JSC

JSC will (finally) have to make a decision on Hlophe

Mar 31st, 2012

As I predicted, the Constitutional Court today dismissed the application of Judge President John Hlophe to appeal against two judgments handed down by the Supreme Court of Appeal (SCA) regarding the decision of the Judicial Service Commission (JSC) not to investigate the charges of gross misconduct against the Judge President.

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.

Another blow to the credibility of the JSC?

Mar 9th, 2012

by Pierre De Vos.

100 comments

At first blush it may appear as if South Africa’s judges and senior constitutional lawyers have all been struck by a remarkable bout of humility and lack of ambition – not traits your average lawyer or judge is usually suspected of. Why else would no credible candidate (except Labour Appeals Court judge Ray Zondo) allow him or herself to be nominated for a job on South Africa’s Constitutional Court?

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:

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.

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.

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.

On “Indians”, “Africans” and a lack of emotional intelligence

Oct 24th, 2011

by Pierre De Vos.

89 comments

Almost all of us have had a moment (well, probably far more than one moment) when we were asked an impossibly difficult question or were subjected to an arrogant put-down or cutting remark, but we could not think of the witty, incisive or clever retort that would have saved the day for us. Only much later — after feeling the sting of humiliation for a few minutes or hours — would we think of the clever or witty thing we could have said in response to the question or attack.

I would guess that many candidates interviewed by the Judicial Service Commission (JSC) for judicial posts must have kicked themselves after an interview for not being able to provide the killer answer to members of the JSC to deal with the often hostile questions put to him or her.

One would have thought that Judge Isaac Madondo might have had such a moment during his interview before the JSC for the position of KwaZulu-Natal Judge President and that he would subsequently have thought what he could have said to answer the particularly tricky question in a more astute manner. Sadly, he had either not reflected on the matter; or he had, but had not been able to conjure up a more palatable answer.

Judge Madondo was vying for the post along with acting Judge President of KwaZulu-Natal, Chiman Patel. During his interview Judge Madondo told the commissioners that he did not think an Indian candidate would be suitable to fill the position of Judge President. When IFP MP Koos van der Merwe asked him if it was time to appoint an Indian judge president, Madondo replied, without hesitation: “I don’t think so. We still have things to address, imbalances, all kinds of things which need more insight, which a person who is not [a black] African cannot be privy to…. We were oppressed, but not in the same way.”

Now, this was by no means a subtle, carefully thought through or endearing answer. It could easily be read as the cynical deployment of apartheid race categories in a shameless attempt to realise one’s very personal ambitions: playing the race card to get a job one would not have gotten but for the fact that one happened to be African. On its face, the statement suggests that Judge Madondo believes that Indians have not suffered as much as Zulus during the apartheid era and that this meant that a person who used to be classified as Indian during apartheid cannot become Judge President in KwaZulu-Natal today. The impression created is that the judge is a bit of a racial bigot.

Yet, his answer contains a kernel of truth which an agile mind would easily have been able to mould into a more palatable answer without shying away from the fact that our Constitution allows race to be taken into account by those who must decide on the appointment of judges.

A better answer would clearly have been that any person — no matter what his or her race — who is committed to the values enshrined in the Constitution and has the necessary legal skills and leadership abilities and enjoys the support of his or her colleagues would be suitable for appointment as Judge President. One could then have added (pretending to be humble and unambitious) that one believed that as an African with considerable legal experience and a strong commitment to access to justice, one would bring special insights and skills to the job if one were to be appointed by the JSC.

One could have continued to quote section 174(2) of the Constitution, which states that the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed. Noting that race can never be the only criteria taken into account when appointments are considered and rejecting the idea that a person could be disqualified from appointment merely for being an Indian or any other race, one could nevertheless have emphasised the fact that one believed that it was important to give due weight to section 174(2).

One could have added that this did not meant that one believed that every judge was a prisoner of his or her race or gender or that one believed that all women thought the same, all Africans thought the same, or that all Indians thought the same. On the contrary, one could have said, it is racist and deeply demeaning to Africans and Indians (and to men and women) to assume that a person is no more and no less than the sum total of his or her racial or gender identity, to assume that each person has no autonomy to decide for himself or herself how to respond to a particular situation. Nevertheless, one could have added, it cannot be denied that on the whole one’s life experiences and one’s cultural background and one’s religious beliefs would often play some (but not an overarching) role in how one behaved and what kind of manager one might become.

This would have been a perfectly acceptable answer not shying away from the fact that race does and should play some role when considering appointments to the bench. However Judge Madondo did not provide this answer in his interview and neither did he provide a similar answer much later after he had had a chance to reflect on the matter.

I thought, giving the judge the benefit of the doubt, that the crudeness of his original answer and his inability to discuss the complex issue of racial transformation in the judiciary in a nuanced manner may have been excused because of the stress associated with a JSC interview. On reflection he would surely be able to conjure up the better, constitutionally valid, and more subtle answer — as we all do when we are caught out and we have time to reflect on what we might have said.

But to my surprise, this is not what happened, leaving us with the impression that the judge is not capable of producing the more subtle and constitutionally viable version of his answer. In an interview in the Sunday Times, conducted after his remarks had made headlines, the judge made an even bigger hash of the questions put to him. Here is a sample of his responses:

But you don’t think an Indian judge should be JP? No, that’s misquoted altogether.

You were asked if it was time to appoint an Indian JP and you said, “I don’t think so.” Is that what you said? Yes. I stated my reasons.

So that’s an accurate quote? It’s out of context. What I was saying, in terms of the demographics, I don’t think so. Secondly, there are a number of hardships among the people who suffered. A person from another race may not be in a position to know them in the same way as I do. That’s what I was saying. Not because he’s an Indian.

Because he’s not black? No, that’s nonsense. If someone thinks like that, it’s nonsense.

You’re saying that, as an Indian, he doesn’t have the same insight? Do you have an insight of the rural people in the villages? Do you? Unless you have an insight into the way they live and the hardship of their experience …

So should only Zulus be appointed to the bench in KZN? I don’t even want to answer that question because it doesn’t make sense at all.

Wouldn’t only Zulus have that kind of insight? No. I was not saying that. I’m talking about equal representation in terms of the demographics; I was not saying only Zulus must be appointed judges in KZN. That’s nonsense.

