Constitutional Hill

Dikgang Moseneke

Should the JSC hearings be in public?

Jul 16th, 2008
by Pierre De Vos.
13 comments

Newspaper reports suggest that neither the Chief Justice, nor Judge President John Hlophe, has decided yet whether they would support a decision by the Judicial Services Commission (JSC) for the hearings on the complaints by the Constitutional Court and Cape Judge President to be held in public. I can very much understand why both parties might find it difficult to decide what would be best.

For the Constitutional Court – and for Justice Nkabinde and Jafta in particular – there are serious risks in a public hearing. The two judges – who were allegedly improperly approached by Hlophe – first declined to lodge individual complaints with the JSC, but then signed on to the Constitutional Court complaint against Hlophe. They will have to give evidence before the JSC and would also be subjected to cross examination from Hlophe’s counsel. (Incidentally, I see Hlophe has retained the same counsel that is representing Minister Stofile and three other politicians fingered in a corruption report by Judge Ronnie Pillay in the Eastern Cape.)

Judge Nkabinde and Jafta will have to explain why they were not prepared to lodge a complaint against Hlophe but were prepared to sign on to the Constitutional Court complaint. Why did they suddenly have this change of heart? Why did they not see that the improper approach by Hlophe was a matter of grave concern? Their judicial ethics will come under scrutiny and they will also be asked if their colleagues had leaned on them to “do the right thing”. This will potentially embarrass them and will also provide ammunition for Hlophe’s defenders who will do everything to detract attention from the substance of the complaint and focus attention on these side issues.

For Hlophe the stakes seem to be even higher. He will be subjected to cross examination and will have to justify all the broadsides he made in his 71 page submission to the JSC. If there is anything in the submission that is not true, he runs the risk of being publicly exposed as a liar and thus of being even further humiliated. He might be grilled on some of his less plausible explanations in his submission – including his claim that when he said he had a mandate he was referring to the fact that the Chief Justice had asked him to chair a meeting.

He will also be grilled on his hints and assertions of bad faith on the part of Deputy Chief Justice Moseneke and will be asked if he has any proof for these assertions and if not, why he made them in the first place. People who are subjected to such sustained cross examination – especially on statements they made that cannot be sup[ported by fact – often come across as shifty and dishonest.

But a public process will also provide an opportunity for both sides to get their side of the story out and will focus the public imagination on the issues they wish them to focus on. Judge Langa and Moseneke will aim to give dignified and ponderous responses to show off their gravitas and explain why the alleged approaches of Hlophe was viewed as an attack on the integrity of the Constitutional Court as a whole and was therefore not something only for the two “complaining judges” to worry about.

They will also be able to respond to the scurrilous and opportunistic attacks on the Constitutional Court by the likes of Paul Ngobeni. And because they both have fine legal minds, I for one relishes the thought of seeing them in action while they demolish the attacks on the Court by the bonsai Rotweiler from UCT and the Judge President.

If Hlophe has spoken only the truth, he would do well under cross examination. And surely he would relish the opportunity to clear his name and to use the public platform to further his political campaign for a job on the Constitutional Court. He could mutter darkly about the forces of evil and the racism in the legal profession (which we all know, still do exist) and could win some friends not only amongst the conspiracy theorists, many of whom seem to adore Jacob Zuma, but also amongst those who support serious transformation of the legal profession.

The thing is, in the end under the glare of cross examination most lies are exposed and those in the wrong often wilt under the pressure of having to keep their stories straight. I would therefore strongly be in favour of a public, televised hearing. It will give the public the opportunity to judge for themselves who are the good guys and who are the crooks in this story. Those who have nothing to fear from the process would also have nothing to fear from an open hearing.

Everyone who recalls the merciless cross examination of Mo Shaik and Mac Maharaj before the Hefer Commission of Inquiry and the way it exposed these two gentlemen as rather flawed and possibly dishonest men, will realise that a public hearing might be the one thing that could begin to restore the badly dented credibility of the Constitutional Court. Either that, or it could restore trust in Judge President Judge President Hlophe if he turns out to be the one who is not lying.

I only have one problem with this whole scenario. If there are public hearings televised on TV, I will have to find an excuse not to go to work to watch every minute of the drama. Oh well, I somehow just know that my appendix will be acting up just about that time.

What happens when 5 judges retire?

