholder in the company, knew that the company were involved with shady characters.

Maybe I am missing something, but I find this rather naughty on the part of the newspaper. The Mail & Guardian has no evidence to link Moseneke in ANY way with the shady people it reports on in the latest story, but it nevertheless proceeds by using deliberately vague phrases like “the Moseneke family” to suggest that Moseneke is involved with a “fraudster extraordinaire”. 

Based on the fact that Moseneke’s family trust owns shares in a company that has done business with these shady characters, the paper suggests that Moseneke - as a member of the family – has links with a “fraudster extraordinaire”. However, it states itself that there is actually no evidence that Moseneke is in any way linked to these people. There is no evidence that Moseneke knows these people (despite the suggestions of the newspaper that there is a link), nor that he knows that the company in which his trust owns 18% was linked to these people.

I find this extremely unfair towards Moseneke. Let us use another example to demonstrate how the newspaper makes use of innuendo and hints to link Moseneke to wrongdoing without even a shred of evidence. We all recently learnt that Old Mutual owns a large stake in Zimbabwe Newspapers Ltd., a government controlled newspaper in Zimbabwe that daily prints hateful propaganda to help prop up Robert Mugabe. The company also has some business investments in Chiadzwa, the source of Zimbabwe’s blood diamonds and this means the company is contributing to the exploitation of local labour and the oppression of local communities.

If one follows the logic of the Mail & Guardian in these stories, any judge who owns shares in Old Mutual or (any judge who – like me - have an Old Mutual insurance policy) could therefore be smeared by associating that person with Robert Mugabe and his murderous cronies. I better get rid of my Old Mutual insurance policy because who knows when the Mail & Guardian will report that I own such a policy before trying to link me to the human rights abuses of the Mugabe regime.

One might argue that the two scenarios are different because in the Moseneke case he owns 18% (through a trust) in a company run by his brother. But in the absence of hard evidence that Moseneke is involved in the day to day running of the company in which his family trust holds an 18% share, there is absolutely no scandal here. Just as there is no scandal in me holding shares in Old Mutual because there is no evidence that I was part of an Old Mutual decision to prop up the tyrrant to our North, there is similarly no scandal about Moseneke in the absence of evidence that he was involved in the day to day running of this company. 

It seems to me the story would have had some merit if it had shown that: (i) Moseneke was actively involved in some executive capacity in the business in which his trust held a stake; or (ii) Moseneke had used his position or name as a judge (or his brother had used it with Mosenek’s knowledge) to gain some unfair advantage for the company in which his trust held a stake; or (iii) the company in which his trust held a stake had landed the government business or the DRC contracts in a corrupt manner and Moseneke knew about this; or (iv) that Moseneke had decided one or more cases in favour of the government to try and gain a specific advantage for the company in which his trust had a stake.

As the Mail & Guardian does not provide such proof, it remains a story that associates Moseneke with wrongdoing because his family trust invested in a company who might have had shady dealings. If that was the standard applicable to judges, no judge should ever be allowed to own any shares because, lets face it, many companies have been involved in shady deals or have been associated with shady characters or with the government. No Absa shares (as the government banks with them); no mining shares (who knows whether Brett Kebble might be involved or what the safety record is of the mines operated by the company); no Telkom shares; no Sasol shares; no shares in the retail sector (because who knows whether they buy clothes from sweat shops in China). Is Moseneke then not held to a higher standard than other judges?

Maybe it would be better for all South African judges to be forced to place all their shares in a blind trust (as is apparently the case in Canada), but that is not currently the situation. So, in the absence of any evidence that Moseneke did more than invest in a company through a family trust, really, there is no justification for reporting on this as if the Deputy Chief Justice has acted in contravention of the Code of Judicial Ethics.

Moseneke, the M&G and judicial ethics

Nov 16th, 2009
by Pierre De Vos.
22 comments

The Mail & Guardian published an article and editorial on Friday in which it exposed the fact that Deputy Chief Justice Dikgang Moseneke owned 18% of a company (via a family trust) that rents buildings to various government departments and is hoping to do big business in the Democratic Republic of the Congo. As someone who has railed against Judge President John Hlophe because of his dishonesty and clear conflicts of interests (taking R500 000 from a shady investment company, doing favours for that company and lying about the extent of the payments to him) one would think that I would be outraged by these revelations.

But in the past I have expressed a deep admiration for the Deputy Chief Justice, so my very human first reaction was typically South African: who leaked this information to the newspaper, I wondered? What is the political agenda behind it? Why do they want to destroy the reputation of this good man? Is it because he is black or perhaps because he is seen by some as anti President Zuma? (And suddenly I sounded to myself like only a slightly nicer, less hate-filled and more rational version of Paul Ngobeni!)

