President Jacob Zuma will make an important announccement regarding the judiciary today at lunch time when he speaks at the Press Club. Will he announce his preferred candidate for the post of Chief Justice?
This blog deals with political and social issues in South Africa, mostly from the perspective of Constitutional Law. Written by Pierre de Vos
Quote of the week
May 20, 2012 | 11:21 amHow sweet it would be to live among us, if the exterior appearance was always an image of the heart’s tendencies; if decency was a virtue; if our maxims served us as rules; if true philosophy was inseparable from the title of philosopher! But so many qualities too rarely go together, and virtue hardly ever walks in so much pomp. Richness in dress can announce a man with money and elegance a man with taste. The healthy, robust man is recognized by other signs. It is under the rustic clothing of a labourer and not under the gilded frame of a courtesan that one will find physical strength and energy. Finery is no less a stranger to virtue, which is the power and vigour of the soul. The good man is an athlete who delights in fighting naked. He despises all those vile ornaments which hamper the use of his strength, the majority of which were invented only to conceal some deformity. Before art fashioned our manners and taught our passions to speak an affected language, our habits were rustic but natural, and differences in behaviour announced at first glance differences in character. Human nature was not fundamentally better, but men found their security in the ease with which they could see through each other, and this advantage, whose value we no longer feel, spared them many vices. – Jean-Jacques Rousseau in Discourse on the Sciences and the Arts
-
Archive for Quote of the week »
New from Seminar Room
- Zuma affidavit in the willygate case
- FUL’s founding affidavit on Mdluli case
- Pierre de Vos: Taking risks, taking responsibility: on whiteness and full citizenship under the South African Constitution
- Pierre de Vos: memo on SA Police Service Amendment Bill
- Justice Zac Yacoob on the “Dynamic Constitution”
- Oslo Declaration on HIV criminalisation
-
Archive for New from Seminar Room »
New from Updates
- Call for submissions to arms deal inquiry
- Podcast of DCJ Moseneke lecture at Georgetown University
- Internships at Human Rights Commission
- Shortlisted names for appointment to the Constitutional Court
- Chief Justice statement on death of Cabinet Minister
- ANC rejects Holomisa’s statement on gays and lesbians
-
Archive for New from Updates »
Hopefully a Chief Justice with backbone and a good sense of morality. If he or she knows a little Constitutional Law, so much the better.
Indeed that is true Pierre.I was informed that the announcement would be made at 1130 am.
Hopefully Jacob Gedleyihlekisa Zuma will make a right appointment as he always does, id est the Honuorable and highly qualified in constitutional law and general legal issues Mr Justice Mandlakayise Hlophe!
Maybe this could be a welcoming,
As this will give the JSC more room to maneuver, and have them rather concentrate on appointing the other 4 positions and handling the Hlophe affair and actually rescues the JSC from interviewing someone who has a pending judgement waitng for him until the JSC has made its judgement. Zuma would single handedly have calmed the crises down with the judiciary.
I think that would be a vote of confedence for Zuma in that regard
Mdu // Aug 6, 2009 at 12:21 pm
SPARs “Good for you” and just remember we dont drink pink drinks
Its Sandile Ngcobo
Kevin, I can live with him so long as Dikgang was passed b y!
@Kevin
how you been?
Well I think thats a relief for everyone, and I think the JSC can now breath abit. Well done to Jacob Zuma.
Its Sandile Ngcobo as Pierre de Vos prophesied long long ago. The oracle of cape town has spoken! And he foretold the truth to benefit of his people.
oh okay i see Kevin Sifiso Malunga // Aug 6, 2009 at 1:26 pm was on it. nevermind!
I have no problem with this nomination, but watch the hawks circle now. Well done Pierre. Not so sure about your analysis, but spot on with the name:
http://constitutionallyspeaking.co.za/?p=628
@Chris I’m very well thanks.I’ve just been enjoying this legal soap opera
@Mdu I definitely hear you.The tension between Hlophe and Moseneke is palpable it would have been a tough working relationship.However Ngcobo has two years left of his tenure so it should be fascinating how that ultimately turns out.
