It is less than ideal – but perhaps not surprising, given the way lawyers like to gossip - that news of the non-appointment of Adv Jeremy Gauntlett to the Cape High Court bench leaked out before an official announcement was made about the matter. Gauntlett is often described as one of South Africans most brilliant legal minds and many observers thought that the JSC would nominate him for a position on the bench.
It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.
However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?
Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.
As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.
Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.
If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.
But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?
It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.
First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.
Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.
More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.
Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.
Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.
Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.
Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.
From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.
In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.
When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.
It’s lovely – this Polticsweb reference to “the dwarves” on the JSC that did not recommend Gauntlet. All said in a single comment!:http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=171989&sn=Detail
It is myth among white lawyers, in particular, in the Western Cape that Adv. Jeremy Gauntlet SC, is one of the finest or brilliant legal minds in the country. Facts: In its interview of the candidates for vacancy at the Constitutional Court, Adv. J Gauntlett failed to make it even to the list submitted to the President for appointment. Secondly, it is now emerging that the same Advocate has failed to satisfy the JSC that he is qualified and suitable for appointment to the bench in the Western Cape. Apart from these two facts, Advocate Gauntlett’s understanding of section 174(2) of the Constitution is very shallow. In his understanding, if there non-white candidates are not available for interview and appointment to the bench, the JSC must then appoint the available white candidates until such time that the JSC finds sufficient but competent non-white candidates. The appointment of broadly racially represented judiciry is peremptory and not a matter of when non-whites are available. At all material times, racial representivity of the judiciary must be considered. If one follows Adv. Gauntlett’s illogic interpretation, one must fill vacancies with the avilable whites if non-whites are unavailable. It is another myth to conclude that there are no non-whites qualified candidate to fill the vacancies. The JSC’s method of selection for interview relies more on nomination than also making room for approaching qualified candidates to make themselves available. There are many attorneys (as opposed to advocates) with experience but who will never receive nomination or support from the bar simply because they belong to the law society and not the GCB. In conclusion, I had an opportunity of litigating agaisnt Adv Gauntlett in a matter between Gold Fields and Harmony Ltd, and my view is that he is being overrated. I reserve my facts on the latter issue.
Shocking to you…
You have to admit, Prof, that there are people who hold views on homosexuality, for example, that you would describe as shocking, but which are allowed by, and consistent with a careful reading of the Constitution (of course, my bias enters here in my “reading” of the Constitution, and colours what i would call consistent with the Constitution).
I am utterly opposed to unfair discrimination on the grounds of sexual orientation (although, of course, I might challenge the term “orientation” on logical and biological grounds). However, my view of what is “unfair” may well differ from yours.
However, my views do not exist because I am a “homophobe”, but rather because of a different worldview. And although I would not expect my arguments to persuade you to amend your worldview, I believe that I can demonstrate that my worldview is logically more consistent than the common alternatives found in the world today.
http://www.sabar.co.za/law-journals/2000/thirdterm/2000-thirdterm-vol013-no3-pp34-35.pdf
Thanks for this post. It makes for interesting reading. Where I differ from you is that I believe that the JSC should be cognisant not only of the individual before them but rather how adding a judge of their particular philosophy will affect the overall ideological composition of the Bench. On an abstract level I believe that value-diversity is an important goal for judicial appointments.
For example, I am quite partial to capitalist views and believe that having capitalists on the bench even only as a small minority would be appropriate. So, if we have a particularly left leaning bench passing a judgement that gives effect to their philosophy there can be a strong minority judgement. This minority judgement pushes the majority to properly and fully consider the case before them.
Of course, that does not decide what the majority composition of the bench should be. On what the ‘majority’ view should be I am still undecided. What I would really like is a statement by the ANC (and the other political parties) on what type of philosophy a judge should subscribe to.
I am going to post this link on my blog.
Zebulon is right.
Gauntlett SC is clever, yes — but not that brilliant compared to the jurist who would have been his boss on the Cape Bench, Hlophe JP. As Dr Ngobeni pointed out in his submission in support of Judge Hlophe, the latter is not only the finest judge in the country, but arguably the greatest legal mind in modern jurisprudence.
And as for all this talk about Gauntlett’s so-called “experience” at the Bar, that is nonsense. As Maggs has so eloquently noted, law is but a matter of the luck of the draw anyway.
