This complaint probably stems from the fact that President Zuma, other Ministers, MEC’s, Mayors as well as the Judicial Service Commission (JSC) have all suffered embarrassing legal defeats before our courts over the past year. It is unclear why they have lost so often and so badly. One possibility is that they had received appalling legal advice from their advisors (or in the case of the President, from the Minister of Justice). Another is that they had failed to follow the sound legal advice provided to them.

This distinction between legal issues and policy decisions is, of course, difficult if not impossible to maintain. For example, clearly the President has a wide political discretion to appoint a man or woman of his choice as the National Director of Public Prosecutions (NDPP). But if he were to appoint a convicted fraudster to that position this would be unlawful as the National Prosecuting Authority Act (passed by the ANC dominated Parliament) requires him to appoint a “fit and proper ” person as NDPP.

In such a case the court would have a duty (if called upon to do so) to enforce the law and would have to declare the appointment invalid. If the court did not have the power to enforce the prescriptions of any law, the law could be ignored and then we would potentially live in an anarchic and lawless state. But in declaring the appointment unlawful, the court would interfere with the policy choice of the President – albeit a choice that was exercised in a manner that flouted the law. In a case like that the distinction between policy and legal considerations would dissolve and would become meaningless — unless one really believed that law was not binding on the executive at all and that a court should therefore not ever have the power to enforce the provisions of a law that was passed by the legislature. Such a system would be akin to an absolute monarchy or a dictatorship in which the legislature would perform a symbolic function as a pretend-democratic chamber whose decisions would be ignored at will by the President.

But two recent decisions by the ANC and the DA do actually demonstrate the problem of purely political decisions masquerading as quasi-legal decisions. Purely political decisions recently instigated by Zuma and Zille have been dressed up as disciplinary cases in order to provide a fig leaf of respectability and legitimacy to the witch-hunts against the recalcitrant party members who have challenged the authority of the respective party leaders.

The first case is well known: a selected number of the “top six” leaders of the ANC (which happened to include Jacob Zuma and Gwede Mantashe who were both known enemies of the accused) decided to have Julius Malema charged with contravening certain provisions of the ANC Constitution. Malema was then “tried” before an ANC disciplinary committee. The committee comprised of “disciplined members of the ANC” and can in no way be considered to be independent or impartial as it lacked even the most basic safeguards that would have secured its independence and impartiality. The conviction of Malema was a foregone conclusion but in order to give this outcome a semblance of legitimacy the disciplinary hearing was conducted as if it was a legal one.

The legitimacy of the process was, however, compromised (despite the pretence at legality) because the disciplinary committee members who previously had run-ins with Malema did not recuse themselves and the committee also “forgot” to hear evidence in mitigation after it found Malema and other members of the ANC Youth League guilty of the charges.

The DA has meanwhile launched disciplinary proceedings against DA MP Masizole Mnqasela, after he angered its leader Helen Zille. This he did because during a heated internal party election contest for Parliamentary leader of the DA he stated on prime-time radio that Lindiwe Mazibuko was not black enough to become the DA’s parliamentary leader. Mr Mnqasela had dismissed Ms Mazibuko’s candidacy as “window-dressing” in the lead-up to the DA parliamentary caucus election.

Zille was not amused by this and launched a scathing attack on Mnqasela by saying he had “made a fool of himself and the party”. Writing in her weekly newsletter, Zille equated Mnqasela’s controversial remarks to “Verwoerdian thinking”, referring to the architect of apartheid, Hendrik Verwoerd. “Even in the DA, Verwoerdian thinking sometimes rears its ugly head … I may have missed something, but not once during her campaign did Lindiwe or her supporters ever say she should be elected leader of the caucus because she is black,” Zille wrote.

The DA Constitution allows for a disciplinary committee to hear such a case. Such a committee is not independent but is elected by politicians who are also leaders of the party (on a regional basis) and its members will in all likelihood not wish to upset the party leadership – at least not if they had any thoughts of getting ahead in the party and maybe even becoming a shadow minister of bottle washing or of Zille praise singing. The committee is therefore neither independent nor does it have the necessary characteristics of a body that would act impartiality (or that one could reasonably be expected to act impartially). Zille (like Zuma) has made it clear what outcome is expected of this quasi-legal DA disciplinary process and I, for one, would be very surprised if Mnqasela is not found guilty of some or all of the charges against him.

Ironically, these two examples illustrate (to some degree, at least) the legitimising power that the law still exerts over our imaginations. It reminds us of the dominance in our culture of the liberal view that the law is (almost) always a neutral and objective mechanism for the fair resolution of disputes (even though the presiding officers might get it wrong in exceptional cases and might rely on their own personal ideological views when they resolve a dispute).

But it is even more ironic that by using quasi-legal processes in such a blatant and obvious way to try and legitimise decidedly political decisions, Zille and Zuma run the risk of unmasking the political nature of most legal processes and of helping to delegitimise the liberal version of the law, a version that assumes the law is a neutral and objective mechanism for the imposition of violence on citizens. Because those highly politicised disciplinary processes abuse a quasi-legal process to give some credibility to what are essentially political decisions to act against the members of two different political parties who had dared to cross the leader of the respective parties and threatened the authority of both Zille and Zuma, people might well become cynical about the law more generally.

They might begin to think that law is merely a form of politics perpetrated by members of an unelected clan of legally trained judicial officers. After all, lawyers already know that it can matter a great deal who the presiding officer in a case is. They also know that external political considerations may play a role in the decisions taken by a presiding officer. I recall that in the earlly 1990ties, the Supreme Court of Appeal (SCA) suddenly softened its stance on ANC aligned criminal defendants and reduced Winnie Mandela’s sentence so that the then wife of Nelson Mandela would not have to go to jail. That outcome would have been unthinkable in the mid 1980ties.

This is dangerous terrain for lawyers and judges because political demagogues and populists might easily exploit this ambivalence in the law’s relation to politics to try and delegitimise the courts and the legal process entirely. And this would open up a space for an entirely lawless and authoritarian regime to emerge in which the law on paper would mean nothing more or less than what the President said it meant.

