Constitutional Hill

Liberal

Siessa Patricia!

Jan 30th, 2012
by Pierre De Vos.
100 comments

When Mitt Romney, the Republican presidential candidate, was criticised for the manner in which he became very rich (by breaking up companies and firing workers), for paying less than 15% in taxes (while the average rate in the US for a low to medium income earner is around 30%), and for sheltering from paying taxes by keeping money in the Cayman Islands and in a Swiss Bank account, he repeatedly said that such criticism was aimed at dividing America.

Lemme tell ya something. America is a great nation, because we’re a united nation and those who are trying to divide the nation as you’re trying to do here and as the president is doing are hurting this country, seriously. The right course for America is not to divide America, and try and divide us between one and another, it’s for us to come together as a nation. And if you’ve got a better model, if you think China is better, or Russia is better, or Cuba’s better, or North Korea’s better, I’m glad to hear all about it. But you know what? America’s right, and you’re wrong!

This argument is often used by the rich, who complain that the so called 99% of the US population (who are not stinking rich) may be stoking “class warfare”. It serves as a handy mechanism for stopping anyone from questioning the inequality, the unearned privileges bestowed on the rich, and the obscene unfairness of the US economic and social system and helps to protect the status quo.

I was therefore surprised when Cape Town mayor, Patricia de Lille (who used to have more progressive principles before she joined the Democratic Alliance), used this same kind of language to attack people who were planning to highlight unfairness and economic inequality in Cape Town by “occupying” the Rondebosch common (a piece of untidy, windswept grass and bushes in the middle of the leafy middle-class suburbs of Cape Town).

Last week, in a speech delivered by the mayor in the city council chambers, De Lille called the leader of the protest (a guy with the wonderful name of Mario Wanza) and his supporters “agents of destruction” and then continued:

There are those who would sooner see this city destroyed, driven in two by violence and aggression, than be a part of a shared destiny. I tell this council now, those agents of division will not win. I think here in particular of Mario Wanza, a would-be but failed public servant, who claims to speak on behalf of the people of the Cape Flats. … [I would not allow] these agents of destruction to use their misguided, naive and brutal misunderstandings of the politics of race to divide this city. … I tell the people of Cape Town this: They will not succeed because we will not let them.

Given these fighting words (with De Lille seemingly channelling her inner PW Botha), it was perhaps not surprising that the police refused to give permission for the gathering and declared the gathering “illegal”. The police did so on what appears to be spurious grounds, arguing that organisers arrived “between 15 and 30 minutes late” for their meeting with police officials and that organisers insisted on having all nine elected representatives present in the meeting as opposed to four.

These reasons are, to say the least, completely spurious, suggesting that the police had a mandate to stop this gathering at any cost. In fact this kind of reasoning has a rather authoritarian ring to it and seems to be based on the assumption that taking part in a protest is not a right, but a privilege that can be bestowed and can also be taken away by a police officer if an organiser of a gathering does not behave “properly”. This used to be the legal situation in apartheid South Africa, but as we now live in a constitutional democracy it is no longer the case. Somebody should tell the police (and mayor De Lille)

The Regulation of Gatherings Act makes it very clear that the responsible police officer has a duty to negotiate with organisers of a gathering and to do so in a way that would help the organisers to conduct a peaceful protest march or gathering. Where a police officer fails to do everything in his or her power to ensure that a peaceful and orderly gathering can take place, that police officer is breaking the law and is also infringing on the constitutionally guaranteed rights of citizens.

Reading the various provisions of the Gatherings Act, it is impossible to see how the police could validly have declared this gathering illegal and how they could reasonably have believed that they had the right to do so. The relevant police officers either have difficulty with basic English comprehension or they deliberately decided to flout the provisions of the Regulation of Gatherings Act in order to get this gathering declared illegal (which happened to comply with the wishes of mayor De Lille).

