Constitutional Hill

Judiciary

Time to talk about the appropriate political role of the JSC

Apr 18th, 2013
by Pierre De Vos.
124 comments
An extraordinary amount of nonsense has been spoken and written over the past two weeks about the role of the Judicial Service Commission (JSC) in the appointment of judges in South Africa. Much of the confusion can be blamed on the mistaken understanding of the exact nature of the function performed by the JSC when it appoints judges. Some critics of the JSC appear to believe that the legality of certain judicial appointments can be challenged in court because they are viewed as unwise or politically unacceptable. On the other hand, some members of the JSC seem to labour under the misconception that criticism of the JSC is close to treasonous and that no court should ever be allowed to review its actions. The truth lies somewhere between these two extremes.

In 1987 President Ronald Reagan nominated Robert Bork to the United States Supreme Court. Because Bork believed that the Federal government was not allowed to impose fair voting standards on individual states and because it was suggested that he supported almost unlimited powers for the executive branch of government, his nomination was highly controversial.

Bork was a so-called “originalist” who claimed that judges who interpreted the Constitution had to be guided by the original understanding of the drafters of the Constitution about what the relevant constitutional provisions actually meant. If a judge wanted to know whether the Constitution prohibited Parliament from passing a law that allowed for the censoring of Twitter, he or she had to ask what the original intention of the framers of the Constitution was regarding the regulation of Twitter. In criticising this view as reactionary and backward, Senator Edward Kennedy at the time said that Robert Bork’s America was a:

land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government…

Kennedy’s criticism of Bork’s judicial philosophy had a powerful effect on public opinion and branded Bork as a reactionary in the eyes of most voters. The Senate eventually voted by 58 votes to 42 against confirming Bork’s appointment as a Supreme Court justice. This saga illustrates that in a constitutional democracy with a supreme Constitution and a common law system operating in terms of binding judicial precedent, the appointment of judges will almost always be a matter of great political importance.

Because many constitutional provisions are phrased in general and open-ended language (section 10 of the South African Bill of Rights states that “[e]veryone has… the right to have their dignity respected and protected”) these provisions do not interpret themselves. Judges – who are also ordinary human beings with their own beliefs, blind spots, prejudices and passions – must interpret these provisions. This means that the judicial philosophy and other social and economic commitments of a judge will invariably influence how he or she interprets the Constitution.

But this does not mean that judges can and do make decisions solely based on their own party political affiliations and commitments. If all judges did this all the time, the legitimacy of the judiciary would be destroyed and citizens would begin to question the ability of judges to make decisions in as fair and impartial a manner as is humanly possible. Although judges can never be absolutely “objective”, they have a duty to treat litigants in a fair and impartial manner, to give them a fair hearing and to engage seriously and honestly with the applicable legal text(s) as well as the set of precedents developed by other courts over many decades.

For the interpretation of a legal provision by a judge to be legally acceptable and legitimate in the eyes of lawyers and other informed bystanders, it is important that judges appear to interpret the law in a manner not based on their narrow party political affiliations or based on their animosity towards a particular litigant.

There will always be a tension between the inherently political nature of constitutional interpretation and adjudication, on the one hand, and the need to provide cogent, well-reasoned and persuasive legal arguments for a chosen interpretation based on what the text of the Constitution actually states. Judges cannot avoid this tension. Wise judges learn to manage this tension by trying to be steadfast and principled and to hand down judgments that are consistent with their own judicial philosophy – regardless of who the litigants before the judge might be.

The South African system of appointing judges recognises that there is a need to avoid the appointment of judges who would destroy the legitimacy of the judiciary by blatantly making decisions purely based on their party political commitments, while also accepting the reality that the personal judicial philosophy of a judge may well influence the individual judge’s interpretation and application of the Constitution.

This is why the JSC consists of both lawyers and judges and politicians and why the interviews with candidates for appointment are conducted in public. The Constitution recognises that broader political considerations will play a role in the appointment of judges, but attempts to constrain the baser instincts of the politicians involved in decisions about appointments to the bench by insisting on an open and transparent appointments process, by including lawyers and judges on the JSC and by insisting that the JSC always act rationally.

For the JSC to work well, it is also important that the process must be seen to be fair. At the very least, all candidates who are interviewed should be treated in more or less the same way when they are interviewed. In my opinion, this does not mean that the JSC should appoint all the white male nominees who form part of the old boys mafia and are punted and promoted by the allies and supporters of the old boys mafia. There might be very good reasons for not appointing a specific white male candidate who happens to be the darling of the white establishment.

For example, if you happen to believe – like I do – that the Constitution is a document that should be interpreted to facilitate the economic and social transformation of society, the judicial philosophy and political commitments of some white male candidates, whose virtues are continuously being extolled by a certain cabal inside and outside the legal fraternity (because it largely remains a fraternity), must disqualify them from appointment. Others might disagree, but the disagreement would not be based on the so-called “merit” of the candidate, but rather on a disagreement about the desired judicial philosophy and political commitments of an ideal judge in post-Apartheid South Africa.

Because decisions about who to appoint as judges have political implications – also for the manner in which the Constitution will be interpreted and applied – it is perfectly legitimate to criticise the JSC for appointing a certain candidate and not appointing another candidate. It is also perfectly legitimate to promote the candidacy of one nominee and criticise the candidacy of another. For example, if a candidate has written several judgments in which he questioned the wisdom of protecting women and gay men and lesbians from direct and indirect discrimination, I would not hesitate to argue that the candidate is not fit for promotion. If a nominee has shown through words and deeds that he or she has little sympathy for poor and vulnerable people and would not hesitate to order their eviction to render them homeless, I would similarly have no hesitation in criticising the nominee and arguing why his or her appointment would be unwise.

Members of the DA and the ANC, NGOs, academics and even church leaders who share the reactionary, anti-poor, anti-women, anti-gay beliefs of such a candidate are of course free to punt their nominee and to argue why they believe that it would be a good thing to appoint a judge who would endorse discrimination against women and gay men and lesbians. It is called democracy. When members of the JSC bristle at any criticism of their judicial appointments – as if criticism of the JSC about the way it deals with these profoundly political and philosophical questions is illegitimate – they are not displaying the kind of respect for diversity and for robust debate which lies at the very heart of a vibrant democracy.

At the same time, groups like Freedom Under Law, who threaten to challenge the decisions of the JSC in court, perhaps because they are unhappy with the politics of the candidates selected for appointment, do not understand that when the JSC appoints judges it is not exercising a judicial function.

Yes, the JSC is an organ of state and, like all organs of state, it has to act rationally when it selects candidates for judicial appointment. If the JSC appoints a person convicted of fraud as a judge or if it appoints a candidate who has publicly stated that he or she would not obey the Constitution and the law when appointed but will rather take direct instruction from Helen Zille or Jacob Zuma to decide cases, a court could review and must set aside such an irrational decision. But there is a difference between irrational decisions and decisions you happen to disagree with on political grounds.