Lawyers therefore face the challenge of producing plausible arguments about the interaction between law and politics, arguments that would acknowledge the fact that legal rules (and the way they are interpreted and applied) can hardly be said to be neutral, but that make strong claims about the ability of such legal rules (to some extent, at least) to constrain the judges that interpret and apply them so that those judges do not merely impose their own personal political preferences on the parties in a dispute before them.

(The Zulu Royal Household has since criticised what it called a “reckless translation” of Zwelithini’s speech – a “reckless translation” perhaps being one that exposes the “King” as being a bit slow and thus not very familiar with the history of his “subjects”. “At no stage did His Majesty condemn gay relations or same sex relations,” Prince Mbonisi Zulu said.)

I will leave aside for the moment the fact that anyone who is familiar with the academic literature would know that while the notion of “perverted homosexuality” as an identity was probably imported into Southern Africa by European missionaries, no credible historian will now deny the existence of certain kinds of same-sex intimate conduct over the past two centuries in Southern Africa – no matter how shocked the (white) missionaries might have been by this.

Besides, one cannot expect the “King” to read academic journals and popular articles on homosexuality merely because he wishes to express himself on this topic. He must be a busy man, what with having to spend the R883 161 salary he receives annually from the national government, and with having to ensure that the Zulu Royal Household budget of just more than R55-million for the 20011/12 year is spent wisely. (Apparently R34,2m is to be used over the next three years to renovate his palaces who must be in a desperate state of disrepair and this must also keep him busy.)

I would rather focus on a more interesting constitutional question, namely why on earth do we have officially recognised Kings and Queens and Chiefs in South Africa and why are we paying through our noses for their upkeep? After all, traditional leaders (including the Zulu King) are not democratically elected (they inherit their titles) and their exercise of power over between 15 to 20 million South Africans may appear utterly undemocratic. Secondly, traditional leaders are mostly men, which go against the principles of non-sexism that is entrenched in the founding values of our Constitution.

It must therefore come as a surprise that section 211(1) of the Constitution explicitly recognises the “institution, status and role of traditional leadership, according to customary law” – although this recognition is made subject to the other provisions in the Constitution.

Given the fact that most traditional leaders were co-opted by the apartheid state to help the state to control the rural population of South Africa and to administer apartheid policies, one might well have thought that ANC politicians and the supposedly “forward looking” business lobby represented at the time by the so called “reformed” National Party might have wanted to get rid of this undemocratic system of inherited and elitist leadership when they negotiated the 1996 Constitution.

Recall that during apartheid, labour bureaux regulated the supply of labour to the mines, commercial agriculture and industry. In rural villages the administration of the pass book and the running of the labour bureaux, where permits had to be annually renewed, were the responsibility of the chiefs, who charged a fee for this “privilege”.

The 1951 Bantu Authorities Act formed the lynchpin of this system of indirect control of the rural poor by the apartheid government via the system of traditional leaders. Power rested with a hierarchy of (mostly) compliant chiefs, who were made utterly dependent on the patronage of the Department of Native Affairs. Chiefs were no longer accountable to their subjects, but to the Department of Native Affairs. Their powers were increased while their legitimacy was being eroded.

However, this system of co-opted traditional leadership was put under severe strain with the abolition of the pass laws in 1986 as this meant that migrant labourers no longer had to present themselves at the Chiefs office in their home village. Chiefs lost their income from registration fees and, to some extent, their control over the movements of their “subjects”. Because “disobedient” villagers could no longer be punished by withholding labour permits and travel documents and as chiefs no longer had the opportunity to collect arrears from their migrant “subjects”, chiefs often reacted by imposing new taxes to make up for the lost revenue.

One way of increasing their income (and retaining some form of control over “subjects”) was for traditional leaders to seize control over communal land and strictly regulating the use of resources (like water, grazing and fire wood) on that land, thus forcing rural poor people to pay for the “privilege” of using these communal resources. Thus the system of communal living was completely subverted in favour of traditional leaders with none of the checks and balances on the power of chiefs which existed in pre-colonial times. Another way of retaining control over “subjects” was through the role played by traditional leaders in interpreting and enforcing customary law rules in traditional courts.

No wonder the ANC, who in exile seemed rather hostile towards the system of co-opted traditional leadership (including towards King Goodwill Zwelithini who at the time was in the pocket of a Bantustan leader called Magosuthu Buthelezi), changed its mind once back in South Africa. In order to defuse the violence between supporters of Buthelezi’s IFP and ANC supporters in KwaZulu-Natal and to gain support from voters living in traditional areas under the undemocratic yoke of traditional leaders, the ANC started wooing traditional leaders.

In this process, the masterstroke of the ANC was for the national government to take over control over the purse strings. Thus Parliament adopted the Remuneration of Public Office Bearers Act in 1998 which prevented Provinces (like the then IFP controlled KwaZulu-Natal) from paying traditional leaders over and above the payment made by the national government in terms of this Act. (This move – along with the buying off of King Goodwill himself – broke the stranglehold of the IFP over traditional leaders in KwaZulu-Natal and allowed for the current resurgence of the ANC in that province in the light of President Jacob Zuma’s election as President of the ANC.)

Meanwhile the Black Administration Act was finally abolished in 2005 and left a power vacuum as it robbed traditional leaders of some of their authority. This may be why the adoption of a Traditional Courts Bill (tabled for the first time in 2008) is reportedly on the legislative agenda for 2012. The draft Bill authorises a traditional court (led not by a judge or magistrate but by a traditional leader authorised to do so by the Minister) to hear and determine civil disputes arising out of customary law and custom brought before the court where the act or omission which gave rise to the civil dispute occurred within the area of jurisdiction of the traditional court in question.

Thus, instead of speeding up the integration of customary law into mainstream law (as one of the three pillars of our legal system), this Bill will have the effect of ensuring the continued marginalisation of customary law, practiced mostly in traditional courts and seldom in High Courts, where judgements are reported and infiltrate the legal consciousness.

