When a journalist phoned me late yesterday afternoon and told me that Judge President John Hlophe did not make it on to the list of seven names sent to President Jacob Zuma by the Judicial Services Commission (JSC) for possible appointment to the four vacancies on the Constitutional Court, I felt like quoting my father when I told him that I was gay. “This does not come at all as a surprise to us,” my father said. (He was surprised when I proudly whipped out a picture of my new boyfriend and he realised that I was involved with a black man – but that is a story for another day….)
As I predicted on Monday, the JSC decided to steer clear of Hlophe. If it had put Hlophe on the list, the little credibility that the JSC might still have left would have been destroyed, so the JSC rather opted for a mixed bag of seven names. Although not always inspiring, the list of names seems mostly credible, perhaps because most of us think (like my father probably did before I showed him that picture) that it could have been much worse.
At least two of the women on the list are strong candidates and I am holding thumbs that our President will appoint them both. Judge Mandisa Maya of the Supreme Court of Appeal (SCA) has written several strong majority and dissenting opinions while serving on that court and has demonstrated a sensitivity for gender issues. In Ntaka v S Maya wrote a dissenting judgment in a case where the majority of the SCA reduced a ten year sentence of a rapist to five years, noting the importance of taking into account the effect of the rape on the complainant.
In Zanner v Directorate of Public Prosecutions she wrote a majority judgment in which she refused to grant an accused a permanent stay of prosecution after he had been indicted for murder more than ten years after a charge of culpable homicide was withdrawn against him. She said one should focus solely on whether the accused had suffered any significant trial related prejudice when deciding to grant a permanent stay of prosecution. If President Zuma’s corruption trial is ever revived, this might become an interesting precedent when he applies for a permanent stay of prosecution for suffering prejudice not directly related to the trial.
Judge Leona Theron has also dissented in a rape sentencing case when she was acting on the SCA, opting for a harsher sentence from the one which her colleagues wished to impose, indicating a certain compassion for the survivors of rape less pronounced in some of the other judges of the SCA. She has also handed down several judgments in which she strongly punted the fair trial rights.
Of the other candidates on the list a surprise name must be that of Judge Johan Froneman. Although he has written many excellent and innovative judgments to try and address the systemic problems with the administration of social grants in the Eastern Cape and although he has a very sound and comprehensive knowledge of constitutional law (he regularly teaches as a guest lecturer in LLM classes at Stellenbosch University), commentators generally thought that Judges Eberhardt Bertelsmann and Dennis Davis were probably more likely to make it on to the list than Froneman. Nevertheless, I think he would make a great Constitutional Court judge and hope that our President appoints him.
The most likely other appointee is probably Judge Chris Jaftha who had already acted as a judge on the Constitutional Court. Although he has been involved in the fight between the Constitutional Court and Judge President Hlophe and although he has admitted to being a friend of Hlophe, this will probably enhance rather than hinder his chances of elevation to the highest court. Given the fact that Hlophe has been dumped, the appointment of Jaftha – who is a senior judge and serves on the SCA – might placate the Hlophe die-hards.
Of the other names on the list judge President Mogoeng Mogoeng was definitely a surprise pick. My sources tell me that he interviewed very well and that he was very charismatic when he appeared before the JSC – performing in the tradition of a lay preacher or a gospel singer. But as he admitted to the JSC he has very little constitutional law experience or knowledge and he is therefore somewhat of an unknown quantity. Maybe the fact that he owns 55 cattle served in his favour.
Of some concern must be that probably the most striking case he has been involved in is that of S v Dube in which he refused to recuse himself despite the fact that his wife was the prosecutor in the case. A full bench of the SCA overturned the decision, applying the test for recusal as set out by the Constitutional Court.
The one name that is absent from the list and should have been there is Azhar Cachalia of the SCA, probably the strongest candidate nominated this time around. Sadly, his statements about racial transformation – he had the temerity to say he and his family would prefer to have their case heard by a fair judge than by a judge of the same race as them – probably torpedoed his candidacy. He is extremely hard working and has handed down numerous reported judgments while on the SCA and he would have really strengthened the Constitutional Court bench.
Wonder though what my father would have said about the list….
