Constitutional Hill


Blade Nzimande and the criticism of court judgments

It is a tad surprising that the statement issued last week by the Chief Justice and all other senior judges in South Africa about the independence of the judiciary and the rule of law elicited such excitement in media circles and from some commentators. The statement is remarkably unremarkable. It merely restates the long held and uncontroversial principles on which any constitutional democracy founded on the rule of law is based. The only vaguely interesting aspect of the statement relates to the criticism of judges and court judgments. But even this was not really controversial. None other than Minister Blade Nzimande appears to have heeded the advice of the judges about how to criticise court judgments – unfortunately not with great success.

Over the past few weeks some politicians attempted to use the judiciary as a scapegoat in order to distract attention from their own problems. Often resorting to wild and unsubstantiated conspiracy theories or sweeping generalisations about the judiciary, politicians such as Gwede Mantashe, Marius Fransman, Nathi Nhleko and others attacked the judiciary and court judgments in vague and overheated terms.

These attacks reminded me of the attack by then DA leader Helen Zille on a judge appointed to head a commission of inquiry back in 2012. At the time Zille complained that “some judges allow themselves to be abused and I am afraid Nathan Erasmus is one of them”. There was no factual basis for this claim and the court who later heard a challenge to the legal validity of the commission declined to endorse this particular conspiracy theory.

Politicians from across the political spectrum as well as many members of the public seem to have some difficulty in distinguishing between valid criticism of court judgments and unsubstantiated and vague attacks questioning the integrity or honesty of members of the judiciary. To this end the statement issued by the Chief Justice and the other senior judges confirmed that:

[j]udges like others should be susceptible to constructive criticism. However, in this regard, the criticism should be fair and in good faith.  Importantly the criticism should be specific and clear. General gratuitous criticism is unacceptable.

The statement further acknowledged that judges – “like other mortals” – sometimes make mistakes. That is why litigants can appeal judgments all the way to the Constitutional Court where a full bench of eleven judges may provide a final answer to a legal question. The statement also pointed out that “judgments are often subjected to intensive peer and academic scrutiny and criticism”.

The few legal academics and students who actually read law journal articles (despite the unspeakable tedium and dullness of many of these missives) will attest to the fact that court judgments are sometimes subjected to scathing criticism. But the criticism is always specific and always engages with the legal reasoning employed by a judge to justify the outcome of a case.

Thus, while it is perfectly acceptable to argue that a judgment is wrong because a judge misstated a legal rule (say dolus eventualis) or misinterpreted the facts and to advance an argument about how the judge should have interpreted and applied a specific legal provision or rule instead, it is not appropriate to accuse a judge of bias or a hidden agenda – unless, of course, you provide factual proof for your accusation.

As the Chief Justice pointed out, if there is any evidence that some judges may have been prompted by others to arrive at a pre-determined result, they should immediately report this to the Judicial Conduct Committee of Judicial Service Commission (and should endeavour to provide evidence on which they base their allegations).

Which brings me to the Minister of Higher Education Dr Blade Nzimande, who – commendably – seems to have taken the statement of the Chief Justice to heart and on Saturday stepped back from previous vague allegations against the judiciary and instead singled out for criticism the judgment of the Western Cape High Court in the case of Democratic Alliance v Speaker of the National Assembly and Others. The judgment dealt with the legality of section 11 of the Powers, Privileges and Immunities Act which was used to justify the removal by the Police of EFF MPs from parliament during President Jacob Zuma’s state of the nation address.

Unfortunately it seems that the Minister may either not have read or understood the implications of the judgment or may deliberately have misconstrued the legal reasoning contained in it. Minister Nzimande complained that:

[j]udges must apply a tough test if a case comes before them which is about the [executive or parliament]. If a question comes about rules of parliament, a test must be very tough.

The Minister is also reported as criticising the judgment as “a ruling that tells us that the EFF has a right [to disrupt parliament]”.

This, however, is not exactly what the judgment found. The judgment is careful to acknowledge that sections 57(1) and 70(1) of the Constitutions bestows a general power on parliament to “determine and control its internal arrangements, proceedings and procedures” and to “make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.

The judgment further notes that the rules of parliament empowers presiding officers to deal extensively with members who deliberately disobey the rules, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in parliament. For example rule 51 of the NA states that:

if the presiding officer is of the opinion that a member is deliberately contravening a provision of these Rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly, he or she may order the member to withdraw immediately from the Chamber for the remainder of the day’s sitting.

National Assembly rule 56 also allows the presiding officer to adjourn the meeting or suspend proceedings in the event of grave disorder at a meeting.

The judgment also specifically confirms that no MP has a right to disrupt proceedings in Parliament. As the court noted the Constitution permits Parliament to make rules that temporarily exclude disruptive members from the sittings of Parliament. It quoted from a 1999 Supreme Court of Appeal judgment which stated:

There can be no doubt that this authority is wide enough to enable the Assembly to maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society. Without some such internal mechanism of control and discipline, the Assembly would be impotent to maintain effective discipline and order during debates.

It is therefore not entirely correct to claim – as Minister Nzimande did – that the judgment gives the EFF a right to disrupt parliament. Instead the judgment deals with the rather narrow question of whether section 11 of the Powers, Privileges and Immunities Act (relied on by the Speaker to justify the physically removal of EFF MPs from parliament by police officers) was constitutionally valid.