It is not clear why insight of rural people will make one a better Judge President. It might well add something to one’s abilities to perform well as a judge dealing with matters normally brought to court by rural people — after all, understanding the lives of those who appear before one may (but does not always) lead to decisions that are wiser and better informed. But a Judge President’s job is mostly administrative in nature and he or she will seldom if ever hear cases in which the litigants are rural village dwellers. The Judge President decides who is allocated which case and ensures the smooth running of his court, but how his African background would make him better at this job is not immediately clear. If he had the backing of the majority of judges or of all the African judges in his division, this might have been relevant, but he does not so his race could not be relevant in this manner.

In any case the failure of the Judge to provide a credible and nuanced answer to an admittedly tricky question — not once, but twice — leaves one puzzled. Either judge Madondo has very crude views on race and racial transformation or he lacks the emotional intelligence to reflect on and revise his answers for the better. Either way, based on his responses to the JSC and the Sunday Times, it is not clear that he would make a suitable Judge President for the KwaZulu-Natal or any other division of the High Court.

What happened to reasoned debate?

Aug 22nd, 2011

by Pierre De Vos.

96 comments

The debate about the wisdom of appointing Justice Mogoeng Mogoeng as Chief Justice, given the fact that he has had some ethical lapses in the past, that he appears to have a “gender problem”, and that he belongs to a church that holds extreme views – even by the standards of a modern evangelical church – has revealed much about South Africa’s racial fault-lines and about the very different conceptions about democracy of various groups in South Africa.

This Sunday, City Press uncovered an unreported judgment (now online in the Seminar Room) of the nominee in which Mogoeng, reviewing the case of a woman brutally assaulted by her boyfriend, reduced the man’s sentence from 2 years in jail to a fine of R2000. The woman was tied to a vehicle with wire and dragged at a “fairly high speed” behind the car for some 50 metres on a gravel road. The paper says that after hearing the matter on review in 2001, Mogoeng held that the two years sentence of Eric Mathibe was “too harsh by any standards”, noting, among other things, that he had been “provoked” by the complainant.

Mogoeng noted the complainant did not sustain “serious injuries”. She had several abrasions on her stomach, right leg and both knees. The victim was in pain, but Mathibe refused to let her have medical treatment on the day of the incident. He took her to consult a doctor the following day. The trial magistrate defended the sentence by saying assault on women was a problem in the district and that the crime was “barbaric and ancient”. Mogoeng seemingly did not agree, handing down a judgment that would surely upset any self-respecting gender activist. It would be akin to a judge setting aside a jail sentence of a farmer who had seriously assaulted a farm worker and had dragged the farm worker behind his bakkie on the basis that the sentence was too harsh (something, alas, that is not unknown to our judicial system).

City Press and its sister paper Rapport also reported that Mogoeng belongs to Winners Chapel International church, an institution that believes homosexuality is a perversion and members can buy the Bishop’s book on how to get divine deliverance from it. The church was founded and is guided by Nigerian Bishop David Oyedepo, says the report. It believes in faith-healing for various diseases and has published the testimony of a man whose prayers it claims brought a baby into the world after the mother had been pregnant for five years and seven months, but was unable to deliver the child. Mogoeng is said to deliver “pastoral services” for the church, but does not preach.

Of course, one would not have to look very far to find South Africans who share these views. Many men believe that women “provoke” men into raping them by wearing short skirts or high heels. Other men believe women “provoke” men to assault them by not obeying the orders of their husbands or boyfriends or by flirting with other men. And many South Africans have quite strange and even downright weird religious beliefs while others are athiests or are agnostic.

However, the question is not whether these beliefs are widespread, but whether it is appropriate that the Chief Justice of South Africa should hold such beliefs – given the commitments contained in our Constitution. The beliefs of a nominee for Chief Justice should not be problematic merely because they differ from one’s own. The beliefs should be problematic – as they might very well be in this case – because they cannot be squared with the values enshrined in the Constitution, which values the Chief Justice would symbolically be embodying and would be required to uphold – regardless of his personal beliefs.

If one happens to be a right-wing traditionalist or a patriarch one would be hard pressed not to cheer on this possible appointment of Justice Mogoeng as Chief Justice. (That is why the Freedom Front Plus and Inkatha Freedom Party should find it easy to support this nomination.) If one happens to embrace the progressive values enshrined in the Constitution and if one is honest with oneself and not overtly defensive, one would have to admit that one could not – with a clear conscience – support such an appointment. (Cosatu and the SACP should therefore really be deeply worried about the nomination of Mogoeng as Chief Justice.)

Or so it seems.

But this is not how the debate has unfolded. Many seemingly progressive and respected individuals, people whose views one would otherwise take seriously and respect, have sprung to the defense of the nominee on the basis that he was black and hence could not be criticised because it was not allowed to criticise a black nominee as this would “undermine” him or on the basis that he was nominated by the President and hence that it would be insulting to the President to criticise the nomination. Other conservative voices have criticised the appointment – perhaps because they would criticise any decision that our President makes – no matter how wise that decision might be.

Personally I find the reasons for defending the nominee startling, to say the least. Perhaps it says much about the manner in which we have all been infected and tainted by our apartheid past, that so many South Africans are incapable of making a reasoned assessment about the wisdom of the nomination, based on their values and principles and not based on some other kind of misplaced solidarity, prejudice, hatred or defensiveness.

Not all South Africans seem to have been able to escape the effects of the ideology of apartheid, which was based on the absurd and deeply offensive assumption that white South Africans were morally and intellectually superior to black South Africans and therefore deserved to be treated with more respect and concern than blacks. For such individuals – black and white - there is nothing wrong with believing that black South Africans do not deserve the best and that they should be happy to settle for second or third best.

Why else would so many people support the appointment of Mogoeng Mogoeng, whom no person – as far as I am aware – has stated is the best person for the job of Chief Justice? Have they not read the work of Steve Biko? Have they been so deeply traumatised by apartheid ideology and so bewitched by the on-going propagation of white superiority by white racists, that they do not believe that, as fellow South Africans, they deserve the very best Chief Justice – who just happens to be Deputy Chief Justice Dikgang Moseneke?

By saying this I am in no way trying to minimise the harsh and cruel effects of apartheid. On the contrary, I am taking these effects seriously but asking what can be done to free us all of a deeply ingrained but horribly offensive and corrosive apartheid mind-set that bedevils so much of our private actions and what passes as our public discourse. While many (but by no means all) white people who take part in public debates exude a kind of moral arrogance and superiority that is deeply offensive and hurtful to those who are patronised, subjected to discrimination or ignored, many black South Africans (but by no means all) seem to embrace the mediocrity ascribed to them by those very racists whom we should all surely despise and whose beliefs we should work very hard to undermine.

