Constitutional Hill

When will the JSC begin to take transformation seriously?

I do not hold a brief for Advocate Jeremy Gauntlett, but the reasons provided by the Judicial Service Commission (JSC) for not appointing him as a judge says more about the ideological conservatism and dysfunctionality of the JSC (whose members often subject candidates for judicial appointment to irrelevant or laughably uninformed questions) than it says about Advocate Gauntlett’s suitability for appointment to the bench.

Almost everyone agrees that Gauntlett is a brilliant lawyer – at least in the narrow, technical, sense. But personally I do not think that he would be a very good judge in a country like South Africa where there is a need for the law to be developed and applied in ways that would protect the vulnerable and marginalised against exploitation by the rich and politically powerful (both in business and in government). Given his conservative legal philosophy and his inability to recognise that – like everyone else – his views about legal reasoning and technique are based on ideologically loaded assumptions, I see Gauntlett as a candidate more suitable for appointment to the bench in the Tory governed UK, than in a progressive, constitutional state like South Africa.

It is unclear whether, as a judge, he would enthusiastically develop the (often unjust) common law rules to bring them in line with the demands of the Bill of Rights. Judges who are stubbornly wedded to the fiction of legal clarity and certainty often show a reluctance to develop the common law rules to align them with the values contained in the Bill of Rights. They see such an approach as being too activist and as leading to too much legal uncertainty.

I suspect Gauntlett would be the kind of judge who would want to hide behind old-fashioned formalistic methods of interpretation to shield the common law from needed development. In fact, as far as I can tell, his legal philosophy is closer to that of Chief Justice Mogoeng Mogoeng and recently appointed Constitutional Court judge Ray Zondo than it is to that of progressive lawyers and judges who see legal transformation as something far broader than the need to replace conservative white patriarchal judges with conservative black patriarchal judges.

But because many members on the JSC are spectacularly uninformed and out of their depth, or share the deeply conservative, anti-transformative, agenda of the present Minister of Justice and his government, candidates before the JSC are seldom asked the tough and probing questions that would help us to determine what their broader views on the transformation of the law and legal culture might be and whether they would protect the interests of the vulnerable and marginalized against the powerful and rich (inside and outside government). Instead the JSC often focuses on completely irrelevant factors, asking questions about a candidate’s religion or how often they have ruled against the government – as if there is anything wrong for a High Court judge in a constitutional state based on human dignity, equality and freedom to rule against big business or the government in order to protect the vulnerable, marginalised and poor.

In Gauntlett’s case, the JSC expressed a concern that “he has a ‘short thread’ and that he can be acerbic at times”. While some Commissioners accepted his assurance that as a Judge one is removed from the immediate combative situation that counsel usually find themselves in, others expressed “strong reservations” whether, as part of his attributes, “he has the humility and the appropriate temperament that a Judicial Officer should display”. In short, some JSC members decided not to appoint him because they did not like his guts.

Has anyone ever heard a more ridiculous reason for not appointing a lawyer to the judiciary? Let’s face it, advocates seldom become successful because they are humble servants of the court and lack a sharp tongue. If the JSC is now going to refuse to appoint any senior advocate to the bench because he or she is not dripping with humility and is too combative, then it is going to be hard pressed to find any half decent lawyer to appoint to the bench.

On the face of it, the second reason is slightly more plausible. According to the JSC a “very important consideration” it took into account was the demographic composition of the Western Cape High Court Bench:

It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution.

Section 174(2) of the Constitution states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. There are two important reasons why this provision was included in the Constitution.

First, in order for the judiciary to become more legitimate and more credible in the eyes of ordinary citizens, it was imperative for the judiciary to shed its almost exclusively white and male character. Given the deeply entrenched and pervasive racism and sexism in our society an all-male and exclusively white judiciary would hardly instill confidence with the vast majority of citizens.

Second, we live in a diverse society. Many white male lawyers live a relatively insular middle class life and few would normally be in tune with the lived reality of the vast majority of South Africans. Creating a more diverse bench helps to bring more people of diverse backgrounds and with diverse experiences and opinions into the judiciary and can enhance the quality of justice dispensed by our courts.

Despite these being laudable goals, I find the reasoning of the JSC depressingly narrow-minded and on shaky legal grounds to boot. While there is a need to keep on working at changing the racial and gender composition of the bench, it seems rather absurd to equate judicial transformation solely with the change in the racial and gender composition of the bench. Race and gender should be the starting point, but if one is serious about the transformation of the judiciary, one would have to take into account whether candidates for appointment have embraced the values enshrined in the Constitution.