The court found that it was not. This was so because the section was badly phrased and thus overbroad because it allowed for the physical removal of an MP from parliament and for his or her arrest when that MP creates a “disturbance”.

There were two problems with the sections which rendered it overbroad. First, it allowed for the arrest of MPs for what they say in parliament, something that is prohibited in absolute terms by sections 58 and 71 of the Constitution. No exception to this rule is provided for in the Constitution. Second, it allowed for the removal of MPs from parliament for causing a “disturbance”, but defined “disturbance” too broadly.

The impugned section of the Act on which the Speaker relied defined “disturbance” in an extremely wide manner as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of parliament”. But the court found that sometimes robust debate could be viewed as being disruptive and the section could therefore be used to censor, remove and even arrest MPs for speaking their minds in parliament.

In real terms the definition is so broad that the exercise of the right to free speech in the NA, NCOP or parliamentary meeting, which ordinarily and appropriately includes robust debate and controversial speech, can certainly constitute an act which can be construed to interfere with or disrupt proceedings. This extremely broad definition of the word “disturbance” thus potentially detracts from a member’s constitutional privilege of freedom of speech and freedom from arrest as envisaged in terms of s 58(1) and 71(1) of the Constitution.

If applied in this manner it could silence MPs and could be used to rob citizens of their right to hear what their democratically elected representatives have to say in parliament about a matter of pressing public importance.

It is important to note that the court did not rule that legislation may never allow for the removal of MPs from parliament. Indeed the court stated:

It is not difficult to imagine a situation where a [MP] may create or cause a disturbance of such gravity that it undermines the authority or dignity of Parliament as a whole. In those instances common sense dictates that the Presiding Officer must be in a position to take decisive action as an orderly measure to protect the dignity of Parliament from obstruction, disruption and disturbances.

As noted above the Court pointed out the NA and NCOP have established rules empowering presiding officers to deal extensively with members who deliberately disobey a rule, are grossly disorderly, disregard an order or are in contempt of the authority of a presiding officer in Parliament.

The court also rejected the argument that it had been necessary to draft section 11 in such broad terms to ensure parliamentary proceedings was not unduly impeded, noting that parliament has more than sufficient tools to maintain order in its precincts.

It has the Rules and the power to hold members in contempt. There are offences created by section 27, and the power to allow the security forces to enforce them as contemplated in section 4 of the Act. In fact section 4 of the Act provides that members of the security forces may enter the precincts of Parliament and perform any policing functions in the precincts and inter alia take action to prevent immediate danger to life or safety of any person or damage to any property.

Of course, the heavens will not fall merely because a Minister misconstrued a court judgment while purporting to criticise it. On some level voters should expect that politicians will sometimes ignore the carefully reasoned judgments of courts in order to score cheap political points.

However, it is important that citizens stay alert to the propaganda and spin of politicians and are not easily taken in by such misrepresentations. To ensure that citizens are not misled by politicians tempted to misconstrue court judgments, it may be helpful if citizens studied the relevant court judgments themselves to ascertain whether the criticism is correct or not. Alternatively, citizens may do well to treat such attacks with a pinch of salt.

The JSC: It’s not all bad and here’s why

When faced with a crisis or awkward questions about their competence or their ability to deliver on their election promises, governments often look first to fix the blame before fixing the problem. In a Constitutional democracy with a supreme constitution, there must be immense temptation on the part of members of the government to fix blame for any governmental shortcomings or broader problems in society on the judiciary or on the Constitution. Although South Africa’s Judicial Service Commission (JSC) gets a bad rap in some quarters, some of the criticism of the JSC is misplaced. Here is why.

In states with relatively backward constitutional arrangements – as, for example, in the United Kingdom – the reflex of politicians to blame unelected judges, appointed in a bureaucratic process without the direct involvement of politician, has been on display in recent years.

UK Prime Minister David Cameron recently proposed a scrapping of the Human Rights Act, which allows UK judges to interpret and apply the European Convention of Human rights (but not to declare invalid Acts of Parliament). Commenting on a decision of the European Court of Human Rights, Cameron moaned that the thought of giving prisoners the right to vote makes him feel “physically sick”. Similarly, Theresa May, the Home Secretary, recently mounted a provocative attack on some judges for being “on the side of foreign criminals” when they interpreted the European Convention on Human Rights in British courts.

In a functioning constitutional democracy like South Africa (which, unlike Britain, has a written and supreme Constitution) there may be more reason for some politicians and voters to blame the judiciary for many of failures of the government of the day. It is easier to blame judges than to actually address often systemic and deep-rooted problems.

In the case of South Africa, given our Apartheid past, these systemic problems are arguably more acute and more difficult to deal with than in most other constitutional democracies. This means judges would be particularly vulnerable to attack by politicians who either lack the political will to address the problems head-on (which might require them to make political choices unpopular with some political allies) or who are sometimes overwhelmed by the structural nature of the problems and the lack of the state’s capacity to deal with these problems expeditiously and effectively.

It is against this background that the debate about the South African judiciary, the appointment of judges and the role of the JSC in the transformation of the judiciary occur. It is my contention, and I know this is not uncontroversial, that an extraordinary amount of nonsense is spoken and written about the role of the 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 and the failure to appreciate the political “cover” provided for judges by the JSC. Some critics of the JSC appear to believe that any political influence on its work represents a fundamental attack on the independence and impartiality of the judiciary. On the other hand, some members of the JSC seem to labour under the misconception that any criticism of the JSC is illegitimate.

