Constitutional Hill

JSC

What have Tweedledum and Tweedledee been up to?

Jun 29th, 2010
by Pierre De Vos.
70 comments

Maybe all this goodwill, peace, love and happiness generated by the World Cup in South Africa have finally turned my brian into a mushy pulp. (Miss World contestants must be horrified by the World Cup: with all this love and peace going around they must have nothing left to do but look pretty and sniff listlessly at the salad leaves on their lunch plates.) How else to explain the sudden thought, which popped into my head this morning, that I am missing Judge President John Hlophe and his ethically challenged sidekick, Paul Ngobeni?

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.

Selebi case: “The dog ate his homework”

May 3rd, 2010
by Pierre De Vos.
57 comments

The state’s cross-examination of former Police Commissioner Jackie Selebi finally came to an end on Friday. I have been following the cross-examination of Selebi on the Mail & Guardian’s amaBhungane Twitter page: not as good as being in court oneself, but facinating – even riveting – nevertheless.

At the end of the cross-examination it was very clear why Selebi’s council, Jaap Cilliers, had brought an application for the acquittal of Selebi at the end of the state’s case. Having consulted with Selebi, he must have realised that Selebi might not make the best of witnesses and that he might not be able to keep his story straight, so it was imperative to keep him away from the witness stand.

We do not know – and I am in no way speculating – on whether Selebi will be convicted on any of the charges he faces. It is for a court to decide whether the state has proven its case beyond reasonable doubt after hearing all the evidence. But the cross-examination did reveal that Selebi was a less than reliable witness. His “Swiss army knife” defence (Selebi claimed previously that the only present Glen Agliotti ever gave him was a Swiss army knife) turned into a classical “the dog ate my homework” defence.

Selebi claimed during the cross examination that he had cash slips and receipts in his possession proving what he had spent his money on and disproving the state’s claim that he had received hundreds of thousands of Rands from Agliotti as bribes. But on Friday Selebi failed to bring cash slips and receipts to court as requested because he claims his wife destroyed them on Thursday.
 
Both prosecutor Gerrie Nel and Judge Meyer Joffee looked astonished when Selebi told them he did not bring the receipts because his wife did not only discarded the slips but actually shredded them (yeah right). The former police chief claimed that his wife had shredded them on Thursday because she had found credit card statements which she thought would be better evidence. Nel described this explanation as ridiculous and accused Selebi of playing to the court. He said this showed Selebi was arrogant and had no credibility, a claim one finds difficult to dispute.

Then there was the “secret report” that Selebi claimed he had declassified and had at home. He was sent home to fetch it, but when he produced a document the next day Gerrie Nel claimed that the document was a “cut and paste” job. Nel pointed out several problematic issues in the document such as different colours in the printed fonts, the SAPS logo cut off on the front page original when it appears in full on the “copy” handed in earlier and differences in the typing on various paragraphs.

As I followed the crumbling of Selebi’s various stories under relentless cross-examination, I was reminded of the Judicial Services Commission (JSC) and wondered whether the members of that august group were taking notes and whether they felt embarrassed at all for deciding not to proceed to establish the truth of the complaint of gross misconduct levelled against Judge President John Hlophe by the judges of the Constitutional Court and not to consider the counter-complaint by Hlophe either.

Remember, the majority of members decided that although there were fundamental disputes of fact between the version put to it by Judge President John Hlophe and the versions put to it by other judges of the Constitutional Court (in other words, although the JSC admitted that either Hlophe or the judges of the Constitutional Court were lying), the JSC was not persuaded that cross-examination would “necessarily lead to more clarity on the disputed issues”.

As has so amply been demonstrated by the Selebi case (as well as by the devastating cross examination of Menzi Simelane at the Ginwala Inquiry where he was exposed as a person with a difficult relationship to the truth), this kind of argument is such utter nonsense that one cannot believe that any lawyer would have made it with a straight face. If the three main protagonists had been cross-examined vigorously two things would have emerged.

First, some witnesses would have shown themselves to be more credible and others less so and thus their version of events would have had to be accepted as the more plausible. After cross-examination the finder of fact must decide whose version was more probably true and to help them in this, credibility becomes all important. Cross-examination helps to make findings on credibility “finish and klaar” (as Selebi said about his friendshipp with Agliotti). 