Perhaps the time has arrived to stop the completely irrelevant debate about “merit” and “transformation” in judicial appointments and to refrain from repeating the obviously false claim that the JSC does not appoint white men. Instead we need to distinguish between the legal issues relating to the rationality and fairness of the process followed by the JSC when it appoints judges, and issues surrounding the political wisdom of appointing conservative white and black men to the judiciary. Conflating these two debates is not only unhelpful. It also hinders real and deep transformation of the judiciary.

The JSC must redefine merit to advance judicial transformation

Apr 11th, 2013
by Pierre De Vos.
176 comments
Has the Judicial Service Commission (JSC) become a stumbling block to the transformation of the judiciary? After a lengthy internal debate earlier this week, Chief Justice Mogoeng Mogoeng – who chairs the JSC – stated that although the “merit” of applicants does count when considering appointments to the bench, considerations of “transformation is just as important”. But this juxtaposition of “merit” with the need for “transformation” of the judiciary is highly problematic – as the JSC’s decision yesterday to appoint Judge Nigel Willis to the Supreme Court of Appeal (SCA) clearly illustrates.

The problem with the JSC’s approach to judicial appointments is that the body has embraced a narrow and constitutionally problematic idea of what both “transformation” and “merit” mean. By stating that there is a tension between the need to appoint judges on “merit” and the need to appoint more black and female judges (as part of the need to transform the judiciary), the JSC is saying that black and female appointees often do not possess the same “merit” as white candidates. This is highly problematic as it perpetuates the deeply entrenched white male-centric (some might say racist and sexist) notion that upper middle-class white men are almost always superior in “merit” to black and female candidates.

I would argue that there is an urgent need for the JSC to re-visit its conceptions of “merit” and “transformation” to avoid the unjustified stereotyping of black and female candidates as generally possessing inferior “merit”.

“Merit” is not a completely objective and universal standard. We make many assumptions about what constitutes “merit” when we judge one candidate to have a higher “merit” than another. These assumptions are often based on the worldview of the culturally and economically dominant group whose specific skills are valorised and assumed to form part of any assessment of a person’s “merits”. Those who are culturally and economically not dominant often possess different skills-sets – valuable in its own right – that are nevertheless not valued, or not sufficiently valued. Those who are not members of the cultural and economic dominant group (or who have not managed the skill to mimic the attributes and attitudes of the culturally and economically dominant group) are often dismissed as not possessing the requisite “merit” to be appointed to positions.

For example, in South Africa an often-unstated assumption is that a person who speaks and writes English fluently is more admirable than one who does not. But why do we often not acknowledge that people who are fluent in several of South Africa’s languages have skills that somebody who is only fluent in English does not have? Surely a judge who is fluent in English as well as isiXhosa, isiZulu, Sesotho, Setswana and siSwati possess skills to understand and communicate with people coming before the court that a monolingual English-speaking judge does not?

Moreover, in a multicultural society like South Africa, the kind of experience and skills assumed to confer high “merit” on a candidate for appointment to the bench might very well make such a candidate less (not more) suitable for appointment because it might hinder that candidate’s ability to dispense justice between ordinary people or to interpret and apply the various provisions of the Constitution in a manner that would promote and protect the interests of the vulnerable and the marginalised in society.

Thus, a judge who grew up in Houghton, went to an English private school in the midlands and then studied at Oxford before practicing at the Bar where he did mostly commercial work for big corporations, might lack the wisdom and experience – and therefore a different kind of “merit” – that another judge who grew up in a rural village, studied at Fort Hare and lived in Soweto while working for a small law firm might possess. In some context – commercial litigation – the kinds of merit associated with such a candidate might come in handy. In other context, it would be at best irrelevant and at worse a hindrance.

Of course, a candidate should only be appointed to the bench if he or she has the requisite technical legal skills to be able to judge a case a write a well-argued judgment. But once it has been established that a candidate has these skills, other factors that have very little to do with technical legal skills must surely also be considered to ensure that the candidates possessing the highest “merit” – broadly defined – are appointed to the bench.

This is exactly why section 174(2) of the Constitution 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”. This section recognises that an elite – all white and all male – judiciary will not have the broader skills to hand down legitimate, well-informed judgments advancing and protecting the interests of the vulnerable and marginalised in society. One of the strengths of the Constitutional Court is exactly that it is made up of 11 people (admittedly only two of them women) from diverse backgrounds and with vastly different life experiences who are capable of learning from one another.

If I am correct, this also implies that although the starting point for the transformation of the judiciary will always be the need to change the racial and gender composition of the bench, the notion of “transformation” should also be understood as requiring the appointment of judges who have demonstrated a strong commitment to the pro-poor, pro-human dignity, pro-egalitarian ethos embedded in our Constitution and in the jurisprudence of the Constitutional Court.

This is why the decision of the JSC to recommend justice Nigel Willis for appointment to the JSC is so perplexing and why it runs counter to that body’s stated commitment to advance judicial transformation. Justice Willis has demonstrated a remarkable animosity to the egalitarian ethos of the Constitution as developed by the Constitutional Court.

In the infamous case of Emfuleni Local Municipality v Builders Advancement Services CC and Others judge Willis lambasted the Constitutional Court for stating that it was “inexcusable” for Willis to have ordered the eviction of unlawful occupiers “without having regard to the provisions of PIE”. Wrote Willis: “Quite how the Constitutional Court could have come to this conclusion is one of the great unfathomable mysteries of my life.”

In the Emfuleni case, in what judge Willis in a later judgment called his “cri de coeur” on economic freedom, the honourable judge extolled the virtues of laissez-faire capitalism and the deregulation of the economy in terms that Margaret Thatcher or the Free Market Foundation would have cheered on.

One does not, in my view, ‘save’ jobs by making it more and more difficult to dismiss employees and one does not make housing more widely available by rendering the ownership of property which is let to tenants a serious economic hazard.

In an earlier concurring judgment of the Labour Appeal Court in Woolworths v Whitehead, Judge Willis ridiculed the idea that a women’s pregnancy could not be taken into account when deciding whether to offer her a job. In the process the honourable judge displayed the kind of attitude towards women that is difficult to square with the progressive values in our Constitution, stating that:

I think that Western culture could derive much wisdom from the view prevalent in African, Hindu, Muslim and Chinese cultures that the first few weeks of a child’s life should be a special time with its mother, with both of them freed as much as possible from outside distractions and surrounded by love and support. Moreover, motherhood is not some minor inconvenience in a woman’s life. I also think we should be astute not to cultivate the idea that motherhood is entirely secondary to the greater glories of job satisfaction.

