Judiciary

Don’t rely on courts to save our democracy

Oct 5th, 2010

The South African Constitution contains many provisions that place a duty on the state to do or not to do things. The drafters of the Constitution, perhaps knowing that rulers often tend to act not in the best interest of society as a whole but in their own interest, wrote these obligations into the Constitution so that they would not be “extra’s” – mere luxuries that the government of the day could choose to pursue (usually a few months before an election) when it felt like it.

The state has a duty to promote the achievement of equality (section 9), to take reasonable measures to provide access to housing (section 26) and health care (section 27), to take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis (section 25), and to respect and promote freedom of expression and the media (section 16).

The President has a duty to promote all that will advance the Republic, and oppose all that may harm it; to protect and promote the rights of all South Africans; to discharge his duties with all his strength and talents to the best of his knowledge and ability and true to the dictates of his conscience; to do justice to all; and to devote himself to the well-being of the Republic and all of its people (schedule 2).

Section 237 of the Constitution further states that “all constitutional obligations must be performed diligently and without delay”.

Often these duties are not fulfilled as required by the Constitution – and more often they are not performed “diligently and without delay”.

For example, instead of actively promoting respect for people with disabilities, instead of taking action to address the homophobia, sexism and other kons of prejudice (like racism and xenophobia) in our society, instead of spending money wisely and efficiently to help give people who do not have the ability to do so themselves (because of poverty and the effects of past discrimination) to gain access to houses, decent health care and work, the government of the day often seems to be too scared to address the prejudices, deeply rooted hatred and patriarchal attitudes of the public, and often spends the available money wastefully (on R27 loaves of bread and R1.1 million cars for Ministers, expensive consultants who can tell the government what is wrong when we all know what the problems are).

Section 2 of the Constitution states that the “Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.” In the light of the above a reader asks:

Now I’m going to ask what is probably an abominably stupid question: Why don’t our Constitutional Court judges, in their role of upholders of our supreme law, stand up as one and pronounce on any violation of our constitution as and when it happens? Why is it that some individual or opposition party first has to grovel before the CC when they feel the public’s rights are being violated in order to get a pronouncement?

As a technical matter this is indeed an “abominably stupid question”. In a constitutional democracy courts adjudicate disputes brought before it for adjudication. Courts rely on citizens or other interested groups like NGO’s or social movements (in our case, usually citizens or other organisations with the money to pay for expensive lawyers) to prepare and argue such cases.

Courts do not have research departments that can go out and detect breaches of constitutional duties, that can gather the evidence that would persuade courts that such breaches had indeed occurred and and that can present courts with all the arguments that would allow them to make findings after carefully considering all the evidence and legal issues for and against any finding that a breach of the Constitution had indeed occurred.

Courts are therefore not institutionally equipped to play this role. In any case, even if they did have the institutional capacity to do so, it would be wrong for courts to get involved in the investigation of breaches of the constitution. This is because courts are supposed to be independent and to act without fear, favour or prejudice. This means courts cannot become both investigators of, and then final arbiters on, the issues they have investigated. If they did, they would become embroiled in issues in which they themselves have a vested interest and they would be required to become judges in their own cause. This would undermine the legitimacy and credibility of the courts and erode public trust in the courts.

But in a less technical sense, the question posed by the reader is perhaps quite relevant. Why don’t the courts save us from the flagrant disregard for the Constitution by the legislature the executive and private actors by pronouncing on breaches of the Constitution “as and when they happen”?

Well, my answer would be that this is the wrong question to ask. Courts cannot save our democracy as it is by far the weakest branch of government. As Justice Johan Kriegler wrote in S v Mamabolo in a slightly different context:

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

The fact is that – in the absence of disputes brought to the courts by litigants - citizens (not the courts) are the one’s who are best placed to hold the legislature and the executive to account and to force them to comply with their constitutional duties. As citizens in a democracy (a democracy with both representative and participatory aspects), we are the ultimate and most powerful guardians of the Constitutions.

Yes, courts can (and should) hold the legislature and executive to account in individual cases brought to it by citizens, NGO’s and social movements and should declare such acts or omissions unconstitutional when these do not conform to the dictates of the Constitution. If they do not do so and instead choose on a regular basis to decide cases in favour of the other branches of government in a vain attempt to keep these branches happy, the judges would not be fulfilling their constitutional duty to uphold the Constitution. This will erode public trust in the judiciary.

But very few cases of constitutional breaches actually reach the courts. Citizens and citizen organisations are therefore potentially far more powerful and can be far more efficient and effective in holding the other branches of government to account than our judiciary. Of course, citizens can only do so if they do not fear repercussions for daring to do so. If citizens and organisations fear state repression, community ostracism or ridicule and ad hominem attacks from the predatory conservative forces who might have captured the state, then they will not take action to protect and advance the Constitution.

If citizens have a misplaced respect for their rulers – for highly emotional but irrational reasons or out of a fear of embarrassing their leaders with whom they have an emotional affinity born out of a shared history of struggle – and therefore do not wish to criticise the members of the legislature or the executive who are not doing what they are obliged to do by the Constitution, then the courts on their own will not be able to ensure that the Constitution remains a living document that is respected and protected by most if not all in society.

One of the greatest dangers to our democracy is not a compliant or timid judiciary, but a compliant and timid citizenry who might either be too scared of losing their status, influence or access to power and money-making opportunities to hold the rulers to account, or might have a misplaced loyalty to the governing party – instead of a loyalty to the Constitution and to the achievement of a more just and fair society based on respect for the Rule of Law.

I would therefore argue that a passive citizenry poses probably the gravest danger to our democracy. As we know all too well from a myriad of examples around the world, passive citizens who are either too scared, too worried about protecting their own short term interests, or too infused with a misplaced emotional loyalty to their rulers will destroy their own future.

Where citizens willingly hand over the power (which in a democracy ought to belong to the voters) to a ruling clique who WILL abuse this power and trust and WILL – eventually – act in ways that are detrimental to the interest of all citizens (except those who are members of the ruling clique or have strong connections with that clique), those passive citizens will help to destroy the democracy and with it their own prospects for a better life.

In a society where the majority of citizens give a carte blanche to the ruling clique to do what they want, life will become nasty, brutish and – perhaps – even short for a majority of citizens. Courts will not be able to stop this. Hoping that they would or relying on them to do so, would be irresponsible and naive.