Secondly, I am really perplexed by the argument that we should not be allowed to comment on the quality of the candidate nominated by the President because that would show disrespect to the President. This view seems, to me at least, deeply undemocratic. Section 174(3) of the Constitution states that the President as head of the national executive appoints the Chief Justice, “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”

The President must consult and then – after consulting – must appoint the candidate of his choice after having taken into account the views of the JSC and the leaders of opposition parties. In 1999, in President of the Republic of South Africa and Others v SARFU and Others the Constitutional Court considered the appointment of Constitutional Court judges under the Interim Constitution, which required, inter alia, that the President had to appoint such judges “after consultation with the Chief Justice“. The court held that :

It follows … that this appointment could only take place in good faith after consulting the Chief Justice and giving serious consideration to his views.”

The heart of the matter – as also confirmed by many other judicial authorities – is that the President must consider other views meaningfully, and give them serious consideration, although it is clear the final decision rests with him. In doing so, the views of the public must necessarily play a role. If, say, the JSC informs the President that his nominee for Chief Justice lacks the gravitas, judicial stature, belief in the values enshrined in the Constitution and/or support of the judiciary as a whole and that such an appointment would be unwise – something the JSC clearly is entitled to do – the President may nevertheless proceed with the appointment.

In the absence of political consequences the President will never take the views of the JSC seriously and in the absence of a democratic debate there can therefore not be meaningful consultation between the JSC and the President. What would force the President to reconsider the appointment he wishes to make is the court of public opinion. But that court – which is conducted in the democratic space itself by all citizens - would only be able to make an informed decision on whether it supports the decision of the President if there is widespread discussion and debate about the merits and the demerits of the President’s preferred candidate.

To suggest, as some have done, that we should not be allowed to discuss – in a considered and responsible manner – whether the nominee is suitable for appointment merely because our “great leader”, our “wise father”, our “benevolent patriarch” has decided that he should be appointed, is profoundly anti-democratic and deeply insulting to the South African voters.

This does not mean that we should gratuitously insult the nominee in the process. I therefore agree with Paul Berkowitz that Zapiro’s cartoon about this matter was a deeply problematic one. As Berkowitz wrote in the Daily Maverick:

This cartoon falls far short of that standard – it may in fact be my least-favourite cartoon of his to date. In contrast to his normal scalpel-sharp analysis, this was a hatchet job. Mogoeng is painted as a sycophant, an obedient servant of the president who is being rewarded for his pliancy.

But surely it is possible to find the middle ground in between the “hatchet job” done by Zapiro on the nominee, and the sycophantic and often completely mindless and anti-democratic arguments put up in defence of Justice Mogoeng’s nomination as Chief Justice? Surely we can talk in a relatively civil and reasoned manner about what characteristics a good judge and a good Chief Justice should possess and then proceed to analyse Judge Mogoeng’s record to determine whether he indeed possesses these characteristics. Surely, in a democracy we all have both a right and a duty to apply our minds to the matter and not to jump to conclusions based on our racial insecurities, our apartheid-imposed sense of shame and self-hatred or our knee-jerk hatred of the President and the ANC?

When we engage in this discussion we are not undermining the nominee. On the contrary, we are treating the nominee with the requisite respect by taking his or her views seriously and by not treating the nominee as a disembodied symbol respresenting a specific race or gender, but as an individual human being with strenghts and weaknesses, with his own ideas and values, with an agency which the apartheid system wanted to deny all black South Africans.

Personally – for reasons provided in this and previous post - I am deeply concerned about the possible nomination of Justice Mogoeng Mogoeng as Chief Justice. In my view there is ample evidence that he is not the best person for the job and that his value system is not in line with that embodied by our Constitution. Unlike the appointment of Chaskalson, Langa and Ngcobo – which I all supported enthusiastically – I cannot support this appointment. Saying so is difficult because it exposes one to attack and accusations of racism, treachery and worse. It also possibly bedevils future interactions with the new Chief Justice and other members of that court. I would have preferred not to have to make this argument, but I would surely have been a coward if I had kept silent. Keeping silent would also have been deeply patronising to the nominee.

But in engaging in this debate it would have been nice to hear reasoned arguments that support the opposite view, arguments which analyse the nominees strengths and attempts to demonstrate why the values displayed by the nominee in his interviews and judgments are admirable and more or less in line with the values embodied in our Constitution.

So far we have been ill-served by those who defend the nomination. Their failure to make reasoned arguments in favour of his nomination impoverishes the debate and disrespects the democratic space which our Constitution envisaged would be used wisely by all citizens with the power to speak so that we can debate the issues and so that those who are required to make these difficult decisions can hopefully make the wisest possible choice.

What now for the Chief Justice?

Jul 19th, 2011

by Pierre De Vos.

61 comments

It is now generally accepted by constitutional lawyers and politicians – publicly by some, privately by others – that section 8(a) of the Judges’ Remuneration and Conditions of Employment Act and the President’s decision (taken in terms of this section) to extend the term of office of Chief Justice Sandile Ngcobo, is invalid. Yesterday the Constitutional Court heard arguments about this issue and we will have to wait and see whether the judges on that Court agrees with this emerging conventional wisdom.

But at the hearing yesterday the issue of whether proposed amendments to the Act would pass constitutional muster was also raised. It is unclear whether the Constitutional Court will address these questions, given the fact that the draft legislation at issue has not yet been debated or passed by Parliament.

The Minister of Justice has tabled an amendment to section 8 of the relevant Act, which - in essence - would provide for a Chief Justice or President of the Supreme Court of Appeal (SCA) to serve a term of seven years as Chief Justice or as President of the SCA in situations where they would have served a shorter term had the ordinary rules regarding tenure of judges applied to them. The amendment provides for an exception in cases where a person reaches the age of 75 before the seven year term ends, in which case that person will have to retire at the age of 75.

The Act also empowers the the President at any time to remove from office a Chief Justice or a President of the SCA who continues to perform active service in terms of this section ”if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties”.

It is clear that the second part of this proposed amendment, which deals with the removal from office of the Chief Justice or the President of the SCA by the President, would never pass constitutional muster. The removal of any judge from office is regulated by section 177 of the Constitution. This section entrusts the power to make decisions on the removal of a judge on the basis of incapacity to the Judicial Service Commission (JSC), who is required to make a recommendation in this regard to the National Assembly. In turn, the National Assembly can only confirm the removal from office of a judge by the President of the country if two thirds of its members voted for removal.