The truth lies somewhere between these two extreme positions.

If we acknowledge, as we must, that judges in a constitutional democracy make decisions with potentially far-reaching political consequences and that the values, beliefs and political views of judges play some role in how they will decide some of the more difficult and contentious cases, we cannot avoid the fact that being a judge is not an entirely apolitical activity.

Of course, judges may not be seen to choose sides in partisan party political disputes and must interpret the Constitution in accordance with its text and the precedent of the Constitutional Court. But this still leaves them with a wide discretion in many difficult cases and this discretion will be exercised partly with reference to their judicial philosophy, world view, experience and ideological commitments. It would therefore be naïve to pretend that politics – with a small “p” – does not play a role in constitutional adjudication.

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 and what the judicial precedent dictates. 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.

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.

Given this reality, I am always surprised that in debates about the appointment of judges in South Africa, so little is made of the political, economic and social views of judges and the extent to which judges embody the progressive spirit of the transformative constitutionalism.

Instead, newspapers and many commentators often natter on about whether a specific white male candidate was appointed, seldom asking whether that white male candidate (or, it must be said, the candidate who was selected above their preferred candidate) was not perhaps a political reactionary with strong sympathies towards big business, beholden to a private school boy network of corporate lawyers with sympathies to large financial institutions. We seldom hear questions asked about whether an appointee believes that the law should try to protect people – especially the vulnerable and the poor – from the injustices visited upon them by large corporations or by the state. We also seldom hear discussions about whether a candidate for judicial appointment harbours views about abortion, corporal punishment or gay rights similar to the view held by the more reactionary NG Kerk dominees or the now-retired Pope.

Be that as it may, by involving politicians in the appointment of judges (about half the members of the JSC are members of the legislature) and by ensuring the appointment of judges that will, over time, make the judiciary look more like the general population in terms of race and gender (but also in terms of sexual orientation, class, rural representation, language and the like), I would argue that the Constitution provides political cover to judges to do their job.

It potentially also helps to prevent the appointment of judges whose views about the world and the role of law in regulating the world are completely out of kilter with the norms embodied in the Constitution and/or with the broad values of the majority of citizens. Of course, there is a potential tension between the norms embodied in the Constitution and the beliefs of many voters, who often harbour the most reactionary views on how to treat criminals or marginalised and vulnerable groups in society. Once appointed, judges will often try to navigate the waters between upholding the high principles of the Constitution (according to their own conscience) while pragmatically trying not to alienate the overwhelming majority of voters.

Nevertheless, I believe this political sifting of judicial nominees through the involvement of some politicians on the JSC can help to protect the judiciary from the kind of “radical” decisions that would render judges vulnerable to the kinds of populist attacks that David Cameron so shamefully indulged in.

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.

In my opinion this involvement of politicians in the JSC appointments process is therefore potentially a good thing. Not only does it help in the appointment of judges whose values are not completely anathema to the vast majority of voters, it also protects judges to the extent that politicians cannot say that they were selected by a process in which politicians had no say. If judges make decisions that politicians do not like, well, politicians are partly to blame for the appointment of those judges.

The involvement of politicians in the appointment of judges will not stop attacks on the judiciary, but it does provide some cover for judges who can point out that politicians had a large say in their appointment. Hopefully, as an Apartheid-era minister of justice once remarked, after judges are appointed many of them start believing that they were appointed on merit and then start thinking for themselves.

This does not mean that the JSC has always struck the correct balance in how it manages the interviewing process and how it selects candidates for appointment. For the JSC to work well, it is also important that the process through which they make decisions on appointment 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. Recently the JSC has failed in some respects in this task of acting in a fair manner to all candidates concerned.

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 being extolled by some in the legal fraternity, must disqualify them from appointment. Others might disagree, but the disagreement would not be based purely on the so-called “merit” of the candidate, but would also be based on a fundamental disagreement about the desired judicial philosophy and political commitments and background 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 to criticise the candidacy of another.

Civil society, the legal profession and academia can play a far more robust role in engaging in this debate and informing us all about the qualities of candidates that put themselves forward. It’s worrying that we know so little about many of the judges who are appointed to various courts.

There is a danger that such debates could be hijacked by groups advancing narrow partisan political goals or by those who represent the special interests of large corporations. Although difficult because of the divided nature of the profession, I think the legal profession could play an important role to prevent this. This might allow for a more helpful debate on the suitability of an individual candidate that transcends the rather unhelpful and sometimes hysterical discussions on the so-called (but in fact imaginary) refusal to appoint white male candidates to the bench.

If a candidate has written several judgments in which he had 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 appointment. But why does the legal profession not provide more detailed and thoughtful analysis of candidates and publicise this more effectively to enhance this kind of debate? 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.

Of course, in a democracy people are going to differ about which judges are the best and embody the best values. Having informed debates about this, so it seems to me, is a rather healthy thing.

In my view, a candidate who holds views 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. A candidate who lacks the wisdom and maturity to embrace the notion of diversity and difference – as the Constitutional Court did – similarly, in my opinion, lacks the merit, and should not be appointed as a judge.

Others may well disagree with me, and they may well champion candidates who are avid supporters of the Free Market Foundation or the bizarre fantasy that race does not matter in South Africa and should never be relevant in deciding constitutional questions. The problem is not that others would support such candidates – we will never all agree on what makes a judge suitable for appointment – but rather that they would claim their support is based entirely on the alleged “merit” of the candidate when it is at least partly based on other, more political, considerations. If you support a candidate for appointment because he or she will protect the status quo, by all means, do so. But don’t pretend your support is entirely based on the candidate’s supposed merit.