One would have hoped that De Lille would have condemned this apparent abuse of power by the Police. After all, she is a leader of the DA, a political party who has often (rightly) expressed outrage when ANC-aligned government officials flout the law. The DA is also a party who has presented itself as a champion of the Rule of Law – even challenging the unlawful appointment of Menzi Simelane as National Director of Public Prosecutions in court. But alas, when the fears and short term interests of upper-middle class DA voters clash with respect for the law and adherence to democratic principles, one should not expect principle to hold sway. The mayor thus made statements which endorsed the dubious notion that this gathering was an “illegal” one.

The Regulation of Gatherings Act makes it clear that every person has the right to assemble with other persons and to express his or her views on any matter freely in public and to enjoy the protection of the State while doing so. As such, this Act gives expression to the right of everyone (guaranteed in section 17 of the Bill of Rights), peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.

This right is an important one for any democracy as it helps to even out the political playing field. Given the fact that access to money and a proximity to the powerful often give certain people or pressure groups disproportionate influence over the politicians and the political process, this right to protest can be viewed as a right that is of particular importance for the poor, the powerless and the dispossessed. How else will people living in poor and marginalised communities have their voices heard and their concerns listened to?

My guess is that the rather reactionary tone of De Lille’s statement and the heavy-handed and probably illegal actions of the police stem from the fear that a protest on the Rondebosch common would indeed provide a voice to the voiceless and would challenge the cosy elite pact between the politicians and the rich (the very rich whose donations keep the major political parties afloat).

Because the right to protest is fundamental to the proper functioning of a democracy, the Gatherings Act assumes that gatherings and protests will almost always be allowed and that technicalities will not be used to ban protests that would make the powers that be uncomfortable. Thus section 3(5)(c) of the Act even requires the relevant police officers to try and identify organisers of protests and gatherings and then engaging with those organisers – even if no notice was given of the protest or gathering by its organisers. Furthermore, section 4(1) places a legal duty on the responsible officer to engage with organisers of a gathering or protest to try and reach agreement about how the gathering or protest would be conducted.

Section 4(4)(b) of the Act also allows the responsible officer to impose certain conditions on the gathering or protest if there are reasonable grounds to do so in order to minimise traffic disruptions, to ensure continued access for others to their places of work and property, to prevent injury to any person and to prevent the destruction of property. When an officer imposes such conditions he or she is required by law to give written reasons for this.

Section 5 of the Act makes it clear that a gathering or protest may only be prohibited in extreme cases. This section states that:

When credible information on oath is brought to the attention of a responsible officer that there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.

Only after such a meeting would a responsible officer be able to prohibit a gathering, if he or she is convinced “on reasonable grounds” that no amendment to the conditions of the gathering would prevent serious disruptions or extensive damage to property.

Now, people who are familiar with Cape Town would know that no person could reasonably claim that a gathering on the Rondebosch common would seriously disrupt traffic or that it would pose a serious risk to people or that extensive damage to property would ensue. There are no buildings on the common and nobody lives or works on the common, so how the police could have decided that the gathering posed a serious risk to the safety of people or to damage of property is beyond me. In fact, I would go as far as saying that the police acted illegally (perhaps spurred on by the incendiary comments of the mayor?) by banning the gathering. The subsequent heavy handed actions against those who chose to gather on the common and the arrest of all those who took part was therefore in all likelihood illegal.

A liberal administration would never have made the kind of statements that De Lille made and would never have suggested that the protestors should be stopped. A liberal administration would have championed the right of protesters to gather and convey their message (even in a suburb where rich DA voters predominate) and would have done everything in its power to ensure that a peaceful protest with the least amount of disruption took place. But then again, the DA administration in Cape Town can probably only be said to be liberal in name.

PS: The headline is an ironic quotation of a headline which appeared in Die Son newspaper a few years ago when it reported on the fact that “singer” Patricia Lewis “acted” in a soft porn movie.