Did Zuma give any reasons for not choosing Moseneke?
The correct candidate (ie most experienced, honest, hard working and next in line), Dikgang, appears to have been passed over because he is not a lackey, not an ANC man, and perhaps not the right ethnicity. A rather sad day for good governance.
Peter, I tend to agree with you.
Kevin, not to drag up old debates, but have you found any authority, either locally or abroad, to the effect that the presumption of innocence applies in administrative disciplinary proceedings? I am very curious, because I would certainly like to be in a position to cite such authority in my practice.
And http://www.iol.co.za tells us it’s “Ngconde” / “Ncgobo” ..sometimes I just wonder. Guess it’s the rush to publish the story first, but I worry about those of us who are less informed. Read the story and see for yourself. There’s even where they say “moseneke [full name and title pls] and hlophe [full name and title pls]“.
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20090806133800208C215062
@Peter & Leigh – I think Peter’s comment is dangerous insofar as it may give an impression that Ngcobo is not the “correct” candidate. In my view, there’s nothing wrong with appointing someone else other than the Deputy. This notion that Moseneke was a “natural successor” / “next in line” creates exactly what we should be avoiding, the sense of entitlement.
On a side issue, a friend of mine commented just now, rather mischievously I think, that we now have:
President Zuma – Zulu origin
Min of Justice – Zulu origin
Min of Police – Zulu origin
Min of Intelligence – Zulu origin
Police Commissioner – Zulu origin
Chief Justice – Zulu origin
Chances of DA’s hope to have charges against Zulu re-instated are ZERO, NIL …..
Disclaimer: I do not subcribe to the view that any of the appointments are related to where these gentlemen come from..:):)
Hi Michael
I’ll take you up on that one.Its been a busy teaching week that I haven’t even been on this blog.I will find that precedent even if its foreign.I feel that administrative tribunals cannot be allowed to overlook this even though the term may not be presumption of innocence but under due process.
Mzo….thats a naughty post ha ha…
Kevin, I know…that’s what I told my friend as well.
By the way, I meant charges against “Zuma” not “Zulu”…hahaha
Funny Mzo, I got a similar e-mail from a friend with the following message:
“AmaZulu angenile embusweni. Obhedayo uzoshayiwa!”
Loose translation: “The Zulus are now in power. Anyone out of line will be straightened out.”
Ya Mzo… yo comments….
Kevin, thanks, I look forward to hearing from you. The phrase “due process” is a term, as I understand it, from the U.S. Constitution, and I have never heard it used with reference to admin law either. I believe both SA and English admin law has developed an entirely district discourse from criminal law. The touchstone in our Constitution is a broad concept of fairness that is much more flexible and pragmatically applied than the more rigid protections granted to criminal defendants. But maybe you can prove me wrong.
Mzo – But Ngcobo also ruled against Zuma, Thint etc – or didn’t he?
Anonymouse
No, in the search and seizure matter (which went against Zuma), he gave the only dissenting judgment, a judgment I endorse by the way.
Mzo: Was he perhaps spoken to by Hlophe? … Just being naughty – I know he wasn’t. … Anyway, I endorse the majority judgment in the search and seizure matter – but that is a matter of opinion – but remember, stare decisis still reigns.
Anonymouse // Aug 6, 2009 at 5:30 pm
I think you are being naughty but I can’t say the thought has not crossed my mind. We know, from one of Hlophe’s affidavit that he has a “friendly” relationship with Ngcobo. Now, if that is so, is it really possible that he would not have attempted to talk to him as “umkhaya wakhe” (loosely, his homeboy)?
If Hlophe did not chat to him at all, it might led credence to Hlophe’s rhetoric question, if I wanted to influence them, why only approach two judges? Surely, if he really wanted to influence he would have spoken to umkhaya wakhe.
If it were ever to come out that he was also “spoken to” by Hlophe, that would make for an even bigger scandal because the question would be why did he not mention it? Thankfully, I doubt something like that would ever come up – whether it happened or not…hahaha
Mzo, thank you for picking up on the apparent meeting of minds between Peter and I.