Second, the judge or judges who had lied might very well have been exposed as such because – as Selebi has shown – if you start lying it is difficult to keep your story straight and then you tell more lies, which leads to even more lies and finally to exposure as a liar.

In any case, as it turned out, the cross-examination was not really necessary as the JSC had already decided who were probably lying to them during the Hlophe affair and who were telling the truth: it just did not want to take the action it is constitutionally required to take. Given the fact that both Hlophe and Judge Chris Jafta (who had contradicted Hlophe’s version of events) applied for a position to the Constitutional Court after the decision by the JSC not to go ahead with a hearing, and given the fact that the JSC had nominated Jafta for a position on the court but not Hlophe, one must make the irresistible inference that the JSC believed Jafta and Judge Bess Nkabinde and not Hlophe.

There were two versions of the events that took place in the offices of Jafta and Nkabinde before the JSC: Hlophe’s version and the version of the other two judges. If the JSC had thought that Hlophe was telling the truth, it surely would not have appointed Jafta to the Constitutional Court. Even for the JSC it must surely be unthinkable to appoint someone to the highest court in the country it suspects of having told blatant lies about a fellow judge. If it had thought Hlophe was the honest one, surely he and not Jafta would have been nominated for a position on the top court by the JSC.

In any event, what the Jackie Selebi cross-examination shows is that the JSC’s argument that cross-examination of Hlophe, Jafta and Nkabinde would not take the matter further was about as credible as Selebi’s “the dog ate my homework” defence.  Given the fact that the JSC’s original decision has now been set aside, the JSC will have to make a new decision on whether to do its job or not. When it does, it would really enhance that institution’s credibility if it keeps in mind what happened to Selebi under cross-examination. But don’t hold your breath.

Where are all the women judges?

Apr 29th, 2010
by Pierre De Vos.
30 comments

I am not sure whether this is an apocryphal story, but I was told that in the late nineteen nineties a women judge was appointed to one of the High Courts in South Africa. She was the first women judge appointed in that High Court. On her first day at the office, she discovered that the court building did not contain toilets for female judges. She had to slip into the men’s toilet – to great consternation of her male colleagues.

When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).

In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.

Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:

A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .

It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?

On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.

(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)

On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case. 

If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.

In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.

Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.

Of course, for black women this phenomenon is even more pronounced.  The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.

Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.

In the light of the above it is actually surprising that almost a quarter of judges are indeed female. 

The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do? 

The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.

On judicial appointments

Apr 22nd, 2010
by Pierre De Vos.
65 comments

The Judicial Services Commission (JSC) has now announced the names of the most recent successful candidates for appointment to various High Courts and the Labour Court. There has been some criticism of these appointments, most notably because of the non-appointment of Adv Jeremy Gauntlett and – to a lesser extent – Adv Glen Goosen and the promotion of Judge Willem van der Merwe to Deputy Judge President of the Gauteng High Court.

I do not agree with all the criticism leveled at the JSC, although I suspect some good candidates might not have been appointed. Nevertheless, at this point it might be helpful to take stock and to evaluate the performance of the JSC.

The first striking feature of the appointments is that several white men were appointed to the various High Courts. This underscores the fact that it is a myth that “white men need not apply” for positions on the bench. All three judges appointed to the Labour Court are white men and two of the five appointments to the Gauteng High Court are also white men. Judge Willem van der Merwe was promoted to Deputy Judge President despite the fact that he is a white man.

Although members of the JSC asked pertinent questions about the need for the racial and gender transformation of the bench (questions that are perfectly relevant), the majority of members clearly do not believe that race and gender are the only criteria to be used when deciding on appointments. This view is correct and perfectly in line with the Constitution.

Second, I might be wrong, but I see a trend emerging regarding the appointment of white lawyers to the bench. The majority of members on the JSC seem reluctant to give the nod to progressive white lawyers. Although Judge Dennis Davis was said to have had by far the best interview before the JSC when it had to consider appointments to the Constitutional Court, he was not appointed. Davis was an energetic and tireless progressive (as opposed to liberal) campaigner against apartheid and has handed down many progressive judgments as a member of the Cape High Court.

