The first thing that strikes me about the Constitutional Court judgment in the main Zuma application is that it was not unanimous. Justice Sandile Ngcobo dissented and would have found in favour of Zuma and Thint. Given the extraordinary political implications of the judgment, it is fair to assume that the Chief Justice would have tried very hard to get consensus among the judges to deliver a unanimous verdict.
The fact that Justice Ngcobo dissented will thus raise eyebrows among Constitutional Court watchers. In the year before the current Chief Justice and Deputy Chief Justice were appointed, many of us noticed that Justice Ngcobo suddenly wrote an extraordinary number of opinions, either dissenting from the majority or concurring with it in a separate judgment. Some interpreted this zeal as a sign that Justice Ngcobo had ambitions to become Chief Justice and was trying to show his mettle.
The fact that he has dissented in this case may create the impression that he is trying to position himself as an alternative candidate to Deputy Chief Justice Dikgang Moseneke for the post of Chief Justice when Pius Langa retires next year.
This perception may well be unfair. He might just have a view that the rights of individuals should weigh far heavier than the interest of the state and of society in fighting crime. After all, he wrote the dissenting opinion in the Prince case and argued there that the state had not justified the law that failed to make an exception for Rastafarians to posses and use dagga.
Nevertheless, a dissenting opinion in such a high profile case that went against the man who might well appoint the next Chief Justice, will not go unnoticed.
Mmmmh Prof, in other words Justice Ngcobo must now be crucified for not succumbing to CJ’s influence, and the other justices be glorified for maintaining ConCourt’s solidarity! Shouldn’t we be celebrating the majority decision and at the same time embrace Justice Ngcobo’s independence and bravery? Me think so.
Prof, let this one go. I think it is laboured and in bad taste. If you want to analyse Ngcobo’s jurisprudence, there do a piece of the quality expected of a Prof. It is salutary that, notwithstanding the soiled air around these matters, a judge still stood up and wrote what he believes is right. We expect no less from judges.
As the Bangalore Principles clearly state:
A judge shall exercise the judicial function independently on the basis of the judge’s
assessment of the facts and in accordance with a conscientious understanding of the
law, free of any extraneous influences, inducements, pressures, threats or interference,
direct or indirect, from any quarter or for any reason.
Samaita, me say amen to that!
Prof Pierre,
If Justice Sandile Ngcobo wants to be the next chief jusice let it be, so what? I am fed up of your attempts to poison everyone with your anti-Zuma theories.
I mean really, you guys suppose to be celebrating your today’s “victory”.
Sandile Ngcobo for Chief Justice?
Something tells me the Prof. is right.
I shall be watching this space.
Like most of you I am still wading through the judgments, but I could not help notice the remarkable change in the tone of CJ’s words when he briefly comments about their complaint to the JSC! He says
“The complaint was against the alleged conduct of a Judge from one of the High Courts, the basis of which was that he had allegedly tried improperly to influence two Judges of this Court to decide these cases in favour of one of the parties in these cases.
In one of my posts here I had submitted that their complaint should have been couched in similar neutral terms – it looks like the Honourable Chief Justice has realized the suggestive sting in the wording of their complaint and is now correcting same – or could it be that CJ reads this blogg?
In this country you are judged (presiding in court) by your same enemy disguising as a judge.
I support what other bloggers say. The prof is out of line. His hatred for any thing close to Zuma overshadows his judgement. I do not believe we should vilify anyone close to zuma. Anyway we going to maritzburg and will wait to see the prof’s face when Nickolson rules in our favour. Its a sad day for justice. I believe mantashe was correct The constituional court was indeed preparing us for mischief (hlophe saga)
Guys we are looking at this from a point of view that it is an attack on the Zuma camp. Pius Langa is retiring next year which leaves a space for to become the next Chief Justice. What Justice Sandile Ngcobo has done is a bold move to which it could work in his favor or not. He, by standing out and writing a dissent Judgment to which he felt should have been the competent one is reiterating what the constitution ask him to do. To judge with out fear. Therefore the fact that he did such a bold move could make him recognizable to zuma purely to him standing out not because he wants to affiliate himself with anyone!! I mean honestly who recognizes some who does what every one else does. To stand up and get top position and face a credible force such as Deputy Chief Justice Dikgang Moseneke you have to stand out.
Pierre
It takes time to consider a judgment properly. This judgment was over 200 pages long and dealt with issues that are complex.
I know that a blog is meant to be immediate, but commentary is improved by allowing one’s thoughts to settle.
You got the judgment during the course of today and your first shoot-from-the-hip comment was about Justice Ngcobo’s dissent. The innuendo was that he was peddling his integrity to advance his career.
I think that that was uncalled for and that you should concede that – and perhaps apologise.
