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.
I agree with most of the article, except your implication (which may have been unintended) that Edwin Cameron is a “libertarian judge”. He would be an excellent appointment – his SCA judgments on Constitutional matters have demonstrated that, as well as being one of the most brilliant jusrists in the country, he fully endorses the Constitution’s emphasis on social justice and equality.
The real reason that Cameron hasn’t been appointed yet is obvious, and I’m surprised you don’t mention it – he has been an outspoken and courageous critic of Aids denialism in all its forms, which is enough to put him on Mbeki’s blacklist.
Nick, you are correct that Cameron was not selected because of his brave and necessary stance on HIV/AIDS. In this matter I obviously strongly disagree with Mbeki. His stance on HIV/AIDS is in fact, criminal. Edwin Cameron stood up to him when it was very difficult and unfashionable to do so and should be saluted for this.
You are still lucky that judicial positions are advertised, applied for and candidates publicly interviewed.
Sorry Prof for returning so soon. If say the SA constitution is amended to allow non-citizens to be appointed Concourt judges, would things dramatically change in the competition area?
Or there will be fears that counter-revolutionary forces will torpedo the dilectical materialism of the Revolution?
Samaita // Aug 29, 2008 at 12:42 pm
…………………………………………………………
That would be the most difficult thing to justify…
Sne,
It is only the Concourt bench that is reserved for citizens. I wonder why that would be hard to justify. SA judges sit in the highest courts in Swaziland, Namibia, Botswana, Lesotho and have done so for many years.
Pierre,
excellent article. I like how you subverted the discourse of “objectivity”, “non-ideological” and all that kak to one of inter-subjectivity. Unfortunately at law school (UCT) people are not exposed to the morality of the common law. they in a sense comprehend it as being “neutral” because the manner in which they are taught the rules is almost like rote learning, cramped, without giving space, as it were, to allow the students to get in touch with the texture of the law. If there is a critical reflection on a rule of the common law, the lecturers tend to promote the current common law position and the current justifications for them. its sad. if one is to live up to the dream of 39(2) then one has to appreciate the morality of the common law, one then can one contrast it to that of the bill of rights, and the rest of the constitution.
i agree with nick.
the only instance in which i would let a foreign judge come in would be to allow drucilla cornell to adjudicate the CC. she is awesome.
Pierre,
Praise for the big TM!!! What are setting us up for?
I’m with Katlego,
The objectivity of the courts have long been questioned by certain groups, the it is also known that humans are idealistically loaded, but if the ideal is to promote the spirit, purport and objects of the Bill of Rights, then where does political loyalty come into play. I tell you where: Nowhere, that’s where.
Just one question?
Who appointed Judge Cameron to his current position? When was this in relation to his supposed ‘stance’ of views with TM on AIDS?
Friend, I believe what is needed on our Courts are judges who have internalised both the “liberal” and the social justice aspects of our Constitution. People who believe in gender and sexual orientation equality but also recognise the power of the Constitution to help transform the common law and our society towards a more egalitarian one. Political loyalties before appointment often become irrelevant – it reminds me of an oft quoted statement by an apartheid era Minister of Justice who once remarked: “The problem with judges is that once appointed to the bench they think they are there on merit and start thinking for themselves.”
“So, this is all Mbeki’s fault! Next he will be blamed for the hurricanes in the US or for the runderpest.”
Actually it’s the other way around. Don’t you know that everything is the fault of “climate change”, it does funny things to people’s heads, it even causes:
mental illness: www DOT hc-sc DOT gc DOT ca/sr-sr/finance/hprp-prpms/results-resultats/2004-scleros-eng.php
early marriages: allafrica DOT com/stories/200711140057.html
acne: pressmediawire DOT com/article.cfm?articleID=4626
insomnia in children: www DOT gm DOT
tv/index.cfm?articleid=24717
OK Prof, you said it in so many words: For the sake of the legitimacy of the CC, only ANC cadres should be “deployed” to the CC. To ensure that the constitution be interpreted as “transformative”. So that it should not be a liberal democratic cornerstone as Zille, Leon, Slabbert, et al wrongly thought it was.