Although the draft Bill requires the traditional courts to respect the provisions of the Bill of Rights, it is unclear whether such safeguards will be respected and to what extent “subjects”, especially women who may depend on the goodwill of the chief to gain access to water, grazing for cattle and housing, (or other unpopular individuals like gay men and lesbians) will be prepared to challenge a decision made in such a traditional court elsewhere.

There are going to be serious constitutional problems with this Bill despite the fact that section 211(2) of the Constitution allows a traditional authority to observe a system of customary law, subject to any applicable legislation and customs. This is because section 34 of the Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. This must be read with section 165(2) which states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

Given that the Constitution subordinates traditional leadership functions and structures as well as customary law provisions and their application to other provisions in the Constitution – including the provisions of the Bill of Rights – I would guess that courts staffed by unelected hereditary chiefs will be found to be unconstitutional as they will not be independent and nor will they be likely to administer justice in an impartial manner – especially not to someone who happens to be a women or, god forbid, gay or lesbian.

They would lack independence because they would not enjoy the basic institutional guarantees required for a tribunal or court to be considered as independent. For starters, chiefs are paid by the government of the day and can also be removed as chiefs and they therefore do not have security of tenure. They would also potentially lack impartiality, as those chiefs who happen to be unwise, or are patriarchs or have been corrupted by money interests, might reasonably be perceived as being biased in one way or another.

Which brings us back to King Goodwill and his reported remarks about same-sex relationships: when we talk about transformation and the need to eradicate the vestiges of apartheid thinking, has the time not come for citizens to stop bankrolling the lavish lifestyles of Kings like Zwelithini (with his backward views) and the lifestyles of other unelected traditional leaders? Given the fact that traditional leadership has been totally transformed by the engagement with colonialism and was co-opted by the apartheid government and thus implicated in taking part in the enforcement of sometimes authoritarian controls over rural citizens, should people like King Goodwill not perhaps stop milking the taxpayer and start paying his own way like everyone else?

Only a few minutes after the statement was released my phone started ringing as journalists anxiously sought confirmation that this statement must be read as a full-frontal attack on the independence of the judiciary. Journalists focused especially on the announcement that cabinet agreed to an approach to the transformation of the judicial system that would include an ”assessment of the decisions of the Constitutional Court”, to be “undertaken by a research institution to establish how the decisions of the court have impacted on the lives of ordinary citizens and how these decisions have influenced socio-economic transformation and the reform of the law”.

However, on its face, this statement could be viewed as a positive development. If a truly independent and reputable research institution conducts such an assessment, it will inevitably find that the decisions of the Constitutional Court – perhaps more than the actions of the legislature and the executive — have by and large impacted positively on the lives of ordinary citizens and have facilitated socio-economic transformation. Where the Constitutional Court has handed down judgments that could be viewed as anti-poor, the decisions have almost always endorsed the policies of the government.

I am thinking, for example, of the Mazibuko judgement in which the installation of pre-paid water meters in Phiri, Soweto were unsuccessfully challenged by the residents of that area. The policy was devised and implemented by the ANC-led Metro government of Johannesburg and in my view discriminated against poor black residence of parts of Soweto. The Constitutional Court declined to intervene because the Metro’s policy was adapted over time.

However, in many other cases, the Constitutional Court has either endorsed transformative policies of the government or declared invalid anti-poor policies and laws passed by the ANC national or provincial governments. In the Grootboom case, the Treatment Action Campaign case, the Khosa case, the Jaftha case, and the Glennister case the Constitutional Court handed down judgments that had the effect of extending social and economic rights benefits to the poor, protected them from discrimination and unfair treatment or placed duties on the government to fight corruption, the very corruption that disproportionately affect the lives of the poor and the marginalised who depend on the honest and efficient state to provide it with the minimum basic goods and services required for them to survive and live a meaningful life.

The most telling case in this regard is the judgment of the Constitutional Court in the case of Abahlali Basemjondolo Movement SA and Another v Premier of the Province of Kwazulu-Natal and Others in which the Constitutional Court struck down sections of the KwaZulu-Natal Elimination and Prevention of Re-emergence of Slums Act. This Act, passed by the ANC-led legislature in KwaZulu-Natal, represented a full frontal attack on the poor, the homeless and those living in informal settlements. It might well have been passed in an attempt to undermine Abahlali Basemjondolo and to provide the government with legal tools to harass its members. The Act would have required landlords to evict all “slum dwellers” (a term last used by the apartheid government in the 1960ties) and was thus found to breach the right of access to housing guaranteed in the Constitution.

A credible report assessing the work of the Constitutional Court will have to come to the conclusion reached above, answering the very criticism of Mantashe, Zuma and others in the ANC who have convinced themselves that the courts interfere with the abilities of the other branches of government to effect socio-economic transformation. Any other conclusion will not be credible and no academic worth his or her salt would put their name to a report that concludes differently. If the assessment is done properly, it may therefore help to silence critics of the Constitutional Court.

This does not mean that other aspects of the cabinet statement are not worrying as they suggest a complete lack of respect for the separation of powers doctrine, which is inherent in a system of checks and balances in a constitutional democracy with a supreme Constitution. Two statements in particular can be interpreted to mean that the executive wishes to meet privately (read, in secret) with members of the judiciary to “engage” judges and to try and convince them that they should stop finding that the government is in breach of the Constitution. Notably the statement says:

Thirdly, to affirm the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realize transformation goals envisaged by the Constitution. ….. Appropriate mechanisms be developed to facilitate for regular interface between the three spheres of the State to enhance synergy and constructive engagement among them in pursuit of common transformative goals that are geared to benefit the society at large.

There is nothing wrong with the leadership of the judiciary engaging the executive on issues dealing with access to justice and the better running of the judicial system. The government is elected to provide better access to justice and has to ensure that the system works well. In as much as formal discussions between the branches of government can facilitate the better functioning of our court system and easier access to courts, the move should be welcomed.

However, it is absolutely inappropriate for the executive to engage judges in a way that would even give the appearance that the members of the executive are trying to persuade judges to make decisions in individual cases that are more in line with the policy choices of the government. This would represent a full frontal attack on the independence of the judiciary and the system of checks and balances put in place by our Constitution.

