Constitutional Hill


Godfrey Pitje Inaugural Memorial Lecture

General: Godfrey Pitje Inaugural Memorial Lecture

The Godfrey Pitje Inaugural Memorial Lecture, to be hosted by the Black Lawyers Association, will be delivered at Constitution Hill, Johannesburg, on Friday (18:30 for 19:00) by Deputy Chief Justice Dikgang Moseneke. The lecture will focus on the principles of the late Godfrey Mokgonane Pitje under the title ‘The life of Godfrey Mokgonane Pitje as a professional, activist, educator: Reflections to aspiring lawyers.’ For more information, contact Busani Mabunda, at or 082 964 4490.

Harvard Workshop on Animals in Comparative Constitutional Law

Harvard Workshop on Animals in Comparative Constitutional Law

Harvard Law School is seeking submissions for a workshop on Animals in Comparative Constitutional Law to be held on Thursday, February 18, 2016.

We invite scholarly submissions on any theme relevant to this topic, including pieces addressing constitutional theory, institutional design, and case studies grounded in the constitutional experiences of particular jurisdictions or regions.  We are also interested in topics that involve issues of religious law, such as the relevance of the halal and kosher debates to constitutional developments regarding animals (e.g. in Europe), and the religious dimensions of the constitutional protections for animals (e.g. in India).

Applicants should submit an abstract (between 500 and 1,000 words) to, along with a C.V., by October 15, 2015.  All submissions must be in English.  Decisions on workshop participation will be communicated to applicants by October 29, 2015.

All selected participants will be expected to produce a working draft of their paper (approximately 10,000 words) by December 15, 2015, and to participate in person at our workshop, to be held at Harvard Law School, on Thursday, February 18, 2016.

Harvard Law School will cover the travel costs and local accommodations of participants.  The workshop is sponsored by the Animal Law & Policy Program and the Islamic Legal Studies Program.

Parliamentary rule 53A on disruption of proceedings


  1. Rule amendments

The Rules Committee of the National Assembly, having considered proposals for the amendment of the Rules of the National Assembly, recommends the following amendments to the Rules:

(a)        Section 1 (Definitions) to be amended by the insertion of a new definition:

  1. Definition

 “Parliamentary Protection Services” means any person authorised by Parliament to perform security and protection services within the precincts of Parliament, and includes all parliamentary staff members employed, appointed, assigned, delegated or contracted by Parliament to perform security and protection functions within the precincts of Parliament.

(b)        New Rule 53A to be inserted, as follows:

53A.    Removal of member from Chamber

(1)        If a member refuses to leave the Chamber when ordered to do so by the presiding officer in terms of Rule 51, the presiding officer must instruct the Serjeant-at-Arms to remove the member from the Chamber and the precincts of Parliament                                    forthwith.

(2)        If the Serjeant-at-Arms is unable in person to effect the removal of the member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the member from the Chamber and the precincts of Parliament.

(3)        A member who is removed from the Chamber in terms of subrule (2), is thereby immediately automatically suspended for the period applicable as provided for in Rule 54, and may not enter the precincts for the duration of the                                suspension.

(4)        If a member resists attempts to be removed from the Chamber in terms of subrules (1) or (2), the Serjeant-at-Arms and the Parliamentary Protection Services  may use such force as may be reasonably necessary to overcome any resistance.

(5)        No member may, in any manner whatsoever, physically intervene in, prevent, obstruct or hinder the removal of a member from the Chamber in terms of these Rules.

(6)        Any member or members who contravene subrule (5) may, on the instruction of  the presiding officer, also be summarily removed from the Chamber and the precincts of Parliament forthwith.

(7)        If proceedings are suspended for the purposes of removing a member or members,  all other members must remain seated or resume their seats, unless otherwise directed by the presiding officer.

(8)        When entering the Chamber on the instruction of the presiding officer –

(a)        Members of the Parliamentary Protection Services may not be armed; and

(b)       Members of the security services may not be armed, except in extraordinary circumstances in terms of security policy.

(9)       Members who have been removed from the Chamber will be escorted off the  precincts by Parliamentary Protection Services personnel and will not be allowed    to enter the House or precincts of Parliament as the Rules prescribe.