Similarly Adv Glen Goosen, who was an anti-apartheid activist and worked for the Truth and Reconciliation Commission and has a well-earned reputation as a progressive lawyer, was overlooked by the JSC in the most recent round of appointments. Previously the JSC had also declined to appoint Adv Jeff Budlender, one of the most brilliant progressive lawyers in South Africa. Budlender had been involved in several social and economic rights cases and was active in progressive anti-apartheid politics during the struggle against apartheid.

If I am correct, it would suggest that the JSC is more comfortable with the appointment of pro-establishment white lawyers who might not have been active in anti-apartheid struggles than with the appointment of more critical lawyers. Could this be because progressive white lawyers are perceived to be too critical and too prepared to intervene on behalf of the vulnerable, the poor and the voiceless? Are candidates being appointed who are perceived to be traditionally conservative about gender issues and issues of social justice because they would be less likely to hand down progressive judgments that would embarrass the government?

Third, it is unfair to criticize the appointment of Judge Willem van der Merwe as Deputy Judge President of the Gauteng High Court on the basis that he acquitted President Jacob Zuma on the charge of rape. It is unfair to Judge van der Merwe, who clearly based his decision on the facts presented to the court and on the law. The argument that he was “rewarded” for acquitting Zuma does no one any favors and is wrong.

Hopefully no one is implying that Van der Merwe acquitted Zuma to further his own career. Most observers agree that Judge Van der Merwe came to the correct decision when he acquitted Zuma and he should surely not be penalized merely because in applying the law without fear favor or prejudice he happened to have acquitted the President on the charge of rape.

Having said that, the appointment of Judge van der Merwe could be criticized on different grounds. Feminists and gender activists criticized Van der Merwe for allowing the defense in the Zuma case to question the complainant on her sexual history. The judgment deals with these arguments and makes a plausible case for the decision. Nevertheless, given the fact that the transformation of the judiciary also requires the JSC to appoint non-racist, non-sexist and non-homophobic judges, it would have been better if the members of the JSC had quizzed Van der Merwe vigorously about his commitment to gender equality.

I have no idea whether Van der Merwe is a closet feminist or whether he harbors stereotypical views of women and express no opinion about it. However it surely is the role of the JSC to try and find out. In the same way that it is allowed to ask questions of candidates about their commitment to racial equality, the JSC is allowed to quiz judges on their social attitudes towards women.

Lastly, in discussing the appointment of judges it is important to take a nuanced view and not to jump to conclusions. At the same time this does not mean the JSC should get a free pass and that we should not criticize it when it overlooks a particular individual who has the legal skills, the temperament and the social justice credentials to advance broader transformation goals.

Hlophe: Here we go again

Apr 20th, 2010
by Pierre De Vos.
32 comments

The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.

The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.

The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution - that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.

The High Court thus found that:

Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.

The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.

The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.

The judgment poses some difficult questions.

First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.

This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.

The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.

Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?

Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?

But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.

And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?

Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.

The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.

What makes a good judge?

Apr 19th, 2010
by Pierre De Vos.
70 comments

It is less than ideal – but perhaps not surprising, given the way lawyers like to gossip - that news of the non-appointment of Adv Jeremy Gauntlett to the Cape High Court bench leaked out before an official announcement was made about the matter. Gauntlett is often described as one of South Africans most brilliant legal minds and many observers thought that the JSC would nominate him for a position on the bench.

It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.

However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.

As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.

Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.

If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.

But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?

It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.

First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.

Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.

More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.

Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.

Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.

Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.

Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.

From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.

In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.

When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.

Pulling a Menzi Simelane

Dec 3rd, 2009
by Pierre De Vos.
71 comments

In the past I have been critical of the way in which the Judicial Services Commission (JSC) has been fulfilling its constitutional obligations as required by the Constitution. The preposterous decision of a majority of members on the disciplinary committee of the JSC (all but one of the lawyers on the JSC committee voting with the minority) to gloss over the blatant lies of one or more of the parties in the battle between the Constitutional Court and Judge President Hlophe, is a case in point.