But one has to try and be consistent and principled, so its important to look at the allegations and evaluate them honestly. I have to consider the possibility that one of my judicial heroes has feet of clay. So let us look at the facts.

While most of the article is no more than an unfortunate attempt to smear Moseneke because of his association with his brother, it does pose questions about the wisdom of the Deputy Chief Justice’s business dealings through his family trust. If the article is to be believed, the family trust is being used as a legal vehicle to help keep Moseneke at arms length from the day to day operations of certain companies that do business with the state. He has apparently given advice to his brother about the business dealings of the company and through his family trust has significantly benefited financially from these dealings.

This seems to me to have been unwise, but the Deputy Chief Justice has not done anything illegal. It is also difficult to determine from the newspaper story whether Moseneke had acted in a way that contravenes the code of judicial ethics.

On the one hand it seems that the Deputy Chief Justice has acted in an exemplarily fashion by resigning all his directorships and by creating a family trust through which his business interests are now conducted. This seems to comply very diligently with the provision in the new code of judicial ethics which states that ”[u]pon appointment, a judge severs all professional links and recovers speedily all fees and other amounts outstanding and organises his or her personal and business affairs to minimize the potential for conflict of interest”.

But the Code of judicial ethics also contains other provisions which continues as follows:

A judge is not involved in any undertaking, business, fundraising or other activity that may affect the status, independence or impartiality of the judge or is incompatible with the judicial office.

A judge may be a director of a private family company or member of a close corporation but if the company or close corporation conducts business the judge may not perform an executive function.

A judge does not receive any income or compensation that is incompatible with judicial office.

A judge is not engaged in financial and business dealings that may reasonably be perceived to exploit the judge’s judicial position or are incompatible with the judicial office.

The Mail & Guardian story does not suggest that Deputy Chief Justice Moseneke has been involved directly in any business dealings and he has clearly not performed “an executive function” in any company. It also does not link his financial interests of the family trust to any action that might even remotely be perceived to have been biased or influenced by his financial interests. Moseneke has always acted without fear, favour or prejudice and there is not even one jot of evidence that he has not always acted in a fair and honest manner when hearing cases before him.

Unlike Hlophe who did favours for a company on whose pay role he was, Mosenekle has always fearlessly interpreted and applied the law and has often found against the state. To some degree I therefore find the Mail & Guardian story something of a sensationalistic character assassination.

But the story does suggest that through the involvement of the family trust with a company doing business with the state he has received some income and benefits and that he has been quite closely involved with this by giving advice to his brother. Although this interest is all at arms length, stories like that appearing in the Mail & Guardian might create an apprehension among some (no matter how wrong it may be) that the Deputy Chief Justice might not always act in an independent and impartial manner. 

My personal view – for what it is worth – is therefore that the Mail & Guardian story does not really expose any corrupt, illegal or judicially problematic action on the part of the Deputy Chief Justice. However, I nevertheless wonder whether Moseneke was wise to create a family trust with such close business links with the state. Why could he not have invested his money in publicly traded shares on the stock market to prevent even the slightest whiff of a scandal?

In the current climate of distrust, backstabbing, revenge and allegations of the involvement of national intelligence in political score settling, we all have to be extra careful, lest our actions are used to smear us. Justice Moseneke’s actions were therefore at best naive and at worse, unwise. Or am I just saying that because I am a great admirer of the man?

“Afrikaners is (not) plesierig”?

Oct 14th, 2009
by Pierre De Vos.
65 comments

Hoërskool Ermelo has on average about 22 learners in a classroom. At the nearby Lindile School, 62 learners are on average crammed into one classroom. Until now the school’s medium of instruction was Afrikaans and the school was so determined to keep things this way that it challenged the lawfulness of a decision by the Head of the Mpumalanga Education Department to withdraw the powers of the school’s governing body to determine its own language policy.

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Others the Constitutional Court today confirmed that the Head of Department had acted unlawfully. But this was a Pyrrhic victory for the school as it was ordered to reconsider its language policy and the school will almost certainly have to change its language policy. This will allow black learners who do not wish to be taught in Afrikaans to attend the school.

This judgment is important because it clarifies the powers of school governing bodies to determine a school’s language policy as well as the powers of the Head of the Education Department to intervene in a school’s affairs – including the determination of a language policy.

Section 6(2) of the Schools Act  provides that the governing body of a public school “may determine” the language policy of that school. However, Deputy Chief Justice Moseneke, in a unanimous judgment, made it clear that this does not mean that the “function to decide on a medium of instruction of a public school is absolute or is the exclusive preserve of the governing body. Nor does it mean that the only relevant consideration in setting a medium of tuition is the exclusive needs or interests of the school and its current learners or their parents”. As Moseneke J points out:

[A] school cannot be seen as a static and insular entity. Good leaders recognise that institutions must adapt and develop. Their fiduciary duty, then, is to the institution as a dynamic part of an evolving society. The governing body of a public school must in addition recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution.