Judges usually do not engage anyone about their past or future judgments (no matter what Judge President John Hlophe might think). They speak through their judgements and engage in this formal sense in a dialogue with the other two branches of government who can then respond appropriately to the judgments of the courts to ensure that they comply with the Constitution. Judges do not and cannot be seen to engage with members of the executive with a view of achieving “synergy” between the views of the executive and the judiciary.

In a constitutional democracy any synergy that exists between the executive and the judiciary is imposed by the various provisions of the Constitution as interpreted by the Constitutional Court. The judiciary is in dialogue with the executive in a formal way through their judgments but they are not “interdependent” with the other branches of government in the way hinted at by the statement (in the sense that they have to meet with the executive and agree on a plan of action on how best to effect transformation without embarrassing the bumbling lawyers appointed by the President and Parliament). If this is what the statement implied, it is wrong and dangerous and the intentions expressed in it would then be proposing an unconstitutional breach of the separation of powers doctrine, which is a doctrine that is deeply entrenched in our constitutional law.

What is needed is for this statement to be clarified. As it stands it can easily lead to the conclusion that the cabinet has a particularly dangerous and unconstitutional view of the relationship between the executive and the members of the judiciary. The judiciary — unlike the legislature and the executive — is completely independent and is required to be seen to be independent from the other branches of government. Secret talks about the transformative goals of the government with a view to “pull together” (which could easily mean, pull in the same direction as the executive – even when it acts in breach of the Constitution) would therefore not be acceptable. Indeed, it would represent a shocking attack against the Constitution itself.

As I suggested, the statement could, at a stretch, be interpreted differently to mean only that the executive would like to engage the leadership of the judiciary to improve access to justice and the efficiency of the courts. If that is the case, this should be made clear. If, however, the cabinet believes that it is appropriate for them to have secret chats with members of the judiciary to ensure policy synergies between them and the judiciary so that judges would not declare invalid the bumbling actions of the legislature and the executive, then the cabinet is shockingly ignorant and is embarking on a road to destroy our constitutional democracy. No judge who respects the Constitution would be party to such talks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I was therefore not surprised to read the recent SCA judgment in the case of Potgieter and Another v Potgieter and Others. This case stems from a dispute about money held in trust. A father had created the trust to benefit his two children from his first marriage. (When the trust was created they were still minor children but they are both grown up now.) But after divorcing his wife (after an acrimonious fight) and marrying another woman, he purported to amend the provisions of the trust so that his new wife and her two children might also potentially benefit from the trust.

His two birth children challenged the validity of this amendment to the trust — made a few years before his death — and both the High Court and the SCA agreed that for various technical reasons the variation of the trust deed was invalid. Normally this finding would have resulted in the implementation of the trust deed in its original, unamended form, leaving the new wife and her two children with no benefit from the trust. As the husband had changed his will at the same time that he purported to change the provisions of the trust, his intention to provide for his new wife and her two children would have been thwarted by the nullification of the amendments to the trust.  However, the High Court (in a judgment authored by Bertelsmann J) found this result in the circumstances, unpalatable, contrary to public policy and constitutionally unsound.

Relying on the majority judgment of the Constitutional Court in Barkhuizen v Napier, the judge argued that it was now part of  our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair; and the same principle should be applied in other spheres of private law like the law of trusts.

In consequence the High Court granted an order which effectively awarded one-fifth of the trust assets to each of the two appellants as their exclusive property, while the other potential beneficiaries retained their rights in terms of the amended trust deed in respect of the remaining three-fifths of the trust assets.

The SCA, in a judgment authored by judge Brand (the same judge who, as an acting judge on the Constitutional Court, made such a hash of the case in which a deputy headmaster sued three school boys for defamation), seemed rather horrified by this line of reasoning by the High Court. How could a court possibly deviate from common law principles usually applicable to trusts by invoking the provisions of the Bill of Rights – all merely because it might result in a more fair and reasonable outcome for everyone?

This attitude of the SCA regarding the application of so called “abstract values” like reasonableness and fairness to aspects of the private law is telling. I would argue that it demonstrates a lack of appreciation for the unique nature of our Bill of Rights and the transformative vision it embodies.

The South African Constitution is often said to be a transformative Constitution, something which have been confirmed by the Constitutional Court and in extra-curial writing by various Constitutional Court judges. Minister Blade Nzimande is correct when he points out that our Constitution does not (only) serve to check the excesses of the executive. It is supposed to do much more than that. It should be used by our courts to assist with the transformation of — amongst other things — the legal system itself, including the rules developed over time by judges as part of the common law.

Rules of our common law have often been based on the assumption that we are all born free and equal, that we all have absolute agency and are empowered to make rational choices for our own benefit (even when others we contract or legally engage with are rich and powerful and we are poor or otherwise disempowered), that we are only to blame ourselves if legal rules treat us unfairly or lead to injustice. But these assumptions and the legal rules which were produced in their wake cannot be squared with the egalitarian values contained in our Bill of Rights and the concern with dignity, equality and fairness that runs like a golden thread through that document.

Moreover, section 39(2) of the Constitution states that ”when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. It is true that some academics have argued that this means no more than that our courts should promote the values in the Constitution once (and only once) it has decided (for some reason unrelated to the provisions in the Bill of Rights) that it was necessary to develop the comm0n law. According to this view, section 39(2) places no general injunction on our courts to ask in each case where they apply a common law rule whether a particular rule should not be developed to infuse it with the values contained in the Constitution.

In my opinion this view is politically deeply conservative and also, quite frankly, dead wrong. If followed, it would limit the transformative power of the Constitution and would largely insulate the common law rules from the salutary influence of the Constitution. Basic assumptions about freedom of choice and the essential equal power of people in society, which underlie many common law rules but are in fact fictions propagated by the rich and powerful to ensure that legal rules remain rigged in their favour, would largely remain untouched.