I understand that we may not all agree on the ideal normative value system that we believe the Constitution imposes on our legal system. But surely, informed debate – assisted by considered, detailed, analysis of candidates by NGOs, by academics and by the organised legal profession  – will help the JSC to make better appointments to the bench. Over time the JSC will then be able to strike the right balance in the appointment of judges.

PS: This is an edited and shortened version of a speech delivered at a UCT Law Faculty alumni function in Johannesburg on 3 October 2013.

Marikana funding case hints at larger problems with gaining access to justice

Most South Africans do not have effective access to justice. Without adequate legal representation, which few people can afford, not many litigants or criminal defendants will truly savour the sweet taste of justice. While banks, other large corporations, the very wealthy and organs of state will have the funds to employ an army of lawyers to exploit every legal loophole and to pursue every legal argument to win their case, most ordinary persons of moderate means will not. Unless the legal system is substantially reformed or the state pumps billions of rands into the Legal Aid system, this will not change – despite the quixotic court victory of the survivors of the Marikana massacre to legal representation at state expense.

The Marikana massacre, in which the South African Police Service (SAPS) killed 34 striking mine workers, may well turn out to have been a watershed moment in South African politics. From where I sit, it looks suspiciously as if the ruling elite (ab)used its control of the SAPS (or its political access to those who control the SAPS) to teach miners taking part in a violent and unprotected strike a “lesson”, because these striking miners threatened its financial and class interests. As a result, 34 striking and protesting miners were killed by the SAPS and more than 78 people were injured.

The Farlam Commission of Inquiry into the massacre, and the events that led up to it, may not come to the same conclusion. Commissions of Inquiry – even Commissions that do a good job – are usually better at determining the small truths than at uncovering the larger political truths of a tragic event like this. It is also not yet clear to what extent the alleged SAPS cover-up of the event and the possible protection of political principals and mine company executives will succeed.

This does not mean that the work done by the Farlam Commission is not important. Like the Truth and Reconciliation Commission it might uncover at least part of the truth, creating a factual matrix within which, over time, we will come to understand the political significance of the events on 16 August 2012. For that reason it is essential that the Commission must be seen to be acting fairly: if its findings are not trusted by everyone, it will be difficult to rely on these findings as a springboard for more searching analysis of the political import of the Marikana massacre.

The Commission’s legitimacy was threatened by the withdrawal of the legal teams representing the families of the killed miners as well as of the injured and arrested miners because of a dispute about the funding of the lawyers of the injured and arrested miners (led by Adv. Dali Mpofu). It therefore came as a great relief when the North Gauteng High Court (in a legally daring judgment by Makgoka J) in the case of Magidiwana and Another v President of the Republic of South Africa and Others ordered Legal Aid SA to fund Adv. Mpofu and his team.

I am delighted that Legal Aid SA has now agreed to fund Adv. Mpofu’s team. However, Legal Aid SA may still appeal the judgment because of the potentially far-reaching consequences the judgment poses to the continued financial viability of Legal Aid SA and it will not at all be surprising if such an appeal succeeds.

The bulk of the judgment focuses on the right of surviving miners to be represented by legal representatives and does an admirable job of showing why 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 – entitles miners to such legal representation.

What the judgment fails to do convincingly, in my opinion, is to show that this right must translate into a right to have those lawyers funded at state expensethrough Legal Aid SA.

As Legal Aid SA eventually conceded, its CEO does have the general discretion to fund the lawyers of interested parties who appear before a Commission of Inquiry. In fact, Legal Aid SA funded the lawyers of families of the deceased miners in accordance with this general discretion. The question is whether its decision to fund the lawyers representing the families of deceased miners (but not the injured and arrested miners) could be declared unconstitutional on the basis that it was irrational to fund the former but not the latter.

The court found that the injured and arrested miners did have a right to state funded legal representation in general, given their substantial and direct interest in the outcome of the commission; their vulnerability and financial position; the complexity of the proceedings and the capacity of the applicants to represent themselves; the procedures adopted by the commission; the need for an “equality of arms” between the parties; and the potential consequences of the findings and recommendations of the commission for the injured and arrested miners.

In a wonderful passage that could easily apply to the vast majority of litigants and accused persons of modest means who need legal representation in South Africa, the court stated:

The fact that they [the miners] are poor should never be a basis to summarily dismiss their potential substantial prejudice. It is unthinkable and deeply offensive to basic fairness and the rule of law in a democratic state that the poor and vulnerable be left to their own devices, in a manner that will deny them exercise of their constitutional right in terms of s. 34 of the Constitution.

Moreover, the court pointed out that the SAPS legal team is said to comprise five advocates (three senior counsel and two senior-junior counsel). In addition, the SAPS also use the services of a private firm of attorneys in Rustenburg, instead of State Attorney. Furthermore, the Minister of Police, whose interests should ordinarily coincide with those of SAPS, for some reason maintains a separate legal team on a so-called “watching brief” at the Commission (a fact that raises its own set of questions about the possible political involvement in the events of 16 August 2012).

According to the court, the State parties’ legal representation costs approximately R2 million to R3 million per month.

The judgment therefore concludes that considerations of fairness and the need for “equality of arms” between the parties require the state to fund the legal representatives of the miners. The interests of justice and the rule of law would be undermined by a failure to fund their lawyers.