In this case the governing body’s language policy excluded learners (all black) who wanted to be taught in English. Although section 29(2) of the Constitution states that “everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable” and, further, “that the state must consider all reasonable educational alternatives, including single medium institutions”, when realising this right, there is no absolute right in the Constitution to be taught in a single medium Afrikaans school.

Considerations of equity, practicability and the need to redress the results of past racially discriminatory laws and practices must all be taken into account when considering whether the maintenance of single medium Afrikaans schools are reasonably practicable. In Ermelo, suggested the Court, it is clearly not reasonably practicable to maintain a single medium Afrikaans high school and the insistence by Hoërskool Ermelo (whose student numbers have been dropping) to continue with an Afrikaans only policy was therefore probably not reasonable.

The Court also made it clear that the Schools Act allows the Head of Department to withdraw the powers of a governing body to determine a school’s language policy “on reasonable grounds”. What would constitute reasonable grounds will have to be determined on a case by case basis but a reviewing court will have to consider carefully the nature of the function, the purpose for which it is revoked in the light of the best interests of actual and potential learners, the views of the governing body and the nature of the power sought to be withdrawn as well as the likely impact of the withdrawal on the well-being of the school, its learners, parents and educators.

It is important to note that all these factors would have to be weighed within the broad contextual framework of the Constitution to provide access to education for all and the need to redress the results of past racial discrimination. School governing bodies are therefore not allowed to use a language policy in an indirect manner to prevent large numbers of black learners to enroll at a school. Where there are vast discrepancies between the class sizes in different schools in a single town, a school governing body would not be justified in sticking to a policy of teaching exclusively in Afrikaans.

The judgment will probably not be welcomed by Afrikaans language activists, but it seems to me to strike a good balance between the needs for equity and redress on the one hand, and the right of school governing bodies to determine language policy on the other. The crux of the matter is that a governing body is not allowed only to consider the interests of the existing learners and parents: it must also consider the needs of the broader community. The judgment therefore reflects a need for us all to embrace social solidarity and not to act in a selfish manner to exclude others in order to further a narrow kind of language nationalism.

The case is also strikingly innovative and pro-active in the way it addresses the problem of overcrowding in schools and the tardiness of officials in dealing with this issue. Justice Moseneke lambasted the Department for not taking adequate steps to ensure that there are enough places so that every child in Ermelo can attend school as required by the Schools Act and as guaranteed by the Constitution.

The Court therefore ordered the Head of Department to submit a report to the Court by 16 November 2009 setting out the likely demand for grade 8 English places at the beginning of 2010 and setting out the steps that the Department has taken to satisfy this likely demand for an English or parallel medium high school in the circuit of Ermelo. The report must also provide information and statistics on the levels of enrolment in other high schools in the area in the light of the learner-to-class ratio norms set by the Minister for Education.

The order clearly attempts to force the Department to do its job properly and this is to be welcomed. It remains to be seen how the court will deal with this report, but it represents quite a leap for our Constitutional Court and demonstrates that as far as education is concerned, it is prepared to stick its neck out to try and get the politicians to do their jobs.

SAPS shows how not to implement “affirmative action”

Aug 19th, 2009
by Pierre De Vos.
36 comments

The South African Police Services (SAPS) yesterday agreed to an out of court settlement with four chemical analysts at the SAPS forensic laboratories after the four challenged a decision not to promote them to the rank of Captain, despite the fact that the post were left vacant because no suitably qualified black candidates could be found. As part of the settlement they have all been promoted and this promotion was back-dated to the time when the promotion was denied.

The SAPS argued that it kept the posts vacant as part of an affirmative action strategy but after employing real lawyers to advise them on the case, they suddenly settled the case (perhaps to avoid a precedent setting judgment on the matter?) and this settlement was made an order of court.

The case clearly demonstrates how affirmative action should not be handled and how the state often uses affirmative action unlawfully to block the appointment or promotion of white candidates – embracing a view of transformation that is clearly not in line with constitutional jurisprudence and the ethos of non-racialism so movingly espoused by President Zuma just a few days ago (although the SAPS approach might well be in line with the views espoused by some Judicial Services Commission (JSC) members in recent interviews). 

In Minister of Finance v Van Heerden the Constitutional Court – in a ground-breaking judgment by Deputy Chief Justice Dikgang Moseneke – dealt comprehensively with the requirements for any constitutionally valid corrective measures, whether in the labour field or in any other field, and made it clear that such measures (also called “affirmative action”) would not easily be declared unconstitutional. At the same time the Court emphasised that not all measures taken in the name of affirmative action would be constitutionally valid.