The Empire Strikes Back

Feb 3rd, 2011
by Pierre De Vos.
106 comments

It is always good to have one’s feet held to the fire. Criticism of the legal profession and of legal academics should therefore be welcomed – whether it comes from traditional conservative quarters or from more progressive voices in our society. Criticism (hopefully) encourages self-reflection. Incisive criticism may start a debate, which might help to enlighten us and might improve the way we all engage with the law.

It was therefore great to read that Adv Jeremy Gaunlett had delivered a speech in which he criticised the legal profession for a “lack of critical faculty not merely in the Faculty, but across the face of legal life in South Africa”.  Gauntlett – who was nominated for appointed to the Constitutional Court and the Cape High Court but has not been appointed to either court – argued that there was a complacency amongst lawyers and legal academics about problems facing the legal system in South Africa.

I think as a general proposition this is correct. Lawyers and legal academics are often far too hesitant to engage with (and speak out about) issues of social injustice and the manner in which our legal system still favours the rich and well connected and disadvantages the poor and those who do not have friends in high places.

However, Gauntlett’s gripe seems to lie elsewhere. He argues that “it is time to end an approach which is insufficiently rigorous in its scrutiny of the judgments of courts, and how they function”.

[O]ther than the writing of David Dyzenhaus, Stu Woolman and Jonathan Lewis, in the tradition of John Dugard, Tony Mathews and Barend van Niekerk, and later Fink Haysom, Clive Plasket and Etienne Mureinik, what probing critique has there been in the last five years of the work of the Constitutional Court? Those of you who are public lawyers may not agree with it all.  You may or may not agree with Jonathan Lewis when he describes the output of the Constitution Court in recent years as “evidenced by an atavistic sentimentality”, “outcome-based” and “mock-Solomonic”. But then we would all benefit if you said so.

Why have you not criticised the refusal by Justice Sachs in the Sidumo case to join Justice Ngcobo and others in determining whether the right in issue was a labour right or an administrative justice right, he urging a “move away from unduly rigid compartmentalisation so as to allow judicial reasoning to embrace fluid concepts of hybridity and permeability”? Do you share my inability to understand language like that, and the concern that it is inexact because the reasoning is not rigorous?

Amongst other things the concern, says Gauntlett, is “the lack of legal clarity”.  This kind of reasoning is, of course, plausible. If one adheres to a traditional view of the law, if one does not embrace the transformative vision of the Constitution, if one believes that the common law and other legal rules should remain untouched by the values and norms enshrined in the Bill of Rights, this yearning for “legal clarity” seems logical and necessary.

After all, the assumption that “legal clarity” was a good thing and that it used to be the norm rather than the exception in the pre-constitutional era, is widely shared by traditional lawyers in South Africa. (Of course, the fact that the belief in legal clarity often led judges enthusiastically to enforce apartheid laws or made them shy away from trying to re-work the law to minimise the inhumane effects of the common law and apartheid legislation on the majority of South Africans, is not often remarked upon by the adherents of this view.)

Of course, this view is based on a very particular approach to the law, one that assumes that “legal clarity”, “precision”, and “coherence” are not only ideals that are nice to have but can be (and are) indeed achieved. It takes for granted the correctness and moral superiority of traditional legal culture, which as Karl Klare pointed out in a seminal article in 1998 remains exceedingly formalistic, rule-bound, and more concerned with precedent and systems of logic than with the just outcomes of individual cases and with the achievement of a semblance of justice.

Gauntlett’s critique, it seems to me, is therefore an ideologically based one – although it professes to come from a neutral and apolitical place. If one assumes that traditional formal legal culture is the only acceptable and correct way of doing law, then one might well agree with Gauntlett. If one embraces a transformative vision of the Constitution – in the sense explored by Klare – then one might very well have serious problems with Gauntlett’s views set out above.

I obviously fall in the second category. My critique of lawyers and legal academics would therefore focus far more on the lack of engagement of many lawyers and legal academics with issues of social justice and the lack of critical reflection about the way in which the so called “precise” and “accurate” legal rules Gauntlett talk about often favour the powerful and wealthy in our society.