Only where citizens are prepared to act in the interest of society as a whole and in their own long term (as opposed to short term) interest, will a constitutional democracy stand a good chance of surviving the inevitable machinations of a predatory ruling elite. In South Africa, many members of social movements, labour organisations such as Cosatu and some NGO’s have realised this, but because of the understandable emotional identification of the majority of citizens with the current governing party, this is still a small minority of the population.

Of course, active citizens should use constitutional litigation strategically to mobilise fellow citizens and should approach courts when appropriate to try and win legal victories for individual litigants or for groups whose rights have been infringed. They can also make use of other organisations – such as the Human Rights Commission (HRC) – to place pressure on the government to do the right thing (as has happened in the Western Cape – to the great consternation of Helen Zille who is now doing everything she can to discredit the HRC).

But if we all sit back and fold our arms in the hope that an unelected and relatively powerless judiciary will fight our battles for us, we will only have ourselves to blame if the country ends up as a truly predatory state in which the rulers look out only for themselves and for those with the money to bribe them.

Should we throw Helen Zille in jail?

Sep 22nd, 2010

by Pierre De Vos.

28 comments

When should courts use their powers to jail politicians and other individuals who disrespect the judicial system and undermine the legitimacy of our courts? Can they actually do so without infringing on the rights of an individual protected in the Bill of Rights? Should Youth League members (or Helen Zille, for that matter) be jailed for contempt of court when they attack the personal integrity of individual judges? And what should happen when organisations or individuals just flagrantly ignore the orders made by courts?

These questions are rather more difficult to answer than one might think. The recent case of the shenanigans of some of the leaders of the ANC Youth League is a case in point.

When ANC Youth League secretary-general Vuyiswa Tulelo told a daily newspaper last month that a High Court Judge who had ruled against the Youth League had arrived at a “drunken decision”, Advocates for Transformation rightly took Tulelo to task for insulting Grahamstown High Court Judge Nomathamsanqa Beshe. Judge Beshe had ruled against Julius Malema’s leadership of the league and reversed its decision to disband the league’s Eastern Cape provincial leadership. Should Tulelo not have been summonsed to court and thrown in jail for contempt of court?

This matter was, of course, made worse when ANC Youth League KwaZulu-Natal provincial secretary, Bheki Mtolo then said the following in response to the ruling:

We also want to warn the judiciary to desist from meddling with our internal political issues…. We have always respected the independency of the judiciary. However, the conduct of some of these judges who have become political role players has made us conclude that we will engage with them in a political manner.

Last week Chief Justice Sandile Ngcobo rightly called these assaults on the judiciary ”very troubling” because “this kind of criticism may well undermine public confidence in our courts”. When politicians attack the integrity of individual judges (something Helen Zille and Gwede Mantashe have also made themselves guilty of in the past), instead of focusing on the reasons given for the judgment and engaging with the correctness of such a judgment - based on legal principles and analysis - they go beyond acceptable criticism of the judiciary and they undermine the legitimacy of our courts.

So, are members of the judiciary finally fighting back against this kind of flagrant disrespect shown to our judicial system by “some among us” (to quote that other guy who used to be President - what is his name again?)? News that the Labour Court in Johannesburg had found Gauteng leaders of the SA Democratic Teachers Union (SADTU) guilty of contempt of court, and had ordered that the provincial management and leaders of the central branch (Soweto) be arrested and detained for 15 days for ignoring an interdict that was handed down on Sunday, suggests so.

The SADTU leaders were prohibited by the court order from holding meetings in school time and disrupting the matric preliminary exams in any way but they had allegedly ignored this order.

These examples deal, of course, with two different kinds of contempt of court. The Youth League statements might have been contempt of court because it “scandalised the court”, while the SADTU refusal to obey a court order might have led to a different kind of contempt of court not related to the “scandalising” of the courts.

Contempt of court is a difficult matter to deal with in a constitutional democracy. It has been argued that the exceptional summary procedure for contempt of court could be interpreted as subverting the fundamental presumption of innocence guaranteed in section 35(3)(h) of the Constitution. The fact that the very judge whose judgment was ignored or who was scandalised by the personal attacks of politicians could make a decision on whether an individual was guilty of contempt of court, could also raise constitutionally difficult issues, given the fact that everyone has a right to be tried by an independent and impartial court.

In 2001 in the case of S v Mamabolo the Constitutional Court dealt with one aspect of contempt of court relating to the “scandalising of the court” (Justice Kriegler writing the judgment) and confirmed that this was indeed a constitutionally valid criminal offense that could be used to protect the judicial process against scurrilous attacks.

It confirmed that “scandalising the court” is a form of contempt of court recognised by our law. This, said Kriegler, was part of “a variety of offences that have little in common with one another save that they all relate, in one way or another, to the administration of justice”. Noting that the definition of contempt of court is rather broad, Kriegler wondered why there is such an offence as scandalising the court at all “in this day and age of constitutional democracy”.

Why should judges be sacrosanct? Is this not a relic of a bygone era when judges were a power unto themselves? Are judges not hanging on to this legal weapon because it gives them a status and untouchability that is not given to anyone else? Is it not rather a constitutional imperative that public office-bearers, such as judges, who wield great power, as judges undoubtedly do, should be accountable to the public who appoint them and pay them? Indeed, if one takes into account that the judiciary, unlike the other two pillars of the state, are not elected and are not subject to dismissal if the voters are unhappy with them, should not judges pre-eminently be subjected to continuous and searching public scrutiny and criticism?

The answer is both simple and subtle. It is, simply, because the constitutional position of the judiciary is different, really fundamentally different. In our constitutional order the judiciary is an independent pillar of state, constitutionally mandated to exercise the judicial authority of the state fearlessly and impartially. Under the doctrine of separation of powers it stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars; yet its manifest independence and authority are essential. Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.

There is of course a tension between the need to protect the judicial process (for the benefit of us all) and the need to safeguard freedom of expression for those who wish to criticise a decision made by a judge. Because statements concerning judges and the performance of their duties can have a much wider impact than merely hurting the feelings of an individual judge, this crime focuses on acts or statements that reflect on the integrity of courts, as opposed to mere reflections on the competence of judges or the correctness of their decisions.

As the Constitutional Court pointed out, the test for scandalising the court, namely that one has to ask what the likely consequence of the utterance was, will mean that it will be rather difficult to find someone guilty of this offence. Merely criticising a decision – even in harsh terms – would not constitute contempt of court in a constitutional democracy. Launching a personal attack on the integrity of a judge by, say, suggesting that he or she is a drunkard or that he or she is a political lackey of a particular political party would get closer to meeting the requirements for this kind of contempt of court.