This proposed amendment purports – in a clearly unconstitutional manner – to delegate to the President of the country the power to remove a Chief Justice and the President of the SCA from office if specific circumstances arise. When the Chief Justice serves a 7 year term that extends beyond the 12 year term prescribed by the Constitution for all Constitutional Court judges, the President will, in principle, have a free hand to decide on whether a Chief Justice has become permanently infirm.

But an Act of Parliament cannot delegate a power given by the Constitution to the JSC and the National Assembly to the President of the country. This would be like an ordinary piece of legislation delegating the power to appoint the Police Chief to the Chief Justice when the Constitution clearly states this power must be exercised by the President of the country.

Whoever drafted this section really should be fired for incompetence because the section is so obviously unconstitutional that every second year student of Constitutional Law would have been able to advise the drafters that this section will never pass constitutional muster. One trusts that when Parliament debates the proposed amendments, this section will be scrapped forthwith. Section 177 of the Constitution already provides for the removal of a judge from office if that judge suffers from incapacity due to old age, so the section is unnecessary in any case.

A more difficult question posed by the draft legislation is whether the amendment is constitutionally invalid because it singles out the Chief Justice and the President of the Supreme Court of Appeal for an extension of their terms. Section 176(1) of the Constitution provides that: “A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except when an Act of Parliament extends the term of office of a Constitutional Court judge.”

The argument could be made that a law of Parliament that singles out the Chief Justice in this way and does not extend the term of office of the Deputy Chief Justice and other Constitutional Court judges is not a law of general application and that Parliament is not empowered to single out the Chief Justice in this manner. Because judicial independence, safeguarded in section 165 of the Constitution, requires security of tenure for judges and also requires judges not to be treated by the legislature in a manner that would allow a reasonable apprehension of bias to arise against a judge serving in a particular position, similarly situated judges should usually be treated similarly by the legislature unless pressing practical reasons exist not to do so.

Given these requirements and because section 176(1) talks about the term of office of “a Constitutional Court judge”, so the argument goes, the legislation must either extend the term of office of all Constututional Court judges or none of them. Singling out the Chief Justice for an extension of his or her term above other Constitutional Court judges might serve as a powerful incentive for any Constitutional Court judge to be subservient to the executive in order to serve for a longer term on the Constitutional Court. This might give rise to a reasonable apprehension of bias on the part of any serving Chief Justice.

Besides, it might be argued, it is arbitrary to make a distinction between the Chief Justice and the Deputy Chief Justice by only extending the term of office of the former, as both positions are explicitly mentioned in the Constitution. The fact that only the term of the Chief Justice is extended, would turn a law of general application into an impermissible law that arbitrarily draws distinctions between different judges not mandated by the Constitution. There is no pressing practical reason to do so, hence the distinction cannot be constitutionally permitted.

On the other hand, one may argue that the Constitution itself distinguishes between the Chief Justice and Deputy Chief Justice on the one hand, and other judges of the Constitutional Court, on the other and bestows the power to appoint the Chief Justice and Deputy Chief Justice on the President. An Act that extends only the term of office of the Chief Justice and not the terms of office of other Constitutional Court judges, so the argument might go, would only follow the scheme already established by the Constitution.

As the President already appoints the Chief Justice – usually from amongst serving judges of the Constitutional Court – and as this position could be viewed – reasonably so or not – as being sought after, would one then not be able to say that an apprehension of bias may arise (reasonably so or not) regarding all Constitutional Court judges, but that this dynamic has been built into the Constitution and should therefore be dismissed as being constitutionally irrelevant – even if such an apprehension might be viewed as reasonable, which would in any case be questionable?

The argument would be that all judges of the Constitutional Court may well be perceived by some (if not by reasonable bystanders) to be potentially less likely to find against the executive and may be perceived as being potentially subservient to the executive because it would be believed that an ambitious judge would rule in a certain way in the hope that he or she would be appointed as the next Chief Justice. If this were to be true, then the Constitution itself mandates this dynamic and any amendments to the Judges Remuneration and Conditions of Employment Act would make no difference to the state of affairs.

Besides, so it might be argued, section 176(1) bestows on Parliament the power to extend the office of “a Constitutional Court judge”, which could be interpreted to mean any of the judges of the Constitutional Court – including the Chief Justice.

I think both arguments are plausible and may well hold sway with the Constitutional Court. However, personally, I would think that section 176(1) should be given a narrow interpretation as it should be read holistically with all other sections of the Constitution – including those sections which guarantee the independence of the judiciary and secure the tenure and financial future of judges. Legislation that tampers with this scheme – even slightly – should therefore be carefully scrutinised. It should be assumed that the Constitution did not empower the legislature to make distinctions between judges serving on the Constitutional Court unless pressing practical reasons exist for drawing such a distinction.

Given this view, I am leaning towards the argument that the proposed amendments as currently drafted do not meet the requirements for independence, read with section 176(1) of the Constitution. As I have argued before, it would be preferable if Parliament merely amended section 4 of the Judges Remuneration and Conditions of Employment Act to extend the term of office of all Constitutional Court judges to 15 years of service on the Constitutional Court.

Given the fact that the incumbent Chief Justice had unwisely accepted the President’s offer of an extension of his term of office in terms of section 8(a) – which he should have known was almost certainly unconstitutional – it is important for the legislature to ensure that the dignity of the Constitutional Court and the office of the Chief Justice be protected. This can best be done by treating all judges serving on the Constitutional Court in the same manner to prevent any perception arising – no matter how invalid this might be – that special arrangements are being made to ensure that the incumbent Chief Justice remains in office because he is more trusted by the executive or is beholden to it.

On the Constitutional Seventeenth Amendment Bill

Jul 5th, 2011

by Pierre De Vos.

18 comments

In a constitutional democracy in which the Constitution is supreme and in which the courts can declare invalid any law or act by a member of the executive or – where applicable – a private institution or person, safeguarding the independence of the judiciary is pivotal. All the checks and balances contained in such a constitution will ultimately only be effective if judges are allowed to interpret and apply the Constitution and the law in an impartial manner and where judges are free – according to their conscience and in line with their honestly held beliefs – to interpret and apply the Constitution and the law without fear, favour or prejudice.