The judge then distinguished “lowly paid, dreary and routine jobs with which women, especially, are burdened” from more high paying jobs as executives, arguing that in the latter case a women’s pregnancy can legally be used to disqualify her for appointment because:

They impact negatively on the capacity of the economy, as a whole, to grow and, in so doing, its capacity to create new jobs. In my view it would be inappropriate for this court to deliver a judgement as though it were cocooned in the intellectual and moral parameters of a rich, first-world country. It would be inappropriate to ignore the fact that, as a general rule, the existence of elites can only be justified if they produce a dividend for society that exceeds the costs which they incur. To find that the pregnancy of a prospective employee cannot be taken into account in deciding whether or not to offer her employment may seem to be fair to prospective employees but it would certainly be unfair to employers and society as a whole and, by reason of the damaging consequences of such a finding upon society as a whole, ultimately unfair to prospective employees as well. After all, prospective employees need jobs to apply for in the first place.

In other words, employers can discriminate against women who do higher paying jobs because the free market demands it and employers and society should not bear the cost of this – especially because having children is its own reward.

In my view, a candidate who holds such views – so completely out of kilter with the values embodied in the Constitution as well as the stated economic policies of the governing party – does not possess the requisite “merit” to be appointed to the SCA. But the JSC, whose narrow view of “merit” and transformation can make you wonder whether they are channeling Margaret Thatcher, obviously disagrees.

Nkandla: irrational state-sanctioned corruption

Jan 29th, 2013
by Pierre De Vos.
51 comments

The unfolding scandal about the use of more than R205 million of public funds to upgrade President Jacob Zuma’s private homestead serves as a perfect metaphor for what is wrong with the Zuma government, led by an former criminal accused in a fraud and corruption case. The bizarre secrecy and dissembling, the appeal to national security, the self-enrichment and the misappropriation of funds are the hallmarks of Zuma’s presidency. And as often have been the case in recent years, the judiciary may be the only body who is capable of providing an effective avenue for challenging the abuse of public funds in the Nkandla affair.

As I have argued before, it is generally not desirable for the judiciary to get involved in party political squabbles. Nor is it generally a good idea to ask the judiciary to overturn unwise decisions of the government or to try and stop the selfish and degenerate behaviour of politicians. But our courts have a constitutional duty to uphold and enforce the Constitution. When the venality of politicians become so egregious that it threatens the democracy itself, or poses a serious risk to the Rule of Law, the courts – acting as guardians of the constitutional democracy – may have no other option but to intervene when asked to do so.

There are at least two ways in which the courts could intervene to stop the continued looting of public funds. All we need is a man or woman with deep pockets to fund these challenges. Maybe one of the staunch ANC members, feeling guilty about being silent in the face of such abuse of power, could be persuaded to help. I would gladly donate my time and whatever skills I have.

First, if requested to do so, the Constitutional Court will almost certainly declare the apartheid-era National Key Points Act unconstitutional. The Act empowers the relevant Minister to declare any “place or area” a National Key Point if it “is so important that its loss, damage, disruption or immobilization may prejudice the Republic or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. The Act does not require the Minister to inform the public about which places or areas have been declared National Key Points and Police Minister Nathi Mthethwa has refused to list all national key points “for security” reasons. National Key Points are so secret that we are not even allowed to know where they are.

Section 10 of the Act prohibits any person from obstructing the owner of a Key Point from securing the National Key Point. (Incidentally, the owner of the National Key Point is supposed to secure that place or area “at his own expense”.) The Act also prohibits any person from providing any information “relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so”. If you breach this law, you face a prison sentence of up to three years.

The National Key Points Act therefore creates secret crimes and turns us all into potential criminals. In this Kafkaesque world, the law prohibits us from revealing security measures about a National Key Point, while also making it impossible for us to find out which places or areas have been declared National Key Points. For all we know, all open air toilets in Cape Town and elsewhere and all shopping malls in South Africa have been declared National Key Points and anyone who tells her friend where the security guard looking after the toilets or the mall is sitting is facing a three year prison sentence.

The Rule of Law is a founding value in the Constitution and in Dawood v Minister of Home Affairs the Constitutional Court confirmed that this value includes the requirement that legal rules had to be conveyed in a clear and accessible manner. This requirement that legal rules must be clear and accessible is more pressing in criminal cases, in order to avoid a situation where you could be deprived of your freedom and sent to jail on the basis of a secret law that you could not possibly have known about.

Second, the decision to allocate more than R200 million of public funds to upgrade the private house of a politician, may well be challenged on the basis that it is irrational. President Zuma has three different official residences that are well-protected and secure. If he feels scared or paranoid he can always go and stay in one of these three official residences where one assumes security is tight. Moreover, like every other President in our democracy, he will retire, at the most, after two terms in office. He will then live in a compound valued at more than R200 million. Shortly before he became President, the same property was valued at just over R400 000. In other words, it is as if President Zuma instructed the Treasury to write him a R200 million personal cheque, which officials then spent on renovating his house. Even Schabir Shaik did not have that kind of money to bribe President Zuma with. In short, the spending of R200 million of public funds at Nkandla is a form of state-sanctioned (and defended) personal corruption.

The Constitutional Court has said that the Rule of Law requires the President and all other public officials to exercise their powers in a rational manner. In Prinsloo v van der Linde the Court explained that public officials should not act:

in an arbitrary manner or manifest “naked preferences” that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state….. This has been said to promote the need for governmental action to relate to a defensible vision of the public good…

If the official action is not taken to pursue a legitimate government purpose, or if there is no rational relationship between the legitimate government purpose and the official action, the action is in conflict with the Rule of Law and therefore unconstitutional and invalid.

On Sunday Publics Works Minister Thulas Nxesi claimed that “only” R70 million of the more than R200 million was used for security related upgrades at Nkandla. This presumably includes the cost of the underground bunker as well as the cost of bullet proof windows. More than R135 million was used for “operational needs for state departments”, which includes the cost for a private clinic and other “accommodation”. Money was also used for a private lift, a tuck shop, an Astro Turf soccer field, two guard houses, refuse and electrical rooms, electrical supply, sewer treatment plant, relocation of families forcibly removed from their homes to make way for the Nkandla expansion, the upgrade of water supplies, an entrance by-pass, an entrance road and, last but not the least, a cattle culvert.

Upgrading security arrangements to protect the President would almost certainly be considered to be a legitimate government purpose. The government therefore pursued a legitimate government purpose when it authorised the spending of over R70 million at Nkandla. Whether there was a rational relationship between the legitimate government purpose and the astronomical spending of R70 million is another matter. Can one say that there is a rational connection between the aim of protecting the President by building a bunker under his private home, given the fact that we are not at war with any country and given the fact that his official residences must include the kinds of facilities now replicated at his private house – all at state expense? I doubt it, but I am open to be persuaded otherwise.