I regard one of the salient points in your post (at least as far as Peter and I are concerned) as we seem to suggest that Ngcobo J is not the ‘correct’ choice.
As you will know, I cannot speak for Peter. But my view runs as follows: you are right. That is, I do not think Ngcobo J was the correct choice.
Now let me explain. I certainly do not regard Ngcobo J as a bad choice. That view would be absurd given that he is generally highly regarded by litigators and the academy alike.
But I think that the executive should be more sensitive to public perception. That is, the executive appears to owe a duty under section 165 (4) of the Constitution to take steps to safeguard the dignity of the courts. And I think that the following falls squarely within the scope of that duty: the courts’ dignity could well be disturbed if the general public is given plausible cause for misgivings about the judiciary. And regardless of what Zuma said recently, many will wonder whether Moseneke DCJ was over looked because he asserted his admirable appreciation of judicial independence at his birthday party.
Further, many may well regard Ngcobo’s Zulu origin as relevant and may even couple that with the fact that his dissenting judgment in a seriously public interest case favoured Zuma.
In short, some may quite plausibly conclude that Zuma’s decision to depart from the fairly established run of things can be ascribed to the ANC’s wish to see a Zulu Chief Justice sympathetic to a Zulu rising at the expense of a fiercely independent jusitice of the peace who is not Zulu.
So maybe one vaguely interesting question is: did Zuma, in opting for Ngcobo J, fail to discharge a constitutional duty under section 165 (4) to safeguard the dignity of the courts?
Leigh
“So maybe one vaguely interesting question is: did Zuma, in opting for Ngcobo J, fail to discharge a constitutional duty under section 165 (4) to safeguard the dignity of the courts?”
Ngcobo has not shown any political baggage at this stage? besides Ngcobo gave a dissenting view on a Zuma Judgement, actually proves nothing, everyone is intitiled to their own views.
I think you guys are looking at the wrong person, None of the CC judges have any issues with him, instead of looking at the chess piece rather look at the chess board and right now focus on the JSC move. Because thats going to give you a better indication on what is going on and what the real agenda is when it comes to “transformation”, given the backdrop of the DA and trying to reinstate charges as well as Pikoli and Hlophe.
Right now be thankfull you got someone with heavy experience.
Leigh, with respect , I cannot agree with the reasoning as well as your conclution.
Section 174(1), makes it possible that even a magistate can be appointed for the CJ position.
when coming to the public perception concept, Public should learn this constitutional requirements whenever they have suspision, that is if they are acting like reasonable citizens.
I think your approach restricts the President’s wide space which is provided by the constitution.
I obviously hold a different view to yours. I am happy with Ngcobo and this has nothing to do with Moseneke’s utterances at a birthday party (I still don’t know what the noise was all about because he stated exactly what is expected of him as a judge – maybe the timing was unfortunate and I’m not sure if he needed to say it, but there was still nothing untoward in the statement).
I just think that the President should be free to choose whoever he feels like, provided that person is suitable. If i always has to be the Deputy then you wonder if the President still has any prerogative at all.
Chris, in your post you seem to suggest that my view is that Ngcobo J has some political baggage. If I have read you correctly, then with respect, I think you have misconstrued my position.
My post goes to the way in which members of the public may interpret Zuma’s choice to appoint Ngcobo J over Moseneke DCJ. I ventured nothing about whether Ngcobo J may actually wish to serve as an ally to the ANC.
Mzo, I am not asking you whether you think my suggestion as to a possible constitutional duty is correct – at least not for the time being. I will ask you this though: if it is true that the President owes a duty under section 165 (4), then could his freedom to appoint a Chief Jusitice be limited by that duty?
My view is that while the President has the power to choose, his freedom to do so is not absolute. That is, in making his choice, he cannot abandon his constitutional duties.
Leigh // Aug 7, 2009 at 11:19 am
Hows so? look Zuma did consult with the JSC as well as some legal professions, he has actually followed the procedure in appointing a CJ to the letter T. The ultimate power rests in the president to choose. Yes his freedom is not absolute to a degree that he must consult.