Gauntlett also highlights problems with the way we choose our judges. He states:

Other than the Bar, who contributes to researching candidacies for the Bench? Should your Society not have a review committee to do just that, to offer an objective assessment of their academic worth, judgments or other legal writing, and to offer informed criticism of candidates to the JSC?

Of course there have been some serious problems with the appointment of judges. We have appointed quite a few judges who – in my opinion – did not meet the minimum criteria for appointment, including that they should have embraced the progressive values enshrined in our Bill of Rights.

(Incidentally, my colleagues at the Democratic Governance Rights Unit have been submitting assessments about applicants for judicial office for the past two years, so Gauntlett is perhaps not as well informed as he could have been about the appointments process.)

What jumps out at me is the statement that an “objective assessment” of candidates is needed. But if we talk about the need for a transformed judiciary – by which I understand a judiciary which is staffed by judges who are not sexist, not racist, not homophobic, judges who take the social justice demands of our Constitution seriously – then this talk of an objective assessment seems rather strange if not impossible.

For me what would be interesting and worthwhile would be to have a conversation (or even a heated argument) about the ideological assumptions underlying Gauntlett’s critique. We all come from different perspectives and make different assumptions about the nature of the legal system we would like to see in South Africa. These are not uncontested and for me the problem with Gaunlett’s argument is that it attempts to erase or hide the politics and ideology on which his argument is built and pretends to come from a neutral place.

Let the conversation begin.

The Windows of Heaven (and your wallets) are open!

Aug 27th, 2010
by Pierre De Vos.
144 comments

One of the (many) reasons why I am not a fascist or a Stalinist is because I am rather worried that people might begin to think that I am a repressed and self-hating homosexual who is trying to hide his true self by embracing rightwing Christian fundamentalism. If I ever wavered in my commitment to remain a constitutional democrat and if I ever feared that I would fall into the arms of dangerous spin merchants, there will always be people like Mr Errol Naidoo (who is the director of an outfit called the “Family Policy Unit”) to keep me on the straight and narrow (no pun intended).

Errol2

Mr Naidoo (see picture on the left), who has the suave charm of a Verimark infomercial presenter and the fading good looks of a celebrity contestant on Fear Factor, is a busy man. (I must confess, if we were both a bit younger and if he had been a bit more careful about his diet, I might have lusted after his body – if not his mind.)

In an email addressed to his fans entitled, “The Windows of Heaven are Open!, he informs all who wish to listen of his latest exciting escapades and thoughts (I use the latter term rather generously, of course). He informs us that he had spent an “exhilarating” two days in the Kruger National Park with his wife, Arlene (whom he refers to with suspicious regularity). “Being up close and personal with God’s awesome creation – in their natural habitat – is an experience Arlene and I will long remember,” he enthuses.

(Why he had to go to the Kruger Park – instead, say, of going to the local Shoprite in Brackenfell or to an HIV clinic in Khayelitsha – to get close to God’s awesome creation is unclear. I guess the folks who demonstrate their sincere commitment to God by donating buckets full of money to his outfit do not begrudge him this little extravagance. After all, people are dirty, troublesome, sinners who have a tendency to make fun of you, while wild animals never talk back and live in the Kruger Park – which is rather more glamorous than Brackenfell.)

But I digress. In the email, Mr Naidoo (I make no comment about the fact that his surname sounds rather similar to an Afrikaans word often used at Stag parties) has the following to say about his wheelings and dealings with politicians and about our sacred constitutional democracy:

There appears to be a growing sense amongst Christians across the country that God is giving the Body of Christ in South Africa a “window of opportunity” to rise up & impact the nation. Despite all the negative reports in the media, many Christians believe God is supernaturally removing barriers to areas of power & authority to provide access for the influence of the Church.