As I interpret it, the Court set out four requirements which had to be met by affirmative action measures to past constitutional muster. First, the different treatment had to form part of a broader plan or programme to correct the consequences of past unfair discrimination. Ad hoc, nepotistic or piecemeal measures taken on the spur of the moment to benefit a family member or friend of the Minister, say, would not do. I will assume that in this case the SAPS left the posts vacant as part of a broader programme to correct for past racial discrimination and oppression and that the first requirement was therefore met.

Second, the programme mentioned above was required to be “designed to protect and advance a disadvantaged class”. The overwhelming majority of those targeted for advancement by the programme  had to belong to a group previously disadvantaged by unfair discrimination. This means a programme could target a group because of their race, gender, sexual orientation, disability or HIV status and as long as the overwhelming majority of those benefiting from the programme belonged to the group disadvantaged in the past by unfair discrimination, the second requirement would have been met. Here only blacks – broadly defined- benefited from the programme (in as much as anyone really benefited from it) so I will assume that this requirement was also met.

Third, the measures had to be “designed to protect or advance” those disadvantaged by unfair discrimination in the past. Although it was difficult to predict whether measures would achieve their goal, the court said the measures had to “be reasonably capable of attaining the desired outcome. If the remedial measures are arbitrary, capricious or display naked preference they could hardly be said to be designed to achieve the constitutionally authorised end. Moreover, if it is clear that they are not reasonably likely to achieve the end of advancing or benefiting the interests of those who have been disadvantaged by unfair discrimination, they would not constitute measures contemplated by” the Constitution.

In this case, the third requirement was clearly not met. There was no link between leaving posts vacant and correcting for past racial discrimination in the SAPS. Leaving posts vacant would just hamper the fight against crime without correcting for anything. The measures also seem arbitrary and capricious, given the fact that it in effect placed a complete ban on the promotion of suitably qualified white members of the SAPS and could therefore be interpreted as no more than reflecting a spiteful need to punish white members of the SAPS for being white.

Lastly, the measures were required to promote “the achievement of equality”. Determining whether a measure will in the long run promote the achievement of equality requires an appreciation of the effect of the measure in the context of our broader society. Although it had to be accepted that the achievement of this goal may often come at a price for those who were previously advantaged, it was also clear that the long-term goal of our society is a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity.

Central to this vision is the recognition that ours is a diverse society, comprised of people of different races, different language groups, different religions and both sexes. This diversity, and our equality as citizens within it, is something our Constitution celebrates and protects. In assessing therefore whether a measure will in the long-term promote equality, we must bear in mind this constitutional vision. In particular, a measure should not constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits that our long-term constitutional goal would be threatened.

In this case, this last requirement was clearly also not met as it imposed a substantial and undue harm on white SAPS members, made them feel unwelcome in the Police and thus made them feel less worthy of equal concern and respect. Because the police in effect applied the affirmative action policy in such a way as to completely exclude whites from promotion, it far overstepped the boundary of constitutionally permissible corrective measures and had clearly acted unconstitutionally (and, it must be said, in contravention of the Employment Equity Act).

It is a pity that the case was settled. This means no new precedent was set by the legal action taken by the four SAPS members. State institutions may therefore well continue to discriminate unfairly against white applicants for posts or for promotion. It is clear that those who design and enforce affirmative action policies do not always understand that the Constitution prohibits displays of naked racial preference and that the laudable goals of transformation must be achieved within the disciplining framework of section 9 of the Constitution.

Ethics guidelines are so September 10

Aug 7th, 2009
by Pierre De Vos.
72 comments

Does any of the esteemed readers of this Blog have the email address of Judge President John Hlophe? I would really like to send him a copy of the Ethics Guidelines issued by the Chief Justice, the President of the SCA and the Judge Presidents of the various High Courts in South Africa in 2000. Pity one cannot send him a pair of reading glasses via email as well. He obviously needs them.

In today’s Mail & Guardian Hlophe contravenes several of these Guidelines which he is supposed to uphold. First, Hlophe comments on a pending case  by stating that he believes Jacob Zuma was innocent despite the fact that an application to declare the dropping of charges against President Zuma is still pending and there is therefore still a possibility that Zuma may be tried.

(This is also quite a shocking statement for a judge to make as he – like the rest of us – had not heard any of the evidence and cannot possibly know whether President Zuma is guilty of any crime or not. He has therefore prejudged a case – a cardinal sin for any judge to make.)