P.S. I note that the Cape High Court this morning set aside the JSC’s exoneration of Hlophe. Just goes to show what happens when you have untransformed judges on the bench!
The then appointment of Judge Ngcobo ahead of Judge Cameron was a clear case of affirmative action and should be repeated at all times. Without that opportunity his fate could have been very different from what it is today, probably we would be having a different Chief Justice today. I hope he recognises how the system elevated him and he must take the opportunity with both hands and make sure that other people benefit under similar circumstances.
This reminds of a book that I am reading, “Outliers” by Malcom Gladwell
SEE BELOW.
http://en.wikipedia.org/wiki/Outliers_(book)
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=101595&sn=Marketingweb%20detail
Its actually so simple. If the judgement goes my way, it is a good judge. If the judement is in favour of the other party, it is a bad judge.
Nail on the head again MDF
Gwebecimele, your article says it all. What I also find disturbing about Adv. Jeremy Gauntlett’s is his response to the question relating to his relationship with Hlope JP. By suggesting that he has moved on regarding his difference with Hlope and that the latter has courteously received him on their interaction, is not assurance that he has resolved his personal ispute with Hlope. To me, his conflict resolving skill is below par. You do not leave a serious matter or conflict of such magnitude to die a natural death. You proceed with it until it is resolved whether amicably or through court order. As a public member, I am not convinced by this response and believes he still harbours grudge against Hlope JP. If appointed, which seems unlikely, Adv Gauntlett was going to try to use whatever means available within the bench to settle the score with Hlophe JP.
Zebulon is right
Hlophe JP publicly called Gauntlett SC a racist. And Gauntlett SC has not apologised for being a racist. How can a racist be a judge?
P.S. While I have boundless admiration for Hlophe JP, it does disturb me that he apparently did not object to Gantlett’s appointment on the basis thereof.
P.P.S. Zebulon, while I agree with everything you say, please afford the JP the respect of spelling his name correctly.
@Fassbinder -
How about you affording Gauntlett SC the respect of spelling his name correctly?
@ Clara
Touche!
@ Fassbinder
Hlophe JP did not object to Gantlett SC’s appointment on the basis of him being a racist, because Hlophe JP, despite his public utterances to the contrary, have no faith in his belief that Gaunlett SC is a rascist.
Mikhail Dworkin Fassbinder says:
April 19, 2010 at 16:08 pm
“How can a racist be a judge?”
Wot about Judge Dennis Davis?????
@ Fassbinder
Just curious to know what is the basis for your view that Judge Hlophe is the finest judge in the country and the greatest legal mind in modern jurisprudence? What exactly has he done to fill you with boundless admiration? These questions are meant seriously, I have only read about the Oasis affair, the eviction order of 20,000 shack dvellers (which in my view does not show Judge Hlophe in a very favourable light) and other similar matters so I would be pleased to hear the good things that I am sure you can say about him.
With respect to Gauntlett, what is your basis for considering him a racist (if I read your posting right)? Again, I only know him from his role in the SADC Tribunal case against Zimbabwe.
And finally, what do you mean by the Cape High Court decision this morning being a result of untransformed judges on the bench? Firstly, what is an untransformed judge? And, no matter if you like Helen Zille or not or you think that it is correct that the Premier of a province is involved in the work of the JSC, it is difficult to come to a different result when reading the relevant part of the constitution. Would and should a transformed judge have chosen to disregard a very clear provision of the constitution because he did not like it? Please explain.
Kind regards and thanks
Ricky
Hey Dworky,
You are running the Gauntlett, I see.
Have fun!
@ Ricky
As to the details, I hand you over to Gwebecimele and Zebulon, who are even better informed about Hlophe JP’s contributions than I am.
In the meantime, may I refer you to Dr Ngobeni’s words on Judge Hlophe:
“We hope that when all said and done, the country (overwhelming majority of our South African public) will look at Hlophe squarely in the eyes and say to itself: “This is my Son, whom I love;with him I am well pleased.” Matthew 3:1317.”
(http://www.justiceforhlophealliance.co.za/index.php?option=com_content&view=article&id=109&Itemid=1)
@ Fass,
Firstly, your Dr Ngobeni is no Dr. In fact, this title was not claimed by Mr Ngobeni. See: http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?
oid=84075&sn=Detail
Secondly, his colourful past aside, what makes Mr. Ngobeni THE authority on what and who constitutes the ” finest judge in the country and the greatest legal mind in modern jurisprudence”
Thirdly, ag, is it even worth going on? ……………………
Chris says:
April 19, 2010 at 15:17 pm
“Its actually so simple. If the judgement goes my way, it is a good judge. If the judement is in favour of the other party, it is a bad judge.”