Similarly, when contempt of court deals with the intentional and unlawful disobeying of a court order, one will only be convicted if it can be shown beyond reasonable doubt that one indeed had the intention to disobey a court order. The Supreme Court of Appeal confirmed in the case of Fakie v CCII Systems (pty) Ltd that one would only be found guilty of this kind of contempt if one had disobeyed a court order ”deliberately and in bad faith”. If one honestly believed that one was justified in ignoring the court order one could not be found guilty of contempt of court, said the SCA.

It seems to me where any individual or organisation (whether it is a ordinary citizen, a public official, a Minister, a political party or a union) deliberately disobeys a court order – even when it is clear that there was no valid excuse for doing so - the attack on the legitimacy of the judicial system is so severe that there should be little problem with throwing the person in jail. The order of the Labour Court therefore seems appropriate (unless other factors not mentioned in the media might have cast doubt on whether the SADTU leaders had disobeyed the court order in bad faith). If court orders are not obeyed, then the judicial system breaks down and with it the rule of law. Chaos and anarchy is inevitably the result.

But when immature, self-serving, or rather dim-witted politicians attack the integrity of judges (whether they are members of the Youth League, the ANC proper or the DA) one should be rather more careful about using contempt of court proceedings to reign them in. If this procedure is used too quickly, there is a danger that this will stifle debate and dialogue about the work done by courts. Judges are not directly accountable to anyone – which is a good thing – but they are indirectly accountable to the public at large in that their decisions and the reasons given for decisions can be subjected to analysis and criticism.

But what to do in a case like the one mentioned above, where a Youth League leader calls a decision a “drunken judgment”? Should one press for the court to hold her in contempt of court on the basis that she scandalised the court?

Personally, I believe such statements are outragous and that the ANC should take action against the guilty officials, and that their membership of the ANC should be suspended for a number of years. Failure to do so will cast doubt on the ANC’s commitment to an independent and impartial judiciary.

But at the same time, I suspect that it is better to err on the side of free expression and therefore not to throw such oficials in jail on the basis that they are guilty of contempt of court. Besides, if our courts decide to go down that road we might sit with the strange situation where Gwede Mantashe, Helen Zille, and several Youth league leaders are all locked up for contempt of court. Imagine they all find themselves in the same prison for a 15 day period! It would make for an interesting discussion in jail, but would probably not be good for the legitimacy of the judicial system in the long run.

MP’s now protected from whistle blowing

Sep 14th, 2010

by Pierre De Vos.

52 comments

South African Parliamentarians – like other individuals in society – are sadly not free from the temptations of modern life. One MP has already been convicted of fraud and sentenced to a three year prison term after receiving a huge discount on a new car from an arms deal competitor and lying about it to Parliament. Many other MPs were convicted of fraud after they abused the travel benefits of Parliament in a saga that became known as Travelgate.

Harry Charlton, the guy who revealed the existence of the massive fraud perpetrated by some of our elected representatives against every single South African (who has contributed to the taxes that bankrolled this travel fraud), was fired soon after he blew the whistle on these MPs. The poor guy thought he would be protected by the law and that he would not be fired for exposing the criminal activities of some of our elected representatives.

Boy, was he wrong.

After Parliament fired him, he approached the Labour Court on the basis that the disclosures were “protected disclosures” as envisaged in the Protected Disclosures Act 26 of 2000 (“the PDA”, also known as the whistle blowers act) and that his dismissal was consequently automatically unfair in terms of our labour law. He won his case in the Labour Court, but Parliament appealed the judgment and the Labour Appeal Court (LAC) overturned the judgment on the basis that his disclosures were not protected by the PDA.

The PDA states that a whistle blower is only protected if he or she makes disclosures about criminal or other unlawful acts or some other specified objectionable actions of his or her “employer” or of a fellow “employee”. Parliament argued that Parliamentarians are neither employers nor employees of Parliament and that they are therefore not covered by the PDA.

In other words, it argued that if someone who works for Parliament makes disclosures about corruption, criminal activities or other nefarious activities of MPs, that person will not be protected by the PDA. An employee of Parliament would therefore have to think twice before ratting on crooked MP’s because he or she would not enjoy the same protection as the rest of us who blow the whistle on other kinds of corruption and criminality.

The Act defines an employee as, inter alia, “any person… who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer”.

It furthermore defines an employer as any person “… who permits any other person in any manner to assist in the carrying on or conducting of his, her or its business, including any person acting on behalf or on the authority of such employer”.

The LAC decided that these definitions could not (or should not) be given a broad meaning to encompass MP’s. It rejected the argument that MP’s could be viewed as employers of the staff who work in Parliament – at least for the purposes of the PDA. The LAC rejected the argument that Parliament is the sum of its constituent parts, namely the MPs and as well as the parliamentary staff who support the ongoing operation of Parliament as carried out by the MPs. The argument that the staff perform work for the MPs and that the MPs must therefore be regarded as an employer of the staff members – at least for the purposes of the PDA – also found no favour with the LAC.

It also rejected the submission that even if one accepts that Parliament was regarded as a separate legal entity, MPs could fall within the definition of an ‘employer’ because they were all persons “acting on behalf of or on the authority of such employer”. In doing so, it did not take into account the purpose of the PDA. Nor did it interpret the provisions to promote the spirit purport and objects of the Bill of Rights as required by section 39(2) of the Bill of Rights. Instead it gave these terms more or less the same meaning as they would normally have in the labour law context – relying on rather formalistic and technical legal arguments.

It chose the most obvious literal interpretation of these terms which just happened to have the effect that crooked MP’s would largely be protected from the whistle blowing activities by uppity Parliamentary employees. With a bit more effort and intellectual rigour the LAC could have found a way to give these terms a broader meaning so that MP’s could also be subjected to whistle blowing laws. (That is what the lower court did.) This would have exposed crooked MP’s to far greater danger of having their criminal or unlawful activity exposed.

While one can quibble about the technicalities, the reasons why the LAC chose this path are rather more disturbing than the outcome. Writing for the Court, Patel JA argued as follows:

To subject MPs to the PDA may, in practice, run the risk of frustrating the democratic process. An extension of the application of ‘employee’ under the PDA to include MPs might cause statutes to become more complex. MPs ought to be entirely independent. ….Parliament submitted that parliamentary staff are answerable to the Secretary of Parliament and not to MPs. This point is important. Parliamentarians must be allowed to focus on their constitutional duty to make law. A MPs portfolio ought not to be cluttered with the additional and onerous responsibilities of being an ‘employer’ of parliamentary staff. This would hinder the effective performance of their duties and functions. This court accordingly finds that MPs are not included in the PDA.