It would be difficult to argue with the court that it would be fundamentally unfair for one party to be represented by lawyers to the cost of up to R3 million a month while another party with a direct interest in the outcome of the Commission have no legal representation at all. After all, those involved in the killing and injuring of the miners are represented by an army of lawyers, ever alert to protect the interest of their clients, who would obviously like to pin the blame for the massacre on the miners themselves in order to absolve the SAPS and its political principal from any blame. It seems extremely unfair that the one side is so well protected while one of the other parties is not.

However, apart from the profound political importance of the case, this situation is not fundamentally different from that faced daily by many litigants or potential litigants who wish to go to court to enforce their legal rights or to challenge the abuse of power or the flouting of the law by big banks, other large corporations, wealthy individuals or the state. Legal Aid SA very seldom provides funding for such litigants due to an acute shortage of Legal Aid funds. It is mandated by its rules and by the Constitution to fund lawyers for indigent criminal defendants “if substantial injustice would otherwise result”, but the Constitution does not explicitly impose a duty on the state (and hence Legal Aid SA) to fund civil matters (nor matters relating to Commissions of Inquiry).

Because of a lack of funds to pay good lawyers capable of taking on the “big boys” (and the difficulty of securing the services of such lawyers, given the financial interests many lawyers have in representing the “big boys” instead), ordinary people – both poor people and middle class people – often face insurmountable hurdles in securing justice in court.

There are no quick fix solutions to secure better access to justice for most South Africans. It would help if the state pumped additional billions of rands into the legal aid system – but that is not going to happen. Funds are needed for other “important” state matters – like upgrading the private residence of the president.

Establishing a system in which recent law graduates do one year of community service – similar to medical graduates – to assist indigent litigants may also help to secure better access to justice, but that would require a gargantuan administrative effort from the Department of Justice. The Department currently probably does not have the financial and human resources to pull this off successfully.

Simplifying legal rules and moving away from the absurdly rigid application of these rules by some courts, will also help. Many procedural rules unnecessary complicate litigation and increase costs – often to the advantage of those litigants with the deepest pockets and hence the best lawyers. It goes without saying that litigants without lawyers are often unfairly disadvantaged by these rules or are precluded from benefiting from access to the legal system at all because of their lack of knowledge of the rules.

But because of the formalistic legal culture – often inculcated and perpetuated by untransformed legal training provided at Law Schools – and because lawyers often benefit financially from the complicated and formalistic legal rules, there seems to be little appetite among elites in the legal profession to champion the streamlining and simplification of procedural rules.

It is judged against this background that the ultimate decision of the court in the Marikana case gets to look a bit shaky. This is so, not because it would have been fair to deny the injured and arrested miners legal representation at state expense, but because it is not clear that the decision of Legal Aid SA not to fund the lawyers can be said to have been irrational, given its many other commitments and the almost infinite demands on its limited funds.

Legal Aid SA provided three reasons for funding the legal team representing the families of the killed miners but not the legal team of the injured and arrested miners. First it claimed that the former group had a “substantial, proximate, and material interest in the outcome of the commission” to a degree that the latter did not. Second, it claimed that the latter group’s interests would be adequately protected by labour unions, NUM and AMCU. Third, it claimed that due to budgetary constraints it could not fund both parties.

The court (seemingly confusing or conflating the requirements for legality contained in section 1 of the Constitution and the test for a breach of section 9(1) of the Constitution) affirmed, correctly, that the exercise of public power by the executive and other functionaries should not be irrational. The court, more controversially, concluded that the refusal by Legal Aid SA to provide legal aid to the injured and arrested miners was not rationally related to the purpose of the Legal Aid Act, (as far as I can tell) because it found that this was not done to pursue a legitimate purpose.

The court did not really explain why this was the case. If the purpose of the decision was to manage Legal Aid SA’s funds properly, it is unclear why it would be irrational for Legal Aid SA to fund the one group but not the other. There is also clearly a difference in the position between the two groups: the loved ones of one group were killed, while the members of the other group are still alive.

Rationality review does not allow the court to set aside a decision of a public body because that body acted unwisely or because another decision would have resulted in a fairer outcome. It only allows the court to interfere if it can be shown that there was no rational reason for its decision: in other words, when the decision is arbitrary or capricious. In this case one can argue about the wisdom of the Legal Aid SA decision, but I am not sure one can say with confidence that it was irrational. To hold otherwise would have potentially catastrophic consequences for the financial viability of Legal Aid SA.

Despite the shaky legal argumentation, the judgment must be welcomed. Hopefully the clear injustice illustrated by the case may well spark a broader debate about the lack of access to justice and about what steps can be taken by the government and by the legal profession to provide ordinary people with a better chance to access the skills of competent lawyers.

The emotionally charged Hlophe case, revisited

It has become very difficult to have a rational discussion about either the legal issues or the issues of principle underlying the way in which the complaint lodged collectively by judges of the Constitutional Court against Judge President John Hlophe are being dealt with. Emotions are running so high among both vehement critics and ardent supporters of Hlophe that both sides seem to believe their opponents hold bizarre and even shockingly immoral views damaging to the judiciary and to the country. The truth probably lies somewhere between these two extreme views.

When Constitutional Court Justices Chris Jafta and Bess Nkabinde testified under oath before a Judicial Service Commission (JSC) hearing in 2008, they both denied that undue or inappropriate pressure from other judges of the Constitutional Court coerced them into being part of a collective complaint lodged by the Constitutional Court against Judge President John Hlophe.