Spot on!
Competence, competence, competence and then an even temperament is what makes a good judge. Sorry Pierre these is no substitute for a deep understanding of the law, a lifetime of experience in resolving disputes, of preparing cases for trial, of rapidly being able to master and abstract the most important issue from thousands of pages of document, of hundreds of hours of leading witnesses in chief or in cross-examination, of learning how and why witnesses give evidence – and that hardly covers a fraction of the skills of a senior junior or silk. By the time a counsel has got to this stage, he or she has invariably developed an intrinsic sense of justice and fairness, tempered with the knowledge that his or her world view is not that of everyone that comes from having prepared cases for people across every spectrum of life.
Whether you are a businessman who has spent hundreds of thousands of rands and hundreds of hours in preparation getting your case to trial, all the people in the middle who need disputes resolved, right down to somebody who has been unlawfully evicted, nothing is more disheartening than seeing the case on which you put so much hope bungled by a judge who has neither the experience or competence to deal with it.
Come and sit one Wednesday morning in the opposed civil motion court of the WLD (that is after the judge has finished his roll off a hundred+ unopposed matters). Typically the judge will have upwards of 15 opposed matters to hear on the remaining three days of the week. The first may concern a tricky interpretation of a township ordinance; the next a dispute between shareholders, multiple agreements, hundreds of pages of affidavits and teams of senior advocates and attorneys who have been diligently preparing for months to get to this point; number three could well be an intricate balancing act as mother and father argue over custody of their minor children; number 4 a disgruntled tenderer and a constitutional challenge to the Municipal Finances Management Act; …. and their are still eleven to go.
That is just motion court, the following week the judge is in civil or criminal trial court, urgent court or sitting in appeals. All of which require a difficult skill set and are incredibly demanding.
Most judges end up writing their judgments at night and over weekends. There is no time to ‘learn’ at the expense of litigants.
Time and time again I have watched inexperienced judges (who simply lack the skills and experience) try hard to make up for it, and it never works. They are simply overwhelmed and the litigants disappointed at the hearing they receive. The result of taking an an inexperienced non-litigation attorney, or a junior counsel with limited experience, or experience which is confined to one area is a disaster.
The contrast, for counsel of appearing before an experienced judge, and an inexperienced one is like night and day. Matters are resolved quickly and judiciously, the issues identified, unnecessary argument dispensed with. Many times I have had litigants who have lost their case before an experienced judge, express admiration for the way their case has been handled, satisfied at least they got the best hearing possible. By contrast the inexperienced judge lets the matter wander, unsure if him or herself, costs run up and litigants and counsel alike get more and more frustrated.
Personally I will find appearing before Gauntlett J a pleasure (for I hope he is appointed). He may be abrasive sometimes, and certainly won’t suffer fools but my own skills will be exercised to the maximum and my clients will get the best hearing possible. More than that I do not want.
@ Chris
“Its actually so simple. If the judgement goes my way, it is a good judge. If the judement is in favour of the other party, it is a bad judge.”
Actually, its not that simple at all. I have quite often lost a case, well knowing that, although my client will not be happy, the judge did the “right” thing in terms of the law. The reverse also applies; I have been surprised to win a case – because, so far as I could tell, the law was not on my side.
atthecoalface says:
April 20, 2010 at 8:50 am
I hope the members of the JSC read this.
Mchael Osborne says:
April 20, 2010 at 9:07 am
I had my tongue in my cheek when I wrote it. If I must be serious I can just repeat what atthecoalface said.
Poor atthecoalface, you took most of the space spewing diatribe that is intended to justify why the looser, Gauntlett J SC, should have been appointed, but your reasoning is clumsy and all over the place. Please offer comprehensible, sensible and logical justification why you believe your favourite silk is the best among the best. From my interaction with the learned Gauntlett J SC, he has good sense of humour especially when the presiding judge(s) get irritated by Counsel’ argument and loose temper, all in the manner of trying to get Counsel to agree or concede to a specific argument. His reasoning on law is no extraordinary. I’ve told you how his reasonning on section 174(2) is fallacious.