In other words, MP’s should not have to worry that their crookedness and criminality will be exposed by Parliamentary staff, because then they will not be able to steal our money and to commit criminal offences (in-between passing laws and holding the executive to account, one presumes).

I find this line of reasoning quite startling and anti-democratic. It flies in the face of one of the founding values of our Constitution namely that our system is based on democratic government, to ensure accountability, responsiveness and openness. If anyone should be subjected to the PDA, it should be our public representatives in Parliament, whose activities are funded by tax payers and who are elected to deliver accountable, open and responsive government.

If the PDA must be interpreted to exclude MP’s (a plausible but not inevitable conclusion), then the PDA must surely be unconstitutional. This is because the PDA would then infringe on our right to receive and impart information as well as our right to vote. How can voters meaningfully exercise their right to vote if laws, in effect, make it more difficult for Parliamentary staff to expose the corruption and other criminality of some MP’s? If we do not know whether some of our MP’s are corrupt, we would not be able to make informed choices about which party to vote for and our vote would become far less meaningful.

MP’s obviously should not be required to act as employers of Parliamentary staff for the purposes of labour law or for other practical purposes. But for the purposes of the PDA, these MP’s should be subject to exactly the same threat of exposure than any other employer or employee. How else will wrongdoing by MP’s ever become known and how else will we be able to know how crooked some of our MP’s might be?

Like Caesar’s wife, our MP’s – above all – should be beyond reproach. Public trust in the democratic process and in our constitutional democracy itself is of utmost importance, but how can we trust MP’s if we know that they have passed a law that the LAC now says rightly protects them from whistle blowing? How any person could argue that the democratic process would be frustrated by protecting whistle blowers who wish to expose possible criminality on the part of MP’s, is beyond me.

The judgment of the LAC demonstrates rather vividly what happens when the transformation of our legal system is not at the forefront of judicial appointments. When judges are appointed who are not imbued with the values of our Constitution, they produce this kind of formalistic reasoning which will diminish, rather than enhance, the quality of our democracy.

Cutting and pasting judicial decisions

Sep 3rd, 2010

by Pierre De Vos.

154 comments

In a speech delivered in 2008, Supreme Court of Appeal Judge Carole Lewis implicitly questioned the appointment of some black and female judges to the various courts in South Africa since 1994. She argued in a speech that the JSC has become dominated by politicians after the adoption of the final Constitution in 1996 and that “there is a perception now that political fealty is a more assured path to appointment as a judge than ability”, then continues:

I am advised that the work of dealing with the motion rolls in the large courts falls on the shoulders of the few with the experience to manage it – and that the consequences of that are not only unpleasant for those too heavily burdened but detrimental to litigants…. Suffice it to say that the time has come to accept that the judiciary has over 14 years been radically transformed in terms of race, and that it is the duty now of the heads of court to ensure that judicial education is ongoing and that new appointments are made only because of skill and experience and not solely because of race, and especially not political fealty.

She also argued that in order to safeguard the independence of the judiciary “appointments to the bench must be made by having regard primarily to merit – skill and experience. Political loyalty and race must cease to be the criteria for appointment by the JSC” and that “politicians should take lessons in constitutionalism and realize that they are not above the law”. The implicit link between a lack of ”skill” and the race or gender of a judge was (rightly, in my view) condemned at the time.

A remarkable judgment handed down yesterday by the Constitutional Court in Stuttafords Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and Others suggests that Lewis might have had a point. However, in this case the perceived problems had nothing to do with either race or gender – at least not in the manner in which Lewis used those terms in her speech.

The Appellants (Stuttafords and Others) in this case approached the Constitutional Court to challenge the decision by (now retired) judge Dion Basson to recuse himself from any matter dealing with the parties involved after he handed down judgment in favour of the Salt. The recusal application was based on the contention that the main judgment by Basson “exhibited little or no sign of any original or independent application and reasoning, that it essentially copied the written heads of argument of Salt’s counsel and, consequently, created a perception of bias in favour of Salt”.

For various reasons that are not relevant here, the Constitutional Court decided that it was not in the interest of justice to hear the appeal. It carefully pointed out that it was not making any finding on whether there would be grounds to ask for the recusal of a judge where he or she basically copied the written heads of argument of one of the parties and presented it as his or her judgment. The Court nevertheless felt that it was necessary to comment on the remarkable case and implicitly – in its ever polite and indirect way – rebuked the now retired judge for his conduct.

As the Constitutional Court noted, the original judgment was remarkable for various reasons. The judgment by Basson J consists of approximately 1890 lines of typing of which, apart from a summary of the relief sought and the terms of the order, only approximately 32 lines are the judge’s original writing.

The rest consists of words taken exactly from Salt’s counsel’s heads of argument, sometimes even without taking out phrases like “it is submitted” and emotive comments on The Gap and Stuttaford’s contentions and actions. There is no direct independent reference in the main judgment to The Gap and Stuttaford’s heads of argument, except for references carried over from Salt’s heads of argument.

If this had not been a judgment by a court of law but an academic article or a newspaper column someone might have suggested – rather less kindly than the Constitutional Court – that this was a case of plagiarism. The Constitutional Court was more circumspect, but did comment on this remarkable turn of events (to say the least) in the following manner:

While some reliance on and invocation of counsel’s heads of argument may not be improper, it would have been better if the judgment had been in the judge’s own word.

“The true test of a correct decision is when one is able to formulate convincing reasons (and reasons which convince oneself) justifying it. And there is no better discipline for a judge than writing (or giving orally) such reasons. It is only when one does so that it becomes clear whether all the necessary links in a chain of reasoning are present; whether inferences drawn . . . are properly drawn; whether the relevant principles of law are what you thought them to be; whether or not counsel’s argument is as well founded as it appeared to be at the hearing (or the converse); and so on.

“. . . The very act of having to summarize in one’s own words what a witness has said, or what is stated in an affidavit or what a document says or provides, is in itself a very good discipline and is conducive to a better and more accurate understanding of the case.”These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation.”