At the time these denials seemed strange if not completely implausible. This is so because after the Constitutional Court announced that it was laying a complaint against Hlophe because of his alleged improper attempt to try and influence judges to rule in favour of President Jacob Zuma in a case dealing with the validity of search and seizure warrants on Zuma’s properties and those of his attorneys, the two judges issued a remarkable joint statement.

In this statement they recorded that they “have not lodged a complaint and do not intend to lodge one.” They placed on record further that they had told other judges of the Constitutional Court “on a number occasions” that “we were not intending to lodge a complaint and neither we were willing to make statements about the matter.”

For some as yet unexplained reason the judges changed their mind and endorsed the joint compliant of the Constitutional Court. At the time, giving the two judges the benefit of the doubt, it appeared to me as if they did this because they realised that if indeed an improper approach was made to them to try and influence a judgment of the Constitutional Court, this was by no means a private matter only affecting them, but a matter of the highest public importance potentially affecting the legitimacy of the Constitutional Court and of the judicial system as a whole.

Their testimony before the JSC at the time said as much. Thus Jafta told the JSC:

Once it had been explained clearly, the distinction between, on the one hand the interest of an individual judge, and the integrity of the institution on the other hand, we were willing to participate in the complaint at that level so as to protect the integrity of the Constitutional Court.

When Nkabinde was asked why she did not want to be an individual complainant against Hlophe she said:

Mr Commissioner, I think in retrospect, one could have done that. This thing happened at the time when one was busy doing all sorts of things. My mind was not clear at the time as to really what is the right thing to do, and given that complexity, I didn’t see it very clearly.

When asked if she was a willing participant in the collective complaint of all the Constitutional Court justices she told the JSC: “Oh yes, I didn’t have a problem.”

But last week the two justices once again seemed to change their minds. They were again reluctant to testify, the integrity of the Constitutional Court seemingly no longer of concern to them. The justices raised a defence that they are not obliged to subject themselves to the new proceedings (ordered by the Supreme Court of Appeal (SCA)) as the proceedings is a nullity because the relevant regulatory framework upon which the proceedings are predicated is a nullity. They intend to take the decision to reject their argument on review, suggestion that they are now extremely reluctant to testify.

From the outside, and without access to all the facts, this new U-turn seems truly bizarre. I cannot see how this serves either the interest of the Constitutional Court or the interest of the two justices (nor, I would add, the interests of Judge President Hlophe). Their present course of action cannot possibly be squared with their testimony given to the JSC under oath in 2008. Does this mean they lied under oath to the JSC back in 2008? Or does this mean they did not lie in 2008, but that they have decided to that it was not worth it for them to try and protect the integrity of the Constitutional Court by testifying at a hearing because of the political pressure brought to bear on them?

This exposes the judges to questions about their own integrity. There may be other reasons for their many U-turns, but in the absence of a full and plausible explanation from the two justices, they run the risk of appearing to be either spineless and weak or unprincipled and perhaps dishonest.

The U-turns are particularly strange in the light of the damning (but contested) evidence given by the two Justices against Hlophe at the original JSC hearing.

When the two judges in 2008 proceeded to give evidence before the JSC under oath they made claims which, if true, would show that Hlophe had tried to influence them in an inappropriate manner. Jafta testified under oath that Hlophe had told him that Zuma was innocent, that he was wrongly prosecuted; and “sesithembele kinina” (we are relying on you, you are our last hope). Hlophe denied (again under oath) that he ever uttered these words.

Nkabinde similarly testified that Hlophe had told her there was no case against Zuma “that he has connections with the minister” whom he advises, that he has a mandate and that he “had a list of names from intelligence containing names of people involved in the arms deal who may lose their jobs. Once again Hlophe denied many of these allegations.

If these allegations are true and if the denials issued by Hlophe are not accepted by the Judicial Conduct Tribunal, then it would be difficult not to conclude that an impeachable offence was committed by Hlophe. It would amount to a shocking attempt to influence the highest court in the land in order to protect the President from criminal prosecution. It would constitute an attack on the constitution and as it would amount to an attempt to subvert the highest law of the land. The JSC (in a pre-Zuma guise) found as much.

After all, if a judge of one court – claiming to have political connections and a mandate to protect a politician – approaches judges of a higher court in an attempt to influence their judgment in order to try and protect the President of the country from criminal prosecution, it would strike at the heart of the integrity of the legal system. It is difficult to shy away from this stark conclusion.

I would think that for many lawyers who have experienced the systemic racism in the legal profession and in our wider society, it would be emotionally very difficult to accept this conclusion. This would be so, not because they do not believe in the importance of safeguarding the integrity of the Constitutional Court or of the judiciary, but because the carefully cultivated image of Hlophe as a champion for racial transformation, as the one black judge who had been brave enough to challenge racism in the legal profession head-on, is difficult to square with allegations of this magnitude. How can a champion of redress and justice also be a man of rank dishonesty who lacks even the basic integrity required for a sitting judge?

After all, after it emerged that Judge Hlophe had been paid money by an insurance company with a rather unsteady reputation before finally granting that company permission to sue a fellow judges (after the company increased the payments), he authored a report on racism in the Western Cape legal fraternity and the judiciary which he sent to the then Chief Justice. And is it not the oldest trick in the book to try and discredit those who speak out about racism and in favour of transformation by starting to question their credibility and integrity? Did Prof Malegapuru William Makgoba not face this very same tactic when he started challenging the racism of white liberals at Wits?