But it is the spending of R130 million on “operational expenses” that is never going to fly and must clearly be irrational. These expenses had the sole aim of enriching Zuma and providing him with a huge compound of buildings and other facilities (including a clinic, water plant, sewer treatment plant and a tuck shop) – all paid for by the state. This kind of spending cannot possibly be said to “relate to a defensible vision of the public good.” Is it a defensible vision of the public good that the President be treated differently from every other citizen? How does one defend this spending as demonstrating an acceptable vision of the public good in a democracy when the money was used to doll up the private home of the President by adding a tuck shop, an Astro Turf and a cattle culvert; by adding a private lift and electrical rooms; by building a private sewer treatment plant? (I recall that in some municipalities our people still use the bucket system – and unlike the President they do not earn R2.4 million Rand with which they can build their own toilets.)

The answer can only be that there was no legitimate reason to use state funds to effect this improvements of President Zuma’s compound. If President Zuma wants a private lift or a sewer plant at his private home, he is required to pay for it himself – like every other private citizen in South Africa. Being President does not allow him to dip into public funds to enhance his com fort at his private home. He is not our king or queen and neither is he President-For-Life. President Zuma is merely another politician on the take. His term of office will eventually come to an end, after which he is entitled to a state pension. Unless he is impeached for a serious violation of the Constitution or the law or serious misconduct – in which case he will receive none of the benefits that usually accrue to a former President.

There is no legitimate purpose for spending R130 million of public funds on Jacob Zuma’s private home to enhance his comfort at his private home. The spending is therefore irrational and unlawful and a court could declare it so and order the President and/or the Minister to repay the R130 million to the state.

Judicial appointments: The JSC’s transformation problem

Jan 21st, 2013
by Pierre De Vos.
100 comments

When the Judicial Service Commission (JSC) interviews candidates for appointment to various courts, many of its members seem to be passionate about its mandate to promote transformation within the judiciary. But this appears to be a rather narrow and stunted passion, often focusing on the replacement of old guard (white) patriarchs, with new order (white and black) patriarchs. Changing the racial aesthetics of the judiciary (within limits) often seems to take precedence over the need to change the prevalent legal culture, a culture which allowed most apartheid-era judges to claim that their job was merely to apply the law — no matter how unjust, racist or oppressive — in a “neutral”, “objective” and “impartial” manner. The way in which the JSC is currently dealing with the filling of a vacancy on the Constitutional Court, does nothing to challenge this impression.

The Constitutional Court is an important institution with immense powers. It can declare invalid Acts passed by the democratically elected Parliament. It can also nullify the unlawful or unconstitutional actions performed by the President. The judges are not elected. They earn their legitimacy and authority from the cogency, dynamism and logic of their judgments as well as their ability to marry a certain pragmatic respect for the separation of powers doctrine with a willingness to make principled decisions not swayed by the political pressures exerted on them by unscrupulous politicians and powerful business lobbyists. This is not an easy task, but it is made more difficult when more than 50% of the population is not adequately represented on the Court.

Currently, only two of the eleven judges on the Constitutional Court are women. For a while there were three women on the Court, but in our patriarchal society it is no surprise that this state of affairs did not last.

For the latest appointment the JSC shortlisted five candidates for interviews — all five of them male. The list is not particularly inspiring — except, perhaps, if one is a patriarchal traditionalist with strong views about the purity of the common law and the limited role judges should play in interpreting the Constitution and the law. If on believes that Constitutional Court judges have an important role to play in the promotion of a progressive, transformative, vision of society through their interpretation of the Constitution and their development of the common law and customary law, the shortlist of nominees may not inspire or excite.

Judges Selby Baqwa; Lebotsang Bosielo; and Brian Spilg are all competent lawyers, but none of these judges have (as far as I can tell) demonstrated any progressive streak or deep insight into the ways in which our legal culture could and should be transformed. Advocates Jeremy Gauntlett and Mbuyiseli Madlanga are both good advocates, but I suspect they suffer from the same deficit than the nominated judges: a lack of legal imagination and daring and a lack of enthusiasm for the transformation of the legal system.

Surely, we should appoint more judges who will use their considerable legal skills to develop and mould the common law and customary law legal rules to ensure that these rules do not disproportionately benefit the powerful and the well-connected inside government, in big business and within the traditional leadership structures? Can we really say that a legal system is fair when most people cannot afford to employ the services of even a mediocre lawyer and when most judges do not subject legal rules to sustained ideological questioning, even when these rules often tend to benefit those who can afford to pay R20 million for a Buffalo or for the services of a team of highly paid advocates? And how many of the shortlisted candidates have a deep commitment to feminism and insight into the manner in which seemingly neutral legal rules often promote the interests of men (and male domination) in our society?

Sadly, I am not sure that either the JSC or President Jacob Zuma will take into account such issues during the appointments process. The Constitution prescribes a different process for the appointment of Constitutional Court judges than for the appointment of other High Court or Supreme Court of Appeal (SCA) judges. The JSC has the final say on the appointment of ordinary judges. But when a vacancy occurs on the Constitutional Court, the JSC must conduct interviews and then prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. When there is one vacancy — as there is now — the JSC must therefore submit a list of four names to the President. The President can then appoint one of the four candidates nominated by the JSC after consulting the Chief Justice and the leaders of parties represented in the National Assembly.

During the previous round of appointments, the list of four names included one excellent woman candidate. However, President Zuma appointed a (legally) more conservative male above a (legally) more progressive woman candidate. Not that this came as a surprise: the President was merely exercising his political discretion in accordance with his own ideological disposition, choosing a male judge that would not push for radical legal transformation above a female judge who might have been slightly more progressive.

I am, of course, not arguing that women candidates for appointment to the judiciary will always be more progressive or more prepared to pursue a vigorous transformative agenda than male judges. Just as Margaret Thatcher had shown that a woman Prime Minister could be even more reactionary and bigoted than her male contemporaries, so the extra curial writing of judge Carol Lewis have demonstrated that a female judge on the SCA will not necessarily be more enthusiastic about judicial transformation (in either the narrow or broader sense) than her male counterparts.

There are two issues at stake here. The first is about the constitutional injunction that when making judicial appointments the need for the judiciary broadly to reflect the racial and gender composition of South Africa should be taken into account. A failure to take heed of the disproportionately small number of women judges on the Constitutional Court, would suggest that — for reasons of retaining patriarchal dominance and privilege — this constitutional injunction is only respected as far as race is concerned. Although the President has the final say on who gets appointed to the Constitutional Court, voters — including all of us who take gender equality seriously — have a right and a duty to criticise the President if he fails to take heed of the imperative of gender transformation on the bench. The second issue relates to the need to appoint judges (male and female, white and black), who are passionate about transforming the legal system to make it more just and equitable, and less in service of the rich and the powerful men in our society.