Hlophe then attacks sitting judges and another branch of the judiciary by saying that there was a political conspiracy  against him and that this conspiracy was led by Chief Justice Pius Langa and his deputy Dikgang Moseneke. This “conspiracy”, he claims, took shape the moment Hlophe made it clear that his colours were firmly nailed to the Zuma mast. He provides no evidence of this “conspiracy”.

(The scandalous double standard here is, of course, nothing less than we would expect of the Judge President. Hlophe himself has been fighting a long legal battle against the Constitutional Court judges because he claims they denigrated him and infringed his right to dignity by laying a complaint against him and making this public without immediately providing the necessary proof. This suggests that Hlophe does not think others have the same rights he claims are applicable to himself.)

He is also quoted as saying that Langa was serving “other political forces” when he laid a charge against Hlophe. “The old man should have stayed out of it and waited to retire,” he is quoted as saying. He then proceeds to attack the integrity and legitimacy of our highest court, saying that the Constitutional Court justices – which he calls “green ropes; white justice” – had “sold out” and that he would refuse to shake the hand of the Chief Justice because “I am not going to shake a white man’s hand.” (So much for respect of our Constitution which prohibits discrimination on the basis of race!)

These scandalous utterances are in clear contravention of the Ethics Guidelines. Guideline 31, for example, states:

Save in the discharge of judicial office, a judge should refrain from commenting on the merits of any case pending before that judge or in any other court. Unless necessary for or in judicial proceedings, a judge should refrain from public criticism of another judge or branch of the judiciary.

Guideline 32 states:

A judge ought to refrain from action which may be construed as a device to stifle legitimate criticism of that judge or any other judge.

Guideline 33 states:

A judge… should refrain from expressing views in a manner which may undermine the standing and integrity of the judiciary.

Hlophe also  punts himself for Chief Justice, saying that appointing Justice Sandile Ngcobo as Chief Justice as a “stop-gap” Chief Justice would give Zuma’s enemies a chance to regroup. “I may get killed – I am not bullet-proof,” he is quoted as saying. This is in violation of Guideline 18 which states:

A judge should in respect of judicial activity refrain from any conduct that may be interpreted as personal advancement.

Of course we all know that Hlophe previously scandalously breached Guidelines 2 and 23 when he took money from Oasis, lied about it and then gave permission for Oasis to sue a fellow judge. Guideline 2 states  that: “A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office. A judge should therefore never act improperly or disgracefully.” This means, says the guidelines that a judge should behave in a proper manner and should refrain from any act that can affect the trust in or respect for the judiciary.

Guideline 23 states: “A judge should not directly or indirectly accept any gift, advantage or privilege that can reasonably be perceived as being intended to influence the judge in the performance of judicial duties or serve as a reward therefor.”

Maybe somewhere in South Africa there is still someone who honestly believes Judge President Hlophe is a man of integrity and honesty and that his “mere” breach of a litany of ethics guidelines should not disqualify him from holding judicial office. Maybe there is also someone out there who believes PW Botha was a charming misunderstood philanthropist. Maybe, somewhere out there someone still believes Bill Clinton did not have sex with “that woman, Miss Lewinsky”. There is no accounting for the moral failings and blindness of some of our fellow citizens.

I for one would not buy a second hand car from this man. He is a disgrace and an embarrasment to all South Africans and to himself. If he had any pride and respect for himself and others, and any respect for our democracy, he would resign as a judge and take up a political appointment. His skills as an ethically challenged and dishonest man might come in more handy and will be better appreciated in either the legislature or the executive.

Who will be our next Chief Justice?

Jul 23rd, 2009
by Pierre De Vos.
41 comments

In the near future President Jacob Zuma will probably appoint Justice Sandile Ngcobo as our new Chief Justice. I have a high regard for Justice Ngcobo. Whether one agrees with him or not, his dissenting judgment in the Prince case (dealing with the religious freedom of a Rastafarian to use cannabis) is a work of great beauty.  And every time I read the Hoffmann judgment, in which Justice Ngcobo declared that it constituted unfair discrimination on the part of South African Airways to discriminate against Mr Hoffmann on the basis of his HIV status, I feel proud to be a South African. When I get to the following passage I inevitably get a lump in my throat:

In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.

The appointment of Justice Ncobo will also come as a relief to those of us who think that Judge President John Hlophe is not fit to be on the bench – let alone to be appointed Chief Justice – because of his propensity to tell untruths, his numerous actions which appears ethically problematic and his undignified and un-judicial display of ambition.

However, it seems sad and a little bit worrying that an equally worthy – and more senior – candidate, Deputy Chief Justice Dikgang Moseneke, will probably be overlooked because of a completely innocuous remark he made at his birthday party when he said: “I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”.