He has not abandonend any constitutional duties. The Constitution is very clear he must consult and thats what he did. I dont understand where you coming from about dignity of the court? He actually did show dignity towards the court, there is no conspirecy theory there
Leigh,
I agree with the duty he has, but I believe that his appointment does not undermine that duty at all. You seem to hold the view (if I understand you correctly) that failure to appoint Moseneke DCJ MAY lead to the dignity of the Court being undermined by the public, for reasons stated by you earlier. I disagree.
Your argument seems to have some problems. Firstly, who exactly is the “general public” you are referring to. Certainly if one looks at the recent election results (I accept that not everyone voted or could vote) an argument can be made that the 65% that voted the ANC will probably not be part of that “general public” you are talking about (accepting again that there might still be dissenting views within the ANC). Those staunch ANC members will probably be glad that Moseneke DCJ was “overlooked” because of his birthday utterances.
Secondly, your arguments seem to suggest that the dignity of the courts could only have been safeguarded b not departing from the “fairly established run of things”, namely elevating the Deputy’s status. In my view, that bothers on making the President’s appointment nothing but academic and I do not think that was the intention. It also creates a sense of entitlement on whoever is the Deputy that they will naturally succeed whoever is the CJ – I don’t see how that is supposed to strengthen the dignity of the Courts anymore than a “random” appoinment (that is, not necessarily the Deputy) by the President would.
To conclude therefore, I am of the view that Zuma did not fail in his duty in terms of Section 165(4). He may have failed to meet some people’s expetations (one hopes that Moseneke DCJ is not one of those people), but he certainly did not fail in his constitutional obligations.
Leigh
“My post goes to the way in which members of the public may interpret Zuma’s choice to appoint Ngcobo J over Moseneke DCJ. I ventured nothing about whether Ngcobo J may actually wish to serve as an ally to the ANC.”
the thing is you actually are venturing towards that direction.
Look i was voting for Moseneke DCJ but experience is also the name of the game and to be fair towards Ngcobo has more experience. I understand that there is a public perception on the Zulu thing but then again this brings in the transformation thing up again? is it on race is it on tribes is it on genda is it on sexuality? as far as transformation is going its so far replacing it with a Zulu for the first time.
also what are the perceptions of the “Mass’s” and democracy as far as I can see, the Zulu nation makes up the biggest population of South Africa, so it would appear Zuma is inline with the Mass’s of the country..thats demoacry for you = populism
Mzo, thank you for your response. And let me apologise to you at the outset for what I anticipate will be a fairly lengthy answer.
You seem to challenge my view on two fronts. Further, the second of those two fronts appears to me to have two facets.
I shall address them both below.
I read the first of your challenges as follows: the general public (if election results are looked at) would probably welcome Zuma’s choice to opt for Ngcobo.
With all respect, on my argument, whether most people would welcome the choice is irrelevant.
But let us assume for the moment that most South Africans would welcome the choice. Could even those that welcome Zuma’s choice plausibly conclude that Moseneke was overlooked for being openly independent? I think so.
And to keep things clear, let me also say this: there is a difference between (a) what people would probably welcome and (b), what they might reasonably conclude. So a person could at once possibly (i) welcome Ngcobo and (ii) conclude that Moseneke was passed over for daring to demonstrate his willingness to defy the ANC.
To turn to your second challenge. As I mentioned earlier, I have identified two factes to your second challenge. First, you say that if my view is accepted, then the dignity of the courts could only have been safeguarded by not departing from the established run of things.
Secondly, that my view leads to the conclusion that the President’s choice is merely academic.
As to the first facet: I would not intentionally suggest that the dignity of the court could only be safeguarded by departing from the established run of things. Nor do I believe that my posts lend themselves to that construction. But if they do, then I apologise.
But to be clear: I do not argue that the court’s dignity can only be safeguarded by not departing from the established run of things. Actually, it is not difficult to imagine circumstances under which the court’s dignity could be safeguarded only by departing from the established run of things. For instance, the Deputy Chief Justice (who in this example has often ruled in the government’s favour) commits judicial misconduct which is not serious enough to trigger the impeachment machinery. I would contend that the court’s dignity could best be safeguarded by breaking from the established order given how members of the public might interpret his appointment to the office of Chief Justice.