Currently the independence of the South African judiciary is guaranteed by section 165 of the Constitution, which confirms that the judicial authority of the Republic is vested in the courts; that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice; that no person or organ of state may interfere with the functioning of the courts; and that organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.

Section 165, interpreted holistically, confirms that members of the executive – including the Minister of Justice – may not interfere with the functioning of the Courts. Although the Minister of Justice is politically responsible for the administration of justice in South Africa, he or she may not unilaterally impose norms and standards on the judiciary or act in any other way that could be perceived as interfering with the institutional independence of the judiciary or the impartiality of judges.

The Minister can therefore not take over the management of court rolls and cannot tell individual judges that they need to work longer hours or that they need to produce their judgments within a reasonable time as this would be seen as interference with their independence. Yet, when judges take months and – in some cases – even years to produce written judgments, the administration of justice is fundamentally compromised. Some mechanism must therefore be found to ensure that judges are held accountable without interfering with their independence.

At the same time, the Ministry is required to support our judges and to provide the backup to ensure that judges are able to do their wjob to the best of their ability. When a judge’s computer stops working, the air-conditioning in her office is on the blink, the lifts stop working or the toilets are not cleaned, the Ministry of Justice, working with Public Works, must ensure that this is fixed.

Of course, if a judge is particularly unpopular with the executive, there will always be a temptation to “punish” such a judge by not providing adequate support. But as recent complaints by senior judges about conditions at the South Gauteng High Court in Johannesburg has shown, the Ministry may be less than stellar in its support even where the executive has no personal vendetta against a judge or against a particular court. In such cases, it would be important for the judiciary to speak with one voice and to have a champion in the form of the Chief Justice – as the head of the Judiciary – to ensure that the executive provides our courts with the support that they are constitutionally entitled to.

One may therefore view the proposed amendment to section 165 of the Constitution, contained in the Constitutional Seventeenth Amendment Bill, through this lens and argue that the amendment will help to safeguard the independence of the judiciary by clarifying the roles of the head of the judiciary (who happens to be the Chief Justice) and the Minister of Justice regarding the administration of justice. The amendment would add the following subsection to section 165 of the Constitution:

(6) The Chief Justice is the head of the judiciary and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts.

This proposed amendment must be read with the provisions of the proposed Superior Courts Bill. Section 8 of this Bill states that:

(3) The Chief Justice may, subject to subsection (5), issue written protocols or directives, or give guidance or advice, to judicial officers: (a) in respect of norms and standards for the performance of the judicial functions as contemplated in subsection (6); and (b) regarding any matter affecting the dignity, accessibility, effectiveness, efficiency or functioning of the courts.

Read together, the proposed amendment of the Constitution and the relevant provisions of the Superior Courts Bill will bestow extensive powers on the Chief Justice over the administration of the Courts. However, the power of the Chief Justice is tempered by further provisions which confirm that the “management of the judicial functions of each court is the responsibility of the head of that court”. The proposed section 8(5) of the Bill also requires that any protocol or directive issued by the Chief Justice may only be issued by the Chief Justice if it enjoys the majority support of a forum of judicial officers convened by him or her.

When dealing with High Courts, the forum of judicial officers must include all the Heads of the Superior Courts. A worrying aspect of the draft Bill is that it does not limit this forum of judicial officers to the Heads of Superior Courts. In theory the Chief Justice can decide to co-opt any number of judges to serve on such a forum. In theory, a number of hand picked judges larger in number than the Heads of Court can therefore be selected by the Chief Justice to sit on such a forum in order to try and ensure that the proposals of the Chief Justice are approved. This is a serious flaw in the draft legislation that needs attention.

That the power of the Chief Justice over the judicial functions of all courts are quite extensive is made clear by section 8(6) of the Bill, which states that the judicial function over which the Chief Justice exercises responsibility include (but is apparently not limited to) the determination of sittings of the specific courts; assignment of judicial officers to sittings; assignment of cases and other judicial duties to judicial officers; determination of the sitting schedules and places of sittings for judicial officers; determination of standards applicable, and procedures to be adhered to in respect of: (i) case flow management; (ii) the finalisation of any matter before a judicial officer, including any outstanding judgment, decision or order; and (iii) recesses of Superior Courts.

The purpose of the amendment of section 165 of the Constitution and the introduction of section 8 of the Superior Courts Bill is clearly to empower the Chief Justice to take charge of the administration of justice to ensure that our courts operate more efficiently. In theory this will improve access to justice and will ensure that all courts function better and faster to serve the public efficiently and impartially. This move has been welcomed by many commentators – most notably by my colleague Richard Calland – because, so it is argued, in order to safeguard the independence of the judiciary while ensuring judicial efficiency, the Chief Justice, rather than the Minister of Justice, should be empowered to oversee the running of our Courts.

Critics will argue that despite the safeguards included in the Superior Courts Bill, the amendments would give the Chief Justice too much power over the running of the Courts. For example, the Chief Justice could issue directives (in consultation with the judicial forum) setting norms and standards for the performance of many judicial functions, including decisions about the assignment of judicial officers to individual cases. However, as I read the section, the Chief Justice would not be able to interfere in a decision made by a Judge President about the allocation of a case to a particular judge. He or she would only be able to issue directives setting out norms and standards to be followed by the Judge President when allocating cases.

Nevertheless, the big weakness of this section as it reads now is that the Chief Justice would be able to manipulate the composition of the forum of judges whose approval will be needed to issue these directives. Given the fact that the Chief Justice is appointed by the President with hardly any involvement of the Judicial Service Commission, and given that the Chief Justice is therefore a clear political appointee, extra safeguards are needed to ensure that better checks and balances are placed on the exercise of the authority of the Chief Justice.

Law makers have a tendency to legislate for current conditions and based on incumbent personalities, instead of formulating laws that would be sound even if the conditions changed and the current personalities retired. The mere fact that most of us trust the current Chief Justice to exercise these proposed powers wisely and in a consultative manner, does not mean that a future Chief Justice will do so. It is therefore important that the proposed legislation be amended to include more stringent checks and balances that will limit the powers of the Chief Justice in order to prevent a power grab in the future.

PS: The Constitution Seventeenth Amendment Bill, read with the Superior Courts Bill, contains other important provisions that will lead to far reaching changes to our judicial system. In the coming days I will discuss these provisions in more detail.

What now for Judge Aikona Motata?

May 23rd, 2011

by Pierre De Vos.