(10)     If a member(s) offers resistance to being removed from the precincts, members of    the security services may be called upon to assist with such removal.

(11)      In the event of violence, or a reasonable prospect of violence or serious disruption   ensuing in the Chamber as a result of a member(s) resisting removal, the presiding officer may suspend proceedings, and members of the security services may be        called upon by the presiding officer to assist with the removal of members from  the Chamber and the precincts of Parliament forthwith in terms of Section 4(1)     of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act No 4 of 2004, or may intervene directly anywhere in the  precincts in terms of section 4(2) of the Act when there is immediate danger to   the life or safety of any person or damage to any property.

(12)     Whenever a member is physically removed from the Chamber in terms of this  Rule, the circumstances of such removal must be referred by the Speaker, within 24 hours, to a multi-party committee for consideration.

(13)     The House may approve Standard Operating Procedures, recommended by the Rules Committee, for the exercise of this function, in particular in relation to the   use of the Parliamentary Protection Services and members of the security services    for this purpose.

Standard Operating Procedures: Member refusing to leave Chamber

(1)       If a member refuses to leave the Chamber, the presiding officer asks the Serjeant-at-Arms to remove the member from the Chamber.

(2)       The Serjeant-at-Arms approaches the member(s) to explain in a respectful manner    that the instruction of the presiding officer must be complied with and that failure to do so can constitute a grave offence and have serious implications, including        that the member(s) may need to be physically removed from the Chamber.

(3)       If the member still refuses to leave, the Serjeant-at-Arms indicates to the presiding officer that the member refuses to comply, whereupon the presiding officer informs the House that the Parliamentary Protection Services are to be  called upon to assist.

(4)       The Parliamentary Protection Services personnel enter the Chamber upon the instruction of the presiding officer, and proceed to remove the member(s)  concerned under the direction of the Serjeant-at-Arms.

(5)        Members of the public in the gallery who participate in disorderly conduct will be removed by the security services.

List of candidates shortlisted by JSC for judicial appointment



On 21 July 2015, the Judicial Service Commission (JSC) published notices in the media calling for nominations of interested persons to fill 17 vacancies in the various superior courts. The closing date for submission of nominations was set for 11 August 2015. On 26 August 2015, the JSC met and compiled a short list of candidates to be interviewed at its sitting to be held in Cape Town on 05-09 October 2015 as follows:

1. Eastern Cape Division of the High Court (Bhisho) (Deputy Judge President) (One vacancy) 

Judge M Makaula

Judge S M Mbenenge

Judge D Van Zyl

2. Eastern Cape Division of the High Court (Mthatha) (Deputy Judge President) (One vacancy) 

Judge Z M Nhlangulela

3. Eastern Cape Division of the High Court (Port Elizabeth) (One vacancy) 

Adv R W N Brooks SC

Adv E Crouse

Adv M G Ndzondo

4. Free State Division of the High Court (Two vacancies) 

Adv P U Fisher SC

Ms N M Mbhele

Mr J J Mhlambi

Ms S C Mia

Mr N W Phalatsi

Adv L Le Pohl SC

Adv C Reinders

5. Gauteng Division of the High Court (Six vacancies) 

Judge A C Basson

Ms C J Collis

Adv N Davis SC

Adv R M Keightley

Ms N P Mali

Mr P L C Maseti

Mr M P N Mbongwe

Ms L T Modiba

Mr T P Mudau

Adv R Strydom SC

Mr M L Twala

Adv W H G Van der Linde SC

6. KwaZulu-Natal Division of the High Court (Deputy Judge President) (One vacancy) 

Judge S Gyanda

Judge G N Kruger

Judge M I Madondo

Judge S K Ndlovu

Judge K Pillay

7. KwaZulu-Natal Division of the High Court (Two vacancies) 

Adv P C Bezuidenhout SC

Prof K Govender

Ms S M Marks

Adv G R Thatcher SC

8. Labour Court (Two vacancies) 

Adv C Prinsloo

Mr E Tlhotlhalemaje

9. Northern Cape Division of the High Court (One vacancy) 

Adv S L Erasmus

Adv L G Lever SC

Ms M C Mamosebo

In total, the JSC has therefore shortlisted 40 candidates. The shortlisted candidates will be notified of the date, time and venue of the interviews in due course.