These remarks were made by a former Chief Justice, Corbett CJ, in an address at the first orientation course for new judges under the new constitutional dispensation. We have deliberately refrained from dealing with case law on the issue whether the extensive use of counsel’s heads could lead to a perception of bias, because it is not a question we need to decide here. Suffice to state, however, that if these wise words are heeded by judges the necessity of deciding the issue in the future should not arise.

To my knowledge this is the first time the Constitutional Court comments in such an negative manner on a judgment handed down by a High Court judge. This suggests that the case in issue is an exception and that the vast majority of judges do indeed write their judgements in their own words (even if many of them also do borrow from the written heads of argument of one or the other side).

I hesitate to note that judge Basson is white, but sadly we live in South Africa where race permeates every aspect of our lives and this fact will be noted by many – even if some people will not comment on it it public. I note the race of the judge not because I believe it is important or that it demonstrates that all white judges are somehow unworthy of serving on the bench, but because I wonder what would have happened if the judge in question was black? How would the majority of white members of the legal profession have responded (at least in private – around braaivleis fires and in tea rooms in law firms and drinks events of colleagues at the Bar)? Would they have seen this as confirmation of the alleged “problems” with transformation highlighted by Lewis JA?

I venture to suggests that quite a few (but thank goodness far from all) lawyers would have seen the case in those terms, as it would have confirmed their worst suspicions about the alleged inferiority and unsuitability of black appointees to the bench, suspicions that are at least some times based not on facts but on racial prejudice.

Or would they – as most of them will surely now correctly do – have seen this as an isolated case related to a specific judge whose race had absolutely nothing to do with the fact that for some bizarre reason or another (or because of personal reasons that we do not know about) he had decided to cut and paste the heads of arguments of one of the parties and serve it up as his own judgment?

Just wondering.

Invitation to a Public Lecture by Chief Justice Sandile Ngcobo

Sep 2nd, 2010

by Pierre De Vos.

10 comments

University_of_Cape_Town_coat_of_arms

The Chief Justice of South Africa, the Hon. Mr Justice Sandile Ngcobo, will deliver the first Claude Leon public lecture on the topic:

“The importance of public confidence in the judiciary in South Africa”

Date: Thursday 16th September

Time: 17h30

Venue: Lecture Theatre 1, Kramer Building, Middle Campus, UCT

Please join us afterwards for drinks and snacks

RSVP: Rene 021 650 3072 or Rene.Francke@uct.ac.za

What do we talk about when we talk about “transformation”?

Aug 12th, 2010

by Pierre De Vos.

208 comments

Is it at all possible to write sensibly but critically about the way in which the concept of “transformation” has evolved in kleptocratic South Africa? “Transformation” has become a buzzword that is much bandied about and much abused, but few people explain what they mean when they use the word. Like mother hood and apple pie, it is assumed to be an unqualified human good and as such “transformation” is now used much like the rights in the Bill of Rights are used: as trumps to stop any political analysis, argument or the asking of any uncomfortable questions.

Back in 1998, a progressive American academic called Karl Klare wrote an extremely influential and since then much quoted article in which he argued that ours could be seen as a transformative Constitution. Klare argued that as a progressive supporter of the democratic project, one not only could but should interrepret our Constitution as a transformative document.

He claimed that it could be read thus for several reasons. First, he argued that the constitutional text was historically self-conscious, by which I took him to have meant that when interpreting and applying the Constitution, judges were allowed to keep in mind the history of oppression, struggle and the denial of human dignity out of which it was born.

When a judge has to decide whether the arrest, torture and detention of an ordinary citizen (or journalist) was lawful, she could do so with reference to the constitutional text that bans such lawlessness, yes, but also with the ever present and dark memory of the detention, torture and eventual murder of Steve Biko in mind. When a judge had to consider whether to grant an eviction order, she could take into account not only section 26(3) of the Bill of Rights but could also keep the memory of forced removals and the inhuman and degrading effects of that policy on ordinary people alive.

Second, the Constitution was transformative, Klare argued, because it contained an equality clause that explicitly endorsed corrective measures that would help to right the wrongs of past racial oppression. Moreover, it contained a set of social and economic rights which empowered courts to assist ordinary citizens to access the most basic services and benefits required to live a life with a semblance of human dignity.

Lastly, the Bill of Rights explicitly stated that it applied not only vertically against the state, but also horizontally against private individuals and institutions (which were so complicit in the enforcement of apartheid and benefited so hugely from it) and required judges to take into account the spirit and object of the Bill of Rights when interpreting legislation or developing the common law and customary law.

This vision of transformation is, in its way, a radical vision which has as yet not come to pass. It envisages a complete transformation of the legal system as well as a dismantling of the structures which still help to perpetuate the disgraceful racial and gender inequality in our society and continues to subjugate the majority of South Africans – both economically and socially.

Sadly, few lawyers and judges have embraced this vision of a transformative constitutional project. While most pay lip-service to the need for transformation and claim to endorse the transformative vision of the Constitution, it is as if the old had colonised the new by co-opting them in the opppression of the majority of citizens. The concept of “transformation” is now often used – so it seems to me – as a band-aid to hide and legitimise the continued injustice and inequality that is perpetrated by the old business elite and the new political and business elite.

Although more than half of all judges are now black, most judges still do not use the Constitution as they are entitled to do, to try and address the fundamental injustice inherent in our legal system. Many of the basic assumptions underlying the common law – the unqualified benefits of a free market, the alleged freedom to choose, the equal power of all roleplayers – are still vigorously enforced by both black and white judges – even when it benefit the business elite and the politicians and perpetuate the oppression and marginalisation of the masses of our people.

When a pensioner is stabbed and rushed to hospital and she is forced to sign an indemnity form by that hospital, most of our judges – black and white – will endorse the absurd fiction that while she was lying on a trolley, bleeding to death, she had exactly the same bargaining power as the hospital to enter freely into a contract. They will hence find that the Hospital could not be held liable for the negligent amputation of her arms and legs and dismiss any claim against the Hospital.

Real and deep transformation is the enemy of the elite – black and white - because if deep transformation is actually implemented, it will transform the very system that we all benefit from so handsomely, that allows us to drive to work in million Rand cars without having to step out into the streets where people are dying of hunger and disease. Why support deep transformation if one is benefiting from the system?

Politicians are particularly good at this kind of double speak about transformation. They shout and scream about the need for transformation, by which they usually mean the replacement of greedy, white, heartless, capitalists, with greedy black heartless capitalists (who are preferably their friends and relatives who will also help to enrich them and will assure that they benefit from the looting of state coffers).