Given the fact that all five candidates to be interviewed for the one vacancy on the Constitutional Court (left by the departure of Justice Zak Yacoob) are men, the JSC will send a list of 4 male nominees to the President to choose from. The President is, of course, not obliged to appoint anyone from this list of 4 names. He can advise the JSC that some of the nominees are not acceptable and provide excellent and justified reasons for this view, after which the JSC will have to supplement the list.

This means President Zuma can tell the JSC that, given the requirement contained in section 174(2) 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”, the absence of any women on the list is unacceptable. If he did this, the JSC would then have to produce more names that include those of appointable women candidates, of which there are several. But I am not holding my breath.

Of course, why the JSC decided not to re-advertise the Constitutional Court vacancy when it saw that no credible women candidates were nominated, tells another story about the JSC’s lack of commitment to real judicial transformation.

Sometimes “law fare” is needed to protect democracy

Nov 29th, 2012
by Pierre De Vos.
208 comments

The warning by Judge Dennis Davis against the “politicisation” of the courts — issued in his judgment about the refusal of Parliament to debate a vote of no confidence in President Jacob Zuma – is both timely and well worth heeding. However, there is a danger that politicians who wish to close down the democratic space, will exploit (or deliberately misinterpret) this insight. It is therefore important to clarify what Judge Davis meant. Unfortunately Steven Friedman, in a recent column, appeared to have done the opposite.

In his judgment, Davis emphasised that in a constitutional democracy courts do not and should not run the country. Davis confirmed the principle that courts exist to police the constitutional boundaries and have a clear role to enforce the Constitution without fear or favour where the constitutional boundaries are breached. But he continued by warning:

There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to  policy, or disputes which clearly carry polycentric consequences beyond the  scope of adjudication.

Steven Friedman applauded these comments, and bemoaned the fact that politicians and “well-heeled interest groups and individuals” seem to feel that any political decision they dislike should be settled by the courts. Friedman argued that there is a danger in groups seeking to win in courts what has been lost in democratic politics.

When courts are asked to overturn government appointments that minority parties dislike, there is a danger that the idea of rights will become discredited because they will be seen as a means of allowing minorities to dictate to the majority. Friedman distinguishes between going to court to enforce rights, on the one hand, and going to court to challenge politically unpalatable decisions, on the other, arguing that the former is important while the latter is problematic.

To object to this trend is not to argue for a simple majority principle in which those who are elected can do as they please. It is, rather, to insist that the core principle of constitutional democracy — that we all have rights no majority can violate — is far too important to be turned into an instrument to change government decisions that don’t infringe on anyone’s rights.

Those who use courts to fight political battles rather than to defend basic rights, signal that they see the constitution as a means to thwart democracy rather than to defend it, as a means to overturn majority decisions rather than to defend the rights of majority and minority alike. The lawyers and jurists who defend this, signal that they do not see constitutions and courts which enforce them as a means to allow everyone a say, but as instruments to ensure that, as far as possible, only lawyers and judges have a say.

I agree with both Davis and Friedman that it is problematic that many South Africans see courts as a first rather than a last resort. Instead of doing the hard work of mobilising public opinion in support of a position, some people rush to the courts at the drop of a hat in the hope that the court will overturn a decision that they do not like. This places strain on the judiciary, who runs the risk of being politicised.

Judges are unelected and are often attacked or criticised when they rule against the government. (This happens in any democracy, and is far from unique to South Africa.) Judges cannot normally defend themselves against such attacks and their credibility and legitimacy can easily be eroded by these self-serving attacks by politicians and their supporters. A hasty resort to the courts also diminishes democratic contestation because those who rush to the courts in this manner do not feel the need to make their case to the voters who voted for the party in government, the very government who has made the decision being attacked.

But I disagree with Friedman when he argues that we should only approach courts when our rights are being infringed. In a one party dominant democracy, in which one political party enjoys overwhelming support from those voters who care to vote, the governing party will almost always be tempted to undermine the independent institutions (like the National Prosecuting Authority, the Chapter 9 institutions and the judiciary) in an attempt to consolidate its power and shield it from accountability. It will also be tempted to ignore the laws of the land and the specific injunctions in the Constitution in order to make it more difficult for ordinary citizens freely to exercise their democratic rights.

In a constitutional democracy, a Constitution is not only important because it guarantees and protects the human rights of everyone. The Constitution is also important because it sets out the rules of political engagement and limits the powers of the executive and the legislature, both procedurally and substantively, in order to ensure a level political playing field. Where a majority party flouts the provisions of the Constitution and sets out to ignore or actively to undermine the checks and balances contained in the Constitution, this poses a grave danger to democracy. These checks and balances limit the ability of transient majorities to abuse their power and to exploit their majority position to close down democratic space. But it is not unheard of that the law and the Constitution will be flouted to shield the majority party and its leaders from accountability and from possible criminal prosecution.

When this is done and where the courts do not intervene, democratic accountability itself disappears and the political playing field is tilted in favour of those in power, making it far more difficult for minority parties to engage fairly in political contestation and further entrenching the position of the majority party.

So, when the Constitution establishes an independent National Prosecuting Authority (NPA) and where legislation duly passed by a democratic legislature requires the head of the NPA to be a fit and proper person with the necessary integrity to ensure this independence is respected, what is to be done if the President appoints a person as head of the NPA in order to protect him and his cronies from prosecution? What happens if the appointee does not comply with the minimum criteria set out in the legislation? Surely, a court is then required to enforce the Constitution and the law and to declare such an appointment invalid.

Yes, such decisions will put strain on the courts, but this strain is caused by the decisions of the President aimed at entrenching his power and skirting accountability — not by those who approach the court to enforce the Constitution and the law. In such cases the courts are between a rock and a hard place. If they do not act, they acquiesce in the subversion of the law and eventually our democracy. If they do act, they will be accused of making “political” decisions.

Courts can be shielded, to some extent at least, from the fall-out that will result from their willingness to protect the democratic space. This can be done if those fighting to preserve the democratic space and to counter the potential abuse of power by politicians serving long stints in government, use the courts strategically. As the Treatment Action Campaign (TAC) demonstrated, one can use litigation to help mobilise public support for an important cause through campaigns, petitions and marches.

If one is successful in mobilising public support, one shields the court from the fall-out of the eventual court judgment. By the time the Constitutional Court ruled in favour of the TAC, Thabo Mbeki had lost the argument about HIV inside his party and his government had already announced that it would change its HIV prevention and treatment strategy. If the TAC had only rushed to the courts and had not used the litigation process to gain wider support for its position, it would have been politically far more difficult for the Constitutional Court to declare the government’s HIV policy unconstitutional.

Judges on their own cannot preserve the democratic space if lazy or passive citizens are not able and willing to get their hands dirty, to organise, to mobilise, to advance their interests. Courts are just one of many mechanism at our disposal in a constitutional democracy to prevent the abuse of power and to protect the democratic space itself. When we solely rely on the courts, we expose the judiciary to political pressures that they might not be able to withstand.