Law bodies and members of the public wishing to comment on the candidates should address their comments to the Secretariat of the Judicial Service Commission at alternatively Comments must reach the Secretariat by no later than 21 September 2015.

Issued by the Judicial Service Commission

Enq: Adv D Ntsebeza SC 0824672490 and Mr C P Fourie 0828811737 

03 September 2015

Con Court to hear case of fired Methodist Minister


Ecclesia De Lange v The Presiding Bishop of the Methodist Church of Southern Africa and Another

CCT 223/14 

Date of hearing: 28 August 2015





The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On 28 August 2015 at 09h00, the Constitutional Court will hear an application for leave to appeal concerning Ms De Lange’s suspension and discontinuation as an active minister of the Methodist Church following her announcement, on 6 December 2009, of her intended marriage to her same-sex partner.

The Church informed Ms De Lange shortly thereafter that her announcement had breached the Laws and Disciplines of the Church, in that Church policy only recognised heterosexual marriages. Ms De Lange was suspended on 10 December 2009 and was discontinued as a minister in February 2010.

On 31 March 2010, Ms De Lange referred the matter to arbitration in terms of the Laws and Disciplines of the Church. The parties were unable to agree on the terms of an arbitration agreement and, as a result, no valid agreement was placed before the arbitrator. The arbitrator then referred the matter back to the Convener in February 2011. Ms De Lange refused to engage further with the arbitration process, citing what she perceived as bias and unfairness. The Convener, acting on Ms De Lange’s behalf as provided by the Laws and Disciplines, entered into a final arbitration agreement with the Church in May 2011.

In the High Court, the Church argued that Ms De Lange is bound by the Church’s Laws and Disciplines and that she must submit herself to arbitration. Ms De Lange argued that arbitration would be unjust and futile as there had been a long delay in the finalisation of the arbitration agreement, and contended that the conduct of the Church and the Convener indicated bias. The High Court held that Ms De Lange had not shown good cause to set aside the arbitration agreement, and that the issues to be referred to arbitration would be wide enough to address any of her concerns.

Ms De Lange appealed to the Supreme Court of Appeal. The Court unanimously dismissed the appeal by way of two separate judgments, one by Ponnan JA and a concurrence by Wallis JA. The core issue before the Court was whether the Church had adopted a rule that precluded Ms De Lange from announcing to the congregants her intention to marry her same-sex partner. Ponnan JA found that a valid arbitration agreement had been concluded between Ms De Lange and the Church, and that the parties were bound thereby. Ponnan JA held that Ms De Lange had not discharged the onus of showing good cause to avoid arbitration in terms of section 3(2) of the Arbitration Act. It was further held that arbitration was the ideal dispute resolution mechanism to resolve a religiously sensitive dispute such as this.

Wallis JA disposed of the appeal on the basis of whether the alleged arbitration agreement should be set aside or avoided. Based on the nature of the relationship between the Church and its ordained ministers, Wallis JA expressed deep reservations about finding an arbitration agreement between Ms De Lange and the Church. Wallis JA also questioned whether this matter fell within the ambit of the Arbitration Act as section 2 precludes the arbitration of matters relating to status. Wallis JA held that the Church and its ministers do not have a contractual relationship, but rather one that flows from a divine calling. Even so, the only way that an arbitration agreement could have been created between Ms De Lange and the Church is if they had agreed to the terms of the agreement, which was not the case. Wallis JA concluded that this matter should be removed from the judicial secular arena, and rather be resolved in accordance with the Church’s Laws and Disciplines.

Ms De Lange’s constitutional challenge is based on the contentious issue of whether the Church has a policy disqualifying ministers who have entered into same-sex civil unions from playing an active role in the Church. Absent such a policy, or by reason of the ambiguity of such a policy, Ms De Lange contends that, in terms of section 9 of the Constitution, she has been unfairly discriminated against based on her sexual orientation and marital status. Due to the constitutional rights at issue, Ms De Lange regards this Court, and not the arbitration process, to be the appropriate forum for relief. Ms De Lange seeks an order in this Court regarding the balancing of fundamental constitutional rights concerning her right to equality and the Church’s rights to freedom of religion and freedom of association.