It reminds one of the saying in the apartheid era that white English-speaking South Africans voted for the Progs of Helen Suzman, but went on their knees every night to thank God that the Nationalists were still in power to “protect” them from the black majority. The new elite can still be found on their knees, from where they can pay lip-service to the masses of our people and the need to address poverty while they stuff their pockets with the loot offered to them by more or less the same system that operated during the apartheid years.

Of course, many things have changed since the days when PW Botha wagged his finger at us on TV, mangled the English language beyond recognition and allowed his security services to torture and kill those South Africans who did not find him charming. The National Party is no more and on an emotional (and even legal) level we are all far more free than we used to be. Even if the new elite does not care much for anyone but themselves, they do not actively hate the majority of the population and do not sit up at night to think of ways to humiliate black South Africans – as seemed to have been the case with the apartheid nutters.

We now live in a democracy and the government knows that they need the vote of the majority of South Africans to continue in power, and they need to continue in power if they want to continue reaping the benefits of BEE deals, corrupt tenders and the wonderful benefits bestowed on them by that other Bible called the Ministerial Handbbook. A welfare net of sorts has therefore been created to provide some needy South Africans with assistance in the form of social grants and pensions. These grants and pensions keep the majority of South Africans from rising up and from overthrowing the state and the system which benefits only a few.

(That is why the DA’s support for a basic income grant makes sense: with such a grant in place, the haves may buy some time. It allows them to continue to insist that while “transformation” is important it should not be taken to mean that anything should really change - except for the colour of the skins of those who exploit the rest of the population.)

So, yes, things have changed. But they have not changed in the way and to the extent promised by the transformative constitution.

“Transformation” has become a catchphrase to justify greed and self-interest and prevent the fundamental changes needed to actually address the monumental poverty and the criminal gap in wealth and personal circumstances between the rich (more and more a non-racial rich) and the poor (which remains largely black).

When politicians or the emerging business elite bleat on about the need for transformation I chuckle bitterly but knowingly. What do they mean when they say this? Do they mean that we should continue as before but should just have less white people with their snouts in the trough and more black people benefiting from the spoils of a system that remains – in its essential structure at least – not much different from that which operated under apartheid?

What is transformation? Can one eat it and use it as a blanket at night to ward off the cold? Will it provide a roof over one’s head, clean drinking water and electricity and a job that will allow one to live with a semblance of dignity? Can one feed one’s children with transformation and send them to school on it? Can one get good medical care (I have not yet seen any pharmacy stocking transformation pills that will make us all healthy) and protect oneself and one’s loved one’s from crime with a transformation blanket? Don’t think so.

When Julius Malema talks about the need for a revolution, or when Jimmy Manyi talks about the need to speed up transformation, all while driving in an obscenely large cars and splashing out on the most expensive luxuries, why don’t we all just laugh (or maybe spit) in their faces and point out that these are words – only empty words – used to keep the majority of South Africans in their place: poor, powerless and ready to acquiesce in their own oppression.

Maybe we should ban anyone from using the word and find new words to talk about the need to change this country. “Transformation” does not cut the mustard. It has become a hollow and empty word, devoid of any real meaning.

Do as we say, not as we do?

Jul 29th, 2010

by Pierre De Vos.

257 comments

I almost fell off my chair laughing when I read yesterday that the Democratic Alliance has warned that politicising the office of the Public Protector undermined the “brilliant” work it has done. The Cape Times reported that the DA’s defence of Adv Thuli Madonsela comes in the wake of an attack on her by the ANC Youth League (ANCYL) and COPE’s reference to her office as a “toothless wonder” after she found Communications Minister Siphiwe Nyanda guilty of breaching the Executive Members’ Code of Ethics by publicly defending axed Transnet Freight Rail boss Siyabonga Gama.

The ANCYL – in its usual hysterical way – lashed out at Madonsela for finding Nyanda guilty of being “truthful” and questioned whether she was protecting the public, or merely “parroting misperceptions of opposition parties”. (This defense of Nyanda is interesting because it suggests that the tenderpreneurs of the ANCYL and the tenderpreneurs in cabinet were watching each others backs.) DA MP and Justice and Constitutional Development spokesperson Natasha Michael said the ANC had “systematically ignored” the role played by the Public Protector. It praised Madonsela for her investigations and warned political parties not to interfere.

The sentiments expressed by Michael are of course laudable and correct. Political parties should not interfere with the work of Chapter 9 institutions (or courts) and they should not try to politicise the decisions of these institutions for short term political gain. This is a principled and constitutionally honourable position to take. But I suspect Michael did not clear this statement with her leader, Helen Zille, who seems to hold a different view.

In the wake of a report by the Human Rights Commission into the Western Cape toilet saga, Zille did exactly what Michael says political parties should not do: she questioned the political motives of a Chapter 9 institution and claimed that the Human Rights Commission was being abused as part of a dark conspiracy to tarnish the good name (if any) of the DA, stating as follows:

Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.

Instead of sticking to a factual and legal argument about why the SAHRC report might be flawed (something she had every right to do), she attacked the integrity of the Commission to try and deflect attention from the extremely embarrasing saga about open toilets. It is so much easier to attack the messenger than to deal with the substantive issues: the DA equivalent of “pulling the race card”.

Sadly, this is part of a broader pattern in which the DA in general and its leader in particular seem to have one standard for the ANC and other political parties and another standard for itself. It is as if the DA believes that it is exempt from the same standards it holds others to because it believes it is the only party who knows what is best for everyone (a rather patronising view) and that it is therefore the only party who can be trusted without having to be held to the general principles on which a functioning democracy is based. It thus sees itself being exempt from the duty to honour the principles it claims to espouse. “Do as we say, not as we do,” seems to be the DA motto.

Given our history and given the racial profile of the DA, one would be forgiven for concluding that the DA believes only white people can be trusted, that white people therefore do not have to follow general principles of constitutional democracy and good governance, and that white people are therefore allowed to deal with each situation on its own merits without having to stick to the rules it claims to respect and honour. Black people, on the other hand, must be held to a higher standard because they are inherently unprincipled and corrupt enemies of democracy.

When Gwede Mantashe attacked judges of the Constitutional Court as counter-revolutionaries, the DA rightly criticised this because the ANC leader was launching a personal attack on judges of the highest court and was undermining respect for the judiciary. But when The Dear Leader, Helen Zille, attacked the integrity of Judge Nathan Erasmus, a High Court judge, thus undermining respect for the judiciary herself, we were supposed to cheer her on. She argued that, given the facts, she had every reason to question the integrity of a judge. And besides, so Zille argued, the High Court had declared the Erasmus commission unlawful and her attack was therefore justified.