26 comments

News that the Judicial Conduct Committee (JCC) has found that race remarks made by judge Nkola Motata constituted a prima facie case of gross misconduct, might confuse many readers who are not familiar with amendments to the Judicial Service Commission Act. These amendments changed the manner in which the JSC deals with complaints of misconduct against judges. These amendments might well assist the JSC to avoid the kind of embarrassing legal defeats it has suffered over the years regarding its handling of complaints, as it sets out in great detail how complaints against judges should be dealt with.

The Act now establishes a Judicial Conduct Committee (JCC), who must receive and consider all complaints against judges. The Committee comprises of the Chief Justice (who is also the chairperson of the Committee), the Deputy Chief Justice, and four other judges, at least two of whom must be women, designated by the Chief Justice in consultation with the Minister. These four judges are appointed for a term of up to two years. The Act makes clear that in the event of an equality of votes being cast by the Committee members present at a meeting, the person presiding at that meeting has a deciding vote in addition to his or her deliberative vote.

It was this Committee (comprising only of judges) who have decided to refer the complaint against Judge Motata to a Judicial Conduct Tribunal for a full hearing. This is what happens, I guess, when politicians and political appointees are not involved in decisions about complaints against judges — it helps to de-politicise the handling of the complaint.

As the JCC comprises only of judges, the judiciary retains some control over the disciplining of judges, which seems appropriate to me. The Chief Justice will usually have a deciding vote if those members of the JCC present at a meeting are deadlocked. The establishment of Judicial Conduct Committee will therefore remove some of the politics out of the JSC’s consideration of complaints against judges.

Any person may lodge a complaint against a judge with the JCC, alleging incapacity on the part of a judge giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177(1)(a) of the Constitution.

It is important to note that the Act for the first time allows for the consideration of ”lesser” non-impeachable offences not mentioned in the Constitution, including “any wilful or grossly negligent breach of the Code of Judicial Conduct” (which has been drafted by the Chief Justice in consultation with the Minister of Justice) and a failure to declare registrable interests. Accepting, holding or performing any office of profit or receiving any fees, emoluments or remuneration or allowances in contravention of the Act, is now also prohibited, but would usually not on its own constitute an impeachable offence.

(The latter two provisions could be called the Oasis/Hlophe amendments as they deal with some of the issues raised during Judge President Hlophe’s original brush with controversy.)

The JCC may also investigate any wilful or grossly negligent failure to comply with any remedial step proposed by the JCC in cases where it had previously found that a judge had been guilty of a serious but non-impeachable offence.

Where the JCC makes a finding that the complaint prima facie indicates incapacity, gross incompetence or gross misconduct on the part of the judge, the JJC may refer the matter to the Judicial Conduct Tribunal (JCT) or may decide that it does not constitute an impeachable offence, in which case it will refer it to the Chairperson (usually the Chief Justice) for an inquisitorial inquiry. In the latter case the Chairperson may then impose remedial steps on the judge after conducting a hearing.

If the JCC decides that there is a serious case to answer that may lead to impeachment, it will refer the matter to the Judicial Conduct Tribunal which consists of two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one person who is not a judge but whose name appears on a list of persons who have been approved by the Chief Justice, acting with the concurrence of the Minister of Justice. The JCT is therefore dominated by judges — not by politicians or non-judges.

The JCT will then hear evidence and in an inquisitorial process try to determine where the truth lies. The aim would be to get to the truth behind the complaint and there would be no onus on any of the parties to prove or disprove any fact. In other words, the formal rules that apply in an accusatorial system would not apply and the aim of such an inquiry would be to get to the bottom of the complaint against the judge. This is important as this would make it impossible for the Tribunal to reject a complaint merely because a judge provides a different version of events than the complainant. At such a hearing the judge would be able to lead evidence and have witnesses cross examined. The Tribunal may also subpoena witnesses and order them to produce any documents relevant to the inquiry.

The catch here is that the Tribunal will usually do its work in secret — which is perhaps a reason why the JSC would want to deal with the complaint against Judge President Hlophe in terms of the new rules. However, the Tribunal President may in the public interest and for the purposes of transparency, determine that all or any part of a hearing of a Tribunal must be held in public. This decision must be taken in consultation with the Chief Justice. As is the case with many other aspects of these amendments, the role of the Chief Justice is pivotal. The whole system now depends on the integrity and wisdom of the Chief Justice, which is why — at present — it will probably work much better than the previous politicised JSC process.

The Tribunal must then report to the properly constituted JSC on its findings and must also provide the JSC with all the relevant documents. The JSC can then decide to accept or reject the findings of the Tribunal as the JSC is constitutionally required to decide whether it wants to recommend impeachment of a judge to the National Assembly.

If JSC rejects the findings of the Tribunal, it will obviously delegitimise itself and the judiciary as a whole, so even though the JSC is not above politics it is going to be very difficult for the JSC to reject a finding made by a Judicial Conduct Tribunal. Such a decision by the JSC to reject the factual and legal findings of the Tribunal would, in effect, be mean that the JSC would be replacing a legal and factual decision with a purely political decision. This will cause severe harm to the judiciary and would obviously destroy the legitimacy of the JSC.

Where does this leave Judge Nkola Motata?

Well, Judge Motata will now probably face a full inquiry by the Judicial Conduct Tribunal (if news reports are correct), and the Tribunal will have to investigate the complaint, which relates to remarks Motata made after he crashed his car into a wall in Johannesburg while drunk. An audio recording of the events was played in the Johannesburg Magistrate’s Court during his drunk driving trial. Among other things, Motata seemed to have channelled his inner Julius Malema and said with reference to Richard Baird, owner of the house where the crash happened: “No Boer is going to undermine me. This used to be the white man’s land, but it isn’t anymore.” Motata also allegedly told members of the Johannesburg metro police that “they should not support the white man.”

His fate now rests in the hands of two judges and a lay person. It will be interesting to hear who will sit on the Tribunal. Obviously, a finding that a judge is racist must surely lead to a recommendation of impeachment. Some conservative critics of the JSC and of transformation of the judiciary might well cheer on the Tribunal in a display of schadenfreude as they would love to see the downfall of a judge who happens to be black and just had one cup of tea too many and said what many other people think.

But they should think twice before they rejoice about any such possible finding. Unlike in Kenya where the new Constitution requires a vetting of all judges for re-appointment, many judges in South Africa were appointed before 1994 and have never been vetted to see if they comply with basic requirements of honesty and adherence to values of non-racism. It would be surprising if some of these judges (as well as judges — both black and white — appointed after 1994) do not privately express racist beliefs or ideas based on racial prejudices that would make them unfit for judicial office if expressed publicly.