The anti-transformative attitude towards the common law has long been said to stem from South Africa’s conservative legal culture and the resistance of many lawyers — even seemingly progressive lawyers — from acknowledging the fact that legal rules are not without political consequences, are not free from ideological assumptions and effects, and are partly determined by the values and ideological commitments of the judges who interpret, develop and apply these legal rules. In the past it has often been said that this attitude about the sanctity of the common law and the supposed a-political and “neutral” nature of legal rules finds its greatest champion and defender amongst some judges of the SCA.

It is against this background that the arguments in the judgment in the Potgieter case should be evaluated. The judgment seeks to distinguish between the application of what it calls abstract values like reasonableness and fairness (which are supposedly vague, lead to legal uncertainty, and are therefore really bad) and the application of so called legal rules that can be distinguished from values (which are supposedly capable of predictable application and thus leads to legal certainty).

In this view, whether a set of traditional common law legal rules favour the rich over the poor or the powerful over the disempowered, and whether the application of the legal rules lead to consequences that are unfair or unreasonable are never relevant. Who cares about injustice when legal certainty is at stake? After all, the law is not political at all and we should ensure that it stays that way by preventing judges from applying abstract values instead of the precise legal rules that produce predictable results in every properly decided case.

To be fair, the judgment merely relied on a distinction between abstract values and legal rules which have long been cherished by judges and many legal academics in South Africa. It confirmed a principle set out in previous judgments of the SCA, namely that reasonableness and fairness are not freestanding requirements for the exercise of a contractual right in South Africa. Thus, the SCA quoted the following passage from one of its previous judgements:

[A]lthough abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relations. These abstract values perform creative, informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty.

The SCA interpreted the Barkhuizen decision of the Constitutional Court as meaning that it is not yet part of our contract law that, as a matter of public policy, our courts can refuse to give effect to the implementation of contractual provisions which it regards as unreasonable and unfair. Perhaps forgetting that it has a duty under section 39(2) of the Constitution to develop the common law to bring it in line with the spirit, purport and object of the Bill of Rights, Brand J then continued that ”[u]nless and until the Constitutional Court holds otherwise, the law is therefore as stated.” As I read this statement, the SCA is saying that it will only change its rigid and seemingly anti-transformative approach to our common law if it is forced to do so by those rogue judges of the Constitutional Court.

The SCA also argued that our law cannot endorse the notion that judges may decide cases “on the basis of what they regard as reasonable and fair”, as this ”will give rise to intolerable legal uncertainty”.

That much has been illustrated by past experience. Reasonable people, including judges, may often differ on what is equitable and fair. The outcome in any particular case will thus depend on the personal idiosyncrasies of the individual judge. Or, as Van den Heever JA put it in Preller v Jordaan 1956 (1) SA 483 (A) at 500, if judges are allowed to decide cases on the basis of what they regard as reasonable and fair, the criterion will no longer be the law but the judge.

The SCA thus also contended that the decision of the High Court to apply reasonableness and fairness criteria to this case offended the principle of legality, which must be regarded as part of the rule of law. ”Making rules of law discretionary or subject to value judgments may be destructive of the rule of law,” said the court.

The problem with this line of reasoning is of course that it is based on the untenable fiction that legal rules do not have to be interpreted at all, that such rules just have an obvious and single meaning that suggests itself to a judge who never has to revert to value judgements when he or she interprets a legal rule.  This view also loses sight of the blindingly obvious fact that when these legal rules are applied by judges, value judgments must inevitably be made. Different judges will not always interpret the same legal rule in the same way and neither will they apply that rule to the same set of facts in exactly the same way.

As any practicing lawyer (or anyone who has read some writing by legal realists) will tell you, this kind of reasoning is not easy to square with reality. After all, often the first thing a lawyer asks when he or she has to appear in court, is who the judge is before whom he or she is going to appear. And why would anyone have been upset about the values and beliefs of our new Chief Justice if they did not think that the value of a judge played a role in adjudication — even when a judge is called upon to apply so called rigid legal rules?

The notion that legal rules provide almost absolute legal certainty is an obvious fiction that cannot bear scrutiny. If rules provided such certainty, why would anyone ever approach a court and ask a court to interpret or apply a legal rule in any dispute? All parties in a legal dispute would ask their lawyers to tell them what the outcome of their case would be and the party who is told that she will lose the case will then be persuaded not to waste her money on legal bills by pursuing the case in court. However, this does not happen in real life because real human beings apply the law.

When I read the reasoning of the SCA in the Potgieter case I was reminded of the Constitutional Court judgment in Van der Walt v Metcash. In that case the court dealt with an appeal from the SCA. The appeal stemmed from a strange situation in which the SCA had handed down two  judgments on successive days in August 2001 but made contrary orders in the two cases which were materially identical. They were made in response to petitions addressed to the Chief Justice for leave to appeal against orders of the High Court in summary judgment applications. In the first order, Mr J van der Walt, the applicant, was refused leave to appeal. In the second, a Mr Kgatle, who is not a party to these proceedings, was granted leave to appeal.

The Constitutional Court, quoting from its judgment in Dawood and Another v Minister of Home Affairs and Others, noted that “[discretion] plays a crucial role in any legal system. It permits abstract and general rules to be applied to specific and particular circumstances in a fair manner.” The Court stated that it “would seriously diminish the efficacy of this role of discretion if a decision made pursuant to its exercise bound other judicial officers in a court at the same level in the later exercise of their discretion in subsequent cases”.

The truth is that there will always be an interplay between legal rules and the values that underpin them on the one hand, and the duty of individual judges (who have their own values, life experience, and acknowledged or unacknowledged beliefs) to exercise a discretion and to treat the parties before them fairly and justly. The notion that legal rules provide absolute certainty is a fiction perpetrated by judges in order to avoid responsibility for the fact that their own values and beliefs play a role in how they interpret legal rules and how they apply those rules to a certain set of facts.

Take the Potgieter case as an example. The High Court relied on so called abstract values like reasonableness and fairness and chose not to apply the normal rules that apply to the enforcement of trusts. The SCA relied on so called abstract values (influenced by what might be perceived as the demands of the capitalist system) like legal certainty to hold the opposite. Both judgments reflect the broader ideological and policy choices the judges made when they were applying the common law. The former judgment just happens to be more just and fair than the latter and also more in line with the letter and the spirit of our Constitution.