It is palpable for everyone to see that most white people loathe Judge Hlophe with passion for the alleged racist remarks attributed to him of which the allegations he has however denied unequivocally except the letter he wrote to the minister in which he expostulated about stinking racism in the corridors of the Western Cape judiciary. The exclusion of Judge Hlophe from the list of the shortlisted candidates for the vacant Concourt position should serve as a victory for those who have been opposed to his appointment. As a middleman to this whole theatre I would like to therefore utilise the defeat of Judge Hlophe as an opportunity to make the white people who hate Judge Hlophe and Judge Hlophe smoke the peace pipe for the sake of our constitutional democracy, reconciliation first initiated by Nelson Mandela and prosperity in general. Perhaps Judge Hlophe should deliver a lecture on racism and give apology for the unintended consequences of the confidential letter he wrote to the minister and in the same vein the white people who took exception to Judge Hlophe’s letter should accept the apology and also accept Judge Hlophe’s unequivocal denial of the other allegations. Please my dear white South Africans and Judge Hlophe, can you please accede to my request particularly for the sake of Nelson Mandela.
Zwakala, I agree that it is very easy for racial mistrust to flare up, and that we really ought to be willing to forgive and forget.
I dislike the manner in which Judge Hlophe has addressed the issue of racism in the legal fraternity, but I would readily believe that there exists much racial prejudice and arrogance, and that he has been hurt by this. Possibly some slights were imagined – what I know of the Western Cape is that it is not easy for us outsiders to make friends there, and that Cape society is quite closed.
But maybe we should be looking at how one responds to arrogance in public life. The law allows people to be racist 9in their attitudes) providing that tis does not translate into actual unfair discrimination in practice.
I would like to argue that the best counter to arrogance is not anger, or more arrogance, but rather gentleness and humility. One cannot respond in kind, and hope to solve any problems. i don’t think that we white people fully appreciate the hurt suffered by black people, or understand how we can be misunderstood (where strong opinions, or disagreement, get interpreted as being racist).
Black people who are hurt by the attitudes of whites should lookmore squarely at the merits of the situation, while white people should not be so quick to take offense when black people think that we are being racist.
@ Pierre – I think you’re wrong about Cachalia – I suspect that we need him more in the SCA than we need him in the CC for now.
It’s unlikely that Jafhta will get to the CC (mainly because I have a wager with Michael
)
Mike
You make out that one should not respond to arrogance with arrogance or anger. Rather, one should respond with gentleness and humility. I take your general principle here as being that one should not simply respond in kind and that one should consider the implications of one’s responses.
I think that one can infer the following from your views: responses should not be reactionary. That is, even where one is responding, one should try to take the initiative. An example of a reaction would be to respond to arrogance with anger. Basically the response is governed by the objectionable behaviour in question. An example of the respondent taking the initiative would be to respond with (a)calm and thoughtful words and (b), humility in the sense that the respondent would be mindful of her own shortcomings and potential for haughtiness. Such awareness (which is possible only through humility) could place the respondent in a better position to determine the most beneficial response.
If it is true to say that something of the above inference can be drawn from your post, then I agree very much with your views – and no, I’m not Christian
I would also pick up on the last point which you made in your post. I think you are right: South Africans are too sensitive and defensive for race relations to really improve. That is not to say that we should not try to be sympatheic towards each other. We should. But many of the claims of racism seem to be poorly investigated reactions rather than opinions based on fairly careful studies of whatever the relevant facts happen to be. In short, it seems that relatively few South Africans take the initiative.
Zwakala
I do want to address you respectfully. But I also want to speak plainly. So I hope that my frank tone will not end up suggesting any lack of regard.
You make out that it is palpable for all to see that most white South Africans hate Hlophe due to the remarks attributed to him.
It may be true to say that many white South Africans distrust Hlophe. But many will have their reasons for distrusting him. The sad fact remains that Hlophe has quite a few no-go zones as it were and such a reality can reasonably give rise to distrust. My basic (and respectful) point is that (a) you capture what many people think of Hlophe and why they think it in an inaccurate way and (b), point (a) means that your solution is rendered questionable.
