Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
19 August 2008

Full High Court bench of FIVE judges?

This post is for the legal nerds out there who might be amused or amazed by the idea of five High Court judges sitting on the bench at the same time.

I hear that the High Court started hearing the application by Judge President John Hlophe against the Judicial Services Commission (JSC) and the Constitutional Court today with a full bench of FIVE judges. The five judges presiding over the hearing are Deputy Judge President Phineas Mojapelo, Judge Antonie Gildenhuys, Judge Seun Moshidi, Judge Rami Mathopo and Judge Dirk Marais.

This seems like a very surprising and unprecedented move and demonstrates the complex situation in which the High Court finds itself. Usually a full bench of the High Court consists of three judges while a full bench of the Supreme Court of Appeal consists of five judges.

The Constitution does state in section 173 that High Courts have the inherent power to protect and regulate their own process, but the Supreme Court Act states that a full bench of the High Court consists of three judges.

But section 13(1)(a) of the Supreme Court Act does provide for the hearing of a case not by a full bench but by a “full court” consisting of so many judges as the Judge President or his or her second in command may determine. This section states:

Save as provided in this Act or any other law, the court of a provincial or local division shall, when sitting as a court of first instance for the hearing of any civil matter, be constituted before a single judge of the division concerned: Provided that the judge president or, in the absence of both the judge president and the deputy judge president, the senior available judge of any division may at any time direct that any matter be heard by a full court consisting of so many judges as he may determine.

Deputy Judge President Mojapelo was therefore legally perfectly entitled to appoint a bench of five judges to hear this very important – even earth shattering – case. In fact, it seems like a rather wise move on his part as it allows a bench of five judges to hear the case and if they agree on the outcome, the decision will have somewhat more legitimacy than it would otherwise have had.

Maybe those practicising lawyers out there could let us know if they have ever encounter a High Court bench made up by five judges. None of my colleagues I have spoken to has.

Even though there are five judges sitting in this case, it does not solve the bigger constitutional problem, namely what happens if one of the parties want to appeal the judgment. It can be appealed to the Supreme Court of Appeal (SCA) but it cannot be appealed to the Constitutional Court as the CC is a party to the case.

I assume this must mean that the SCA will have to be considered the highest court of appeal in this matter. That is, if the High Court decides that they have the jurisdiction to hear the application of Judge President Hlophe at all.

Unprecedented stuff, that is for sure.

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