@ Fassbinder, I have taken note of according Judge President Hlophe the respect he deserve by spelling his name correctly. It was not intentional but a slip on my finger. By the way, I am typing with one finger – some call it computer illiterate.
I will stay away from Maggs’ issue regarding Dennis Davis + Racist. Equally so, I will not entertain the issue of Judge President Hlope being the finest of them all. All I know is that he is the Judge President and that says it all unless your IQ is substandard.
@atthecoalface
Maggs, this one is for you to deal with. Although this contributor claims to labour “atthecoalface,” it appears to me as if the only hard substance he has ever faced is the typeface of a John Grisham novel.
I can only hope that people like yourself, and Chris, and even Brett, who seem to know a great deal about law is actually practiced, will help atthecoalface understand that law is the luck of the draw, and that “experience” counts for precisely nothing!
Thanks.
@ Fassbinder – if you are sincerely sceptical then why do you bother have these debates? If law is all luck then it doesn’t matter who we appoint to the Bench?
@ atthecoalface – I really enjoyed your comments. I am writing a piece for a student newspaper on judicial selection and your comments with PdV’s comments have made me rethink quite a few arguments I had wanted to make.
Mikhail Dworkin Fassbinder says:
April 20, 2010 at 9:17 am
Hey Dworky,
Let me defer to a legal professional.
Mchael Osborne says:April 20, 2010 at 9:07 am :
“I have been surprised to win a case – because, so far as I could tell, the law was not on my side.”
Zebulon says:
April 20, 2010 at 9:16 am
“I will stay away from Maggs’ issue regarding Dennis Davis + Racist.”
Hey Zebulon – I rely on then Chairperson of HRC, now Vice Chancellor of Unisa, Prof Pityana for that!
Mikhail Dworkin Fassbinder says:
April 20, 2010 at 9:17 am
I will gladly do that.
atthecoalface, when you draw a good judge, you are lucky. When you draw a bad judge, you are not lucky. If the guy who gave you a hiding in court is shortlisted by the JSC, you are unhappy. If you draw a judge, good or bad, who used to give you a hiding when he was still practicing law, you are very unhappy.
@ atthecoalface
What about the following characteristics?
1. Political alignment
2. Capitalist vs Communist vs others
3. Integrity, Morality ETC (Judges drink tea these days)
4. Attitude towards transformation ( Qunta challenged Gauntlett on this one and we do not know if his views have changed)
5. Gauntlett, Krigler and others are known to be rigid supporters of the constitution in its current form whilst the majority of the people in this country are starting to loose faith in the constitution.
List goes on. Add all of these to all the others you have mentioned and lets see what comes out the other end.
@ Dworky
You say;
“As to the details, I hand you over to Gwebecimele and Zebulon, who are even better informed about Hlophe JP’s contributions than I am.”
I am not a Hlophe JP supporter for no specific reason but we happened to be on the same side on the Polokwane debate and I suspect he was unfairly treated for demonstrating his support for JZ.
Maggs, you misinterpreted what I said. The fact that a lawyers wins a case when he thinks the law was not on his side does not mean that law is the lucik of the draw. It means, on the contrary, that one can make an independent judgment as to how the case should come out, irrespective of what the outcome of a particular case is.
Atthecoal face is quite right. I would add this to what he says: 99% of cases before any court are very clear and one sided. Tenant contracts to pay R1000 a month. He does not. Ergo, he has breached the contract of lease.
This is not a matter of the luck of the draw — except in the sense that it the luck of the drawn whether one will land in Johannesburg in two hours having departed from CT, because there is always a statistical possibility that the Airbus’s engines will all fail as you pass over the OFS.
Michael Osborne says:
April 20, 2010 at 10:20 am
“Maggs, you misinterpreted what I said” – of course I did, deliberately so
In the meanwhile to keep Dworky busy here’s something interesting :
http://findarticles.com/p/articles/mi_hb6700/is_n4_84/ai_n28642064/
Has anyone got access to this opinion piece from the NLJ?
“OPINION: Rule of law or luck of the draw?
Diametrically opposed appellate rulings on the same set of facts should not co-exist in a rational legal system. ”
http://communities.justicetalking.org/blogs/natlaw/archive/2010/03/13/opinion-rule-of-law-or-luck-of-the-draw.aspx
Michael Osborne says:
April 20, 2010 at 10:20 am
Hey Michael,
Have you ever heard lawyers say “it depends on which judge hears the matter”?