But regardless of these political dynamics which have (understandably, in my opinion) brought much sympathy and also fervent support for Judge President Hlophe, and regardless of the various technical legal arguments raised in the case, I believe some facts cannot be avoided.

Fact one: given the directly conflicting testimony given under oath at the previous JSC hearing, either Hlophe is a liar or Jafta and Nkabinde are liars. Fact two: a judge who lies under oath cannot and should not be allowed to serve on any court. Fact three: the allegations made by Jafta and Nkabinde, if true, constitute an impeachable offence.

Fact four: unless the appropriate body (whether the Judicial Conduct tribunal or the JSC) makes a finding on which version of events must be believed, the credibility of all three these judges would be fatally compromised. Fact five: unless there is a full hearing in which all parties can give evidence and can be cross-examined, we will never know whether pressure was brought to bear on Jafta and Nkabinde to testify against Hlophe and neither will we know if they were improperly influenced NOT to testify against Hlophe.

One or more people lied. But the person or persons who lied is not an ordinary grubby politician and the lie is not a little white lie about having one drink too many at an office Christmas party. It is in the interest of every litigant who appears before our courts – from the indigent person resisting an unlawful eviction for his or her shack, to the President of the country – that the integrity of judges should be beyond reproach. Once a belief starts taking hold that judges cannot be trusted to make decisions impartially – without being influenced by politicians who trade in power or private business parties who trade in bribes – the legal system ceases to serve the interests of the most vulnerable and marginalised and start serving only the interests of the well-connected and the rich.

It is for this reason that it, surely, cannot be in anyone’s interest not to go ahead with a full hearing in which a credible body would, once and for all, decide where the truth lies. Given the fact that some of the usual suspects (who also resist transformation of the judiciary) have lined up against Judge President Hlophe, it might be tempting for some of us to try and sweep this whole sorry saga under the carpet, to let sleeping dogs lie and to hope that whatever happened in this case was an aberration that would not permanently taint the integrity of the judiciary.

Over this past week I myself flirted with this idea. But the facts keep getting in the way. As the Supreme Court of Appeal (SCA) remarked when it set aside the decision of the JSC not to decide whether it was Hlophe or the two reluctant complainants who had been lying:

It is alleged that a very high ranking judge, the head of one of the biggest divisions of the high court, attempted to influence two of the judges of another court to decide a matter in a particular way. The allegation was considered to be so serious as to constitute gross misconduct which if established may justify the removal of the judge from office. It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

I am fearful of the damage this Conduct Tribunal will do to the reputations if all concerned. What if Justices Nkabinde and Jafta had completely overreacted to the approach by Hlophe and if they had embellished their testimony before the JSC? In that event, Hlophe would have been wrongly persecuted and the two judges would have perjured themselves and would certainly have to face a Judicial Conduct Tribunal of their own for their rank dishonesty. What if they were originally pressured to testify? What if they were now improperly pressurednot to testify?

But what is the alternative? Should we ignore the elephant in the room and pretend that nothing went very badly wrong in this case? It seems to me, no matter how painful and potentially damaging to some of those involved in this case, the only responsible course of action is to have an exhaustive and credible process to find exactly where the truth lies. Anything else will leave a festering sore at the heart of our judiciary.

Hoffman’s complaint: why it was dismissed

The Judicial Conduct Committee this week dismissed a complaint by Adv. Paul Hoffman against Chief Justice Mogoeng Mogoeng stemming largely from a speech the Chief Justice made on judicial transformation. As the compliant was based on shaky legal grounds, this, I contend, was the correct decision to reach. Here is why.

My inbox is flooded by emails of people asking for free legal advice. A few of these emails contain heartrending stories of injustice and human rights abuses. Many more contain rambling, vague and often paranoid complaints about often non-existent abuses of human rights. Judging from the latter kind of emails there are quite a few delusional narcissists out there who keenly believe that they are being persecuted and that the world would come to an end if the persecution is not stopped.

It is not always easy to distinguish between the former and the latter kinds of emails. Those who suffered real harm are sometimes inarticulate and unable succinctly to focus on the relevant facts. Those who are merely delusional can sound very convincing.

Which brings me to the dismissal of the complaint lodged against Chief Justice Mogoeng Mogoeng by the Institute for Accountability’s Paul Hoffman. Allegations of misconduct by the Chief Justice will alarm many people – especially given the controversial manner leading to the appointment of the Chief Justice. But such allegations can also be spurious, stemming from the unexamined fears and preconceptions of the accuser, and may not be based on plausible legal grounds.

It is therefore important to analyse the allegations made by Adv. Hoffman and the manner in which the panel of the Judicial Conduct Committee (JCC) dispensed with them to ascertain whether we are dealing here with a serious matter that threatens the independence and integrity of the judiciary or merely with an egotistical but entirely harmless set of allegations properly dismissed by the JCC.

The complaint was dealt with in terms of the relevant provisions of the Judicial Service Commission Act. The Act – amended in 2008 – now provides for an elaborate mechanism to deal with complaints against judges. At the heart of this mechanism lies the principle that it is always better for judges to be directly involved in determining the merits of such complaints against fellow judges in order to safeguard the independence of the judiciary and the integrity of the complaints process.