The JSC has not always covered itself in glory and some of its members, whose ego’s seem disproportionately large compared to their intellects, have made fools of themselves by bullying candidates for appointment or by making statements (including blatantly homophobic statements) which display a serious lack of commitment to the values of the Constitution.

Unlike Ngoako Ramatlhodi, who believes the JSC may not be criticised (unless the criticism emanates  from Judge President Hlophe or the ruling party, of course), I believe we all have a right and a patriotic duty to subject the actions of the JSC to critical scrutiny and to lambast it if we think it is not doing its job properly. That is what democracy is surely all about.

Yet, such criticism should be based on the facts and on a plausible interpretation of the Constitution and the law. That is why I take issue with an article written by James Myburgh and published on Politicsweb, in which he launches a scathing attack on judicial transformation in South Africa. Myburgh was upset with innocuous remarks made recently in Johannesburg by former South African, Margaret Marshall, who is now the Chief Justice of the Massachusetts Supreme Judicial Court, In the Bram Fisher Memorial Lecture at the Legal Resources Trust, Marshall said:

In its fifteen years of constitutional democracy, South Africa has made remarkable strides in creating a diverse judiciary of distinction. You have done so on a far faster, and more impressive scale than we have…. The diversity of your courts is, and should be, great cause for pride and celebration.

Myburgh points to the entirely uncontroversial remarks by President Jacob Zuma in June this year to bolster his case that the appointment of judges is now an entirely racist affair. Zuma said then that the “transformation of the judiciary entails amongst others having a court system that the people of South Africa have confidence in. Obviously as part of this, we need to ensure that judicial officers reflect the demographics of our country”. Myburgh then continues:

Marshall is certainly correct to claim that the ANC has attained its racial goals in the judiciary speedily and on an impressive scale. Whether this is “great cause for pride and celebration” is more open to question. It represents, for one thing, the triumph of extreme racism. One of the founding texts of modern German anti-Semitism – Adolf Stoecker’s 1879 pamphlet “What we Demand of Modern Jewry” – called for the “limitation of appointments of Jewish judges in proportion to the size of the population.” Should South Africa really be proud that, a hundred and thirty years later, the ANC has adopted the same limitation, when it comes to the appointment of white (including Jewish) judges in South Africa?

Such over the top criticism, it seems to me, is singularly unhelpful as it completely denies the political imperative of transforming our judiciary to make it more legitimate and to rectify the past racial discrimination in the appointment of judges. By equating Nazi Germany with present day South Africa, Myburgh ignores three hundred years of racial oppression in South Africa and fails to see that as a matter of ethics and of law there is a need for the racial and gender transformation of the judiciary. Surely a more racial and gender diverse judiciary is one of the (many) requirements for the establishment of a more legitimate legal system.

In fact, he also ignores section 174(2) of the Constitution which 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”. To call the JSC’s preference for the appointment of suitably qualified black men and women as judges a “triumph of extreme racism” also directly contradicts the views expressed by the Constitutional Court in Minister of Finance v Van Heerden which stated that our Constitution’s equality guarantee does not only allow for different treatment on the basis of race to correct past injustice, but sometimes demand it.

Pulling a Menzi Simelane, Myburgh chooses to ignore the authoritative interpretation of the Constitution by our highest court in order to further a narrow political agenda. This is because he attacks the very principle enshrined in our Constitution that requires a racial transformation of the judiciary. He obviously believes that race should play NO role in the appointment of judges, a position that is legally untenable and unethical, given our history of racial oppression and the provisions in our Constitution.

This does not mean, of course, that the JSC should not be criticised for the manner in which it has gone about its constitutionally mandated task. It has made some really bad appointments in the name of judicial transformation. (The appointment of John Hlophe as Judge President of the Cape High Court and Carol Lewis to the Supreme Court of Appeal are two prime examples of this affirmative action policy going very wrong.)

What is needed is a more nuanced approach to this issue, including – as pointed out on this Blog before – an engagement with the way in which the legal profession is structured and the racially skewed briefing patters at the bar. (In this regard I note with interest that Menzi Simelane asked a white lawyer, David Unterhalter, to provide him with arguments to defend himself against the findings of the Ginwala Inquiry and the recommendations of the Public Service Commission that he should face disciplinary charges.)