I think that hatred and distrust need not necessarily go together. That is, you can distrust someone you love. You can also hate someone that you trust.
Pierre, who do you think will be the CJ in about two years time – a big fat liar perhaps?
Pierre, please rub the pat off your pat (see this morning’s Western Nostril for details). It’s not true that you predicted that Hlope would not be shortlisted. Instead, you predicted that he would not be appointed. I quote
So on Monday you anticipated the mind of Zuma, not the JSC. Remember the stink when the President announced that he’d “appointed” Sandile Ncobo? Hmmm? Hey?
Freeboot–
let’s not get too picky about all of this. Sure, Pierre didn’t get it exactly right, but still, the general tenor of those following this issue was in 2 broad streams–those who were sure that Hlophe would be appointed, and were gloating, and those who were sure that Hlophe would be appointed, and were tearing their hair out.
And now it turns out that not only will he not be appointed, he wasn’t even short-listed.
So, still, Pierre deserves credit for sticking his neck out and saying that, just maybe, Hlophe is an embarrassment even to those whose cause Hlophe seems to support.
And the JSC also deserves credit for apparently doing their job (conducting interviews and then making decisions based on those interviews) while ignoring the hoopla over Hlophe.
So, while South Africa might still eventually end up going to hell in a handbasket, it doesn’t look like the end is quite as nigh as many had thought.
PM says:
September 23, 2009 at 15:43 pm
just maybe, Hlophe is an embarrassment even to those whose cause Hlophe seems to support.
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He supported entirely his own cause.
Anything else is coincidental.
South Africans have a tendency to see a dark cloud behind every silver lining. So pessimistic and negative! When things go reasonably well or has a reasonably good outcome (as the CC appointments might well have) we tend to look for the next problem. Maybe we should be a bit more optimistic? And we should give credit where credit is due. Given the list of candidates the JSC could have done much, much worse so good for them! One should not only complain and see crisis and doom in the face of evidence to the contrary as it can easily be interpreted (or may in fact be) a manifestation of a kind of Afro-pessimism that beset some among us (as one of our previous Presidents used to say).
Maggs:
I certainly won’t dispute that assertion–and maybe some of those (on the JSC, and who had been supporting Hlophe) came to agree with you. Self-interest is hard to hide over the long term
Pierre–
I agree. Despite the recent influx of new members, the JSC appears to have done a quite competent job. It is always nice to see such institutions working as they should.
Poor JP Hlophe… white people hate him so much.
Just two year before JC Ngcobo has to retire, and hopefully everyone will have forgotten about the media hype…
but the great man is young and there is time.
I for one released a sigh of relief. My suspicious nature however is still anxious, is it possibly that some other plan is afoot.
Who knows, who knows. The JSC is a thing of mystery to me. I do however think that the right thing has been done in this case by not shortlising Hlophe, whatever the reasons therefore. The man is just way too much of a loose cannonball, and perhaps the JSC realised that if they shortlisted him they would well and truly have blown away whatever shred of credibility they had left after giving him yet another get-out-of-jail-free card. In any event, SA’s judiciary is saved for now, to some extent – more of a stopgap than a restoration of its credibility, but an importatnt one nonetheless.
And besides, we already have one candidate who doesn’t know what a conflict of interest is in the list – so probably no room for another!
What is interesting is that he was not even discussed, didn’t come up.
Do we have the beginnings of wisdom, even if self-motivated?
Pierre De Vos says:
September 23, 2009 at 16:26 pm
Methinks you’re over reacting.
Good call, Pierre de Vos. I guess sanity prevailed.
The Big Slipper says:
September 23, 2009 at 18:24 pm
And besides, we already have one candidate who doesn’t know what a conflict of interest is in the list
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Who is that?
Good question Maggs, who is it?
Anonymouse: Where art thou?
On a technical matter, how do I put a face or image on the ‘person square’ to the left of one’s name? I’m too old to figure out this techno wizardy. Any advice out there?
What few people have noted is the remarkably far-reaching form of affirmative action that has been applied by the JSC. Four candidates who are — on a purely technical level and in their knowledge of law, are streets ahead of most other candidates — were not shortlisted. It is naive to think this was not at least partly on the basis of race.