When will the JSC begin to take transformation seriously?

Nov 8th, 2012
by Pierre De Vos.
49 comments

I do not hold a brief for Advocate Jeremy Gauntlett, but the reasons provided by the Judicial Service Commission (JSC) for not appointing him as a judge says more about the ideological conservatism and dysfunctionality of the JSC (whose members often subject candidates for judicial appointment to irrelevant or laughably uninformed questions) than it says about Advocate Gauntlett’s suitability for appointment to the bench.

Almost everyone agrees that Gauntlett is a brilliant lawyer – at least in the narrow, technical, sense. But personally I do not think that he would be a very good judge in a country like South Africa where there is a need for the law to be developed and applied in ways that would protect the vulnerable and marginalised against exploitation by the rich and politically powerful (both in business and in government). Given his conservative legal philosophy and his inability to recognise that – like everyone else – his views about legal reasoning and technique are based on ideologically loaded assumptions, I see Gauntlett as a candidate more suitable for appointment to the bench in the Tory governed UK, than in a progressive, constitutional state like South Africa.

It is unclear whether, as a judge, he would enthusiastically develop the (often unjust) common law rules to bring them in line with the demands of the Bill of Rights. Judges who are stubbornly wedded to the fiction of legal clarity and certainty often show a reluctance to develop the common law rules to align them with the values contained in the Bill of Rights. They see such an approach as being too activist and as leading to too much legal uncertainty.

I suspect Gauntlett would be the kind of judge who would want to hide behind old-fashioned formalistic methods of interpretation to shield the common law from needed development. In fact, as far as I can tell, his legal philosophy is closer to that of Chief Justice Mogoeng Mogoeng and recently appointed Constitutional Court judge Ray Zondo than it is to that of progressive lawyers and judges who see legal transformation as something far broader than the need to replace conservative white patriarchal judges with conservative black patriarchal judges.

But because many members on the JSC are spectacularly uninformed and out of their depth, or share the deeply conservative, anti-transformative, agenda of the present Minister of Justice and his government, candidates before the JSC are seldom asked the tough and probing questions that would help us to determine what their broader views on the transformation of the law and legal culture might be and whether they would protect the interests of the vulnerable and marginalized against the powerful and rich (inside and outside government). Instead the JSC often focuses on completely irrelevant factors, asking questions about a candidate’s religion or how often they have ruled against the government - as if there is anything wrong for a High Court judge in a constitutional state based on human dignity, equality and freedom to rule against big business or the government in order to protect the vulnerable, marginalised and poor.

In Gauntlett’s case, the JSC expressed a concern that “he has a ‘short thread’ and that he can be acerbic at times”. While some Commissioners accepted his assurance that as a Judge one is removed from the immediate combative situation that counsel usually find themselves in, others expressed “strong reservations” whether, as part of his attributes, “he has the humility and the appropriate temperament that a Judicial Officer should display”. In short, some JSC members decided not to appoint him because they did not like his guts.

Has anyone ever heard a more ridiculous reason for not appointing a lawyer to the judiciary? Let’s face it, advocates seldom become successful because they are humble servants of the court and lack a sharp tongue. If the JSC is now going to refuse to appoint any senior advocate to the bench because he or she is not dripping with humility and is too combative, then it is going to be hard pressed to find any half decent lawyer to appoint to the bench.

On the face of it, the second reason is slightly more plausible. According to the JSC a “very important consideration” it took into account was the demographic composition of the Western Cape High Court Bench:

It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution.

Section 174(2) of the Constitution 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”. There are two important reasons why this provision was included in the Constitution.

First, in order for the judiciary to become more legitimate and more credible in the eyes of ordinary citizens, it was imperative for the judiciary to shed its almost exclusively white and male character. Given the deeply entrenched and pervasive racism and sexism in our society an all-male and exclusively white judiciary would hardly instill confidence with the vast majority of citizens.

Second, we live in a diverse society. Many white male lawyers live a relatively insular middle class life and few would normally be in tune with the lived reality of the vast majority of South Africans. Creating a more diverse bench helps to bring more people of diverse backgrounds and with diverse experiences and opinions into the judiciary and can enhance the quality of justice dispensed by our courts.

Despite these being laudable goals, I find the reasoning of the JSC depressingly narrow-minded and on shaky legal grounds to boot. While there is a need to keep on working at changing the racial and gender composition of the bench, it seems rather absurd to equate judicial transformation solely with the change in the racial and gender composition of the bench. Race and gender should be the starting point, but if one is serious about the transformation of the judiciary, one would have to take into account whether candidates for appointment have embraced the values enshrined in the Constitution.

To do that, members of the JSC would have to be conversant with the basic constitutional issue and would have had to ask candidates about their views on the important constitutional and other legal issues that would give a clear indication of whether a potential appointee will respect the Constitution and whether he or she will hand down judgments that will protect the rights of everyone, but in particular the marginalized and vulnerable in society.

In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights. Neither would a candidate be suitable if he or she is not eager to protect freedom of expression and access to information or would be willing to endorse censorship aimed at hiding corruption.

Personally, I would be reluctant to appoint a judge who does not support the Constitutional Courts jurisprudence on sexual orientation discrimination, who holds sexist or racist views or who harbours prejudices against people with disabilities. And a candidate who disagrees with recent Constitutional Court jurisprudence on evictions which leans towards placing a duty on municipalities to provide alternative accommodation when large scale evictions from either private or publicly owned land are planned, would not get my vote either.

Section 174(2) requires the JSC to take into account the need for a more racial and gender diverse bench. It does not require the JSC to appoint a candidate with a questionable commitment to some of the broader transformation goals set out in the previous paragraph merely to meet racial quotas.

Surely if the JSC wanted to appoint good judges that would drive the transformation agenda, it would not only look at race (and as an afterthought, gender) when making appointments. It would look for candidates who understand that legal rules often benefit the rich and powerful and often harm the poor and vulnerable, candidates who understand that formal legal rules that are interpreted in a formalistic manner will often not produce a just outcome, candidates that are willing to interpret legislation and develop the common law to make the law ever so slightly more just and equitable.

E-tolling and the separation of powers doctrine

Aug 15th, 2012
by Pierre De Vos.
75 comments

Today the Constitutional Court is hearing oral arguments in the appeal by the National Treasury and SANRAL against the interim interdict granted by Prinsloo J in the North Gauteng High Court in April to stop the introduction of e-tolling on several roads in Gauteng.

The case is being billed in some quarters as another battle in an ongoing war that the executive is waging against the judiciary. It is said that the arguments advanced by the Treasury and SANRAL that the High Court had not sufficiently respected the separation of powers doctrine when it granted the interim interdict is something of a smokescreen being deployed by the executive to attack the power of the courts to enforce the Constitution and the rights of ordinary citizens.