Making wild statements comparing South Africa and Nazi Germany detracts from these real issues with which we have so far not engaged with sufficiently.

Its all a matter of credibility

Oct 16th, 2009
by Pierre De Vos.
68 comments

Members of the Judicial Services Commission (JSC) who read the founding affidavit of Freedom Under Law (FUL) in their application to set aside the decision of the JSC not to properly investigate the complaint of gross misconduct against Judge President John Hlophe, would be hard pressed not to feel ashamed.

Whatever the legal merits of the case presented by FUL, the affidavit builds a strong case that the JSC’s decision was so absurd, irrational and  arbitrary that no reasonable person would have been able to make it. FUL contends that in an effort to avoid a situation where Judge President Hlophe (who has been caught out lying in the past) would have to face cross-examination, it decided – without affording the parties any of the procedural protections prescribed in the JSC’s own rules – that even though a prima facie case existed against Hlophe, the CC judges had not been able to prove during the “preliminary hearing” that Hlophe had unduly tried to influence them.

FUL’s affidavit – although it challenges the unlawfulness of the decision on relatively technical grounds – contains powerful pointers that goes to the substance of the complaint and when one reads it one gets the impression that FUL’s lawyers believe that the JSC should have made a credibility finding against Hlophe. FUL argues as follows in this regard;

In exercising [their] constitutional duty, [the JSC] must apply the law of evidence  regarding the resolution of conflicting factual versions. It is well-established that this requires a determination of the witnesses’ credibility, their reliability and probabilities. The JSC cannot abdicate this responisbility because the complianants and those against whom complaints are made are judges. If it were so, the power given to the JSC under section 177 and its rules would become meaningless whenever a judge denies a charge.

FUL points out that the JSC decision failed to consider crucial evidence which shows not only premeditation on the part of Hlophe, but supports a credibility finding in favour of Justice Nkabinde. It lists the following issues as pertinent:

  • There was a prior warning by Jaftha to Nkabinde that Hlophe was coming to talk to her;
  • There was supporting evidence of Justice Mokgoro and O’Regan (neither of whom testified at the second “preliminary hearing”) about what was said and what happened;
  • The fatal effect (both on credibility and the issue of pre-meditation) of the evidence that Justice Nkabinde had finished and circulated the note on priviledge before her conversation with Hlophe while Hlophe had claimed Nkabinde had said to him she was still busy working on that note;
  • The inconsistent media statements by Hlophe who had at first dismissed the complaint against him as “rubbish” and asked, rhetorically, how he in Cape Town could influence eleven judges sitting in Johannesburg. Hlophe at first did not admit that he had spoken to two judges of the CC about the Zuma matter, something that he later had to concede he did do by approaching each and talking to them in private in their chambers;
  • Hlophe had not provided a possible explanation why Justice Jaftha – a friend of many years – and Justice Nkabinde would manufacture the evidence which Hlophe disputes;

When Hlophe was challenged during his first interdict application to provide answers to the following questions he failed to do so:

  • does he allege that Nkabinde J is lying in her account of what happened;
  • does he allege that Jaftha AJ is also lying in his account of what happened;
  • does he allege that both Jaftha and Nkabinde allowed themselves to be coerced into making false statements against him;
  • does he allege that Jaftha and Nkabinde lied to their colleagues when, on various occasions, they conveyed what had happened between them and Hlophe to them;
  • does Hlophe allege that the other Judges of the CC have lied about what happened.

Instead Hlophe stated that these questions had to be determined at the JSC hearings. because there were no hearings, Hlophe never had to answer these pertinent questions that fatally undermines his credibility.

FUL seems to have a point. The fact that the JSC chose to believe some aspects of Hlophe’s version of events above that of Nkabinde looks in this context astounding and inexplicable. I think FUL has convinced me that no reasonable person with an open mind could possibly have come to such a decision.

Not a bad list – all things considered

Sep 23rd, 2009
by Pierre De Vos.
50 comments

When a journalist phoned me late yesterday afternoon and told me that Judge President John Hlophe did not make it on to the list of seven names sent to President Jacob Zuma by the Judicial Services Commission (JSC) for possible appointment to the four vacancies on the Constitutional Court, I felt like quoting my father when I told him that I was gay. “This does not come at all as a surprise to us,” my father said. (He was surprised when I proudly whipped out a picture of my new boyfriend and he realised that I was involved with a black man – but that is a story for another day….)