The first tranche of the three-tranche loan was scheduled to be released in August 2011, but among the loan conditions were “confidence-building measures” on democracy, human rights and fiscal reform, as well as the “overhaul of its budgetary systems”. Although these conditions were criticised by the COSATU for being too vague and dismissed by pro-democracy activists in Swaziland as a “betrayal” of the Swazi people, the Swazi government nevertheless balked at the idea of actually having to become slightly less autocratic in return for receiving the handout from South Africa.

As far as we know, the South African government has therefore not yet transferred any money to Swaziland and is unlikely to do so in the near future.

And no wonder, because even the South African government — not a government who has had too many scruples about supporting tyrants and turning a blind eye to the oppression taking place in countries perceived to be “friendly” to South Africa —  might have been slightly embarrassed by recent events in Swaziland.

Given the fact that unlike China (whom our government desperately wants to be exploited by and hence whose instructions we seem to slavishly obey no matter how embarrassing and unprincipled this might be), Swaziland is a small country with an annual budget only slightly bigger than the annual budget of the National Youth Development Agency, even the South African government might think it cannot afford to be seen to support the total subversion of the rule of law in Swaziland. Unfortunately our government has not made a statement regarding the status of the loan in the light of the seemingly unlawful dismissal of a Swaziland High Court judge.

This weekend Praveen Sham and Nano Matlala issued a statement on behalf of the  Law Society of South Africa (LSSA) adding its voice to the utmost alarm expressed by the SADC Lawyers Association (SADCLA), the Law Society of Swaziland and other civil society organisations at the clear contempt for the rule of law and the debasement of Swaziland’s judicial system, signalled by King Mswati III’s removal of High Court Judge Thomas Masuku from office last week.

Last month, the LSSA joined other legal organisations calling on the Judicial Service Commission of Swaziland to hear the charges brought against Judge Masuku by Swaziland’s Chief Justice Michael Ramodibedi in public, which was not done. It was widely believed that the charges brought against Judge Masuku were vague, unsubstantiated and spurious. The charges included a claim that Justice Masuku had insulted the King in one of his rulings and that he had an illicit affair with a female judge.

Justice Masuku has been harassed and suspended in the past for challenging unlawful royal decrees. His rulings have helped protect human rights and his resistance to government pressure on the judiciary has been crucial to maintaining its independence.

As pointed out by the organisations observing the hearing, the disciplinary hearing itself was not conducted in compliance with fundamental principles of justice and fairness. The Chief Justice refused to recuse himself, notwithstanding the fact that he acted both as accuser and judge; the application for the hearing to be held in public was denied and the opportunity to cross-examine deponents to the affidavits attesting to Judge Masuku’s alleged misconduct was also refused. No reasons were provided for these decisions.

In response to these events, Swaziland’s lawyers recently took the unprecedented step of marching through the streets of Mbabane to highlight their frustration at the JSC’s unwillingness to receive their complaint against Chief Justice Ramodibedi. The march follows an instruction by the Chief Justice to the magistrates’ courts to proceed with criminal cases despite the lawyers’ current boycott of the courts which has resulted in the convictions of unrepresented accused.

The Law Society of Swaziland has complained about several directives issued by the Chief Justice. The most controversial one determines that no summons may be issued against the King’s office. This leaves several parties, including those who have engaged in commercial transactions with the King’s office, without remedy.

The Swazi Minister of Justice and Constitutional Development, David Matse, has been suspended, apparently because he refused to sign the dismissal letter of Judge Masuku.

South African newspapers have not given much attention to the events in Swaziland, perhaps because white farm owners are not involved in this fundamental attack on the rule of law in a neighbouring country. If this had happened in Zimbabwe it would have been splashed on the front pages of most newspapers. With the exception of the Mail & Guardian, I have not read anything in our media about the dismissal of the judge in Swaziland.

The Law Society should be commended for issuing a statement and for trying to draw attention to these events in a country who in theory is still in line to receive a huge loan from the South African government. It would be helpful if various Bar Councils add their voices to that of the Law Society to demonstrate that they, too, support the rule of law in neighbouring countries.

Our government should also state unequivocally that no loan will be granted to the autocrats in Mbabane unless judge Masuku is reinstated and unless Swaziland demonstrates a clear commitment to democratise.

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

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

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

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

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

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

Or so it seems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment serves as a stunning legal defeat for the Minister of Justice who – in the face of judicial precedent and contrary to the considered opinion of most credible constitutional lawyers – had continued to argue to the bitter end that section 8(a) was constitutionally valid. Incapable of accepting the serious challenge this section posed to the independence of the judiciary, the Minister played politics with the extension in a manner that might well, in another political climate, have led to demands for his resignation.

No wonder then that the incumbent Chief Justice earlier this week withdrew his acceptance of an extension of his term. Both the original section relied upon by the President and the scheme cooked up by the ministry of justice to try and extend the incumbent’s term of office have now been found wanting. It is clear that the Minister needs better legal advice or, perhaps, needs to listen to legal advice provided.

The judgment handed down today is important because it affirms – in ringing terms – and further elaborates on constitutional law principles relating to the independence of the judiciary, the rule of law and the separation of powers.

As I have argued before and as the Court points out, section 8(a) is constitutionally problematic because it confers on the President an executive discretion to decide whether to request a Chief Justice to continue to perform active service and, if he or she agrees, to set the period of the extension. The term of office cannot be extended unless the President decides so and the Chief Justice accedes to the request.

The period of the extension too is in the exclusive discretion of the President and is unfettered in the sense that he is not required to consult. What makes the section even more problematic is that in its purported delegation, Parliament has not sought to furnish any, let alone adequate, guidelines for the exercise of the discretion by the President. The provision thus usurps the legislative power granted only to Parliament by section 176 of the Constitution and therefore constitutes an unlawful delegation of legislative power to the President. Although the Court did not say this, the hallmark of many authoritarian states is the granting of substantive law-making powers to the executive, allowing the President of such a state to rule by decree. Such a situation is not compatible with a constitutional democracy.