A finding against Judge Motata – a finding which is by no means certain and which I do not pre-empt — might therefore send a welcome message to judges of all races who harbour prejudices based on race, sex, gender, religion or sexual orientation. Whatever happens, the way in which the Tribunal and the JSC deal with the complaint against judge Motata presents an opportunity to improve perceptions about the JSC and, ultimately, the judiciary.

An easy solution to the Hlophe appeal problem

Apr 26th, 2011

by Pierre De Vos.

66 comments

It came as no surprise that Western Cape Judge President John Hlophe intends appealing against two SCA judgments that prompted the Judicial Service Commission (JSC) to agree to reopen a complaint into his conduct. According to news reports, Hlophe’s lawyer Barnabas Xulu said Hlophe’s legal team was preparing to file papers at the Constitutional Court. It is, of course, Judge President Hlophe’s right to try and avoid a situation where the JSC is forced to decide whether it was him or the judges of the Constitutional Court who lied to it under oath and he has every right to lodge an appeal. He just does not have any right to have that appeal heard by the judges of the Constitutional Court.

In any case, this creates a fascinating constitutional problem which us lawyers will discuss for years to come. However, the problem is not one that is too difficult to solve and the awkward situation created by the appeal can be easily addressed.

The problem is this. Only four of the current judges of the Constitutional Court are not complainants in the case. The seven judges who took part in the original complaint would have to recuse themselves as they cannot hear a case in which they are personally involved. Where there is a reasonable apprehension of bias on the part of a judge who has to hear a case, he or she has a duty to recuse him or herself. That would clearly be the case here. However, section 167(2) of the Constitution states that a minimum of 8 of the 11 judges of the Constitutional Court must hear a case. The four remaining judges therefore would not constitute a quorum and those four judges could not hear the case alone.

One solution would be to appoint four acting judges to make up a quorate bench of eight judges. However, appointing four acting judges is not feasible. Section 175(1) of the Constitution states that:

The President may 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. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.

Where a judge recuses him or herself from a case but remains at work there is clearly no vacancy in the court. Neither is the judge absent when he or she is sitting in the office but has merely recused him or herself from hearing a particular case. This interpretation is in line with the ordinary meaning of the words as well as with the case law dealing with the meaning of the word “absent”. In the case of Natal Rugby Union v Gould the Supreme Court of Appeal decided that ordinarily the word “absence” in a constitution of a voluntary association means the state of being absent, that is to say, physically absent and not “legally disqualified”.

As judges are legally disqualified when they recuse themselves, they are therefore not absent as required by section 175(1) of the Constitution and no acting judges can therefore be appointed to the Constitutional Court in these circumstances.

But even if one could re-interpret the term to mean that a judge is “absent” when he or she recuses him or herself, no acting judges can be appointed for yet another rather important reason. Such acting appointments are made by the President on advice of the Chief Justice and the Minister of Justice. But the Chief Justice and the Minister of Justice are both parties to this dispute while the President might reasonably be perceived as having an interest in the dispute as the approach by Judge President Hlophe allegedly took place on behalf of President Zuma. No acting judges appointed in this manner by those empowerd by the Constitution to do so could possibly be perceived by any reasonable person to be unbiased.

But this is not the end of the world. Everyone has a right to lodge an appeal against a decision of a lower court with the Constitutional Court. But no one has a right to have their appeal heard by the Constitutional Court. The Constitutional Court often declines to hear appeals lodged with it, inter alia, because it is not in the interest of justice to do so. The Constitutional Court will therefore have no option but to decide that it is not in the interest of justice to hear the appeal and that the SCA judgment should therefore stand.

Of course, one may argue that because the majority of judges of the Constitutional Court are involved in the Hlophe matter, they should not be involved in a decision about whether the SCA judgment should stand. Judge President Hlophe’s lawyers may very well apply for the judges to recuse themselves even before a decision is taken on whether it is in the interest of justice to hear the appeal. This is where the doctrine of necessity enters the picture. This doctrine allows, inter alia, for a judge to hear a case even if he or she has an interest in it in a case where it is impossible for any other judge or tribunal to hear the case.

The Constitutional Court will therefore be required to deal with the general constitutional point (but not the substantive arguments of Judge President Hlophe) raised by this appeal and will probably have to decide that it can never be acceptable for a party with a direct interest in a case to take part in the appointment of acting judges, that acting judges can therefore not be appointed in this case and that it is therefore impossible for the Constitutional Court to hear the case. The SCA judgment will therefore have to stand.

There would be nothing extraordinary about such a decision. Neither would it fundamentally affect the rights of anyone. In 2008 in the case of American Isuzu Motors, Inc et al, Petitioners v Lungisile Ntsebeza et al the United States Supreme Court could not hear a case because a majority of judges on that court had an interest in the case. The Supreme Court judges (including those who had an interest in the case) therefore decided not to hear the case and to affirm the decision of the lower court from which the appeal was lodged. The same solution could be used in this case.

Given the fact that no one has a right to have their appeal heard by the Constitutional Court (who only hears cases when it is in the interest of justice to do so), and given that it could not possibly be in the interest of justice for the bench of current judges to hear the case, nor for a bench constituted by parties with a direct interest in the case to hear a case, the only elegant solution seems to me to be the one proposed above.

Those who do not have the best interest of the judiciary, the legal system and our constitutional democracy at heart might be tempted to try and exploit this awkward situation to discredit the Constitutional Court or the legal system as a whole for short term gain. They may argue (wrongly) that by not hearing the case the Constitutional Court is infringing on the rights of the appellant.

Demagogues might also exploit the ignorance of the public who might not be aware that one does not have a right to have one’s case heard by the Constitutional court. However, I am confident that all reasonable people – no matter where they stand in the matter of the complaint against Judge President Hlophe - will not allow such demagoguery to go unchallenged.

Although the situation is of some academic interest and presents the Constitutional Court with an awkward problem, talk of a crisis is somewhat overblown. If everyone acts in an honorouble manner, several solutions (including the one proposed above) could be found to ensure that no crisis will arise and that our judiciary will emerge stronger and more credible on the other side.

Finally the truth might be revealed

Mar 31st, 2011

by Pierre De Vos.