This is, of course, nonsense. The High Court (per Swain J) never found that Erasmus had allowed himself to be used by the ANC (as Zille had implied) and the High Court did not question the integrity or motives of Judge Erasmus. In fact, although Judge Swain found that the then Premier had acted with an ulterior purpose in appointing the Commission, he explicitly exonerated Judge Erasmus stating: “I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct“.

The High Court - re-interpreting the jurisprudence of the Constitutional Court in a rather “innovative” manner – did find that a judge should not have agreed to chair the commission, but the court made it clear that no ulterior purpose (as alleged by Zille) was present on the part of the judge. This fact was lost in the post judgment spin by Zille and the DA sycophants.

What was also lost was that the DA and Zille had actually not pressed the point before the court at all that Erasmus personally was allowing himself to be used or was biased. In fact, judge Swain explicitly found that he did not have to answer this question. The High Court therefore did not exonerate Zille regarding her personal attack on Erasmus as the matter was not pursued before the court by the DA lawyers (although it was raised initially). Lawyers are not stupid so they probably knew that there was no chance that a court would endorse Zille’s scurrilous attack on a sitting judge.

Of course, courts often find that other judges had erred, but this does not give anyone the right to call into question the integrity of the judge whose decision was found wanting by another court. Down that road lies anarchy and a complete disrespect for the judiciary.

Similarly, after the High Court had found in favour of Zuma in his case to have the search and seizure warrants declared unlawful, the decision was finally overturned by the Constitutional Court. This did not allow either Mantashe or anyone else to call into question the integrity of the High Court judges or the judges of the Constitutional Court. Neither the High Court nor the Constitutional Court had found that any judge involved in the case had acted like counter-revolutionaries, so Mantashe had no right to make that allegation. Like Zille, he was attacking and politicising one of the three branches of our democracy. Unlike Zille, he has not continued to defend the indefensible.

And of course, when serious allegations of wrongdoing or criminal activity by ANC leaders surface, the DA – once again, rightly, in my opinion - demand that the affected leader should be suspended or should step aside until such time as the allegations have been dealt with or the criminal case concluded. But when a DA MP was charged two weeks ago with raping a young woman, the DA blithely stated that it had no reason not to believe the denials of its MP, that the MP is innocent until proven guilty, and therefore that the DA would not suspend that MP.

The same pattern repeats itself over and over again. It tarnishes the name of the DA (to the extent that it has a name) as it opens the party to charges of hypocrisy and, worse, racism. It reflects a kind of arrogance that is often associated with someone who has been the Baas his or her whole life and is used to being the Baas and to tell others what to do and how to behave while not having to follow suit. “We are always right, we are always principled, therefore we do not have to follow the same principles we claim to hold so dear and demand others respect.”

No wonder the vast majority of black people (and most of the sensible white people I know) refuse to vote for the DA – despite the corruption and maladministration of many ANC led municipalities and provinces. Who wants to be lorded over by such a bunch of self-righteous and unprincipled hypocrites?

What have Tweedledum and Tweedledee been up to?

Jun 29th, 2010

by Pierre De Vos.

70 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Anti-intellectual South Africa deserves the media it has

May 18th, 2010

by Pierre De Vos.

56 comments

Journalist Stephen Groottes has taken exception to my post in which I lamented the generally low quality of reporting about legal matters and about our judiciary, and in which I compared it unfavourably with the reporting of such matters in the USA. This seems like an important issue for the health of our democracy and for the general well-being of South African citizens, so I thought I’d take a stab at answering his objections.

Writing on the Daily Maverick website, Groottes argues, first, that – unlike in South Africa – the appointment of judges in the USA is a highly politised process. This seems to me, to put it mildly, rather naive. A majority of members on the Judicial Services Commission (JSC) are political appointees and while judges and lawyers play a more influential role in the the appointment of judges in South Africa, few observers of the JSC process would argue that politics play no role in the appointment of judges in South Africa.

The political issues might differ from the hot-button political issues in the USA, but surely they are just as important for those who make decisions about who to nominate to the High Courts or the Constitutional Court than for the members of the Senate who has to confirm the President’s nominees in the USA. Of course, in South Africa the politics behind the process is often obscured to some degree - unlike in the USA - but this is partly because of the difference in reporting on judicial nominations itself.

If our journalists explained the legal and political stakes of a judicial appointment and analysed the judicial philosophies of judges like they did in the USA, we would all be far better informed about the politics (with a small “p”) of the members of one of the three branches of government. Without this information ordinary citizens do not have the information necessary to play their proper role as active citizens in our democracy.

JSC members grill prospective candidates on their membership of secret organisations, on what they have done for transformation, on their views on social and economic rights, and on their relationship with colleagues. Once or twice JSC members have even grilled candidates about their sexual orientation or their religious views – which was rather scandalous and wrong, but which does show that JSC members are very much aware of the politics involved in the appointment of judges. In January 2005 the ANC in its annual statement made the following assertion which puts the point beyond doubt:

We are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination. The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious negative consequences for our democratic system as a whole.

We might not like it, but politics do play a role in the appointment (or non-appointment) of judges (as it should). Decisions about whether to appoint Jeremy Gauntlett to the High Court or John Hlophe to the Constitutional Court are made at least partly on the basis of the perceived politics of the candidates. We might couch this in broad phrases about “pro-transformation” or “anti-transformation” candidates, but we all know that we really are talking about the judicial politics of the candidates. The fact that the media does not report on it like that, does not make it less true.

Second, Groottes complains that our legal system is far more closed and that lawyers and most legal academics refuse to speak to the press. This, he says, make it difficult to report on legal and judicial matters in the same way as in the US. It is of course true that the US legal system is more open than our own, but this does not stop the media from doing its own research and analysis.

Adam Liptak of the New York Times provides brilliant coverage of the work of the US Supreme Court and explains to its readers what the trends on the Court are and what certain judgment might mean for the political orientation of that court. He does so by reading all the briefs submitted to the court, then listening to the oral arguments and lastly by studying the judgments and academic law review articles on such judgments – not by phoning one or two academics for a dial-a-quote.