As I predicted on Monday, the JSC decided to steer clear of Hlophe. If it had put Hlophe on the list, the little credibility that the JSC might still have left would have been destroyed, so the JSC rather opted for a mixed bag of seven names. Although not always inspiring, the list of names seems mostly credible, perhaps because most of us think (like my father probably did before I showed him that picture) that it could have been much worse.

At least two of the women on the list are strong candidates and I am holding thumbs that our President will appoint them both. Judge Mandisa Maya of the Supreme Court of Appeal (SCA) has written several strong majority and dissenting opinions while serving on that court and has demonstrated a sensitivity for gender issues. In Ntaka v S Maya wrote a dissenting judgment in a case where the majority of the SCA reduced a ten year sentence of a rapist to five years, noting the importance of taking into account the effect of the rape on the complainant.

In Zanner v Directorate of Public Prosecutions she wrote a majority judgment in which she refused to grant an accused a permanent stay of prosecution after he had been indicted for murder more than ten years after a charge of culpable homicide was withdrawn against him. She said one should focus solely on whether the accused had suffered any significant trial related prejudice when deciding to grant a permanent stay of prosecution. If President Zuma’s corruption trial is ever revived, this might become an interesting precedent when he applies for a permanent stay of prosecution for suffering prejudice not directly related to the trial.

Judge Leona Theron has also dissented in a rape sentencing case when she was acting on the SCA, opting for a harsher sentence from the one which her colleagues wished to impose, indicating a certain compassion for the survivors of rape less pronounced in some of the other judges of the SCA. She has also handed down several judgments in which she strongly punted the fair trial rights.

Of the other candidates on the list a surprise name must be that of Judge Johan Froneman. Although he has written many excellent and innovative judgments to try and address the systemic problems with the administration of social grants in the Eastern Cape and although he has a very sound and comprehensive knowledge of constitutional law (he regularly teaches as a guest lecturer in LLM classes at Stellenbosch University), commentators generally thought that Judges Eberhardt Bertelsmann and Dennis Davis were probably more likely to make it on to the list than Froneman. Nevertheless, I think he would make a great Constitutional Court judge and hope that our President appoints him.

The most likely other appointee is probably Judge Chris Jaftha who had already acted as a judge on the Constitutional Court. Although he has been involved in the fight between the Constitutional Court and Judge President Hlophe and although he has admitted to being a friend of Hlophe, this will probably enhance rather than hinder his chances of elevation to the highest court. Given the fact that Hlophe has been dumped, the appointment of Jaftha – who is a senior judge and serves on the SCA – might placate the Hlophe die-hards.

Of the other names on the list judge President Mogoeng Mogoeng was definitely a surprise pick. My sources tell me that he interviewed very well and that he was very charismatic when he appeared before the JSC – performing in the tradition of a lay preacher or a gospel singer. But as he admitted to the JSC he has very little constitutional law experience or knowledge and he is therefore somewhat of an unknown quantity. Maybe the fact that he owns 55 cattle served in his favour.

Of some concern must be that probably the most striking case he has been involved in is that of S v Dube in which he refused to recuse himself despite the fact that his wife was the prosecutor in the case. A full bench of the SCA overturned the decision, applying the test for recusal as set out by the Constitutional Court.

The one name that is absent from the list and should have been there is Azhar Cachalia of the SCA, probably the strongest candidate nominated this time around. Sadly, his statements about racial transformation – he had the temerity to say he and his family would prefer to have their case heard by a fair judge than by a judge of the same race as them – probably torpedoed his candidacy. He is extremely hard working and has handed down numerous reported judgments while on the SCA and he would have really strengthened the Constitutional Court bench.

Wonder though what my father would have said about the list….

Why John Hlophe will not be appointed

Sep 21st, 2009
by Pierre De Vos.
137 comments

I am going to stick my neck out and predict that Judge President John Hlophe will NOT be appointed to the Constitutional Court. There are, of course, many valid and cogent reasons why Judge President John Hlophe should not be appointed to the Constitutional Court. There are also many valid reasons for believing that independent of these factors Hlophe has no chance of being appointed.