To do that, members of the JSC would have to be conversant with the basic constitutional issue and would have had to ask candidates about their views on the important constitutional and other legal issues that would give a clear indication of whether a potential appointee will respect the Constitution and whether he or she will hand down judgments that will protect the rights of everyone, but in particular the marginalized and vulnerable in society.

In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights. Neither would a candidate be suitable if he or she is not eager to protect freedom of expression and access to information or would be willing to endorse censorship aimed at hiding corruption.

Personally, I would be reluctant to appoint a judge who does not support the Constitutional Courts jurisprudence on sexual orientation discrimination, who holds sexist or racist views or who harbours prejudices against people with disabilities. And a candidate who disagrees with recent Constitutional Court jurisprudence on evictions which leans towards placing a duty on municipalities to provide alternative accommodation when large scale evictions from either private or publicly owned land are planned, would not get my vote either.

Section 174(2) requires the JSC to take into account the need for a more racial and gender diverse bench. It does not require the JSC to appoint a candidate with a questionable commitment to some of the broader transformation goals set out in the previous paragraph merely to meet racial quotas.

Surely if the JSC wanted to appoint good judges that would drive the transformation agenda, it would not only look at race (and as an afterthought, gender) when making appointments. It would look for candidates who understand that legal rules often benefit the rich and powerful and often harm the poor and vulnerable, candidates who understand that formal legal rules that are interpreted in a formalistic manner will often not produce a just outcome, candidates that are willing to interpret legislation and develop the common law to make the law ever so slightly more just and equitable.

  • AJ Nel

    Ouch, might have been wise to read some of his judgments.

  • Dirk de Vos

    As with the previous posting on affirmative action, the composition of the judiciary is essentially (an upper) middle class issue. The high courts, for the most part, are well beyond the reach of most South Africans. The racial or any other criteria (gender, sexual orientation, age, religious affiliation, language etc, etc) of the judiciary will not change this. Accessibility is not in any meaningful sense a function of how progressive the judges are but the costs of litigation. To use the Professor’s words, it is largely “the rich and powerful” having a go at each other.

    If we have a progressive constitution, it is not especially clear that progressive judges are needed.

    What is needed though are rigorous clear and thought-through decisions that are more than a mash-up of counsel’s heads of argument. Moreover, in a real way, the judiciary is just another branch of government which must deliver a “competent service”. At present, SA scores well in international rankings of the judiciary or even in the category covering reliability that commercial disputes will be fairly decided. That is one of the reason why investors might want to invest here, create jobs and pay taxes. For the most part, one’s political orientation has little to do with it. To maintain this ranking (if that is what we want), the judiciary needs people like Gauntlett. Further, given his standing as a lawyer and the fees he commands, one can be sure that his application to become a judge was about submitting to public service or giving something back. It would not be about a job with a perpetual pension at the end. What is not to like about this?

    By turning people like Adv Gauntlett away, our “body of law” becomes poorer and less regarded. In the longer term, those who have the money to fund litigation that can result in precedent setting decisions (precedents that may in turn be used to secure rights by those who cannot fund litigation themselves) means that litigation moves into alternative dispute resolution forums (a kind of privatisation of the law itself) or moves off-shore. Besides anything else, jurisprudence becomes more theoretical and less interesting (i.e. what could be argued, rather than was was argued and decided).

    Not appointing Gauntlett was a missed opportunity for the ongoing development of our jurisprudence and a great pity. He, and others like him, are likely not to bother applying. At some point then, the judiciary as a branch of government loses its status and the ability to attract the best.

  • Mike

    @pdv – better we end up like Kenya where 75% of the judges were found to be corrupt because instead of a narrow interpretation of the law, the law was streeeetched to accomodate corruption and graft.
    Did Kriegler and Sachs not recently interview the entire Kenyan contingent of judges to weed out those who were disposed to broad interpretations that Gauntlett is guilty of in your eyes.
    My own son sat at home unemployed for a year with a Masters degree in law paid for by KZN University because of academic excellence, and having done his PLT and then after a year the best job he could get was with one of the legal insurance companies like legal wise.
    This is the AA you support, your f……g wine soaked mentality of the western cape that has for decades lived like a parasite on the industrial east of the country and when your blood relatives were decimated by the Brits.

  • Maggs Naidu – ( – Zuma MUST go!