It is therefore far too easy to blame the legal profession for the lack of intelligent and nuanced reporting on the judiciary in South Africa. An intelligent journalist who has the support of his or her editor, is dilligent and hard working and has the ability to packgage complex ideas and issues in an easy to understand way for ordinary consumers of the media will be able to do a far better job than is presently the case with most legal reporting in this country.

Lastly, Groottes argues that a lack of resources hamper reporting on the judiciary. Why would an editor send a journalist to sit in court for a whole day (as the Mail & Guardian did to its credit for the Selebi trial), when that journalist could cover three Julius Malema press conferences in the same period? This, it seems to me, is a valid point. Why would you make a careful study of the work of the judges of the Constitutional Court if you know your editor will give you 300 words to report on a particular case or the appointment of a judge?

Media bosses are often holier than thou about the important role the media play in our democracy, arguing that they fulfil a vital function to keep the public informed and to help create active citizens that are empowered to make proper decisions on who to vote for and what to think and believe. Sadly they often do not do their job properly because they want to make fat profits in the short term. Who cares about educating readers to become more intelligent and informed consumers of news and opinion in the long run if one can make a quick buck?.

Why invest in journalists and more space for editorial content in a newspaper when one can make more money in the short term by allocating ever larger proportions of one’s newspaper to advertising? Why have 10 minute discussions about the judicial philosophies of Constitutional Court judges when one can have half an hour of Solly Philander talking to the “garden boy” about pruning one’s roses, interspersed with many well-placed and lucrative adds for Stodels?

There is one thing that bothers me though. Could the print and electronic media – even with limited resources – not do a better job at informing the public about the work of one of the three branches of government? Surely, despite limited resources, the media is quite good at telling us about the internal workings of the ANC, about whether Julius Malema is stealing our money and about corruption in government. This is because they focus on such stories and thus have made choices about where to focus attention. If they CHOSE to, they could do the same kind of reporting on the judiciary.

I suspect the media do not focus attention on the judiciary at least partly because they think (without ever having asked anyone) that their readers, listeners and viewers are not interested in this. They often assume that we are all stupid, lazy and ignorant and that we really want to listen to Solly every day, that we are only interested in the breast size of Advocate Barbie and, at a push, the sex life of our President.

I wonder whether such assumptions are not based on a kind of pre-democracy mind-set which sees politics (which they report on whether consumers of news are thought to be interested in it or not – perhaps because politics is seen as anti-intellectual and macho) as completely divorced from the law. Perhaps media people – especially editors – fail to understand that the judiciary now make decisions that may have far-reaching political ramifications for all of us. And because the media do not report on the work of the judiciary in this way, ordinary people may not understand how important it is and how it may affect their lives.

But perhaps there is another reason for this sad state of affairs. Maybe it reflects the deeply anti-intellectual strain in our society, a strain pampered and supported by the media. Most South Africans - including most editors and journalists – seem uneasy with nuance and complexity. Most see the world in black and white and reject anything that reeks of intellectualism.

Many years ago on a visit to Calcutta in India I was amazed to spot a long article in The Telegraph about the work of French philosopher Jacques Derrida. The Telegraph, a far superior paper to anything produced in South Africa, is printed every day in a city that probably has far more problems with poverty than anything we are used to and has a middle class of comparable size to Johannesburg. Yet, it produces a newspaper containing superbly written articles on many topics – including some that would never see the light of day in South Africa because they would be viewed as too intellectual or “girly” (thought being seen as not macho enough) by most of the editors of our local rags.

I suppose most South Africans are more interested in blaming apartheid or the ANC government for everything while trying to make obscene amounts of money – preferably without working or by getting others to do the work for them – than actually reading stimulating and complex stories that might challenge their prejudices and hatreds. And editors do not seem to be any different, perhaps because they believe – without evidence – that readers really will not tolerate intelligence and complexity.

Even if the money was coming out of our ears we would probably not produce a newspaper of the quality of The New York Times or the Guardian in London. Goodness, who on earth would actually READ all that stuff, I hear all the media people ask? Who would want to re-think what they already think they know? Nah, let’s just have another beer and see how we can fleece a few more suckers before we emmigrate to Porpoise Spit.

PS: I do not mean to pick on Stephen, who does a better job than most under trying circumstances. My point is a general one which touches more broadly on the state of the media and discourse in South Africa

Selebi case: “The dog ate his homework”

May 3rd, 2010

by Pierre De Vos.

57 comments

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

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

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

Selebi claimed during the cross examination that he had cash slips and receipts in his possession proving what he had spent his money on and disproving the state’s claim that he had received hundreds of thousands of Rands from Agliotti as bribes. But on Friday Selebi failed to bring cash slips and receipts to court as requested because he claims his wife destroyed them on Thursday.

Both prosecutor Gerrie Nel and Judge Meyer Joffee looked astonished when Selebi told them he did not bring the receipts because his wife did not only discarded the slips but actually shredded them (yeah right). The former police chief claimed that his wife had shredded them on Thursday because she had found credit card statements which she thought would be better evidence. Nel described this explanation as ridiculous and accused Selebi of playing to the court. He said this showed Selebi was arrogant and had no credibility, a claim one finds difficult to dispute.

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

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

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

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

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

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

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

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

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

Judiciary

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Should we throw Helen Zille in jail?

MP’s now protected from whistle blowing

Cutting and pasting judicial decisions

Invitation to a Public Lecture by Chief Justice Sandile Ngcobo

“The importance of public confidence in the judiciary in South Africa”

Date: Thursday 16th September

Time: 17h30

Venue: Lecture Theatre 1, Kramer Building, Middle Campus, UCT

Please join us afterwards for drinks and snacks

RSVP: Rene 021 650 3072 or Rene.Francke@uct.ac.za

Sponsored by Juta Publishers

What do we talk about when we talk about “transformation”?

Do as we say, not as we do?

What have Tweedledum and Tweedledee been up to?

Anti-intellectual South Africa deserves the media it has

Selebi case: “The dog ate his homework”

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Judiciary

“The importance of public confidence in the judiciary in South Africa”Date: Thursday 16th September

Time: 17h30

Venue: Lecture Theatre 1, Kramer Building, Middle Campus, UCT

Please join us afterwards for drinks and snacks

RSVP: Rene 021 650 3072 or Rene.Francke@uct.ac.za

Sponsored by Juta Publishers

Follow me on twitter

Quote of the week

Search

New from Seminar Room

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“The importance of public confidence in the judiciary in South Africa”

Date: Thursday 16th September