And as regards the second facet: I would not deliberately suggest that the President’s choice is merely academic. And although I disgaree with your construction of my view, I shall concede that it is helpful insofar as it gives me a further chance to clarify my position.
My case is this: the President has the power to choose who he wants. But the President does not have carte blanche. And I still maintain that if that choice could create the plausible impression that the Deputy Chief Justice was overlooked because of his open independence and a sympathetic judge was appointed instead, then the President may have failed to discharge his section 165 (4) duty.
I would add one further point. Mzo, you may be at a bit of a disadvantage here. You see, you are trained in the caution of law. It is not everyone who enjoys that benefit.
And of the many people who may lack any training in critical analysis (be it in law, marketing, economics, history and many other wonderful disciplines,) this is what they could well read or hear: the Deputy Chief Justice has been appointed to the top spot by convention. The reasonable expectation is that Moseneke DCJ will be the next Chief Justice. He asserts his independence which is widely reported as displeasing to the ANC. He is also not a Zulu and when involved in politics, he was affiliated with not the ANC but the PAC. A Zulu judge who wrote the only judgment favourable to Zuma in a politically important case is appointed in his stead.
Sebjeni, nice to make your acquaintance. And thank you for your participation.
You seem to say that my approach restricts the President’s wide powers for which the Constitution provides.
With respect, I would say that (a) I agree with your view that the President’s power is broad and (b), that my approach certainly restricts it.
But let me ask you this: do you (i) mean to say that the President’s wide powers can never be properly restricted? Or, do you (ii) mean to challenge the way in which I contend that the breadth of that power is constrained?
If your view goes to (i), then I would say this: all public powers are contrained – even conduct that does not fall within the sphere of PAJA’s application.
If your view speaks more to (ii), then what is wrong with the following position: leaving aside the factual content of my views for now, what is wrong with saying that the President cannot exercise a power if in so doing, he would abandon a duty?
Again, my sincere thanks for your meaningful participation.
Thank you Leigh, thought provoking, as always.
I guess I must apologise for not being clear enough or for appearing as if I didn’t understand your point correctly. I certainly grasped it from your earlier posts that you are arguing that whether the majority of the people agree with Zuma’s decision is not relevant to the point you are making.
You say: “there is a difference between (a) what people would probably welcome and (b), what they might reasonably conclude. So a person could at once possibly (i) welcome Ngcobo and (ii) conclude that Moseneke was passed over for daring to demonstrate his willingness to defy the ANC.
Now, whilst I do not, in principle, take issue with that view, I do think that if we then folllow your conclusion that by POSSIBLY having people conclude that Moseneke DCJ was overlooked for his utterances, then the Pres has failed in his constitutional duty, we are indeed getting into some dangerous territory. Surely we cannot (not saying you are) “accuse” the President of failing in his duties for what MAY or MAY NOT be the case.
In short, my view is that we can ONLY say he has failed in his duty once we have been able to identify exactly who you are talking about when you say the “general public”. Right now, we simply do not know. For all we know, the “general pulic” might not hold the view that Moseneke was (1) overlooked (2) because of the perceptions the ruling party has of him.
So Leigh, whilst I am prepared to concede that you MAY be right that the “general public” MAY plausibly hold that view, I think the issue now is that we do not know and therefore cannot say that he has failed in his constitutional duties.
Mzo, thank you for your response – always thoroughly engaging.
With respect, I think you summed up my position accurately. My argument certainly does venture on to dangerous terrain.
And in case you are interested, it is certainly not a case I would want to take to court – even though I think it is arguable.
Thanks Leigh, sometimes I wish all bloggers, with due respect to everyone else, could be as engaging as you.
Could someone please explain to me why the opposition parties claim that they ought to have been consulted in the nomination of the CJ. S174 (3) of the Constitution only requires the JSC to be consulted by the President when appointing the CJ and Deputy CJ.