    November 8, 2012 at 16:12 pm

    Hey Mike,

    “My own son sat at home unemployed for a year with a Masters degree in law ..”


    There are people with post graduate degrees who are car-guards in Johannesburg.

    I know a guy who has double masters degrees in history and political studies who runs a mobile phone repair business.

    There’s more …

    People are not entitled to jobs, I think!

  • Mike

    @Maggs dont try and play down the situation because while he worked as an assistant lecturer for pocket money while doing his PLT after doing his Masters, law firms that he received rejections from for interviews in Durban were granting interviews to the undergraduates that just happened to black that he was assisting with lecturing.

  • Maggs Naidu – ( – Zuma MUST go!

    November 8, 2012 at 16:56 pm


    Nobody is entitled to a (or any) job!

    If you have a different view, make a case for it.

    p.s. BTW there are many highly qualified Black people who don’t have jobs.

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “I know a guy who has double masters degrees in history and political studies who runs a mobile phone repair business.”

    That’s nothing. My uncle was Regis Professor of Jurisprudence at Oxford; now he herds waterfowl on a lake near Wasjkent. (BTW, I think it was Dmwangi who mentioned that, notwithstanding his Phd in Quantum Macro Economics Theory from Yale, he once had teach basket-weaving in Bhutan.)

  • Vuyo

    “Second, we live in a diverse society”
    But Pierre, since you acknowledge that we live in diverse society, therefore presumably requiring a diverse bench, then such a bench ought to comprise judges who hold diverse views, including in regard to legal philosophy. Yet you condemn Jeremy Gauntlet for holding what you deem to be conservative legal views, which views are held by many in our society. I find your comment/article to be contradictory and wrongheaded.

  • Mike

    @Maggs – then explain why black undergraduates were given a foot in the door for an interview whereas a white graduate with a masters degree was rejected just on the application itself.

  • Graham

    Well, we can be grateful De Vos is not a member of the JSC; his reasoning against Gaunlett’s appointment is even more egregious than that of the JSC itself.
    Perhaps he might want to apprise us of what, specifically, it is about white pigmentation, and male phenotype that disqualifies them to serve as judicial officers? If “demographics” is somehow so important, why select these two arbitrary criteria which are an accident of birth? What about other criteria such as IQ, hair colour, education, religion, or language? Why not use more rational selection criteria such as merit, ability and track record – qualities which Mr. Gauntlett has in spades?
    De Vos might also care to explain, given that the law is intended to be dispensed without fear or favour, why the “the marginalized and vulnerable in society” should enjoy some special legal favouritism? Why should an unemployed white male for example, who is clearly “marginalized and vulnerable” be advantaged thus?
    I might as well warn Wim Trengrove up front not to bother applying to be a judge. He is arguably even more acerbic and short-fused than Gauntlett and, as a white male and an Afrikaner to boot, probably even less likely to “be more legitimate and more credible in the eyes of ordinary citizens”.
    Your defence of this social engineering of our judiciary and exclusion of Mr. Gauntlett is made worse by your position as a legal academic. It is quite shameful really.

  • Maggs Naidu – ( – Zuma MUST go!

    November 8, 2012 at 17:10 pm


    “then explain why black undergraduates were given a foot in the door for an interview whereas a white graduate with a masters degree was rejected just on the application itself.”

    It could be that they were looking for Black UNDERGRADUATES?

    Maybe they were looking for CHEAP LABOUR or some fellows to do fetch and carry stuff – all of which may not have suited your son.

    Or maybe they were TENDERPRENEURS who wanted Black faces to fool the system.

    But do say why you think people are entitled to a job or an interview.

  • Maggs Naidu – ( – Zuma MUST go!
  • Zoo Keeper


    What field of law did your son do his masters in?

    On Gauntlett:

    So Prof, must all jurists come from the same cultural background and share the same socio-economic outlook? That simply impoverishes the judiciary, nothing else.

  • Andrew


    UCT I believe is seriously looking for a way to apply AA including but not limited race.

    How long should AA be in place, you ask. A colleague and I recently discussed setting up models that can be used to affirm everybody. In short we want to answer the question about the tipping point as well as state action required to achieve the tipping point.

    As you may imagine such a model will be difficult and will take some time but we should have a very preliminary model out by DEC 2013 if we do decide to do the project.

    Most people who support AA would agree that someone with an M degree shoud be able to find a job. This would seem to be an example of AA gone mad.

    It could be that he cannot get a job due to his ‘short fuse and lack of humility’. …I know, bad joke.