Pierre has already mentioned Cachalia JA, whom I agree is a very good judge. Anyone who practices in the CC will tell you that Gauntlett SC is utterly brilliant. Davis J not only has written hundreds of progressive and learned judgments, but also many books and what seems like thousands of articles. He is a world renowned authority on the SA Constitution. And he and Budlender SC, another great legal mind, were struggling for human rights while some of the other candidates were still in primary school.
All should agree that affirmative action must invariably be applied when there are candidates of different races of roughly equivalent merit — as a tie-breaker, so to speak Indeed, depending upon how unrepresentative the institution is, I think AA should be applied in favour of a qualified black candidate even where there is a substantial merit differential.
The problem here is that “merit” difference here between the four people and I have mentioned and many of the others who appeared before the JSC is in orders of magnitude, not merely degree, Davis, for example, is not just somewhat better than most of his competitors. His achievements just put almost any other public lawyer in country, of any race, in the shade.
I can anticipate two answers to my points.
One is the pragmatic argument, Unlike the case of a neurologist, where sheer technical skill is all that counts, the “merit” of a CC judge must be defined in large part in terms of legitimacy.
I accept that this is true, to some extent. The difficult question is just how much of a sacrifice of “merit” (in the narrow sense), must be tolerated in the interests of legitimacy.
Another rebuttal to my argument is more far reaching. It is that the very idea of “merit” is besides the point when we talk about candidates for the CC bench. The role is largely political. Bright young clerks can be employed to do the research and draft the judgments. What really counts is commitment to the values of the Constitution. And there is absolutely no reason to think that Cachalia, Gauntlett, Davis, or Budlender, are any more committed to those values than any of the other candidate.
I can see the attraction of this argument. A judge is not, indeed, a brain surgeon. (Or a pilot, Maggs) Raw technical skills are peripheral to the job.
But here is my question: how exactly do we evaluate a candidate’s commitment to the values of the Constitution? Whatever the answer to this question, it is difficult to see how melanin or genitalia are reliable indicators, one way or another.
Hlophe JP ruled against the Joe Slovo squatters. Davis J ruled in favour of Mrs Grootboom. Some may say that this tells us more about their respective commitments than any biological features of either of these gentlemen.
I happen to think it is somewhat unfair to hold the Joe Slovo decision against the JP. Nevertheless, if I were to look for outwards manifestations of a judge;s commitments, I would think that examination of a candidates’ actual record is a better starting point than a race test.
Michael says:
September 23, 2009 at 20:08 pm
Let’s try this a bit differently.
If Hlophe were to “retire” soon, who would be most appropriate to replace him in the CPD?
Leave aside the JSC’s failure to list Hlophe JP and Motata J.
They are admittedly controversial right now. Their time will come.
But how do we explain the nomination of Froneman J? A white male!
Whites are already over-represented on the CC. (2 out of 11 exceeds the demographic allowance by 100%).
If Froneman J, God forbid joins the CC, nearly 25% of the Court will be white. This in a country where less than 8% are colonialists How can this be, when there are plenty of black public lawyers crying out for work?
Conclusion: the JSC remains dominated by white liberals and house negroes. I know this is a harsh allegation. But, let truth conquers power!
@ Maggs
Perhaps Traverso AJP.
@ Pierre – it seems that your prediction “Whatever happens, we are in for a very stormy ride” was slightly off the mark.
http://constitutionallyspeaking.co.za/what-happens-when-5-judges-retire/
Michael says:
September 23, 2009 at 20:08 pm
Take it from the premise that most if not all of the candidates will make suitable justices (maybe some better than others) given that there is a sufficient body of experience in the remaining 6 justices.
Other relevant factors may have informed the choices, like what happens to particular divisions if their experienced judges are redeployed.
I would like to think that the strength (if that’s the appropriate word) of the various divisions is as important as having an effective CC – it was probably quite a balancing act.
sirjay jonson says:
September 23, 2009 at 19:17 pm
“Anonymouse: Where art thou?”