I noticed this shift in attitude towards the Church since the Zuma administration came to power. My submission on gambling law reform to parliament, my partnership with the Dep Minister of Home Affairs, Malusi Gigaba to ban internet pornography, and my work to inform government about the dangers of legalised prostitution, all bear witness to a more family-friendly environment.

The liberal media also appear to recognise this shift in attitude toward family values and are openly attacking government for granting access to the “rightwing Christian fundamentalists”. Several hysterical articles appeared in the media recently criticising government for talking to “shady” Christian organisations like Family Policy Institute. Apparently, groups that disagree with homosexuality and oppose abortion, pornography etc, have no right to engage government.

Read this article by so-called constitutional expert and homosexual activist, Pierre de Vos. ‘The return of fake morality’. A similar article by Tony Weaver was published in the Cape Times. When the Mbeki administration suspended South Africa’s democratic principles in 2006, to railroad same-sex “marriage” legislation through Parliament – despite massive public opposition – people like Pierre de Vos and the pro-homosexual media were conspicuously silent! Ironically, this attitude – promoted in the media – is a violation of core constitutional freedoms…..

P.S. Please forward this to a friend

As I do not like sending spam emails, but at the same time do not want people to think that I have anything against poor Mr Naidoo, I decided to reprint the sizable section of his email above. Hey, Errol, you know what they say: “All publicity is good publicity.” (Or was that rather: “All publicity brings in the bucks?”)

However, it saddens me to note (and I do hope Mr Naidoo and his followers do not take this in the wrong way) that all that time with Gods creatures in the Kruger Park seemed to have affected Mr Naidoo’s ability to construct a rational argument. Mr Naidoo also sadly seems to have lost his memory and has forgotten that we now live in a constitutional democracy (and not in the Christian Nationalist state of the apartheid era).

He seems blissfully unaware that we now have a justiciable Bill of Rights in which the power of the state to oppress people and to discriminate against them based on their personal attributes and characteristics (like their race, sex, disability and sexual orientation) is severely limited.

In a constitutional democracy the religious views of some – and I have no reason to believe that Mr Naidoo and his lovely wife Arlene do not hold their religious views deeply and sincerely – cannot be imposed on society as a whole as this would be in fundamental breach of the rights of those who do not share these views. Sincerity and deeply held convictions do not justify unfair discrimination in a constitutional democracy.

While every person is entitled to believe what he or she wishes (one can believe, for example, that Simba the Lion King is the God Almighty, or that all homosexuals will burn in hell or, even, if one wants to stretch the point, that 300 000 believers will be whisked away to Heaven on the day of the Rapture) a person cannot get the state to force his or her beliefs down the throats of others as this would constitute a fundamental breach of our human rights. (For example, a religious group – even if it had the support of the majority – could not legitimately demand that the state ban all driving on a Sunday because the group happens to believe the Rapture would occur on a Sunday and that driving on that day would therefore cause too many accidents.)

Mr Naidoo is therefore entitled to believe that same-sex marriage is just as evil as child abuse or woman’s liberation – as the leadership of the Catholic Church seem to do, at least about woman’s liberation – but he cannot require the state to enforce that belief by banning same-sex marriage. If he wanted the state to ban same-sex marriage or to force woman to stay barefoot and pregnant in the kitchen, he is of course free to emigrate to Saudi Arabia. (I hear Iran also has lovely game parks and rather strict laws on homosexuality – although I am not sure whether they will embrace emigration by right wing Christians.)

He is free to believe what he wants, to preach what he wants and to even practice what he preaches (the latter being a rare occurrence in the overtly pious – at least in my experience). And in the unlikely event that, like many Evangelists in the USA, his animosity towards homosexuals is fueled by a secret desire to have sexual relations with members of the same sex, he is even free to divorce his wife and marry another man – although he will have to go on a diet, radically revise his beliefs, and read a few satyrical novels before I would seriously consider his marriage proposal.