Zebulon, your interpretation of section 174(2) is wrong. Your interpretation is one that mirrors an oft made mistake in applying the Employment Equity Act, a mistake that has been declared as such by several judgments of our Labour Courts. The need for the judiciary to reflect broadly the racial and gender composition of SA must be taken into account when making appointments. In other words, racial and gender transformation cannot be ignored. But neither can the need to make appointments. If no suitably qualified “transformation candidate” is available the JSC has a legal duty to appoint the suitably qualified white applicant. There is a long line of cases confirming this in the labour field.
atthecoalface says:
April 20, 2010 at 8:50 am
“Competence, competence, competence and then an even temperament is what makes a good judge.”
Any idea why retired Judge Goldstone got roasted for his mid East thingy?
I always thought that he was “competence, competence, competence” with “an even temperament” and then some!
Yes, I have often heard that said. I would identify three categories:
1. In 99% of cases, the humdrum workload that is seldom reported in the newspaper, it makes no difference at all which judge sits.
2. In perhaps another 0.5% of cases, it does matter which judge gets the case, because some judges may be so lacking in knowledge of the relevant precedents, or so biased, that they will deviate from what the law clearly requires.
3. In the balance of the cases — a very small, but much reported fraction — there really is no clearly “right” answer, perhaps because this is the first instance such a matter has ever come before a court. Here, indeed, one might argue that the outcome is the “luck of the draw,” in the sense that the legal materials are indeterminate.
Fassbinder might or might not agree with me, but I lament South Africans’ brevity of wit or brevity of funny bone, perhaps. Most of us find our funny bones cut off somewhere shortly after Leon Schuster and Biltong and Pot Roast and a long way short of satire or even double entendres.
Maggs is right.
The fact that Goldstone, a very competent judge, was heavily criticized for his report on Gaza, demonstrates clearly that competence is not the true test of a good judge!
(Maggs, did you by any chance earn your Phd in logic at the same esteemed university where Brett graduated in political theory and statistics?)
Mikhail Dworkin Fassbinder says:
April 20, 2010 at 10:49 am
Hey Dworky,
You seem to have caught a wee bit of the thing going around among the right whingers.
BTW I read somewhere that the JBD said either that the report or Goldstone lacked integrity or thereabouts (I may have read wrong).
Nothing personal – just relying on the media reports, so don’t feel too badly about that.
“In an article in Business Day on October 20 2009, Chief Rabbi Warren Goldstein wrote that Goldstone did his work without ‘integrity and care’ and the report was a ‘disgrace’ and ‘wanting in truth’.”
http://www.mg.co.za/article/2010-04-16-goldstone-cleared-for-grandsons-bar-mitzvah
@ David Watson
” if you are sincerely sceptical then why do you bother have these debates? If law is all luck then it doesn’t matter who we appoint to the Bench?”
David, perhaps Maggs will help you with your question. From my humble position, all I can say is that, since experience does not really matter, the SOLE criterion for judicial appointment should be race. Unfortunately, right-whingers, naive objectivists, and other agents and bloody bustards with white tendencies, continue to invoke so-called “experience” as an excuse for keeping blacks off the bench.
Thanks.
@ Maggs
Add Judge Nicholson to the list, who was given a political hot potatoe but managed to bring sanity to a chess game. In my opinion he was right to strech beyond the limits and consider relevant political chess games that were thrown down our throats.
Mikhail Dworkin Fassbinder says:
April 20, 2010 at 10:49 am
“Maggs, did you by any chance earn your Phd in logic at the same esteemed university where Brett graduated in political theory and statistics?”
Hey Dworky,
You already know that I admitted to being an uneducated illiterate to the other fellow who posts consistent and solid arguments – interesting to see that you are doing so too.
Of course I rely on the rather shaky www as the sources for my rather misinformed views.
Perhaps you, being astute, highly informed and appropriately educated, could guide me to the correct view with proper arguments and sources.
p.s. “lagerisms “don’t suit you.
http://www.businessday.co.za/articles/Content.aspx?id=84411
“Goldstein has a PhD in Human Rights Law and is the Chief Rabbi of SA.”
Gwebecimele says:
April 20, 2010 at 11:15 am
“Add Judge Nicholson to the list”
LOL!