  • Maggs Naidu – ( – Zuma MUST go!

    November 8, 2012 at 18:17 pm


    “Most people who support AA would agree that someone with an M degree shoud be able to find a job.”

    Most people who don’t support AA would say that there are some people with an M degree and more should not be in their jobs!

    Professor Zuma
    Dr Robert Gabriel Mugabe
    Dr Paul Ngobeni
    “Dr” Chippy Shaik …

    University degrees or diplomas no longer hold the promise of jobs for young South Africans as hundreds of thousands of them battle to find work.

    Labour market analyst Loane Sharp says that about 600 000 university graduates are languishing at home, unable to put into practice what they have learned.

    A growing army of unemployed graduates are now forced to either rely on their families to support them or find jobs as unskilled workers, such as waiters, clerks and office assistants.

    University qualifications, Sharp says, are not the only qualities employers look for when recruiting

  • Dmwangi


    Exactly! To PdV, ‘qualified’ is akin to ‘agrees with my views.’

  • Blue Ozone

    I guess Advocate Jeremy Gauntlett, just like dumb whites like me, don’t get postmodernism cause he is still “stubbornly wedded to the fiction of legal clarity and certainty”.

    He should be making shit up as he rolls improving on the laws depending on how poor, marginalised or gay a specific accused may be.

  • Blue Ozone

    In particular if you are poor and black you should be allowed to shoot as many boers as you wish. Perhaps get slapped with a fine in the worse case. As long as you don’t accidentally shoot a gay boer.

  • ewald

    Oh dear. “He is the son of NPA acting head, advocate Karen van Rensburg”.

  • Paul Kearney

    Ah, PDoffy has given himself away. As a few more serious commentators point out; PDoffy seems to think judges can apply the law with some flexibility, even make the law, as they see fit. It’s a South African, or African thing; as PDoffy points out – Gauntlett would be more suited to the UK where one assumes first world standards of rigidity usually (but not always) apply. I’m guessing PDoffy is then not averse to a plea of poverty or disadvantage sweetening the law in one’s favour from a suitably “progressive” and broad minded judge.

    It must be interesting to know how PDoffy teaches this flexible approach to laws, regulations and standards at UCT. Is a litre of fuel a different volume for a rich man and a poor one? Surely, not having a driving licence is not really a crime for a “marginal” and “vulnerable” person. Murder by a poor, marginalised or vulnerable person is really just an accident.

    @Mike; never argue with the trolls.

  • Gwebecimele
  • Brett Nortje

    Paul Kearney says:
    November 9, 2012 at 8:53 am

    This is the same oke who castigated the NPA for their inability to dispense justice without fear favour or prejudice.

    S9 of the Constitution is all very well – in theory.

    I have some experience of being on the other side of a judge who appeared to rule ‘with his heart, not his head’. Nothing could be more unjust IMHO. More contemptuous of the little people who donated a couple of hundred Rand they could barely spare as a matter of principle for litigation in the High Court because the ANC=Government=state would not respect the Rule of Law nor its own legislation.

    So much for Lady Justice being blind.

    The real injustice is that Zapiro used Zuma’s face in his cartoon. A lot of these so-called ‘progressives’ would be just as much at home in the caricature.

  • Zoo Keeper


    The ConCourt stated in Barkhuizen v Napier that the rich are as entitled to justice as the poor. What does that mean in terms of “transformative justice”?

  • Vuyo

    Whilst Africa celebrates, South Africa’s media chooses to sow discord within the ANC and remains indefferent of the plight of the sister peoples of the Two Sudans:

  • Henri

    Short thread and acerbic?
    OK. In other words the JSC thinks he’s a doos?.

    But that should not disqualify him – 70% of serving judges are also.

  • Zoo Keeper



    I always thought that short thread and acerbic meant: “he’ll fit right in!!”

  • Gwen

    The UK courts have, of course, long used the principles of equity to mitigate and trump legal formalism.

    This embarrassing post doesn’t shed light on anything more than de Vos’s personal and ethnic prejudices.

  • Henri

    @ Zoo Keeper @10:10am above :
    But have you seen how the Concourt mocked and taunted the rich [effectively whites] in National Treasury vs Outa [the etoll-case]:

    “The High Court should have placed due weight on the uncontested evidence that 99% of the burden of tolling will be borne by more affluent road users who make up the first and second quintile of income earners in Gauteng and that public transport users will be exempt from paying tolls. The harm these users will experience will therefore not be of a pressing or acute kind.”