The claim by Mr Naidoo that the “core constitutional freedoms” have been breached by the adoption of same-sex marriage laws can only be sustained if one believed that freedom had nothing to do with freedom at all, and hence that freedom was completely divorced from the notion that people had a right to live their lives free from hatred and discrimination. His view of “constitutional freedoms” would require one to endorse the idea that the state had a right to enforce the views of some on society as a whole.

Such a society would not be free, of course, and neither would it be a substantive democracy. In such a society the only people who would have “core constitutional freedoms” would be those who wielded power and could therefore ensure that their beliefs were enforced through the barrel of a gun and through torture (perhaps by forcing people to listen to Gospel music played backwards), imprisonment or campaigns of social vilification. Such a society would be one in which the human dignity of almost all people would be flagrantly disrespected and would be decidedly undemocratic (a bit like Texas without the big hats, the funny accents, the Hummers and the occasional election).

PS: This post must be read in the same spirit in which Umberto Eco wrote his novel, The Name of the Rose. In this novel a Fransciscan Friar discovers that Monks are being poisoned in a monastery when they read humorous books because some members of the church hierarchy believe that laughter is the antidote to fear and that if one stopped fearing one might also stop believing in God. As Wikipedia explains: “As the plot unfolds, several other people mysteriously die. The protagonists explore a labyrinthine medieval library, the subversive power of laughter, and come face to face with the Inquisition. It is left primarily to [the main protagonist] William’s enormous powers of logic and deduction to solve the mysteries of the abbey.”

Do we need a jury system?

Sep 9th, 2009
by Pierre De Vos.
96 comments

Ronald Kevin Roberts (alias Ronald Suresh Roberts) published an intriguing – if wrongheaded – opinion piece in the Sowetan yesterday. In it he argues that the jury system should be reintroduced in South Africa because a “jury is the exact opposite of the sort of illiberal clique that until recently dominated key institutions of legal culture, such as the Judicial Services Commission”.

Arguing that the 2009 election was, in effect, nothing less than a rough- and-tumble referendum on the alleged criminality of Jacob Zuma, he punts juries as “the classic and humane safety valve of democratic legal systems”.  

It has been the venerable role of juries to “nullify” the sometimes pedantic harshness of the law in the interest of the legitimacy of law within the broader society. That’s one reason why even the old whites-only jury trials disappeared in 1969, as apartheid securocrats completed their takeover of the legal system under John Vorster…

The fact that we don’t have juries, nor even discussion about the restoration of juries, is the single best sign of the triumph of illiberalism over democracy in a post-1994 legal system that is otherwise so proudly progressive. Apartheid distrusted the native voter; democracy still abhors the native juror.

Of course, only the most formalistic pedant will argue that there is no interplay between politics and law (see the article by Ronald Dworkin on the Sotomayer confirmation hearing in the Seminar Room for an elegant argument in this regard).

But I am not sure the argument by Roberts holds water (to put it mildly). To argue that the 2009 election was a kind of jury trial for Jacob Zuma in which he was acquitted is preposterous. We vote for a party, not an individual. It is therefore impossible to know whether those who voted for the ANC voted to “acquit” Zuma or despite the fact that Zuma was the ANC Presidential candidate.

In any case, a jury first hears all the evidence as presented by the state and then makes a decision on whether the state has proven its case beyond reasonable doubt. Zuma, of course, managed to evade the trial (his “day in court”) that would have allowed a presentation of the evidence. In order to avoid not only a possible conviction but also having to be judged by the voters on the basis of all the evidence gathered by the state, Zuma and the NIA made sure that he would avoid a trial. A jury also operates on consensus. All members of a jury must agree to convict or acquit a defendant. Where 35% of the jury “votes” against a defendant (as happened in the 2009 election), the defendant is not acquitted and can be retried.