The Church contends that Ms De Lange’s claim is subject to arbitration in terms of the Church’s rules. In addition, the Church submits that the Equality Court is best suited to hear the unfair discrimination matter in accordance with the Promotion of Equality and Unfair Discrimination Act. Finally, the Church argues that the discrimination against Ms De Lange is justified as the Church is entitled, in terms of sections 15 and 18 of the Constitution, to require its ministers not to enter into any marriage or civil union other than a heterosexual one.

DA Nkandla Court papers

Here is a copy of the Founding Affidavit of the DA in their court challenge to various aspects of the Nkandla case. Nkandla Court Papers

EFF Notice of Motion to Con Court on Nkandla


 In the matter between:

THE ECONOMIC FREEDOM FIGHTERS                                                           Applicant//



REPUBLIC OF SOUTH AFRICA                                                            First Respondent

PRESIDENT JACOB GEDLEYIHLEKISA ZUMA                         Second Respondent


TAKE NOTICE that in terms of the provisions of sections 167(4)(e), 167(6)(a) of the Constitution and rule 18 of the rules of the Constitutional Court, the applicant makes application to this Court for final relief in the following terms:

  • It is declared that the National Assembly has failed to fulfil its obligations in accordance with the provisions of sections 55(2) and 181 of the Constitution to ensure that all executive organs of state in the national sphere of government are accountable to it and to maintain oversight of the exercise of National Executive authority in that it has failed to ensure that the President of the Republic of South Africa, Mr J G Zuma (President Zuma), has complied with and given effect to the findings and remedial action ofthe Public Protector in her report dated March 2014, under the heading: “Secure in Comfort: Report on an investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Zuma at Nkandla in the Kwa-Zulu Natal province”.(This is hereafter referred as the Public Protector Report).
  • It is declared that President Zuma in his capacity as Head of the National Executivehas failed to fulfil his constitutional obligations in that he has failed to implement the findings and remedial action in the Public Protector report.
  • President Zuma is directed to give effect and to comply with the remedial action contained in the Public Protector Report, within 30 days of the order of this Court.
  • Directing that costs be paid by any person opposing the application.
  • Granting further and/or alternative relief.

TAKE NOTICE THAT the founding affidavit of Mr Floyd Nyiko Shivambu annexed hereto and its annexures shall be used in support of this application.

TAKE NOTICE FURTHER that the Chief Justice is requested to issue directions concerning the manner in which this application shall be dealt with.


Invitation: Public Lecture on political party regulation in SA

Seminar Flyer - O'Regan - Aug 2015

Judicial Vacancies: nominations sought


 The Judicial Service Commission (JSC) invites nominations to fill vacancies as Judges in the following Courts:

  • Eastern Cape Division of the High Court

Two vacancies (Deputy Judges President, Bhisho and Mthatha)

One vacancy (Port Elizabeth)

  • Free State Division of the High Court

Two vacancies

  • Gauteng Division of the High Court

Six vacancies

  • Labour Court

Two vacancies

  1. KwaZulu-Natal

            One vacancy (Deputy Judge President)

Two vacancies

  • Northern Cape Division of the High Court

One vacancy

Nominations must be accompanied by the candidate’s written consent, detailed curriculum vitae disclosing the candidate’s formal qualifications for appointment, the standard questionnaire completed and signed by the candidate, as well as copies of at least three written judgments by the candidate.  The standard questionnaire to be completed by all nominees is available on the South African Judiciary website: alternatively on the Constitutional Court website:

The JSC reserves the right to recommend a candidate for the filling of any vacancy which may exist at the time of the interviews. This is to avoid the situation which has arisen in the past when, despite the availability of suitable candidates, no appointments could be made to fill vacancies which had occurred subsequent to the notice calling for nominations. Consequently, in making nominations, regard should be had to the possibility that more judicial vacancies may occur than have been advertised.