In private discussions the conspiracy theorists sometimes also note that Moseneke – who was sent to Robben Island at the age of 16 – might lose out because he was Deputy President of the PAC and from Sotho origin, while Ngcobo’s home language is Zulu, but I can’t imagine that the non-racial ANC who vehemently opposes tribalism will take such things into consideration.

For me the issue is one of principle, not of personalities. Given the fact that South Africa’s Constitution creates the position of Deputy Chief Justice, it seems appropriate to appoint the Deputy Chief Justice as Chief Justice when that position opens up because he or she would be the most senior judge and “next in line” so to speak. Establishing such a practice might also safeguard against the perception that the most pliant and trusted judge would be appointed to the top job by the President of the day and might help to prevent the overt politicisation of the judiciary.

Although judges will not be swayed by such considerations, respect for the judiciary (and the Chief Justice) does not only depend on the actual ability and willingness of judges always to act without fear, favour or prejudice but also on the perception created in the minds of the public that they will do so. Where a practice is established to appoint not the most senior judge to the position of Chief Justice, ordinary citizens will wonder why the next in line was overlooked and why another candidate was chosen and might well think that naked politics played a role in such a decision. This will not instill and further entrench respect for our judiciary.

In any case, the appointment of Justice Ngcobo will be good news for those  who champion the rights of accused persons. In the Zuma case justice Ngcobo displayed a very progressive view of criminal procedure rights – a view not shared by most judges or ordinary citizens in South Africa who seem – like me – to be a little less bleeding heart progressive on this issue than those who believe the criminal justice system should bend over backwards to safeguard the rights of accused persons (often wrongly called “criminals” by politicians) in order to secure their right to a fair trial.

Please drop this crazy idea, Minister Radebe

Jul 8th, 2009
by Pierre De Vos.
19 comments

The love fest between the executive and the judiciary at the Second Judicial Conference for South African Judges seemed to have been spoilt slightly by remarks by Justice Minister, Jeff Radebe. Apparently Radebe mooted the idea – dropped by the Mbeki cabinet after an outcry from judges – that the executive would assume the responsibility of administering the judiciary.

Judges have rejected any political attempt to manage their affairs, describing such a move as “interference” and making it clear it would be ‘contested’, says a Cape Argus report. The report says Deputy Chief Justice Dikgang Moseneke told Radebe he had touched “a very very raw nerve”, and that the judges considered managing their own affairs as “holy ground”. Moseneke is reported to have added: “Any power that would detract from the ability of the judiciary to do their judicial function without executive intervention would be a matter that would have to be clarified and that would have to be contested.”

In 2005 the Department of Justice published for comment a Draft Constitution Fourteenth Amendment Bill over the December holiday (when the skelms thought no one would notice) which would have amended section 165 of the Constitution. This section guarantees the independence of the Courts and states that Courts are subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice and the amendment would have added the following provision:

The Cabinet member responsible for the administration of justice exercises authority over the administration and budgets of all courts.

The government’s argument at the time was that the Minister needed to take charge of the administration and budgets of courts to ensure better access to courts and that the proposed amendment would in no way interfere with the independence of the judiciary which would still be able to exercise its power withour fear, favour or prejudice. Judges decide cases, but politicians and administrators should run the courts, so the argument went.

Are judges being hyper sensitive about this matter or does this amendment – which Radebe clearly itches to ressurect from the grave -  pose a real threat to the independence of the judiciary? After all, why should judges have to worry about budgets and the administration of their courts? Are they any good at it? Should they not rather decide the cases put before them and leave the mundane stuff like preparing the role, fixing the airconditioners, ordering the books for libraries and fixing the computers to the Minister and his team?

Well - duh! – everyone with two brain cells can see that this is a very bad and dangerous idea. The Constitutional Court has stated that one of the pillars of judicial independence is a guarantee of its institutional independence. The judiciary can only be independent if, at the very least, its institutional independence is safeguarded. This means that judges must have some guarantee that their salaries will be paid and not reduced and that their conditions of services will not be affected by any decision they might make in a particular case.

Where the Minister is given a constitutional right to exercise authority over the administration of budgets of all courts, the Minister is in effect given the power to interfere with the institutional independence of the judiciary. Imagine the judges of the Constitutional Court hand down a string of judgments in which it finds against the state or (just for argument’s sake) against the sitting President in a criminal case. If this kind of amendment is passed, the Minister will be able to reduce the budget of the Constitutional Court, cut off their computer access or even their electricity.

Even where the salaries of judges are not affected, this would potentially hand the Executive dangerous powers that could be used to try and intimidate judges. “Good” judges or “good” divisions of the judiciary could be awarded with perks and benefits while “bad” judges or “bad” divisions could be punished.