In my view, this characterisation is dead wrong. In fact, I am far from convinced that the granting of the interim interdict by Prinsloo J was legally sound at all. On the contrary, the decision of the High Court represents a far-reaching and even dangerous intervention by the judiciary in policy decisions taken by the executive and I would not be surprised if the Constitutional Court overturns the High Court decision.

This is a different question than whether it was politically wise or whether it was sound policy to finance the upgrading of highways in Gauteng through the imposition of a system of e-tolling. It might well be that financing this upgrade via e-tolling was a terrible idea. Given the high cost of operating the e-tolling system, one could plausibly argue that there were far better ways of paying for the road upgrades than through e-tolling. But this is not the constitutional issue that the Constitutional Court is being asked to address.

The High Court found that when granting an interdict in a case like this the usual requirements for the granting of an interim interdict should apply, namely whether the applicants had shown that they had a prima facie right, that there was a well-grounded apprehension of irreparable harm if the interim interdict was not granted, that the balance of convenience favoured the granting of an interdict, and whether or not the applicants had an alternative remedy available to it. Prinsloo J stated that:

There must be a prima facie right on the part of the applicant to the relief sought. The degree of proof required to establish this right is less exacting than in the case of a final interdict. It is usually recognised that the applicant must prove a right which, though prima facie established, is open to some doubt.

In the original application, OUTA applied to set aside the toll declaration decisions on various grounds. At the heart of its contention was the argument that no reasonable administrator could have opted for tolling as the appropriate funding mechanism for the upgrading of roads in Gauteng because of the costs of tolling and the practical difficulties — including difficulties with the enforcement — associated with tolling. The substance of these arguments will only be argued later, but because the case dealt with the granting of an interim interdict to stop the introduction of e-tolling until the case proper had been heard and because the judge merely required OUTA to establish a prima facie right, although open to doubt, Prinsloo J granted the interim interdict.

However, the High Court might well have erred when it applied the ordinary rules for the granting of an interim interdict to a case like this which dealt with the implementation of government policy. In President of the Republic of South Africa v UDM the Constitutional Court held that courts should be slow to grant interim interdicts stopping Government from fulfilling its constitutional and statutory functions. The test in such cases, said the Court, is whether it is “strictly necessary” for the court to do so, on compelling facts.

And in International Trade Administration Commission v SCAW South Africa (Pty) Ltd The Constitutional Court also warned that Courts should be slow to interfere in drastic ways in the work of the other branches of government. The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings or executive decision making. The principle  of separation of powers has important consequences for the way in which and the institutions by which power can be exercised.

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution…. When a court is invited to intrude into the terrain of the executive, especially when the executive decision-making process is still uncompleted, it must do so only in the clearest of cases and only when irreparable harm is likely to ensue if interdictory relief is not granted. This is particularly true when the decision entails multiple considerations of national policy choices and specialist knowledge, in regard to which courts are ill-suited to judge.

Similarly, in Bato Star the Constitutional Court made the point that a “court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government”.  As the Treasury argues in its papers before the Constitutional Court, these cases seem to lay the foundation for a test with a much higher threshold when granting an interim interdict that would stop the implementation of government policies and where the granting of such an interdict might have potentially far-reaching consequences for the credibility of the government in financial markets.

In such cases, argues the Treasury quite convincingly, the courts may only grant interim interdicts impinging upon executive policy decisions in “the clearest of cases” and only where material and irreversible harm is likely to result if the interdict is not granted. A court cannot grant an interim interdict to stop what it believes to be measures that do not embody sound policies. That judgment is entrusted to the nation’s elected leaders. Granting an interdict before a court has actually decided whether the legal actions by the Government are unconstitutional or illegal must be a last resort only.

The Treasury argues that the interdict has unprecedented, wide-ranging and irreparable consequences to Government’s ability to raise sovereign debt and to allocate national revenue to other developmental programmes. They claim that irreparable harm will be cause to Government. Not only did the granting of the interdict open the government to the risk of an immediate R20 billion liability, but also the risk of an adverse national credit rating. Because of the interdict, Government must allocate R270 million to the Gauteng roads upgrade project per month instead of allocating this substantial amount to education, health, infrastructure investment and poverty alleviation programmes.

The effect is immediate and final — children who are not optimally educated during the months of review, patients who do not receive adequate medical treatment, necessary infrastructure development projects which are not started or completed, and cutback on poverty alleviation programmes have acute and irreversible effects on hundreds of thousands of people throughout South Africa.

I find these arguments persuasive. E-tolling might have been a bad idea to start with, but to stop its implementation after the money was raised on international financial markets and already spent on upgrades, was even worse. It exposed our government to financial risks and to possible consequences far beyond the imagination of a mere lawyer like Prinsloo J. Sometimes the demand that our judges should respect the separation of powers doctrine is not used by our government as a stick to beat off a pesky judiciary. Sometimes, just sometimes, our government might have a point.

Of course, there is one problem for the Government. As the High Court was about to hear the application for the granting of an interim interdict and while the Treasury and SANRAL were both arguing convincingly that it would be hugely detrimental to the country to stop the implementation of the e-tolling system, the ANC leadership met with Cosatu and agreed to halt the implementation of e-tolling. Apart from the fact that this move once again blurred the boundaries between party and government, it undermined the authority of Treasury.

The e-tolling saga suggests that in our government the left hand truly does not know what the right hand is doing. While ANC leaders were reaching an agreement with Cosatu to postpone the implementation of e-tolling, the Treasury was issuing dire warnings of the cost implications of such a move. But because the real power in our country seem to lie at Luthuli House and because decisions there are often taken on the basis of whether this would enhance the re-election chances of Jacob Zuma and Gwede Mantashe at Mangaung, the government was forced to go along with a decision which might well have dire consequences for our economy.

I believe the journalistic cliche is that it revealed our government as being in shambles.

In “The Time of the Vulture” we need to pay our judges well

Jun 4th, 2012
by Pierre De Vos.
59 comments

We live in the “Time of the Vulture”, a time in which cowboy capitalists – who have been with us since the discovery of gold and diamonds in South Africa in the nineteenth century – are becoming ever more rapacious and immoral (if that is at all possible), a time in which the Ministerial Handbook has become a Bible of sorts for some people (to justify the self-important and ostentatious lifestyles of Ministers and government officials), a time in which the bribing of state officials and politicians are taken for granted by members of the old and new business elites – all in the service of securing humongous bonuses for executives.

It is a time in which the 50 million South Africans who pay some form of tax are required to subsidise the lavish spending habits and the lifestyles of the few rich and famous individuals who are milking the state dry, all in the name of either respect for the free market or for the need to restore the dignity of those who were cruelly oppressed during apartheid (as if a person’s dignity can ever be measured in money terms and can be bought and sold like designer trinkets at a Houghton flea market).

It is a time in which voters are increasingly becoming more disillusioned with corrupt and greedy councillors; dithering, self-righteous demagogues masquerading as politicians; and smarmy, rapacious and often incompetent captains of big business.