The Secretariat wishes to emphasize the following points:

  1. Interviews with short-listed candidates will be conducted in public, i.e. members of the public and the media (both electronic and print) will be entitled to be present.
  2. It is open to persons or bodies nominating candidates to motivate their nominations by referring the JSC to the candidate’s qualifications and general fitness for appointment.
  3. The questionnaire must be accompanied by the standardized “clearance certificate” which the candidate is required to obtain from his/her professional body regarding the candidate’s professional status within that body, his or her suitability for appointment to the Bench and the nature of any disciplinary proceedings completed or pending in respect of the relevant candidate.
  4. Nominations must be addressed to and reach the Secretariat of the JSC not later than Monday, 11 August 2015.

Interviews will take place during the week of 05-09 October 2015 in Cape Town.  The exact venue for the interviews will be communicated to shortlisted candidates and members of the public in due course.

Applications must be addressed to:

The Secretariat of the JSC

Constitutional Court

Private Bag X1

Constitution Hill




Tel: (011) 838 2019/2015

Fax2Email: 086 649 0944

Email: alternatively

Candidates who wish to hand deliver their nominations could do so either at 14th Floor Edura House, 41 Fox Street, Johannesburg alternatively at the Constitutional Court.


Sello Chiloane

Secretariat: Judicial Service Commission

Justice Yvonne Mokgoro on Rule of Law, Judicial Authority and Democracy

The Rule of Law, Judicial Authority, and Constitutional Democracy in South Africa.

 Justice Yvonne Mokgoro

1 Introduction: A Tribute to Professor Asmal

 It is a privilege for me to present this lecture in honour of Professor Kader Asmal whose role and contribution in the development of our constitutional democracy was in no small measure.  He was part of a select group of veterans and thought leaders whose exemplary work will remain a source of inspiration for future generations. Many of us have fond memories of him as a fellow patriot who has demonstrated his unwavering commitment to the rule of law and respect for the judiciary at appropriate moments.

His involvement in the processes that culminated in the adoption of our Constitution has been widely acknowledged.  As former President, Kgalema Motlanthe, remarked, his contributions to the constitution-making process has ensured that “his voice will be eternally encoded in democratic South Africa”.[1] Professor Asmal also saw our Constitution as a “detailed social contract” reflecting the views and aspirations of the people, a significant change and shift from the old apartheid constitution which he described as a ‘‘convoluted monstrosity rooted in racism’’.[2]

As member of cabinet, he worked tirelessly to ensure that the fundamental rights enshrined in our Constitution do not remain lofty ideals, good only on paper but with no place in the real world.  And who can forget how, as Minister of Water Affairs and Forestry, Professor Asmal displayed a unique understanding of human dignity and human rights by viewing government water policy as an important means through which some of the basic rights enshrined in the Constitution, such as access to clean water and sanitation, could be realised for the benefit of millions of people, especially the indigent.[3]

As Education Minister, being the accomplished academic he was, and despite some weaknesses in the education system ascribed to him, he demonstrated great understanding of the concept of access to education as a fundamental right, by taking a principled stand and adopting policies against the rising costs of education and the exclusion of the majority of young South Africans from institutions of higher learning, among others.[4]  As he would later recount in his memoir, “I was not prepared to tolerate exclusion of any form wherever it appeared”.[5]

Professor Asmal’s admirable strength was his inability to remain silent in the face of deviation from democratic constitutional ideals and human rights violations.  His description of then Government policy on HIV and Aids as a kind of “quackery” that deserved to be dismissed contemptuously was a classic example.[6]  And here I must admit I chose to paraphrase rather than quote his exact words because he did use some choice words to express his frustration at what he saw as serious human rights violations[7]  His decision to resign from parliament in protest against the disbanding of the Scorpions and his public outspokenness against the Protection of State Information Bill are other examples to illustrate this point.

Kader Asmal was greatly concerned that the foundation of our democracy was being “chiselled away” by public officials who appeared to respect the Constitution in public while attacking it by stealth.[8]  In particular, he was troubled by the relentless attacks on the judiciary, which he felt had become standard practice in political discourse.[9] He believed that attacks like those threaten and undermine public confidence in the judiciary as an institution. Professor Kader Asmal strongly believed that the independence and dignity of the judiciary were non-negotiable preconditions for the survival of our own democracy. Clearly, he believed strongly in our Constitutional democracy, which I proceed to describe.