If there is a problem with the administration of budgets and of the courts, then the Minister must find a way to deal with this without taking such drastic measures which would potentially threaten the independence of the jduiciary. The Minister will therefore have to drop this crazy idea and will have to sit down with the leadership of the judiciary to help them to solve any problems there might be. But judges  (and not politicians) should have the final say on the administration of courts and budgets.

Even if the Minister now says (and maybe really believes) that he does not intend to abuse the power he wants to grab for himself to intimidate judges and to undermine their independence, there will come a time when a Minister of Justice will abuse such power. If we have learnt one thing in human history it is that power given and power unchecked will eventually be abused. That is why this idea is such a bad one and why the judges are so implacably opposed to it.

Good for them. President Zuma can demonstrate that he meant what he said on Monday by ordering the Minister to drop this idea immediately. If Zuma does nothing, questions will be asked even more persistently about who is really in charge of the ANC and of the government it leads.

A (partial) victory for Joe Slovo residents

Jun 10th, 2009
by Pierre De Vos.
28 comments

The Constitutional Court today granted an order for the eviction of Joe Slovo residents to far off Delft to facilitate the building of houses as part of the N2 Gateway Project. The fact that the court ordered the removal of people from their homes where they have lived for the past 15 years, will rightly be harshly criticised. It has failed to display the kind of “grace and compassion”  one would expect of the self-styled champion of the vulnerable and dispossessed.

However, in a 220 page judgment (which I am still digesting) the court somewhat mitigated the hardship and trauma that the inhabitants of Joe Slovo will now endure, by ordering the respondents to allocate 70% of the Breaking New Ground houses (that is low-cost government housing available at low rentals) to be built at the site of Joe Slovo to the current residents of Joe Slovo; and those former residents of Joe Slovo who left Joe Slovo after the N2 Gateway Housing Project was launched after being requested to do so by the respondents or the City; and who apply for and qualify for this housing.

The Court therefore set aside the order originally granted by Judge President John Hlophe in the Cape High Court, which would have forced Joe Slovo residents to go and live 15 km outside the city with no guarantee of being accommodated in the new development. Seeing that the government had previously broken its promise that those removed from Joe Slovo would be accommodated in the newly built houses, this can be seen as at least a partial victory for the residents of Joe Slovo.

If the original order of Hlophe was followed, the vast majority of Joe Slovo residents would have permanently been removed from their homes close to the city and – apartheid style – would have been dumped in the bundoe where they would have been forced to live indefinitely. The land next to the N2 Highway along which dignitaries and visitors to the Soccer World Cup would have driven into the city to the 400 million Rand soccer stadium would have become home to middle class families while the poor residents of Joe Slovo would have been forgotten – unless until the next election.

Deputy Chief Justice Moseneke makes clear why the original order issued by Hlophe was so callous and unfair, stating:

I must emphasise that, on the facts of this case, I would have had great difficulty in holding that it is just and equitable to forcibly evict the residents of Joe Slovo and to relocate them far from their homes and modest comfort zones in order to give way to the construction of new subsidised homes in circumstances where the evicted residents would have had no reasonable prospects of satisfying their own dire need to access adequate housing. That eviction and relocation order [issued by Hlophe] would have made the residents of Joe Slovo sacrificial lambs to the grandiose national scheme to end informal settlements when the residents themselves stood to benefit nothing by way of permanent and adequate housing for themselves.

Today’s judgement remains perplexing though, because it condones a forced eviction of a large group of settled residents and endorses a government vanity project that seems to run counter to the government’s own housing policy which states that informal settlements should be eradicated through in situ upgrading where possible.

In this case the government has not shown why the informal settlement could not have been upgraded without removing the residents of Joe Slovo lock, stock and barrel. Some removals might have been necessary given the overcrowded conditions, but surely it would have been more humane to try and upgrade the settlement with the least disruption to the more than 4000 families involved?

I will have to study the judgment in more detail, but at first blush it seems to demonstrate how timid the court can sometimes be when it applies the reasonableness standard to evaluate the actions of the state. To my mind it does not seem reasonable, nor does it seem fair and just, to uproot a whole community for the sake of prettifying the major tourist access route to Cape Town.

At least the government will now be in contempt of court if it again breaks its promise to accommodate those removed in the newly built houses. Judging by its previous actions I suspect we have not heard the last of this matter.

Why the “weak” shortlist for Constitutional Court vacancy?

Aug 26th, 2008
by Pierre De Vos.
30 comments

Business Day reported yesterday that additional candidates were approached on Friday to stand for appointment as judges of the Constitutional Court to replace Constitutional Court Judge Tholakele Madala at the end of the year because the original list of five applicants was “weak”.