In a constitutional democracy, Parliament may not ordinarily delegate its essential legislative functions. Although section 176(1) of the Constitution creates an exception to the requirement that a term of a Constitutional Court judge is fixed, that authority, however, vests in Parliament and nowhere else. The Court noted that section 176(1) does not merely bestow a legislative power, but by doing so also marks out Parliament’s significant role in the separation of powers and protection of judicial independence.  As the Court stated:

Accordingly, section 8(a) violates the principle of judicial independence. This kind of open-ended discretion may raise a reasonable apprehension or perception that the independence of the Chief Justice and by corollary the judiciary may be undermined by external interference of the Executive. The truth may be different, but it matters not. What matters is that the judiciary must be seen to be free from external interference.

The decision points out that what is at stake here is nothing less than the independence of the judiciary, returning to this point time and again. The Court thus states:

It is well established on both foreign and local authority that a non-renewable term of office is a prime feature of independence. Indeed, non-renewability is the bedrock of security of tenure and a dyke against judicial favour in passing judgment. Section 176(1) gives strong warrant to this principle in providing that a Constitutional Court judge holds office for a non-renewable term. Non-renewability fosters public confidence in the institution of the judiciary as a whole, since its members function with neither threat that their terms will not be renewed nor any inducement to seek to secure renewal.

This is the point that the Minister seemed not to have grasped. This lack of appreciation for the independence of the judiciary is also reflected in the nature of the proposed amendments to section 8 tabled hastily before Parliament when it appeared that section 8(a) was going to be declared invalid. The Court, in finding that it would be impermissible to single out the office of the Chief Justice for an extension of his term of office, makes the following important points:

In approaching this question it must be borne in mind that the extension of a term of office, particularly one conferred by the Executive or by Parliament, may be seen as a benefit. The judge or judges upon whom the benefit is conferred may be seen as favoured by it. While it is true, as counsel for the President emphasised, that the possibility of far-fetched perceptions should not dominate the interpretive process,75 it is not unreasonable for the public to assume that extension may operate as a favour that may influence those judges seeking it. The power of extension in section 176(1) must therefore, on general principle, be construed so far as possible to minimise the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.

Although the Constitution specifically creates the office of the Chief Justice and that of Deputy Chief Justice this does not allow for an extension of his or her term only. This is so because once appointed, the Chief Justice and Deputy Chief Justice take their place alongside nine other judges in constituting the membership of this Court. The Constitution provides that a matter before the Constitutional Court “must be heard by at least eight judges”.

Their high office and the extra-judicial duties they may be called upon to perform add nothing to the tally.” … Nor does their office count when this Court determines the cases and the matters before it. Their views count and their voices are heard equally with the respect and authority accorded every member of this Court.

Thus, it is plain, said the Court, that section 176(1) of the Constitution does not allow Parliament to single out any individual Constitutional Court judge by name (as originally suggested by the Democratic Alliance when it proposed a solution to the extension of the incumbent Chief Justices’ term of office). It is also plain that no individual may be singled out on the basis of an irrelevant individual characteristic or feature.

It follows that the term “a Constitutional Court judge” in section 176(1) does not permit singling out any one Constitutional Court judge on the basis of his or her individual identity or position within the Court. It also follows that in exercising the power to extend the term of office of a Constitutional Court judge, Parliament may not single out the Chief Justice. Given the ANC’s strange insistence – in the face of obvious facts to the contrary, that the challenge to section 8(a) was politically motivated and that it had been used before to extend the term of office of the Chief Justice, it is important to note that the Court distinguishes (as I did in my previous post) between section 8(a) and section 4 of the Act. It pointed out the the proposed amendment to section 8 differs from section 4 of the Ac as section 4:

does not allow any member of the category of Constitutional Court judge to be singled out, whether on the basis of individual characteristic, idiosyncratic feature or the incumbency of office. Age is an indifferent criterion that may be applied in extending the term of office of a Constitutional Court judge. Age is an attribute that everyone attains. Previous judicial service is another criterion that may be indifferently applied to all the judges of this Court. The Act provides that a Constitutional Court judge whose 12-year term of office expires before he or she has completed 15 years‟ active service as a judge must, subject to attaining the age of 75, serve for 15 years in this Court.

Interestingly the Court also rejected the argument that the order of invalidity of section 8(a) should be suspended for a time to allow Parliament to fix the defect, in effect finding that no judge is so important or indispensable that the ordinary rules relating to a suspension of and order of invalidity should be ditched to allow him or her to continue serving as a judge.

In this regard the Black Lawyers Association had argued that suspending the invalidity in order for the defect to be remedied would give expression to notions of restorative justice in customary African jurisprudence. It contended that a mistake has been made in good faith by all concerned and should be “forgiven”. It argued that the term “tshwarelo” or “tshwarela” is applied in African jurisprudence, and is applied in “Lekgotla” (African traditional courts), meaning “excusable” or “excuse” and translates to “erasing the wrong permanently”.

But the Court pointed out that such a suspension would be highly unusual if not irregular The suspension would relate to future consequences that, but for a suspension order, would never come to pass. And there is no indication of any material dislocation if the suspension order were not to be granted. There has never been an instance where the Court has made a suspension order in comparable circumstances. Thus:

Granting an order suspending the declaration of invalidity in the circumstances of this case, where proper information providing the basis for an order was not forthcoming from the responsible state organs and where the invalid extension had not yet come into operation, would have been problematic even if the defect was merely procedural. Where it is substantive and will require major rethinking and decision-making on the part of government, the justification for an order suspending the declaration of invalidity is even weaker. ….