    In others words, “fuck you” rich whites, you any way don’t have constitutional rights. Your income can thus be confiscated to be looted for the etoll-fiasco.

  • mhlongo

    I agree wholeheartedly with Prof when he implies that we want ( thats me, him and others like us) judges with a particular judicial ideology ( we term it “transformative jurispudence”)

    Yep, we dont want formalist, conservative type judges ( Go away Gauntlett ).

    I have always said ( and as usual, no one has listened ) that judges should be elected by the citizenry, this s the only manner in which the judiciary can enjoy legitimacy in a democratic state.

  • Mikhail Dworkin Fassbinder

    @ Mhlogo is right. Law and politics are the same thing! So it makes no sense to have separate judicial and legislative branches. That is why I am demand that the National Assembly be redesignated as the “High Court of Parliament”!


  • mhlongo

    Yes And No MDF.

    Keep them separate but let the masses elect those elitist, unaccountable demigods sit at the CC, SCA and the HC’s.

    Surely the judiciary would be made more legitimate if it was elected by the masses, it’s rulings would be the rulings of the people.

    The people shall govern.

  • Blue Ozone

    November 10, 2012 at 13:47 pm

    Oh yipee yaai yo.

    I’m sure us whites can then look forward to more “vigorous” and “less flexible” affirmative action.

  • Zoo Keeper


    If judges were “judges of the people”, in order to keep their seats they’d have to bend interpretations to suit a particular outcome.

    The result would be legal chaos. The laws are made by politicians who are elected. It is they who have the authority to determine direction and the judges have the duty to interpret and apply it.

    Judges enjoy legitimacy because the law of the land is accepted. However, we will soon have a constitutional crisis when Zuma loses and refuses to comply.

    Who will force him?

  • mhlongo

    Zoo Keeper says
    “If judges were “judges of the people”, in order to keep their seats they’d have to bend interpretations to suit a particular outcome”

    Exactly, an outcome desired by the people. Surely we should not be apprehensive about a judiciary that serves the will of the people.

    I’ve always been amazed by those who see the independence of the judiciary as an unalloyed good. A judicairy which is independent from the very people that it rules is a dangerous one, in fact it may amount to a form of judicila tryanny.

    To Blue Ozone
    Ozone my man I feel your pain, yep the numbers are against you.

  • Blue Ozone

    November 10, 2012 at 14:40 pm

    No problem. Nobody will ever be able to say we didn’t try. But it is abundantly clear then that we made a very big mistake in 1994. One that can and must be corrected, for the future of my kids.

  • Zoo Keeper


    That I’m afraid is pure fiction. The judiciary cannot make actual legislation. That is where the will of the people resides. If the judges interpret a law which the majority don’t like, it can be changed in Parliament and the judges then have to apply the new law.

    Every law has to be evaluated against the constitution, which is the basic norms and values of the society reflected in law.

    It is impossible to achieve a “judicial tyranny” as you call it because judges are implementers not creators.

    If you don’t like a particular law, speak to your MP to get it changed – oops, can’t do that because we the people have no direct access to our MPs! Methinks that is the real unhappiness – we as citizens have absolutely no contact with Parliament.

    What you’re doing is blaming judges because we’re handed law from a Mount Olympus and told to get on with it. Its frustrating and disempowering for a citizen, but not the fault of the judges.

  • Blue Ozone

    Zoo Keeper
    November 10, 2012 at 17:09 pm

    I guess that Mhlongo is saying that judges interpret the law differently depending on their background. He would like judges to interpret the law in accordance with to the background of the majority of South Africans, who happens to be impoverished and black. Most obvious example is the AA judgement against that white police women, the judge is black, the women is white and this is how black judges feel about white people in general.

  • Brett Nortje

    mhlongo says:
    November 10, 2012 at 14:40 pm

    It suits me to have activists judges deligitimising the New South Africa even further by making it clear to white South Africans who appear before them the equal protections clause is not for them because I have looked at the demographics and decided there is no model under which this country is sustainable.

    But, you ought to be honest about what you really want. You have no problem with judges being appointed who have had their integrity questioned many times not least in the form of complaints and investigations, now do you?

    I agree about the election of judges – and top cops – but I am scornful of the primitive passions of the mob.

  • Blue Ozone

    Brett Nortje
    November 10, 2012 at 18:54 pm

    Brett, so what we can look forward too is that as the judiciary is “transformed”, the whites that can immigrate will and those who cannot will end up in Coronation Park.