Nicholson became the “bad boy” for the right whingers, “competence” and “experience” notwithstanding.
Maggs, thank you for the lovely compliments!
“Lagerism” – Nonsense spoken while intoxicated by beer?
Zebulon says:
April 19, 2010 at 14:01 pm
I will not engage your take on jeremy gauntlett’s competency. However, there are two things in your above post that are misinformed. Firstly, your interpretation of s 174(2). Whilst it is peremptory for the JSC to consider the need for the judiciary to reflect BROADLY the racial and gender composition of society, it does not mean that if there are no other suitable (black/female) candidates the JSC cannot appoint white males. Prof De Vos has succintly pointed this out above – Pierre De Vos says:
April 20, 2010 at 10:28 am
The second aspect of your post that is misinformed is that nominations need not come from the Bar or Bar Societies only – attorneys can be nominated by attorneys or Law Societies, judges, ordinary people or groupings of people (the BLA for instance). Magistrates and regional magistrates can also be nominated by any such persons or bodies, or by JOASA or ARMSA. The bottom line is however that the candidates must ‘accept’ their nominations and then prove at least basic competency by completing the required questionaire and submitting CV’s. the JSC then takes those nominations and decide, in conjunction with the relevant JP’s, who to shortlist.
Mikhail Dworkin Fassbinder says:
April 20, 2010 at 11:27 am
Hahahahaha
Close.
But in my broken English it translates to the language of brotherhood in the laarger (bad spelling comes from being an uneducated illiterate).
Let’s try “laargerisms”.
Gwebecimele says:
April 20, 2010 at 11:15 am
“GAUTENG Acting Deputy Judge President Willem van der Merwe, who acquitted President Jacob Zuma on a rape charge, has been recommended for the post of Judge President for Gauteng – a position Zuma must now confirm or reject.”
http://www.sowetan.co.za/News/Article.aspx?id=1134493
Here is a statement by people who should know what makes a good judge:
http://www.businessday.co.za/articles/Content.aspx?id=106927
@ Chris, thanks for alerting us to the statements attributed to the members of Lesotho Judiciary. However, I am bit baffled by the position of MM Ramodibedi who is reported to be President of the Court of Appeal of Lesotho and Chief Justice of Swaziland. If indeed this is truth, then these two countries and their judicial system is hopelessly useless. Can you imagine Robert Mugabe being the full-time President of Zimbabwe while holding Cabinet position in the Zuma administration, say a Minister of Minister of Home Affairs? May someone clarify whether these two judges, namely J W Smallberger and C T Howie are the same judges who served in the South African courts during the apartheid era? Once this is clarified, then I will reconsider my comments regarding Adv. Gauntlett SC.
It is unfortunate that the possible appointment of esteemed Willem van der Merwe to the position of Judge President of the South Gauteng High Court will always be linked to his acquittal of the correctly image tainted “JZ”. Van der Merwe deserve his position based on his accomplishment at the South Gauteng High Court. Even his decision on “JZ” was, according to me, correct not because JZ didn’t rape, but there were no facts to show or prove absent of consent on the victim. Good luck to Willem van der Merwe, you are completely different from Judge Nicholson who dreamt of non-existent conspiracy against JZ.
Zebulon says:
April 22, 2010 at 11:58 am
Indeed.
Someone commented (correctly in my view), on one of Pierre’s pieces a while back, that the only time decisions are deemed correct, appropriate, “democratic” in some quarters is when it is anti-ANC and/or anti-Zuma.
Zebulon says:
April 22, 2010 at 11:58 am
“Good luck to Willem van der Merwe, you are completely different from Judge Nicholson who dreamt of non-existent conspiracy against JZ.”
I agree with everything you have said but this statement.
There is no doubt that there was a plan to stop Zuma from ascending to power in both govt and the ANC and some participants are publicly known. Whether these were sufficient to get charges dropped that is entirely another matter.
In my opinion Judge Nicholson was correct not to ingnore facts just to fulfill rigid legal requirements.