 2 Constitutional Democracy and the Principle of Separation of Powers and Checks and Balances

 The basic principles which underlie our constitutional order include constitutionalism, separation of powers with checks and balances, the rule of law and accountability.9.  Some of these principles or values are expressly provided for in the Constitution while others are implicit. However, whether explicit or implicit, they are all justiciable in that any law or conduct inconsistent with them, may be declared unconstitutional and invalid.  More particularly, these principles or values shape the basic framework which defines our constitutional order and inform the interpretation of the constitution and the law.

Whereas in any democracy, the political party elected by the majority of the electorate enjoys the right and authority to constitute the government of the day, when that democracy is a constitutional one, like ours, a written Constitution, among others create the rules for government and sets procedural and substantive limitations on the exercise of government power.

Important for the purpose of this address is that our Constitution is the supreme law of the land and is binding on all three arms of the state.12  Needless to say, all law and conduct of any of the three arms of the state which are inconsistent with the Constitution are invalid. Further, any obligation imposed by the Constitution on any arm of the state is peremptory, and takes precedence over other internal rules of the legislature, the executive and the judiciary. That obligation must therefore be fulfilled.  But then, what would constitutional supremacy mean if the Constitution cannot be enforced?  Thus the power to enforce the Constitution is vested in the courts,13 which are independent and subject only to the law and the Constitution.  However, when the courts exercise this judicial power, courts must do so impartially, without fear, favour, or prejudice.  But then again, there is the tricky aspect of the counter-majoritarian idea (not counter revolutionary), where the recurring question is always why unelected judges should have the power to strike down laws and conduct of a majority elected legislature and a representative executive, declaring them invalid.  The answer lies in the nature of a Constitutional democracy.  While democracy in its most literal sense may be understood as “rule by the majority”, in a constitutional democracy “rule by majority” must be exercised subject to predetermined constitutional rules and procedures. An important provision in our Constitution, is the constitutional rule that the orders of court are binding on all persons and organs of state, including the legislature and the executive (or government).  Therefore, whereas before the adoption of our interim constitution in 1994, parliament was sovereign and exercised legislative supremacy, today, the irreversible truth is that, integral to our constitutional democracy, our legislature is no longer sovereign.  The Constitution is.

But let’s not belabour the point because although the separation of powers with checks and balances is also fundamental in our Constitution, what is also important is that the three arms of the state are not to pool in opposite directions.  Their roles are complementary rather than competitive. Together they have an obligation to protect the supremacy of the Constitution.  It is for that reason that all organs of state must assist and protect the courts and therefore the judiciary, ensuring its effectiveness, dignity, independence, impartiality and accessibility.[10]  Any law or conduct which has the impact of interference in the functioning of the courts by any person or organ of state is a violation of the Constitution and may be declared invalid and set aside and the court must say so.  Alternatively the court, as the case may be, may suspend the invalidity for a limited period of time, while the legislature is given the opportunity to correct the invalidity.  An order of court which is just and equitable may ensue.

The Rule of Law and Judicial Authority

That is the power of judicial review assigned to all higher courts in our Constitution.  And the courts must exercise that power.  There is no question that the exercise of the power of judicial review, where the laws of parliament or conduct of the executive are set aside, is potentially imposing and my even overwhelm.  In crucial times, it can indeed determine the destiny of a nation.  Indeed, this power of the courts will add up to nothing and be totally impotent if organs of state in particular, have the choice to disregard court orders.  The potential for this notion in my view is not far-fetched considering the recent events in the matter of Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others[11] (popularly known as the Al Bashir matter).  Speaking for myself, I must admit, I am still reeling in shock at what appeared, and we might be wrong, to have been a blatant disregard for the order of court in the Al Bashir matter, including the subsequent responses of leading public figures in that regard.  And I was reminded of the insight of the late Chief Justice Ismael Mahomed when he stated, in an address he gave to the International Commission of Jurists in Cape Town on 21 July 1998, how the judiciary does not have its own massive physical resources to execute its own orders and can only rely on the executive to do so.  Thus, he said, if court orders are disregarded, “the courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar but no teeth with which to bite and no sinews to execute their judgements, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom and pious poetry”.[12]  And he continues, “…the potentially awesome theoretical power of the judiciary in the Constitution could in those circumstances implode into nothingness. Judges, in such circumstances, would visibly be demeaned. But much much worse: human rights could irrevocably be impaired and civilisation itself dangerously imperilled”.[13]  In no circumstances have I ever found these often quoted powerful words of Ismael Mahamed CJ more compelling.  That, for me, is exactly the cause for concern.