Why? Missing me? Hahaha! No, I was just a little off, and I’m going fishing right now for a few days. I am impressed by the list, evn thogh some good candidates were left out. As stated under the previous post below, I think (and I’m willing to bet on it) that the three ladies on the Shortlist and Froneman will make up the final appointees. One should not losse sight of s 174(4)(b), (c) of the Constitution though. But, I think Pres Zuma (and his advisers) will be rather stupid to follow that route. The list is good – but I think Mogoeng can be ruled out (two squabbles with the SCA – area of jurisdiction and failure to recuse); as can Jaftha (simply too closely linked with the Hlophe debacle); and Zondi (not enough experience in constitutional law and real judicoial matters). The four I favour all have good experience. As far as transformation and demography is concerned, O’Reagan can be replaced by a white (albeit male, because the three ladies, if appointed would balance the racial as well as gender lines in the highest court – and there will still not be more ladies on the bench than males).
@ Maggs
Yes, there are a lot of factors to be taken into account — including, as a you say, what happens when experienced judges are taken away from divisions.
Let me point out, though, that neither Budlender nor Gauntlett SC, two of the most brilliant omissions, are judges, So that factor cannot explain their being overlooked.
I note your conviction that Froneman J will be appointed. I think he will not. Our wager stands.
But let me ask you this: As MDF points out, if Froneman J is appointed, it will mean that the already grievous over-representation of whites on the CC bench will be aggravated.
Given what I take to be your views on affirmative action, and the undoubted fact that there are plenty of qualified black lawyers, how could you possibly support this?
@Zwakala
> It is palpable for everyone to see that most white people
> loathe Judge Hlophe with passion for the alleged racist remarks
> attributed to him of which the allegations he has however
> denied unequivocally
Well, I am white, but I don’t have an opinion on his racial bias or not. I can’t stand Judge Hlophe because I am convinced he is a bent judge.
Michael says:
September 24, 2009 at 12:22 pm
Which Judges are retiring this year?
p.s. I think you misread my views on affirmative action. In short it that “competence” is used as an attempt to slow down transformation. That’s for another discussion.
Michael says:
September 24, 2009 at 12:22 pm
“But let me ask you this: As MDF points out, if Froneman J is appointed, it will mean that the already grievous over-representation of whites on the CC bench will be aggravated.”
Now, what you and Dwork seem to forget is that both Sachs and O’Reagan (two of the four vacacies that have to be filled) are white, the one male, the other female. So, if one out of the four appointees are white (and male at that), it will not disturb the racial composition of the CC in a way that is disturbingly negative at all. It would be a move in the right direction. No other whites were short-listed. Would you both ponder that for a while.
Furthermore, the constitutional imperative in s 174(2) does not say that the racial and gender composition of South Africa should be ‘accurately’ or ‘precisely’ reflected when appointments to a specific bench are made, it need only be reflected ‘broadly’. Now with Sachs and O’Reagan (two) out, that would leave Van der Westhuizen and Cameron (two). The previous composition was four whites out of eleven justices (36%). If Froneman is appointed – it would be three out of eleven (27% to be exact) justices that are white (completely within the racial composition demography lines), but Cameron has to beconsidrered also in the light of gender representivity below. Moreover, with two ladies (Mokgoro and O’Reagan) out, that leaves one lady on the bench of eleven – if the three ladies currently shortlisted (all black) are appointed, there would be four out of eleven ladies (36%) and, at least (the unknown factor) one out of eleven (Cameron) a gay person, which would still be within the boundaries of gender representivity. I think that would be a perfectly balanced CC bench, don’t you?
I think Anon makes a good point regarding AA–it isn’t so much that representation is perfectly accurate, but that there must be progress over time towards a more perfect/accurate representation.
Anonymouse says:
September 24, 2009 at 13:02 pm
Thanks – i thought I was missing something in the numbers.
I don’t agree that Cameron is not male (and neither do I think that Sachwell is not woman).
Maggs, I am testing the courage of your AA convictions. I take it we agree that whites are already grossly overrepresented. Now, you believe, I take it, that there a many competent black lawyers. And you think that experience is not that important anyway. Let me put it like this: if I shared your views, I would be outraged if another white male were appointed.