128 comments

In a stunning (but to some of us not surprising) judgment handed down today, a unanimous bench of 5 judges of the Supreme Court of Appeal (SCA) (Streicher JA, concurred in by Brand, Cachalia, Theron and Seriti JJA) found that the decision of the Judicial Service Commission (JSC) that the evidence in respect of the complaint by the Constitutional Court against Judge President John Hlophe does not justify a finding that Judge President is guilty of gross misconduct and that the matter accordingly be “treated as finalised”, constituted an abdication of the JSC’s constitutional duty to investigate the complaint properly and was therefore unlawful and invalid.

In essence the SCA found that the JSC had not done its duty as required by the Constitution because it attempted to sweep this matter under the carpet. By assuming that because there were two versions of what happened — one presented by Hlophe and another presented by Justice Jafta and Nkabinde – that cross-examination of the witnesses who presented these conflicting versions would serve no purpose and hence that no further and proper investigation was required, the JSC did not act lawfully. As the judgement states:

It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

It is important to note that this judgment should not be seen as pre-judging the issue of whether Hlophe did indeed attempt to influence the judges of the Constitutional Court. Judge Hlophe is therefore not necessarily the big loser of today’s judgment (although he was slapped with a cost order). We do not know for certain what happened when Hlophe went to speak to Jafta and Nkabinde as there are two diametrically opposed versions of these discussions. If Hlophe’s version is the true one, he may even emerge as the winner in this sad and sorry saga. But what we do know now is that it is the job of the JSC to find out what happened. It is their failure to do so that came under attack today.

The winner today was not so much the judges of the Constitutional Court or Freedom Under Law (FUL). Instead, the judicial system and the citizens of South Africa were the ultimate winners today. After all, as the SCA noted, it is in the interest of every South African citizen that the JSC should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should the JSC shirk its duty in this regard, it can have grave repercussions for the administration of justice.

The judgement does leave the JSC with some egg on its face though. It shows up the JSC decision not to pursue the complaint against Hlophe as a deeply flawed one and finds that the reasons provided by the JSC for its decision were clearly unjustifiable.

Recall that the JSC decided to dismiss the complaint (by the Constitutional Court judges) and the counter-complaint (by Judge President Hlophe) because the majority of its members were of the view that the evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did not establish and, at a formal enquiry, could not establish that Hlophe JP had attempted to improperly persuade them to decide the cases in Mr Zuma’s favour. It found that Jafta AJ’s evidence alone could not establish grounds for a finding of gross misconduct and that the evidence of Nkabinde J which contradicted that of Hlophe JP was immaterial to the matter at hand.

The SCA found this latter finding of the JSC irrational as Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said, thus virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her.

It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J that Hlophe JP said, when making an appointment to see her, that he had a mandate, that, when he visited her, he said that the reason why he was there was that a concern had been raised that people in the Constitutional Court did not understand our history, that he said, when asked who those people were, that ‘he has connection with some ministers’, that he said that the question of privilege should be decided properly because the prosecution’s case rested on it, that Nkabinde J reprimanded him for speaking about a case he was not involved in, that he said that there was no case against Mr Zuma and that Mr Zuma was being persecuted, that he said that some of the people implicated in the arms deal whose names appeared on a list he had obtained from National Intelligence were going to lose their jobs when Mr Zuma became President. These were the facts which the JSC had to consider together with Jafta AJ’s evidence, to determine whether Hlophe JP attempted to influence them. Once it had been determined that he did attempt to influence them the JSC had to decide whether his attempt to do so constituted gross misconduct of such a nature that it may justify his removal from office.

The problem for the JSC was that in the absence of cross-examination of the witnesses, its finding and reasons for the finding just do not add up. As the SCA points out, the JSC applied the criminal standard applicable at the end of a criminal trial, namely proof beyond reasonable doubt, to dismiss the complaint, at a stage when neither of the conflicting versions of the two judges on the one hand and Hlophe JP on the other hand had been tested by cross-examination.

Although the finding that it could not reject Hlophe JP’s version was quite correct, this did not mean that no-cross-examination was required:

By disallowing cross-examination that result was made inevitable. It would have been highly irregular to reject his evidence without having given him an opportunity to cross-examine his accusers. Utilising this procedure for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers. The procedure adopted was therefore not appropriate for the final determination of the complaint.

The requirement of proof beyond reasonable doubt (the only reasonable inference) was similarly not appropriate. Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course and an investigation of a complaint of gross misconduct is not a criminal enquiry but more in the nature of a disciplinary enquiry where proof on a balance of probabilities is required at the conclusion of the enquiry

As many of us pointed out at the time, this reasoning of the JSC did not seem plausible. Courts frequently have to decide where the truth lies between two conflicting versions and they often do so where there is only the word of one witness against another and neither of the witnesses concedes the version of the other. Although a court may, after cross-examination, still be unable to decide where the truth lies, “that possibility does not entitle a court to decide the matter without allowing cross-examination and it does not entitle the JSC to do so”.

The only credible option open to the JSC is to re-open the hearing, to call all the appropriate witnesses and to allow cross-examination of those witnesses — including the judges of the Constitutional Court and the Judge President. This procedure was not followed and this led to the finding that the procedure used was unlawful. If cross-examination had been allowed, it would have put the JSC in a position to decide whether the version by Hlophe JP or the version judges of the Constitutional Court who made the allegations about his alleged attempt to interfere with their work was the correct one. Such a finding would, in effect, require it to decide who had lied in this case.

If the JSC now revisits the matter as required by the SCA and if it makes the appropriate finding about whose version is truthful after cross-examining the witnesses, one would assume that the party or parties who are found to have lied would then be found to have been guilty of gross misconduct, which would trigger a recommendation of impeachment. This process may well be painful for all concerned. But as the SCA pointed out, sweeping the question under the carpet is not in the interest of the judiciary, the administration of justice and ultimately the citizens of South Africa.

Should Freedom Under Law appeal the Hlophe judgment?

Dec 23rd, 2010

by Pierre De Vos.

22 comments

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state, a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

JSC

JSC will (finally) have to make a decision on Hlophe

Another blow to the credibility of the JSC?

On “Indians”, “Africans” and a lack of emotional intelligence

What happened to reasoned debate?

What now for the Chief Justice?

On the Constitutional Seventeenth Amendment Bill

What now for Judge Aikona Motata?

An easy solution to the Hlophe appeal problem

Finally the truth might be revealed

Should Freedom Under Law appeal the Hlophe judgment?

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