Besides, I too believe that the fact that judges are not elected must be seen as an important strength of our judicial system, rather than its weakness.  For me, it reinforces the impartially interventionist and protective role of the courts.  Here there is no room for populism.  Personal views and positions are irrelevant.  That is the role mandated to the judiciary by the Constitution.  In many respects, that role is assigned to the judiciary by the legislature who is the authority elected by the people.  And as our Constitution has it, the legislature and executive must protect this role and assist the courts to remain independent, impartial, accessible, effective and perform their role and function with outmost dignity.[14]  That obligation to protect the courts is therefore assigned to them in the Constitution by the people who they represent.

But then, to manage the irony of the lack of their own physical resources for the effective execution of their orders, the judiciary can only continue to cultivate for its self-respect and legitimacy in the minds of the society they serve generally, and of the litigants who appear before them – based on their fierce independence and awe-inspiring integrity at both individual and institutional level.  It is on this independence and integrity that the legitimacy and esteem of the courts will thrive, as long as judicial officers continue to ensure that the judicial power they exercise is matched by the depth of responsibility they have to fulfil their constitutional mandate and to do so honourably, without fear, favour or prejudice. That too is a responsibility mandated by the Constitution.

It is important, however, for judges to be cognisant of the notion that when litigants appear before the courts, they are entitled and will anticipate an outcome of a case in their favour. If the decision goes the other way, there will certainly be disappointments.  Where the outcome is about striking down and invalidating laws or conduct of the executive, controversy and/or vigorous debate may ensue from time to time.  Besides, robust and constructive debate and free expression of views or opinion are integral to a vibrant democracy and must be welcomed.  However, what places the legitimacy and integrity of the courts at risk is the reckless responses of litigants amounting to attacks without substance to decisions of the courts, whenever they are dissatisfied with the outcome of their cases.  And it makes it so much more dangerous when litigants are influencial public officials. In that case, it easily sends the wrong message to an already restless public that if the outcome of a court case is not favourable, a litigant is entitled to publicly “attack” the judicial officer and may even disregard court orders. This is a culture of disrespect for courts and the judiciary we can least afford.

However, judges can take solace in the idea that their decisions are the outcome of a fair adjudication process, where relevant issues are raised and submissions are made in open court, and each party has a fair opportunity to make compelling arguments in support of their contentions. It is then the responsibility of the judicial officer to ensure that the orders they make are just and equitable, taking into account facts of the case in the context of surrounding circumstances, the issues raised in argument, the contentions submitted, research analysis and interpretation of the applicable law and the Constitution using classical judicial approaches and rational objective standards of assessing available evidence.. Important for the judge is to recognise and identify the limits of their judicial power in the decisions they arrive at and the orders they make.

Of course, judges are human and are not infallible. However, errors in law and in fact are appealable to the highest court through the hierarchy of courts. That too is the case when a judge has over-reached herself or himself. That is the discipline the rule of law requires of each litigant who comes before the courts and is aggrieved by court decisions.

Further, judgments are handed down in open court, in the presence of litigants and or their representatives. They are presented with a copy of the judgment to study  and determine whether or not to lodge an appeal within a stipulated time. A litigant will know if even an aorta of irrelevant, extraneous, undue and unbecoming influence has affected the decision of the court and or the logic of the court’s reasoning does not add up. Any unbecoming conduct identified and affecting the integrity of the judge and amounting to misconduct in terms of the judicial oath of office and or under the Judges’ Code of Conduct, may be basis for lodging a complaint against the judge with the Judicial Services Commission (JSC). The process before the JSC may result in the impeachment of the particular judicial officer. This disciplined route is equally available to all litigants including organs of state and all public officials.

The JSC itself is constituted by a cross-section of representatives including members of the executive and the legislature.[15]  Again, the availability of these processes leave no room for any form of public attack on a judicial officer and or the judiciary.