Dikgan Moseneke delivered the mandate accordingly.
I have nothing against Justice Ngcobo and think highly of him. But I do say on this Blog what I think. It is called freedom of expression. Sometimes what I say is provocative or speculative because I am not a judge but a commentator who aims to inform and make people think. You may think differently – but so be it.
Prof, you are a constitutional law expert and your blog is looking at issues mainly from a constitutional law perspective – therefore we expect your commentary to attempt to embrace the ‘constitutional’ values. If that is not the case, commentators like Jon Qwelane would raise the very same argument (freedom of expression)when attacked on their ‘controversial’ views.
Albie Sachs used to do exactly the same thing. It means nothing.
Hlope revealed in his response to the Concourt judges’ complaint that he also approached Judge Ngcobo to discuss the case with him. But unlike the other judges, Ngcobo chose not to reveal this. Makes me think.
shakira – (… stunned … ) No! … Publish this on the main discussion of A Tale of Two Judgments above, I’m sure it will cause an uproar.
Shakira, I thought that both Hlophe and Ngcobo stated emphatically that they had NOT discussed the case. They had met for other reasons.
Pierre
I wasn’t trying to censor you. Your blog will be there until the hardrive on which it resorts turns back to silicon.
What I was doing was asking you to have another look at what you had written and then to exercise your freedom of expression a second time: by conceding that what you said may have been a bit offside (or perhaps just badly expressed).
I get nervous when a person has a choice to either: (1) defend her views; or (2) complain that questioning her views is censorship – and chooses the latter. It suggests that she doesn’t think it important to defend her views: or that she thinks that it is not possible.
You don’t, I notice, deny the innuendo that I suggested.
I won’t press the issue. It is a matter for your conscience and I leave it up to you.
Mpho, Shakira,
As I recall, Hlophe’s version is that he didn’t approach _any_ of the judges _in order to_ discuss the case. He says that he visited Nkabine and Jafta (separately) as a courtesy and the presence in their chambers of the files in the matter caused him to discuss it in a casual manner. His visit to Ngcobo was, similarly, a courtesy call. Both say that they did not discuss the case and there has been no suggestion that I have seen that they did.
Ngcobo’s dissent is very good; Langa’s judgment is also very good – top quality judgments from top quality judges, and both imbued with the spirit of our constitution. I think we should be slow (very slow…) to assume that either judge decided what they decided because of a ‘mandate’. The legal outcome in the matter wasn’t obvious and it is one on which honest people can differ on honestly.
I think you are all naive to assume that these judges have no interest in keeping zuma in or out of office. If one were to follow Prof’s partial line of thought one would be rational in assuming judge pius langa is antiZUMA and will do anything to keep him out of the high office as a gesture to Mbeki who appointed him as chief justice. Judges are human beings. Dont they vote during elections? Dont they have someone in mind for 2009 presidency? Its all a game people unless u r facing a potential 15yrs in prison!
Ismail, you have a point. On this Blog I try to balance two competing interests. On the one hand there is a need to express my opinions boldly and hopefully in an entertaining manner. On the other hand there is a need to be fair and not to undermine the democratic institutions such as the judiciary. Given the extraordinary times we live in, my comment might have been hasty, as it can be read as an endorsement of a view that I do not hold.
Ismail, thank you for your well considered opinion the professor’s hasty anti Zuma opinions leaves much to be desired and as I said before I feel sorry for his students!
Stalin, wasn’t Langa a member of the United Democratic Front? I don’t see how you can allege that he is doing Mbeki’s bidding. There is no proof to that effect. And I thought Pierre was claiming that Ngcobo was only thinking about his own career, not that of the ANC Presidents!
I find it quite interesting that Ngcobo J had a dissenting judgement. It would have made it a most impressive decision, had the court spoken as one. We also know that this is rare on issues of importance.
If we look at the judgements of O’Regan ADCJ we see that she and Sachs J are usualy the rebels and issue dissenting judgements rather often. It is from them that we are most likely to expect a judgement that is in disaggreement with the majority. What little I have read in the past shows Ngcobo J to have conservative views. This does not account for his views in Prince.
I would not like to think that he would simply rule in Zuma’s favour when it is a matter of relevance to future decisions and to the interpretation of the Constitution. It does, however, seem that this dissenting judgement is well-timed. This may be in the hopes of advancing his career or he simply believes that we should allow the state to accept the good faith of people it suspects are breaking the law. Either way you look at it, its a hard pill to swallow.
Prof may just be against the delaying tactics Zuma is using and not against Zuma himself. I know that the tactics are really silly now. If he is innocent he has the chance to prove it, he muust use it instead of trying to prolong the course of justice and wasting the time of our judiciary.