Zebulon says:
April 22, 2010 at 11:47 am
It is not uncommon for judges to sit on the bench of more than one jurisdiction in Southern Africa. Take for instance the late Justice Mahomed Ismail. He served as a judge of the Appeal Court in Swaziland and he was a judge of appeal in Lesotho as well as the Chief Justice of Namibia and later on the president of the Lesotho Court of Appeal. Justice Laurie Ackermann served as a judge on the Lesotho Court of Appeal and on the Namibian Supreme Court. Judge Thomas Cloete served on the Swaziland High Court Bench. Judge Lionel Melunsky also sit on the Lesotho Court of Appeal, as well as judges F S Grosskopff, D G Scott and others.
Gwebecimele says:
April 22, 2010 at 13:04 pm
http://www.businessday.co.za/articles/Content.aspx?id=106935
I read with dismay Chief Rabbi Goldstein’s article in yesterday’s Business Day. I was dismayed that the chief rabbi would so brazenly politicise the occasion of my 13-year-old grandson’s bar mitzvah to engage in further personal attacks on me.
I am prepared to respond fully to those attacks, but not in the run-up to my grandson’s bar mitzvah.
He and his family have been working for close to a year preparing for the once-in-a-lifetime rite of passage into the Jewish community. Of all people, the chief rabbi should be aware of the importance of this. Yet, for whatever reasons, Chief Rabbi Goldstein would rather focus on me.
I was further dismayed when I read his article because his rhetoric about “open synagogues” simply does not coincide with how my family and I have been treated. The chief rabbi has been well aware of the situation, and instead of using his position of leadership in the South African Jewish community to promote the “open synagogues” principle that he purports to profess, he would rather write articles and threaten others with lawsuits. I must state that at no time whatsoever has the chief rabbi reached out to my family. Acting on information that we received from the synagogue, and the recent threat by the leader of the South African Zionist Federation of demonstrations if I attend the synagogue service, it was decided that it would be better if I did not attend the bar mitzvah. We have taken that decision in the best interests of my grandson and my family.
My only concern at the present time is that my grandson’s bar mitzvah should be the joyous occasion that he deserves it to be. I would dearly love to attend my grandson’s bar mitzvah. The questionable and unfortunate approach of the chief rabbi, in all the circumstances, makes it less, and not more, possible for me to do so.
Judge Richard Goldstone
Via e-mail
@Chris
Whether common or uncommon in Southern Africa, my question is whether the S.A. Constitution has a provision allowing active South African judges to hold position of judge in another country. The position of a judge under S.A. constitutional democrary is a full-time job for logical reasons. By holding position of judge in two different countries just make a mockery of the judicial sytems of countries in question. Therefore it is true that it was not uncommon in the old era, but it is now unacceptable. Any country that sticks to old judicial practices should not be taken seriously and as a result I do not take the statements of these judges seriously. Neither will JSC took it seriously in regard to Adv. Gauntlett SC.
Maggs Naidu says:
April 22, 2010 at 14:03 pm
Interesting. Goldstone thinks Goldstein would not make a good judge, and Goldstein thinks Goldstone wasn’t a good judge.
Chris says:
April 22, 2010 at 14:46 pm
http://ackerman.house.gov/index.cfm?sectionid=186&parentid=4§iontree=&itemid=980
Ackerman Blasts Protest Threats Against Judge Richard Goldstone
April 16, 2010
U.S. Rep. Gary Ackerman (D-NY), Chairman of the House Foreign Affairs Subcommittee on the Middle East and South Asia, this evening sent the following letter to the South African Zionist Federation in response to the report by the Jewish Telegraphic Agency (JTA) that Judge Richard Goldstone, author of the Goldstone Report, was being compelled to stay away from his grandson’s bar mitzvah due to protest threats.
April 15, 2010
Mr. Avrom Krengel
Chairman
South Africa Zionist Federation
Johannesburg, South Africa
Dear Mr. Krengel:
As an unapologetic critic of the Goldstone report, and of Judge Richard Goldstone’s badly warped perspective on Israel’s right to defend itself, I am appalled and utterly disgusted by reports that Judge Goldstone will not be able to attend the bar mitzvah of his grandson due to protest threats by Jewish groups in South Africa.
There is absolutely no justification or excuse for carrying legitimate opposition and criticism of Judge Goldstone’s (wretched) professional work into the halls of his family’s synagogue, much less the celebration of a 13 year-old Jewish boy’s ritual acceptance of responsible membership in the Jewish community.
In response to this outrage, according to the Jewish Telegraph Agency, you said “We understand that there’s a bar mitzvah boy involved – we’re very sensitive to the issues and at this stage there’s nothing further to say.”