We know that Hlophe is a liar. He claimed to have received only “out of pocket” expenses from Oasis when in fact he had received first R10 000 a month and later R12500 a month from them “for services rendered”. (No one has yet stated what services were indeed rendered for the almost R500 000 Hlophe received, but it looks like Oasis made a very bad investment there.) At the time he lied to the JSC – even after it came to light that he was receiving money from Oasis – stating that the amount was R10 000 a month when it was in fact by then R12500 a month.

As Zackie Achmat has now reminded us, Hlophe is also homophobic and hateful of people living with HIV. (See  below.) Given the fact that our Constitution prohibits discrimination on the basis of sexual orientation and has also been interpreted to prohibit discrimination against people living with HIV, this means Hlophe has not internalised the values at the heart of the constitutional enterprise.

We also know that Hlophe has an adventurous and innovative understanding of ethics and of conflicts of interest, one not shared by any lawyer I know, and perhaps not shared by any lawyer not practicing in Uzbekistan or North Korea. Newspaper reports state that at his JSC hearing Hlophe denied that he exposed himself to a conflict of interest when he made the decision to grant Oasis leave to sue a fellow judge despite the fact that he was on the pay role of  Oasis.

This is astonishing as even people who get all their information from Wikipedia would know that what happened in the Oasis matter was a conflict of interest. Wikipedia states:

A conflict of interest occurs when an individual or organization (such as a policeman, lawyer, insurance adjuster, politician, engineer, executive, director of a corporation, medical research scientist, physician, writer, editor, or any other entrusted individual or organization) has an interest that might compromise their actions. The presence of a conflict of interest is independent from the execution of impropriety.

Hlophe’s interest here was that small matter of having been paid R500 000. This might have compromised his decision to grant the company who paid him this money (which looks suspiciously like a bribe) leave to sue a fellow judge. The fact that Hlophe seems to disagree, is astonishing. This is even more so, given the fact that even the JSC at the time concluded that Hlophe had exposed himself to a conflict of interest.

We also know that President Jacob Zuma’s office has been spreading rumours that Zuma does not like Hlophe and that he has no chance of being appointed to the Constitutional Court. Although Hlophe clearly has his supporters in the ANC, the support does not seem to come from the top. Who wants to be associated with such an embarrassing man?

But this is not why I think Hlophe will not be appointed to the Constitutional Court. Instead, I believe that Hlophe will not be appointed because he is ruthless, will stab his “friends” in the back when it will advance his own interest and therefore cannot be trusted to do what is required. A wily politician like President Zuma must surely know this and will not be stupid enough to trust Hlophe.

A case in point is Hlophe’s statement to the JSC yesterday that he does not know Advocate Percy Gumbi of the Justice for Hlophe Alliance. Nor, so did Hlophe claim, did he know anything about or support the statements of the JFHA.

Gumbi had in the past confirmed that Hlophe sanctions their activities and Hlophe had signed a nomination acceptance form bearing the name and contact details of Gumbi and the alliance. The nomination document also at some point slips from the third person into the first person, suggesting that it was at least partly based on something Hlophe himself had written. But like that guy we are told about in the New Testament, Hlophe decided it was time to cut loose his “friends” and denied what seemed pretty impossible to deny.

Even if I was a fan of Hlophe (which I happen not to be) and even if I was a politician who hoped to appoint “sound” judges on the Constitutional Court who would make decisions that would benefit myself or my party (which I am not), I would not appoint Hlophe to the Constitutional Court. What might Hlophe do when the political winds shift and his interests demand something different from what one had in mind for him?

Only the most gullible among us would back the Hlophe appointment in the hope that he would act in a predictable manner to advance any particular cause (except of course the cause of Hlophe himself).

Besides, Hlophe is Judge President of the Cape High Court in the province run by Helen Zille’s DA. Better to keep him there to ensure the court in the opposition-run province remains dysfunctional and deeply divided. Would serve those bloody voters right who had the cheek not to vote for the ANC.

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