But this  silly comparison aside, does Roberts not have a point? After all, our legal system lacks legitimacy and it might well be argued that re-instituting juries would help to legitimise the legal system as it would introduce a democratic element into criminal trials which would give people a better understanding of the legal process and a much stronger feeling that they have a stake in it.

I would say, decidedly not. Re-introducing juries would be a disaster. This is not – as Roberts preemptively argues – because I am “illiberal” and racist and because I distrust black people to make correct factual decisions after hearing all the evidence presented by the state.

Far from it.

I do distrust South Africans in general (black and white) - who have been battered by crime and are often paranoid and fearful of “criminals” - from listening to all the evidence with an open mind and then making a fair decision. Given the discourse on crime in our society, will jurors always acquit defendants when they should? What about the fair trial rights and the presumption of innocence? I am not sure whether all South Africans – desperately wanting to see criminals behind bars – would always want to bother too much with assuming the innocence of an accused before finding him or her guilty – especially where the accused does not have high charging lawyers to look out for his or her interests.

But there is also a flip-side to this argument. Given the fact that South Africa is a deeply divided society with deep racial fissures, those accused persons who are lucky enough to be able to afford expensive lawyers will have an even more unfair advantage. A good lawyer will be stupid not to play on the possible racism and bigotry of at least some members of the jury. Such a lawyer will attempt to sway some of either the white or black members of the jury to view the case as a racial one in order to garner sympathy for his or her client and so ultimately to prevent conviction.

Imagine a white farmer is charged with murdering a black farm worker and the jury is made up of seven township residents and two white farmers. A good lawyer will play to the possible racist fears and prejudices of the white jurors who might be eager to believe that the farmer acted in self defense. How often would the state be able to secure a conviction (convincing all nine jurors of the guilt of the accused) in such circumstances? Not all white jurors would be swayed by the lawyer’s tactics, of course, but some will.

A jury system may therefore further pervert the criminal justice system, as rich defendants with clever lawyers will often be able to escape conviction while undefended (mostly poor and black) defendants will more often than not be convicted. Juries therefore seems to me like a quick-fix that will turn in to a “no-fix”.

Of course I believe there is a great need to make our legal system more legitimate. This requires a change in the race and gender composition of the bench and a change in the race and gender composition of the advocates profession – from which judges are mostly selected. The vast majority of advocates are still white and male and this clearly hampers transformation.

But transformation for me is also about making the legal system more accessible to ordinary South Africans. It seems untenable that most South Africans do not have the money to access the legal services required to enforce their rights and the legal obligations of others towards them through the judicial system and this poses a fundamental threat to the Rule of Law.

The dramatic expansion of legal aid to civil matters would really make a big difference in this regard, but this has resource implications so is not so easy to do. Nevertheless, if access to justice is not improved the legitimacy of the legal system itself will be further eroded – with or without a jury system. Moreover, an expansion of legal aid would also provide opportunities to transform the race and gender composition of the advocates profession so it seems to me to be of the utmost importance.

Constitutional Court “turmoil”: all Mbeki’s fault?

Aug 29th, 2008
by Pierre De Vos.
27 comments

I am not the greatest of fans of President Thabo Mbeki – as readers of this Blog might know – but I was rather surprised by an article by one James Myburgh published on Politicsweb today in which he argues the real reason so few people applied for the vacant position on the Constitutional Court is because President Mbeki has consistently appointed judges to this court on ideological grounds.

So, this is all Mbeki’s fault! Next he will be blamed for the hurricanes in the US or for the runderpest.

Myburgh – who used to write speeches for Tony Leon, if I am not mistaken – writes:

Over the course of his presidency Mbeki’s appointments to the Constitutional Court were characterised by ‘negative selection.’ As under Communist systems “ideological, organisational, and personal loyalty” was preferred over competence, and independent-mindedness.