Actually, there’s rather a great deal more to say.
I take a back seat to no one in strenuous opposition to Judge Goldstone’s critique of Israel’s actions in Gaza during Operation Cast Lead. But there is no excuse for what has been reported if it is true. Compelling Judge Goldstone to absent himself from his grandson’s bar mitzvah offends me as a believer in civil discourse and the power of debate and argument; it offends me as a believer in the fundamental human right to freedom of worship and belief; it offends me as a defender of the Jewish state and the Jewish people; it offends me as the president of the International Council of Jewish Parliamentarians; and it offends me personally as a Jew and a Jewish grandfather.
People are entitled to their views about Judge Goldstone, and mine is that he failed massively and consequentially when it came to his very shoddy work regarding the legal implications of the defensive operation in Gaza in December 2008. But there is no entitlement to vent justifiable anger about his work at either his community or his family, much less an innocent child.
Doing so is an abysmal moral failure, a disgrace deserving the fullest condemnation by every friend of human freedom and all those who love the Jewish people and the State of Israel.
Sincerely,
GARY L. ACKERMAN
Chairman,
House Subcommittee on the
Middle East and South Asia
Zebulon says:
April 22, 2010 at 14:39 pm
It so good to hear a good joke this time of day!
@ Chris
It is good joke. I think the two can tell as to “who makes a good judge”. There is verse in the Christian Bible to the effect that children will be punished because of the deeds of their parents. So it looks like Gary Ackermann is completely against such principle as he denounces any decision to bar Goldstone Judge to attend his grandson “mitzvah”. On a serious note, the fact that Goldstein, Chief Rabbi, has withdrawn his support to any protestation directed at Goldstone Judge, is an acknowledgement of overeaction to the matter. I will agree with the Ackermann’ s appeal to allow Goldstone to be part of his grandson “mitzvah”. Do they serve red wine during this mitzvah? I am thisrty.
Sachs breaks silence on Goldstone fracas
http://www.mg.co.za/article/2010-04-22-sachs-breaks-silence-on-goldstone-fracas
@ Maggs
“Yet while there was no official exclusion of Goldstone from the occasion, they underlined the fact that the family had decided he should not attend, Sachs said.”
It is tragic that Goldstone’s own family have decided against RG’s attendance. I demand that they be compelled by Court order to welcome him to the shul! Where are “Madam” Zille and the liberal media when the basic human rights of one of our finest judges are at stake? And where is Judge Motata? Hey?
Mikhail Dworkin Fassbinder says:
April 23, 2010 at 8:40 am
Hey Dworky,
You’re pretty peeved with RG it seems.
I gather that you did not appreciate his report (which report, according to the Chief Rabbi, lacks integrity).
The grandson deserves all this controversy over a very important occasion in his life – given the choice he probably would chose lying, traitorous, counter-revolutionary Richard as his grandfather.
Even the arch racist, Judge Dennis Davis, seems to side with RG.
Eish!
Some would say that even Juju would have a lot to learn from comments like “He (Sachs) added that a man named Krengel had threatened to have a posse of 20 Jewish stormtroopers outside the shul to keep Goldstone away, Sachs said”.
Ok, ok I get the difference – Juju is ANC and Black so context is different.
i have so many funny bones in myself that is why i would love to be a comedian :`.
Legal ability is all that should count for a judge. The law is inherently just (especially now that it is subject to the Bill of Rights and the rest of the Constitution), so legal ability leads a Judge to find the just, or at least, the lawful, result. The great jurists have always found justice in the law. It is plainly there. The more so, now.
All this other nonsense is misplaced. Judges should be as skilled at the law as possible. That’s all.
The fallacy of all the modern SA talk on this subject is that the only person who can do justice for a poor black person is another poor black person, or ex-poor black person. Similarly, the only person who can do justice for homosexuals is a fellow homosexual, or for Jews, a fellow Jew, etc. This is simplistic nonsense.
I would rather be judged by a legally skilled judge than by someone similar to me.
And why should the judiciary “reflect the demographic”? Let the judiciary reflect the best legal minds. And let all have equal opportunity. Oh, but that is hard, takes effort and time – so obviously it cannot be correct.
Pretty simple really.
And Gauntlett is a great advocate – those on this site who have said otherwise only show their own lack of legal learning. He would have made a massive contribution to the quality of the Bench. His rejection is scandalous.