In these times it is perhaps understandable that a politician languishing in the political wilderness in the National Council of Provinces (NCOP) – the sad and ineffectual second house of Parliament where many political has-beens languish in pristine obscurity, secure in the knowledge that they have been rewarded for showing a special talent for mediocrity, blandness and the ability (so prized by politicians) never to allow an original thought to enter their brains, let alone to pass over their lips – that such a politician would take a stab at saying something he or she believes might be popular with voters.

It is understandable, yes, but not wise. Enters the esteemed Denis Joseph, DA MP in the NCOP, who told an ad hoc committee of that august institution during a debate on a draft code of conduct for judges that a strong message needed to be sent out to the members of the judiciary that they were not untouchable.

Nothing stops this parliament reviewing whatever is on the table and coming up with a new package … I get the impression that the judges feel that, because there was such an agreement, it should not be touched, it should be for life…. I think it’s important we tell these judges [that there are] many other laws we are changing, many systems we are changing. The judges must also realise that this new parliament is going to deal with them in terms of fairness and equality [for] all people who work for the state.

The danger is that this populist statement might find favour with the public. After all, are we not wasting money on salaries for judges, money that could be better spent on paying for textbooks and antiretroviral drugs, for houses for the homeless and more free water for those who cannot afford to pay for it?

But in my view this is a dangerous and irresponsible statement. I say so not because I am particularly fond of judges or that I think judges are beyond criticism. When judges act in ways that conflict with the values enshrined in the Constitution, when serving judges resist attempts to force them to declare their financial interests, for example, or when they interpret and enforce legislation, common law or customary law as if the Bill of Rights was never passed, when they apply the law as if male domination and heterosexism is not only accepted but required, they need to be lambasted in a vigorous manner.

But there are very good reasons why the Judges Remuneration and Conditions of Employment Act provides for the continued payment of judges after their retirement, using a complicated formula to determine the exact amount of such a payment. Simply put: without the financial security provided by these provisions in the Act, the independence and impartiality of the judiciary will be seriously threatened. This is why section 76(3) of the Constitution states that: “The salaries, allowances and benefits of judges may not be reduced”.

In De Lange v Smuts the Constitutional Court confirmed that “a basic degree of financial security free from arbitrary interference by the executive in a manner that could affect judicial independence” was an absolute requirement for an independent and impartial judiciary. Quoting from a relevant Canadian judgment, the Court stated that:

The word ‘impartial’ . . . connotes absence of bias, actual or perceived. The word ‘independent’… reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly the Executive Branch of government, that rests on objective conditions or guarantees. Although judicial independence is a status or relationship resting on objective conditions or guarantees, as well as a state of mind or attitude in the actual exercise of judicial functions, it is sound, I think, that the test for independence… should be, as for impartiality, whether the tribunal may be reasonably perceived as independent. Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice. Without that confidence the system cannot command the respect and acceptance that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial, and that the test for independence should include that perception. The perception must, however, as I have suggested, be a perception of whether the tribunal enjoys the essential objective conditions or guarantees of judicial independence, and not a perception of how it will in fact act, regardless of whether it enjoys such conditions or guarantees.

First, where Parliament is legally entitled to reduce the salaries or benefits of judges, the judiciary can never be independent or impartial because the absence of financial security for judges would, at the very least, create the reasonable apprehension on the part of the public that judges will be fearful to hand down judgments that might upset the legislature or executive for fear of having their salaries and benefits cut.

In a dominant party system like ours, this problem will be exacerbated because the perception might become a reality and the majority in Parliament might in fact reduce the salaries and benefits of judges to whip them into line, which would automatically bring an end to the independence and impartiality of the judiciary as judges would then be intimidated into making decisions that would not further upset the other branches of government in order to retain their salaries and benefits at a reasonable level.

Amending the Constitution to scrap section 76(3) – something that would be necessary before the honourable Joseph’s threats could be carried out in a constitutionally valid manner – would therefore destroy the independence and impartiality of the judiciary and would bring an end to constitutional democracy with a supreme Constitution as we have come to know it in the past 18 years.

But even leaving this crucial issue aside, I would argue that it was imperative that judges be paid what in effect amounts to a generous pension in order to safeguard the independence and impartiality of the judiciary and secure public trust in the institution. Where no provision is made for the payment of some salary to retired judges, judges would have to provide themselves for their retirement. They would have to do so either by doing extensive consulting work after their retirement or by building up a pension during their service as judges.

In the first instance, the need to quickly make lots of money to finance their retirement after they end their term as judges would leave judges wide open to conflicts of interests during their service as they might well act cautiously so as not to alienate either the government or those in big business for whom they would hope to do lucrative consulting work on their retirement. If a perception were to arise that judges were widely influenced by commercial considerations when they had to decide a case in which a big corporation or the state were involved, it would entirely subvert the system and fatally compromise the independence and impartiality of the judiciary. If a perception were to arise that one would not have a great chance of ever winning a case against a big company or against the government, the independence and impartiality of the judiciary would have come to an end.

Where judges are required to fund their pension from their income as sitting judges, there is a real danger that they would be vulnerable to bribes and to corruption. As the financial pressures mount and as their monthly salaries appear insufficient to fund their lives as well as a generous pension plan, the less scrupulous litigants would perceive judges as vulnerable to corruption and would offer direct or indirect incentives to judges to make decisions favourable to them. Before one were able to say “Oasis” – and even if no or very few judges succumb to offers of bribery - the perception that might arise amongst members of the public would itself fatally undermine respect for the judiciary and with it the ability of the judiciary to act impartially and independently.

In the “Time of the Vulture” I am loath to endorse an expensive and wasteful pension scheme for anyone being paid from the public coffers (in other words for anyone being paid by the 50 million people who pay taxes). But for members of the judiciary I happily make an exception. We need to pay our judges well and look after them in their retirement. It is our insurance policy against widespread corruption, nepotism, the flaunting of the Rule of Law and the abuse of power.

In the absence of competitive party political contestation of elections, approaching an independent judiciary to challenge these inherently undemocratic and unlawful actions by the greedy Vultures remains a last resort. Given the South African context, honest, impartial and independent judges may therefore be a prerequisite for safeguarding the democratic space within which active citizens can enforce their rights and fight back against the Vultures. At the price tag, the paying of pensions for life to judges is a huge bargain.

On self-serving and untrue criticisms of the judiciary

Apr 4th, 2012
by Pierre De Vos.
9 comments

When US President Barack Obama on Tuesday said that he was confident that the US Supreme Court would not overturn parts or all of his signature health care legislation, some South Africans who blindly repeat the self-serving but blatantly untrue claims of their preferred leaders, might have been tempted to shout: “We told you so.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mar 31st, 2012
by Pierre De Vos.
25 comments

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.

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