Jun 24th, 2008
by Pierre De Vos.
14 comments

Next year five judges of the Constitutional Court will come to the end of their 15 year term and will have to retire. These are Chief Justice Pius Langa and Justices Kate O’Regan, Albie Sachs, Yvonne Mgoro and Tollie Madala. Justices O’Regan, Sachs and Mokgoro have been consistently the most progressive voices on the court and it is difficult not to worry about the direction the court will take with five fresh faces on its benches.

Although there are some safeguards built into the Constitution regarding the appointment of judges, the process of appointing Constitutional Court judges are potentially open to political manipulation. In the present circumstances what is worrying is that section 174(3) of the Constitution states that:

The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission…

This means that the President has the final and exclusive say in who gets appointed as Chief Justice in the place of Justice Langa. If the judges retire in September as they are supposed to and if Mr Zuma gets elected as President in June as expected, Mr Zuma will have this power to appoint a new Chief Justice.

He could therefore appoint any “appropriately qualified” “fit and proper” South African citizen he wishes as Chief Justice – even if that person has never served as judge or has never served as judge on the highest court. He could select anyone with a legal background who has not been found guilty of misconduct: Justice Chris Jafta, say, or what about Dumisa Ntsebeza.

If he does the right thing and appoints Deputy Chief Justice Dikgang Moseneke to the position of Chief Justice, there will be a vacancy for the Deputy’s post which the President will also be able to fill – from outside the Constitutional Court if he so wishes.

Moreover, section 174(4) of the Constitution states that 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 if the Chief Justice is appointed from among the members of the serving Constitutional Court judges, the JSC will have to send up 8 names to the President who can then select the names of 5 of these nominees to serve on the highest court. Mr Zuma will have all the incentive in the world to think carefully before making his selection because these are the same judges who might have to hear an appeal of the criminal case against him.

The President also has some considerable say in the appointment of several members of the JSC, including the Minister of Justice, three members of the National Assembly representing the majority party, four delegates from the National Council of Provinces and four supplementary members. The Presidential appointees serve for a term of five years and I assume their term comes to an end next year at the same time as that of President Mbeki’s, so if Mr Zuma is elected President he will be able to have a say in the appointment of 12 members of the JSC. (But maybe I am wrong on when their term ends – anyone knows?)

There are usually 23 members to the JSC which means that if I am correct, the President will have a hand in selecting a majority of 12 of these members. This means that Mr Zuma could try to appoint “sound” people to the JSC who would try to ensure that only pliant or pro-Zuma lawyers are nominated for positions on the Constitutional Court. Why not try and get his appointees to appoint lawyers that will be willing to rule in his favour when his various appeals come to the Constitutional Court?

It might well be that Mr Zuma will not be tempted to subvert the system in this way or that he will be persuaded not to go down that route by the Chief Justice and by the leadership of the ANC. If he does not desist and completely politicises the court it will be an unmitigated disaster for the Rule of Law and for trust in the judiciary in South Africa.

The fact that Mr Zuma may be involved in the appointment of Constitutional Court judges who may hear his various appeals will also create some serious ethical problems for these justices. They will not be able to recuse themselves because the Constitutional Court needs a quorum of at least 8 judges to hear a case. But in the public mind they might be seen as biased in favour of Zuma if the process of their appointment did not go smoothly and if unqualified lawyers were appointed.

One way to deal with this potential crisis is for all five the outgoing judges to retire a few months early before the end of President Thabo Mbeki’s term so that Presidnet Mbeki will be able to appoint the new Chief Justice (Moseneke) and new Deputy Chief Justice (Sandile Ngcobo?) and the old JSC will be able to send the eight names to President Mbeki for selection.

Of course, as Vusi Pikoli has shown, lawyers are a funny breed and they do not always act as expected by those who appointed them. Recall an apartheid era Minister of Justice who complained once that the problem with judges were that once selected onto the bench they thought they were there on merit and had a bad habit of starting to think for themselves.

Whatever happens, we are in for a very stormy ride.

Zille, Zillier, Zilliest

Apr 16th, 2008
by Pierre De Vos.
15 comments

Democratic Alliance (DA) leader Helen Zille has been very successful at cultivated the image of a no-nonsense, straight-shooting politician that sticks to her principles – no matter what. Her party has over the years also (rightly) lambasted the ANC for covering up the arms deal corruption and for making statements aimed at undermining the independence and impartiality of the Courts.