4 Conclusion

The judiciary has the first responsibility, in my view to cultivate for itself public respect, trust, integrity and legitimacy, based on the way they perform their constitutional mandate. But I have no doubt that organs of state and public institutions or bodies who have an interest at stake if the independence, integrity and legitimacy of judiciary is placed at risk, to various degrees and in various ways, also have a responsibility to protect the courts. In my view they have an obligation at least to speak up in defence of the judiciary which is the bulwark of our constitutional democracy. Although the show of leadership demonstrated by the Heads of Courts led by the Chief Justice after the recent spate of attacks on the judiciary is commendable, and was appropriate in the circumstances, the judges do not have to go that far in defence of the judiciary if others who have what I view as a constitutional responsibility stoop up in defense of the judiciary. Notable however, are the efforts of the Public protector, the media and others in that regard.

More specifically the Chapter 9 institutions, which are independent and like the courts, are subject only to the Constitution and the law, have primary role of supporting constitutional democracy. They certainly have an important interest in the protection of the courts. Surely, other public institutions and bodies who have a stake in the strength of our courts to perform effectively also have an important role:

The organised legal profession is integral to the system of the administration of justice. In view of their close association with the courts and the direct reliance they place in their work on the independence and integrity of judges, they should be the first line of defence of the courts when their integrity is placed in jeopardy. Similarly, the academia, in particular the legal academy is clearly an important role player. Only last week, the Society of Law Teachers had their General meeting and it would be interesting to learn of their response regarding these recent developments.

The role of a vibrant independent media in identifying and investigating the most pertinent issues for public attention and debate, promoting public dialogue cannot be exaggerated and should therefore not loose its lustre.

My generation can remember well the game-changing role that human rights civil society organisation’s played in the dark days of apartheid oppression and repression. And we know also too well how the need for transformation in government generally, and the public service in particular almost depleted the resourcefulness of the civil society sector. And although the majority of these non-governmental bodies are now limited in membership and for various reasons, are much more restricted in their funding, affecting their impact, the role that they still play, although slightly shifted, is obviously as critical today as it was yesterday19. I believe they have a serious interest at stake if the independence of the courts is not protected.

The long and short of it is that whether state or the public at large, we all have an interest in the independence, integrity and legitimacy of our courts and must therefore protect them and desist from creating circumstances which weaken them and place their authority in jeopardy. If there is a point of social cohesion which has the greatest potential for institution-building with a view to nation-building, it is the respect we must show for our Constitution as the foundation of our constitutional democracy, where the role of our courts is central.


[1] Kgalema Motlanthe ‘Eulogy by Deputy President Kgalema Motlanthe at the Memorial Service of Professor Kader Asmal’, Cape Town, 30 June 2011.

[2] Kader Asmal ‘The Making of a Constitution’ Mail & Guardian, Issue 36, March/April 1995.

[3]  Achim Steiner ‘A Tribute to Professor Kader Asmal’ (24 June 2 011).

[4] These included measures to merger various institutions of higher learning pursuant to section 23 of the Higher Education Act 101 of 1997.  Some of the mergers were aimed at breaking down apartheid’s racial divides that saw certain universities catering primarily for white students, with huge budgets and extensive facilities, while others catered for blacks on shoe string budgets and with almost no facilities.

[5] Kader Asmal, Adrian Hadland and Moira Levy Kader Asmal: Politics in My Blood : A Memoir (2011) at 287-288.

[6] Jeremy Michaels ‘Rath Gets a Taste of Asmal’s Wrath’ IOL 4 May 2005.

[7] Jeremy Michaels ‘Rath Gets a Taste of Asmal’s Wrath’ IOL 4 May 2005.

[8] Speech by Professor Kader Asmal at the conferring of the honorary degree of Doctor of Laws by the University of South Africa on 12 April 2010.

[9] Speech by Professor Kader Asmal at the conferring of the honorary degree of Doctor of Laws by the University of South Africa on 12 April 2010.

[10] See generally section 165 of the Constitution.

[11] (27740/2015) [2015] ZAGPPHC 402 (24 June 2015).

[12] Id.

[13] Id.

[14] Section 165(4) of the Constitution.

[15] See Section 178 of the Constitution.