Section 17 of the Act therefore states that whenever the Judicial Service Commission (JSC) receives a complaint against a judge which may, if proven, amount to a serious but non-impeachable transgression by that judge, a member of the Judicial Conduct Committee (JCC) must investigate the complaint in order to determine the merits of the complaint.

The JCC – in effect a subcommittee of the JSC – is composed of the Chief Justice, who is the Chairperson of the Committee; the Deputy Chief Justice; and four judges, at least two of whom must be women. But where a complaint is against the Chief Justice he must recuse himself. Adv. Hoffman’s complaint was duly referred to two members of the JCC – Judge President HMT Musi and Judge C Pretorius – who decided the complaint was entirely without merit. A study of the reasons given for this decision suggests (to me at least) that the complaint may have had more to do with the personal animus between the Chief Justice and Adv. Hoffman than with high principles regarding the integrity of the judiciary.

Section 14(4) of the Judicial Service Commission Act sets out the grounds upon which any complaint against a judge may be lodged. These grounds include, amongst others, incapacity; gross incompetence; gross misconduct; a wilful or grossly negligent breach of the Code of Judicial Conduct; or any other wilful or grossly negligent conduct that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

The complaints lodged by Adv. Hoffman were dismissed as not implicating any of the grounds listed in section 14(4). There was therefore no case to answer by the Chief Justice.

First, the Chief Justice was found not to have breached the Judicial Code of Ethics which prohibits a judge from engaging in a public debate about a case and from participating in public debate about matters relating to the judicial profession in a manner that would undermine the integrity of the judiciary.

This was so, because the “frankly expressed” remarks of the Chief Justice was not on the subject of the merits of a particular case but about judicial transformation, a practical, on-going issue that has been debated for a long time and will continue to be debated by judges and members of the public alike. The Code, it was found, clearly did not prohibit any judge from engaging in such a debate – although remarks made by the Chief Justice “were bound to sit uncomfortably with sections of the legal profession and the judiciary”.

This seems to be just about right to me. To hold otherwise would have had an enormously chilling effect on judges and would have made it almost impossible for judges ever to give public speeches on anything but the most anodyne topics. I, for one, would have never made the effort again to organise an annual human rights lecture, knowing full well that the judge I invited would not say anything remotely interesting.

Secondly, the argument that the Chief Justice had brought the judiciary into disrepute because he involved himself in the “politics and policy aspects of affirmative action measures in a manner unbecoming to a judge” was similarly dismissed. As the panellists of the JCC pointed out, the matter of judicial transformation is a matter of great public interest. The JSC, headed by the Chief Justice, has been embroiled in controversy about its role in giving effect to judicial transformation and the supposed non-appointment of white males to the judiciary.

It was, found the panel of the JCC, impossible for the Chief Justice to avoid talking about the matter and he was therefore perfectly entitled to participate in the discussions about the transformation of the judiciary and the legal profession. Because this touches on sensitive constitutional issues of race and gender, the debate was bound to have political connotations.

It seems to me this finding must be right. The boundary between law and politics can at best be described as a porous one. Almost all legal questions (well at least the legal questions that I am interested in) have political connotations. For example, questions about how a company should be managed in terms of the companies act can be profoundly political, implicating one’s view on capitalism, exploitation of workers and a number of other highly politicised issues.

Similarly, whether the law should recognise the unequal bargaining power between consumers and companies who they enter into contract with, is a profoundly political question, implicating the economic ideology of the participants. Surely this cannot mean that a judge should never make any statement about the role of the Constitution in transforming the law of contract (or the Company Law, for that matter) to eradicate the inherent injustice in the capitalist, laissezfaire inspired fiction that freedom of contract exists between two inherently unequal parties?

The one aspect of Adv. Hoffman’s complaint that may have appeared plausible, relates to words alleged to have been uttered by the Chief Justice towards Adv. Hoffman in The Hague earlier this year. The alleged words – “you can continue to challenge me but you will continue to be frustrated” – if indeed uttered, seemed to have been the result of an ongoing and increasingly acrimonious dispute between the Adv. Hoffman and the Chief Justice.

Adv. Hoffman had, according to his own admission, written to the Chief Justice to demand clarity from the Chief Justice on his fitness to hold office. As the panel pointed out, this was a rather startling thing to do. I am not aware of any lawyer ever having done so before in the history of South Africa – including during the apartheid era. Anyone is entitled to lodge a complaint against any judge with the JSC – but engaging a judge – including the Chief Justice – in a private correspondence in which one alleges he is unfit for office seems to have displayed a rather startling lack of decorum.

As the panel pointed out: “It is indeed shocking to hear that an advocate could write letters to a sitting judge demanding that the judge explains his fitness to hold office.” In any case, in the absence of knowledge of the broader context in which the words were uttered it would be impossible to know what was meant by the words. At the very least there was no indication that the words was meant to refer to cases being heard before the court and not to the various efforts made by Adv. Hoffman to ridicule and humiliate the Chief Justice.

In my humble opinion, it might well be that a more astute, unflappable and emotionally generous judge would not have used the words that the Chief Justice was alleged to have used. It might also be that, given the political setting and the obvious contempt in which Adv. Hoffman holds the Chief Justice, it was a strategic blunder on the part of the Chief Justice not to hold his tongue. But I would have been rather surprised if fellow judges of the JCC had found that these words constituted a breach of conduct prohibited by section 14(4) of the JSC Act.

Time to talk about the appropriate political role of the JSC

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

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

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

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

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.