The justification advanced for a suspension order related to non-adjudicative responsibilities said to be intimately linked to the person of the Chief Justice. The judicial work of this Court will not be affected by the temporary absence of a Chief Justice appointed in terms of the Constitution. The important advances pioneered by the current Chief Justice in relation to the institutional transformation of the judiciary need not grind to a halt. Presumably the government will not abandon its co-operation simply because the present Chief Justice may not immediately continue in that position. There is nothing that prevents the incumbent Chief Justice from continuing to give his assistance regarding those projects on a practical level to any temporary or future appointment to the office of Chief Justice. A suspension order will perpetuate an unconstitutional extension of the term of office of the head of the judiciary. The interests of justice and the rule of law demand certainty on the issues before us. This view is fortified by the President‟s submission that the issues in this case deserve finality and clarity because their practical implications are imminent.

The ball is now in the President’s court. That the attempt to extend of the office of the Chief Justice was badly handled, goes without saying. But that something good came out of it – in the form of a principled and detailed judgment relating to the independence of the judiciary and the separation of powers – must be welcomed. Let us hope the Minister of Justice and the President learns from this bungle and avoid a similar bungle when they deliberate on who should replace the current Chief Justice.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is it possible that such politicians do not know that the rule has been substantially changed by the Supreme Court of Appeal (SCA) to bring it in line with the values and norms enshrined in our democratic Constitution? Or are they cynically invoking a non-existent rule knowing full well that the rule does not exist in the form that they pretend that it does?

The latest culprit is the Minister of Police, who invoked the rule in response to the Human Rights Commission’s (HRC) findings and remedial order in the case of Mr Chumani Maxwele, the jogger who is alleged to have given President Zuma’s motorcade the middle finger. The HRC found that the Special Protection Unit had violated several of Mr Maxwele’s rights and called on the Minister, on behalf of the members involved, to apologise to Mr Maxwele and to take steps to ensure that the SAPS acts in terms of the Constitution and the Law.

Reacting to the HRC’s findings, the Minister’s spokesman claimed that because Mr Maxwele had instituted civil proceedings against the SAPS the sub judice rule applied. The SAPS had accordingly refused to participate in the investigation and would not abide by the HRC’s ruling.

Now, it is an established rule of the common law that the proper administration of justice may not be prejudiced or interfered with and that to do so constitutes the offence of contempt of court. As the SCA has found, the sub judice rule is important as the integrity of the judicial process is an essential component of the rule of law. If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms are also compromised.

The crime of contempt of court thus includes contempt ex facie curiae (out of court) and this entails, first, cases where publication of an opinion will violate the dignity, repute or authority of the court (either by criticizing or insulting a particular judicial officer or the judicial system as a whole) and, second, statements which prejudice the administration of justice in pending proceedings. It is this latter aspect that has become known as the sub judice rule.

But in the Midi Television case the SCA stated that the broad scope of this rule which was in force in the pre-democratic era has been severely curtailed by the Constitution. In that case, dealing with the sub judice rule in the context of pre-publication censorship, Nugent JA, writing for a full bench of five judges, summarised the new position as follows:

[A] publication will be unlawful, and thus susceptible to being prohibited, only if the prejudice that the publication might cause to the administration of justice is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then publication will not be unlawful unless a court is satisfied that the disadvantage of curtailing the free flow of information outweighs its advantage. In making that evaluation it is not only the interests of those who are associated with the publication that need to be brought to account but, more important, the interests of every person in having access to information. Applying the ordinary principles that come into play when a final interdict is sought, if a risk of that kind is clearly established, and it cannot be prevented from occurring by other means, a ban on publication that is confined in scope and in content and in duration to what is necessary to avoid the risk might be considered.

If one applies these basic principles to the case at hand, it must be clear that the sub judice rule is not applicable here. The Minister would have to convince us that there would be a demonstrable and substantial prejudice to the administration of justice if he apologised to Mr Maxwele as requested by the HRC. He will further have to show that it would not be in the interest of society as a whole to obey the request of a Chapter 9 body because the risk to the administration of justice would far outweigh the harm done to the credibility and the dignity of the Chapter 9 institution.

This will obviously be impossible to show. Given the fact that section 181 of the Constitution states that other organs of state – including ministers – through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions, I cannot think of an example where the Minister would be allowed by the sub judice rule to ignore the HRC and to refuse to institute the remedial action proposed by it in a certain case.

Besides, how the minister could possibly argue that complying with the findings of the HRC – which dealt with the violation of Mr Maxwele’s constitutionally guaranteed rights to human dignity, to freedom and security of the person, to privacy, to freedom of expression and peaceful/unarmed demonstration – could possibly influence the parallel civil proceedings – which deals with a civil claim against the Police – is hard to fathom.

The HRC has already published a finding in which it concluded that Mr Maxwele’s rights have been infringed. Nothing the Minister can do or say will change that. A court dealing with the civil claim of Mr Maxwele will not be swayed by the finding of the HRC as it will have to hear the evidence presented to it and make its own finding on whether damages should be paid.

The fact that the HRC has found that Mr Maxwele’s rights have been infringed can also not be tendered in the civil case as proof that Mr Maxwele is entitled to be compensated financially as a result of any damages suffered. The two issues are therefore entirely different enquiries, and no substantial prejudice to the civil trial can possibly arise through the correct exercise of its rights jurisdiction by the Human Rights Commission.

Surely the Minister and his advisors know this. Can one therefore assume that they are hiding behind the sub judice rule to avoid complying with a finding of the HRC because the President and his seemingly lawless bodyguards were involved in this case? Is the Minister scared of President Zuma and his bodyguards or is he just ill-informed?

In any case, as the law stands now, the sub judice rule will almost never be applicable. Where anyone invoke this rule, they are doing so either because they are ill-informed about the law or because they are using the rule to avoid accountability. Whenever a politician invokes the sub judice rule, I for one will assume that the politician is admitting guilt or other wrongdoing, but is trying to hide from scrutiny and accountability for his or her actions.

So next time you read that a politician has invoked this rule, please do not believe for one second that the rule is applicable. It will not be applicable. Assume instead that the politician is ducking and diving because he or she is scared; or is trying to avoid being caught out in a lie; or is looking for an excuse to justify a constitutional breach of a duty to show respect for other constitutional institutions like the HRC or the Public Protector.

(Also see statement by Adv Nikki de Havilland, Centre for Constitutional Rights)