In terms of the Constitution Mbeki was required to go through the motions of consulting with the then leader of the opposition, Tony Leon. In his autobiography, On the Contrary, Leon sets out the perverse quality of some of the appointments made by Mbeki. In 2004 two of the most formidable jurists in the country, Johann Kriegler and Laurie Ackermann, were due to retire from the court. In November 2003 nine candidates were interviewed for the vacant positions one of whom was Jeremy Gauntlett SC.

Leon writes that Gauntlett “was one of the busiest and brightest advocates in South Africa… [and] would, by common consent in legal circles, have made a significant contribution to the Court. But he was not one of the names forwarded by the JSC to Mbeki for consideration.”

The five names forwarded to the President were Justices BR du Plessis, Christopher Jafta, YS Meer, Thembile Lewis Skweyiya and JV van der Westhuizen. Mbeki’s legal advisor, Mojanku Gumbi, wrote to Leon advising him that the president was ‘considering appointing’ Skweyiya and Van der Westhuizen.

Leon notes “It was clear that the choices were flavoured by the nominees’ close connection to the ANC. Senior members of the Bar and judiciary were dismayed at the exclusion of [Ben] du Plessis, who had already acted in the Constitutional Court, and was generally regarded as the top jurist in contention.” By contrast, at the time he had to deal with the issue, Leon writes, a family he knew in Johannesburg had been waiting for two years “for Van der Westhuizen to deliver a judgment on a relatively simple matter.”

I find this kind of reasoning breathtakingly naive. It seems to suggest that there are two kinds of candidates for appointment to the Constitutional Court. On the one hand, there are highly skilled, “independent” and non-ideological candidates which never get appointed. On the other hand there are candidates who are less competent, less “independent” and ideologically tainted who are always appointed by Mbeki instead of the first group.

There are at least two problems with this line of reasoning.

First, every candidate for appointment to the bench has an ideology and is therefore only “independent” in relation to some other group whose views the candidate do not share. The view that some candidates are independent and non-ideological while others are not is a typical liberal fallacy based on the inability of a certain kind of liberal to see that he or she also has an ideology. For those kinds of liberals,  (they often have a libertarian bent and thinks the state should not interfere in the “market”) only other people have an ideology while they just know the Truth and what is best for the nation.

I am sure Jeremy Gauntlett appears non-ideological to Tony Leon and James Myburgh but that is only because they share Gaunltett’s politics and do not see his ideological bent as a problem. President Mbeki on the other hand do not share Gauntlett’s ideology so he could easily argue that Gauntlett is not independent or too ideological because of this.

Second, the Constitutional Court’s job is highly politicised and it has to interpret a Constitution that seems to demand a very specific engagement with issues of transformation and social justice. This, to my mind, is a good thing because without this element of social justice the Constitution will lose its legitimacy.  Most South Africans are poor and do not sit in air conditioned offices marveling over the wonderful technical legal arguments conjured up by a Gauntlett or a Cameron.

Appointing libertarian judges to the Constitutional Court might therefore be counter-productive and might affect the legitimacy of the Court and the Constitution because the Court would begin to make decisions that are ideologically not in the best interest of the vast majority of South Africans. Property rights will be sacrosanct and evictions will be ordered at the drop of a hat.

It could therefore be argued that President Mbeki has been rather wise (yes, I have said it!) in appointing judges whose vision is more closely aligned with that of the majority of the country. The very credibility of our Constitution and of the Constitutional Court depends on it.

By all accounts none of the appointments to the Constitutional Court are stupid or lazy.  In fact, they are all highly qualified judges who happen not to share the political views of Tony Leon. They might not meet the exacting black letter law credentials of the liberals but this, I would say, is a good thing. Those brilliant black letter lawyers might not be the best Constitutional Court judges because they would not want to disturb the common law too much and might be reluctant to infuse the common law with the values of the Constitution.

So on this one I am with President Mbeki. I sure hope he continues the good work in the next round of appointments.

CORRECTION: James Myburgh informs me that he was never a speechwriter for Mr. Tony Leon but worked as a Democratic Party researcher under Leon. Apologies for the mistake.