Mousie: As I said, my object is to test what Maggs (and Pierre), have said they believe about the need for AA in it strong, not liberal, form. From that perspective I would have thought that it is little comfort that the current imbalance would me ameliorated somewhat. The question is, why are we deferring the attainment of demographic representivity? The one reason I can think of is that there is just not a large enough pool of highly qualified black lawyers to go around. But this is a proposition that I thought Maggs, Pierre and Mzo say is a lie used as a pretext to block black advancement.
@ Mousie: I remain confused. If we are indeed awash with highly competent black lawyers, why not correct the over representation of whites NOW?
Michael – “The one reason I can think of is that there is just not a large enough pool of highly qualified black lawyers to go around.”
I think there is – but they (the highly qualified and competent ones) simply do not want to ascend any bench because they are too successful in private practice. And, I’m not talking about those that have now been appointed on the JSC – they are not competent enough even for lawyering min the broad sense.
As far as your last remark/question (“If we are indeed awash with highly competent black lawyers, why not correct the over representation of whites NOW?”) is concerned – how much “over represented” are whites on the CC Bench? I don’t think much.
Maggs – You are of course correct regarding the ‘sex’ of Cameron and Satchwell is conerned, but what about ‘gender’? I think there is a difference, don’t you?
Maggs – as far as my last remark is concerned – note the fact that a distinction is drawn in s 9(3) of the Constitution between ‘gender’ and ‘sex’ (the former being mentioned before the latter), while in s 174(2), only ‘gender’ is mentioned together with ‘race’, which is also mentioned in s 9(3)
Mousie, with Froneman J appointed, there will be three whites on the bench.
Given that whites make up about 9% of the population, they are entitled to less than one seat.
If that is not an overrepresentation, I do not know what is.
Anonymouse says:
September 24, 2009 at 16:59 pm
The gender issue is a complex one as we’re seeing from the Semenya saga.
Until there is clarity what we have is what we have. In any event we have to respect people’s own view of what their gender is. Until Cameron says convincingly that he is not male, he is male.
Michael says:
September 24, 2009 at 17:57 pm
My stance on AA is that we have been and in many areas continue to be dominated by the apartheid style race and gender distortions, the impact of which was both structural and systemic.
That has to be broadly corrected – and that is going to take more than merely appointing Black people, although that is an important first step. For now it ought to suffice that we have a majority Blacks in general and Africans in particular as CC justices.
So it does not really matter much if we have four White justices or two, as long as we don’t have nine.
The irony is that when we eventually get this right it won’t be necessary to have AA – but that a few centuries away.
OK, Maggs, I did misunderstand your position.
But you did not help very much by implying in some of our earlier exchanges that experience did not count for very much in judges, and opining that law was the “luck of the draw.”
So I suppose my real challenge is not to you but to others whom (like Mzo, I assume), really do think that proper demographic representivity on the bench in the short term is imperative. If they are consistent in this regard, I cannot see how they could be anything but horrified at the prospect Froneman J might make it.
@ Maggs and Mousie
I very much hope that you are not suggesting that any sitting or prospective members of our bench have undescended testes,
If you are, I am going to insist that Mr Malema take this up with the IAAF, as well as the JSC.
Thank you.
Michael:
Perhaps they are too upset about the failure of the JP to make the shortlist to go on about Froneman?
Mikhail Dworkin Fassbinder says:
September 24, 2009 at 19:02 pm
Hey Dwork – happy Heritage Day to you too.
The only testes that is of interest to me is mine.
Re your concern – you are nominated to go to Sandown and raise this with Juju.
Do let us know what happens.
Sello Alcock in the M&G this morning says the Africanists won the battle in the JSC, but also predicts that Froneman J will be appointed.
@ Michael.
Interestingly, I had always assumed that the JSC had agreed to interview Hlophe (which came prior to the dropping of the complaints) precisely so that they could include Jafta in the interviews and go on to appoint him, so deflecting cries of “unfair” from Hlophe’s crew. I see that view does not appear to be shared with anyone. But I think Jafta will be appointed as he has done an ok job whilst Acting and he did not alienate the pro-Hlophe lobbyists on the JSC with his testimony.
According to Legalbrief Today – the final four chosen ones are: Froneman, Jaftha, Mogoeng and Khampepe!!!