But then the ANC and human rights academics should sleep in that same bed they prepared. Just then accept that the CC would amongst the legal community , be perceived not as an objective court. But as a political thing { just a “ding” }, that happened in the constitution to be wrongly labelled a court – with the power to overrule the SCA.
Just then don’t ask for the CC to be regarded/ honored as a prestigious “court” – and the CC judges to be held in esteem for their supposed legal learnedness. Then they’ll stay exposed for exactly what they really are – deployed party loyalists – and on mainly that “merit”.
It was Scalia who wrote that when a judge decides a case with concern for the most popular {read “legitimate” in your parlance } outcome, he/she is in fact lawless.
And then real lawyers would vote with ther feet { nominations } not to be part of it {and its “jurisprudence” } – which then is just popular political drivel and not law.
Suprise, suprise.
http://www.mg.co.za/article/2008-06-27-mbekis-prescient-warning-to-bob
Some very good points there, Henri. I couldn’t agree more. Too bad you’ve ruined my entire weekend.
Mqo
Note the date my friend, 2001! Alot has happened in the meantime to make us believe TM has changed his stance during the 7lean years.
The 1994 elections braught a governance of constitutional supremacy that replaced the governmental supremacy, taking away the powers of the governing party to pass any legislation regardless of how unreasonable and unjust.
A lot of people in this country thinks we replaced a white covernment with a black one and if they continue to believe so more people will imigrate and more people will think they have the power to make discisions that affects our institutional funds negatively.
People needs to be educated with regard to the real changes and of this great potential of the Constitution that will be seen through the progress of our courts.
Pierre, what is your basis for thinking that “black” judges are more likely to issue progressive judgements than “white” ones? Can you cite studies, etc? So far as I know, the only recent survey was that of Dyzenhaus, in the SALJ, who found that, in the New Clicks sequence, black judges were somewhat more likely to adopt conservative positions.
Prof, I totally agree with your logfical response to rascist liberal stance.
Ag Mdu – you clearly don’t even understand the meaning of the words liberal or racist. Henri – good analysis IMHO on the other hand decisions like the recent Zuma Thint matters seem to say otherwise. That was a legitimate and a good legal decision.
As far as I am concerned, the best person for the job is the most experienced and senior legal mind possible. Surely the constitution would provide the necesary impetus to make those transformative judgments?
Thats what saved apartheid era judes from all being total tools of an illegitimate system, or are my rose tinted specs turned up too high?
Henri, you have obviously chosen not to understand my post. I never said only ANC cadres must be appointed to the CC. If you equate support for social justice and respect for non-discrimination with ANC-cadres it says a lot about your own view of political parties. Many potential judges would fit this bill without being ANC cadres. If you cannot see that you have a very narrow political perspective.
Not to mention an extremely narrow interpretation of what “proper” public law is!
I still maintain my view on law and justice. If i see a lawyer in heaven then i’d run for hell.
Mpho, Henri’s post didn’t imply the public or formal law.
And all those speaking the truth are dying, My Lord, Kumbajah! Now the source of the De Lille dossier on the Arms deal has died. … Almost like that guy who said TM has received some money (albeit to redistribute to JZ and the ANC)?! No questions answered … the answer is blowin’ in the wind?!? http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2390159,00.html
And all those speaking the truth are dying, My Lord, Kumbajah! Now the source of the De Lille dossier on the Arms deal has died. … Almost like that guy who said TM has received some money (albeit to redistribute to JZ and the ANC)?! No questions answered … the answer is blowin’ in the wind?!?
Apparently the blog does no longer allow links – so just go to News 24 and see for yourselves.
Sorry prof, I saw your 1/9/2008 [7:52] retort only today.
Point taken, but please consider {in your progressive zeal} that an endeavour to get only certain persons on the CC [ or any other court ] who are committed to particular outcomes [ currently political correct ones ] are the antithesis of the rule of law.