But in the wake of the appointment of judge Nathan Erasmus to head a Commission of Inquiry into allegations of illegal spying and other shenanigans around the floor crossing period, Mrs Zille seems to have thrown all these principles out of the window and in the process has probably irrevocably tarnished her image as Mrs Clean.

First, she has instructed her lawyers to take legal action to try and stop the Erasmus Commission from doing its work, claiming that the Commission was set up with a political motive merely to tarnish the image of the DA and the coalition government it leads in Cape Town. This kind of argument sounds awfully familiar. Is that not the kind of thing that ANC politicians say when they try to rubbish investigations of corruption against its own members? And when ANC politicians make such claims, is it not the kind of thing the DA leader shouts and screams about?

One would have thought that if the DA – and Zille in particular – had nothing to hide, it would welcome the chance to clear its name through such a Commission of Inquiry. By trying to stop a judge from finding out whether some DA politicians had broken the law, Mrs Zille seems to suggest that the DA has something to hide and that the party will do everything in its power to make sure that the truth does not come out.

This makes Zille and the DA appear shifty and dishonest – exactly the opposite of the image the DA leader is trying to project. It also makes Zille look like a rank hypocrite for always finding fault with the secretive ways of the ANC as far as corruption and maladministration is concerned, yet then to try and stop an Inquiry into corruption when it deals with her own party. She has every right to challenge the legality of the Commission, but politically, this is a very stupid move on her part. After all, people in glass houses should not throw the first stone.

Second, I was rather shocked and surprised to read that Mrs Zille had told a radio station that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”.

In the past the DA had correctly criticised supporters of Jacob Zuma who had impugned the integrity of Judge Hillary Squires after he convicted Schabir Shaik and had also criticised the new ANC NEC for their scurrilous personal attack on Deputy Chief Justice Dikgang Moseneke earlier this year. Such attacks, the DA had pointed out, undermine the independence of the judiciary and create distrust and disrespect for the judiciary which ultimately will undermine our democracy.

Yet, Mrs Zille attacked judge Erasmus in very personal terms and accused him of being abused and used by the ANC and did this in a transparent effort to undermine the credibility of the judge and of the Commission that he chairs. This is no different from the ANC Youth League and Young Communist League diatribes and shows a scandalous disregard for our Constitution. If Mrs Zille was really a woman of principle she would, at the very least, have apologised for the comment – yet when given the chance she declined to comment further on the matter.

If she really thinks that Judge Erasmus is being used or that he will be biased against the DA, she can always ask for him to recuse himself or bring an application to court to that effect. But to attack him personally is irresponsible and, once again, hypocritical.

It is also politically stupid because it would suggest to any reasonable bystanders – let alone the average voter – that the DA is trying to hide very serious corruption or maladministration from us and is prepared to say and do anything to stop the damaging information from coming out. What does Helen Zille have to hide, I wonder, that she is going to these lengths and is prepared to tarnish her image in this way in an attempt to stop the Commission from doing its work?

These are questions that will not go away. Like allegations about corruptions in the arms deal, which is still haunting the ANC, these latest allegations will continue to haunt the DA and its leader until the party comes clean or until a credible body exonerates it from wrongdoing.

I thought if one person understood this, it would be Helen Zille. But obviously even the most astute and media-savvy of politicians like Zille loses all sense of decorum once running a city like Cape Town. Sometimes I wonder whether we have something in the water here in Slaapstad that makes politicians behave in such monumentally stupid ways.

ANC pulls back from the brink on Moseneke

Jan 17th, 2008
by Pierre De Vos.
3 comments

It is with immense relief that I read the news that the ANC has now retracted its earlier unwise and intemperate attack on Deputy Chief Justice Dikgang Moseneke. “Having listened to Justice Moseneke’s account of his speech and the context of his remarks, the ANC accepts that no ill was intended,” an ANC statement said.

I first met Deputy Chief Justice Dikgang Moseneke in 1986. I was a newly politicized student experiencing the horror of a first-time holiday job at a conservative law firm in Pretoria and when I heard that an ex Robben Island political prisoner was a colleague of my sisters at the Pretoria Bar, I asked her if she could not arrange a meeting.

We had coffee in his chambers, and callous, wet-behind-the-ears white student that I was, I asked the now Deputy Chief Justice about his time on Robben Island. Instead, he told me about his deep admiration for Steve Biko – a man whose tragic story I had only recently became aware of and whose writings I did not know because it was not much discussed among the white lefties who aligned themselves with the United Democratic Front (UDF).

