Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
14 May 2007

Constitutional Court judges do argue

In response to the “male rape” judgment by the Constitutional Court, a reader asks:

Excuse my ignorance, but do these judges each come up with a ruling (like in a game of rock, paper, scissors) or do they discuss the ruling? What I want to understand is whether Justice Langa could or did try to convince the majority of his point of view?

The short answer is no. A longer answer would be that the eleven judges first read all the documents submitted to them, then listen to the advocates making their arguments on behalf of their clients while they also grill those advocates on any conceivable aspect of the case. Then the judges retire to a beautiful room where they all sit around a big round table (it looks a bit like a huge tree stump) to discuss the case.

I think there is a vote at first to see who supports what position. They will then argue their positions and at some point the Chief Justice will appoint one of the judges who supports the majority view to write the majority opinion for the Court. The judge will then write a draft judgment (with some help of his or her clerks) and this will be circulated to the other judges. They might make suggestions for things to add or to take out. Some judges will say, well, I will support your opinion if you add this or take that out.

In the end all the judges who agree with the majority judgment signs on to it but it is published under the name of the main author.

Judges who do not support the majority judgment or want to add their two cents worth can write their own judgment. In the death penalty case – the first heard by the Constitutional Court – all eleven judges wrote their own judgment but that has never happened again. (And law students are rather grateful for that.) Usually Justice Albie Sachs writes his own judgment, whether he is supporting the majority or the minority – he really likes to write judgments. . .

In any case, the judges have plenty of time to argue with one another and to try and convince the other judges of their opinion. The previous Chief Justice, Arthur Chaskalson, appeared to have been particularly good to get others to agree with him. Chief Justice Langa does not seem to hold the same sway. But whoever talked a hole in the head of those judges who signed on to the male rape majority opinion should really be kept in check. And the judges who signed on to that judgment should really feel a bit embarrassed.

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