It is understood that the original long list consisted of magistrate Samuel Mashimbye, Judge Nigel Willis of the Johannesburg High Court, former Wits professor Mervyn Dendy, Judge Shenaz Meer of the Land Claims Court and Pretoria High Court Judge Eberhardt Bertelsmann. On Friday, three judges from the Supreme Court of Appeal (SCA) — Edwin Cameron, Frans Kgomo and Chris Jafta — were approached to augment the list.

An anonymous Business Day source said that it was “really worrying” that the pool of choices for the Constitutional Court was so small and weak, not drawing enough candidates from the “outstanding options available”. He said the seeming reluctance of potential appointees might be attributable to the “serious pressure” the Constitutional Court is under at the moment. According to Business Day:

He was referring to the complaint laid by the judges of the Constitutional Court against Western Cape Judge President John Hlophe, that Hlophe had tried to influence the outcome of the Jacob Zuma/Thint cases, and the political fall out, which led to unprecedented criticism of the court by political organisations.

Another factor he suggested was that white potential candidates perhaps felt they had a better chance of being appointed under ANC president Jacob Zuma than President Thabo Mbeki, because “some people think Zuma will give them a fairer chance ”.

I have no direct knowledge of what motivated many credible candidates not to make themselves available for this position, but I would be surprised if the anonymous source is correct in his or her assessment. There seems to me a far more obvious reason why so few heavy hitters made themselves available.

According to the Constitution apart from the Chief Justice and the Deputy Chief Justice, ordinary judges of the Constitutional Court are appointed by the President, after consulting the Chief Justice and the leaders of parties represented in the National Assembly. But the President must choose from “a list of nominees with three names more than the number of appointments to be made” submit to the President by the Judicial Services Commission (JSC).

This means the JSC will send four names to President Mbeki who will have to choose one of the four nominees to serve for the next fifteen years on the Court. But if a new Chief Justice is selected next year from among the members of the Constitutional Court, there will be four vacancies in the Court. The JSC will then send a list of seven names to the President who will have to choose four.

I am not a betting man but it seems to me this year one will have a one in four chance of being selected by the President if one is nominated by the JSC. Next year one will have more than a 50% chance of being selected. If I had an eye on a Constitutional Court post, I would  wait until next year and rather take my chances with the JSC.

I would be surprised if this consideration did not play a role in decision of many candidates to make themselves available this time around. I would be really surprised – and also deeply disappointed – if the top tier candidates would be so lily-livered that they would not make themselves available because of the “serious pressure” the Constitutional Court is under at the moment.

If one is so faint hearted that one would decide not to apply for the dream job just because of the pressure on the Court, one really would not deserve to serve on this Court at all. It is in the very nature of constitutional democracy that there would be political pressure on the highest court of the land. Good judges would not be swayed by such pressure but would interpret and enforce the Constitution according to precedent and their conscience – which was exactly what Deputy Chief Justice Dikgang Moseneke said at his birthday party before he was attacked by uninformed and reactionary members of the ANC NEC.

Such attacks are part of the job. Its a small price to pay to have so much power and to do such an intellectually stimulating and interesting job. Let’s hope next time more candidates with good credentials and the necessary backbone make themselves available. The health of our constitutional democracy depends on it.

Sandile Ngcobo Chief Justice?

Jul 31st, 2008
by Pierre De Vos.
24 comments

The first thing that strikes me about the Constitutional Court judgment in the main Zuma application is that it was not unanimous. Justice Sandile Ngcobo dissented and would have found in favour of Zuma and Thint. Given the extraordinary political implications of the judgment, it is fair to assume that the Chief Justice would have tried very hard to get consensus among the judges to deliver a unanimous verdict.

The fact that Justice Ngcobo dissented will thus raise eyebrows among Constitutional Court watchers. In the year before the current Chief Justice and Deputy Chief Justice were appointed, many of us noticed that Justice Ngcobo suddenly wrote an extraordinary number of opinions, either dissenting from the majority or concurring with it in a separate judgment. Some interpreted this zeal as a sign that Justice Ngcobo had ambitions to become Chief Justice and was trying to show his mettle.

The fact that he has dissented in this case may create the impression that he is trying to position himself as an alternative candidate to Deputy Chief Justice Dikgang Moseneke for the post of Chief Justice when Pius Langa retires next year.

This perception may well be unfair. He might just have a view that the rights of individuals should weigh far heavier than the interest of the state and of society in fighting crime. After all, he wrote the dissenting opinion in the Prince case and argued there that the state had not justified the law that failed to make an exception for Rastafarians to posses and use dagga.

Nevertheless, a dissenting opinion in such a high profile case that went against the man who might well appoint the next Chief Justice, will not go unnoticed.

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