I was a bit overawed during the short chat with a real life hero of the struggle who had met Nelson Mandela on Robben Island and when Advocate Moseneke asked me about my future plans I mumbled that I was thinking of becoming a journalist because the lawyers office did not seem the right place for me.

“No, he said, “no, that might be a mistake. We need good human rights lawyers in this country and it would be worth while to do something good with your law degree that would help the people of South Africa.”

I was struck by a kind of inner peace and dignity that seemed to exude from Advocate Moseneke, as if all the horrors of apartheid and the petty everyday indignities suffered then by black South Africans did not touch him. He seemed – even then – to act like a man who knew he possessed an inherent human dignity that no one could take away from him.

Although I only met the Deputy Chief Justice once or twice after our encounter in his office, and then only in the most cursory of ways, I have always been impressed by this deeply serious man and his commitment to fairness and justice which shines through in his always sharply reasoned judgments. Although I do not always agree with the outcome or the reasoning of his Constitutional Court judgments, I have immense respect for this towering legal mind.

It was therefore with shock and dismay that I read of the attack on Deputy Chief Justice Moseneke by the National Working Committee (NWC) of the ANC for comments he is reported to have made at his 60th birthday party last week. According to The Times:

Moseneke reportedly told guests at his birthday party in KwaZulu- Natal that he had dedicated his life to working for an egalitarian society. “I chose this job very carefully,” he was quoted as saying. “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 [to the Polokwane conference] want; it is about what is good for our people.”

The ANC NWC responded to these reported remarks by saying that it took a dim view of opposition parties trying to belittle the delegates to the ANC 52nd National Conference and affirmed the need for transformation of the legal system. Then it continued:

In this regard, the NWC was shocked that the chorus from opposition parties was joined by Deputy Chief Justice Dikgang Moseneke on the occasion of his 60th birthday. His reported comment shows disdain for the delegates to the ANC National Conference, and highlights the difficulty that many within the judiciary appear to have in shedding their historical leanings and political orientation.

For anyone who believes in our constitutional democracy (and the need for political parties like the ANC to be subject to the discipline of that constitution) the statement of the NWC was deeply troubling and irresponsible.

The statement of the NWC could be read in three different ways. First, the NWC statement could suggest that – like many other “untransformed” judges in South Africa – Deputy Chief Justice Moseneke still had an apartheid style mentality and that he was therefore part of the problem of the untransformed apartheid judiciary. This is absurd – as anyone with even a vague knowledge of the jurisprudence produced by the Deputy Chief Justice would attest. His judgment in Minister of Finance v Van Heerden in which he set a stringent test for the overturning of affirmative action measures, is a case in point.

Alternatively, the statement could suggest that The Deputy Chief Justice still had a bit too much of that Steve Biko stuff in his head – after all, at some point he was the deputy leader of the Pan Africanist Congress (PAC) and an exponent of black consciousness. The NWC could have meant that he had thus not shed his “”historical leanings” and “political orientation” and had failed to take on the orientation of the ANC – which is the ultimate aim of transformation.

If this is a correct reading, it would mean that there are some ANC NWC members who have an extremely narrow view of transformation and see the state and the ANC as more or less one and the same thing. according to this view, transformation requires all institutions to come into line with the ANC’s vision of our society and negates the constitutional principle that different visions of how to achieve a society based on human dignity, equality and freedom must compete in our democracy.

Third, the statement could have reflected the view of some in the NWC that in order to protect Mr Zuma from conviction, it would be necessary to fundamentally undermine the judiciary to such a degree that if Mr Zuma is convicted, his conviction would have no legitimacy in the eyes of his supporters. This would be part of the so called “Stalingrad option” for Mr Zuma’s defense in which any action – no matter how destructive or dangerous – would be justified to ensure that he is not sent to jail. I suppose it is unnecessary for me to comment further on what I think of this view.

In any event, in the end, after a meeting between the Chief Justice, Deputy Chief Justice and the Deputy President of the ANC, the ANC confirmed “its confidence in the integrity of the Deputy Chief Justice, and [...] its confidence in the courts to uphold the law and safeguard the rights of all citizens”. This means that people in the top echelons of the ANC, like Deputy President Kgalema Motlanthe, may not share the views of the more hot-headed members of the NWC. Let us hope in future that they take the leadership to ensure that such absurd and destructive statements are not made again.

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