    Do you have a caravan and a portable telly, boet?

  • Blue Ozone

    Since 1994 : 800 000 whites emigrated and 500 000 dropped out of middle classes into poverty. Taking population numbers since 1977:

    “In recent decades there has been a steady proportional (and possibly also numerical) decline in the white African population, due to higher birthrates among the non-white population of South Africa, as well as high emigration. In 1977, there were 4.3 million whites, constituting 16.4% of the population at the time.
    Graeme Smith, test captain of the South Africa national cricket team.

    More recently, the improved counting of the majority black African population has contributed to a sharp decline since 1994. In 1994, upon the abolition of apartheid, white Africans comprised 13.6% of the population, compared to 9.1% in January 2010. According to some previous census data, the highest proportion of white people in South Africa occurred around 1911-41, when they made up between 19-21% of the population. It is estimated that at least 800,000 white Africans have moved abroad since 1995.[15]

    Like many other communities strongly affiliated with the West and Europe’s colonial legacy in Africa, the white Africans are often economically better off than their black African neighbors and have only relatively recently surrendered political dominance to majority rule. There were also some white Africans in South Africa who lived in poverty—especially during the 1930s and increasingly since the end of minority rule. Current estimates of white poverty in South Africa run as high as 12%.”

    This is of course a pattern right through Africa, as “liberation” was won whites were driven out and just about everything they helped to develop went to shit, most of those countries at the bottom of all development indexes, barely surviving on Western aid for otherwise the population would starve to death. I know this because I have travelled through Africa and see this happen for my self. No limp-wristed “White liberal” can ever deny that. It is only the Chinese and Indians who are helping to repair infrastructure now, but soon I can assure you that the animosity, hatred and the same old “African liberation” rhetoric will be redirected at them too.

  • Zoo Keeper

    Mhlongo and Brett

    Whilst judges should not be elected in my view, I do believe that local law enforcement should be elected by the constituency they serve.

  • Brett Nortje

    So. Does our former Chief Justice seem to agree with Gauntlett or brother-in-law-of-Patrice-husband-of-Bridget?

    The ZANUfication of the ANC is complete? Is it smoke-and-mirrors that the two are deadly enemies? Are they rival criminal cartels competing to control criminal networks and mineral resources in Southern Africa or kop-in-een-mus?
    Was LaXhosaNostra closer to Zanu than LaNkosiNostra?

    Whose idea was it to install Zimbabwean military at SA’s airports? And why?

    Will anyone save the SADC tribunal? For which there is very good reason as Gauntlett showed us?

  • Anonymouse

    Prof de Vos: “In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights”

    Why is it that the Constitutional Court, and Constitutional Scholars like yourself see s 39(2) as the Constitutional imperative to develop the common law where necessary? That imperative is actually contained in s 8(3)(a) – with a discretion in s 8(3)(b) – s 39(2) only restates the way that a court should think when developing the common law in terms of s 8(3).

  • Anonymouse

    Prof de Vos: Can you help me out with an answer to my question in the previous post?

  • Anonymouse

    S 8(3) – “When applying a provision of the Bill of Rights …, a court – (a) in order to give effect to a right in the Bill, MUST apply, or, if necessary DEVELOP, the common law to the extent that legislation does not give effect to that right; and (b) MAY DEVELOP rules of the common law to limiit the right, provided that the limitation is in accordance with s 36(1).”

    S 39(2) – “When interpreting legislation, and when developing the common law or customary law [in terms of s 8(3)], every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”

    In other words – s 8(3) mandates development of the common law in order to give effect to a right in the Bill of Rights [and authorises development of the common law to limit such a right, if such a limitation is justifiable under s 36(1)] – while s 39(2) merely instructs courts how to develop the common law, namely, by promoting the spirit, purport and objects of the Bill of Rights. Yet, the Constitutional Court thus far (e.g., in Charmichele) never make mention of s 8(3), but rather mention s 39(2) as the genesis of courts’ injunction to develop the common law with a view to transform the law and society in a way that is “grondwetconform”. It would appear as if the CC does not really read and interpret the provisions of the Constitution – well, at least as far as s 8(3) is concerned.

    In similar fashion, in the Masiya (anal rape) matter, the CC was not at all concerned with s 8(3) on the issue of development of the common law. In that case, however, the CC went and ignored even another provision of teh Constitution (s 170), which is in conflict with an ordinary legislative provision in teh Magistrates Courts Act 32 of 1944 (as amended subsequent to the Constitution), in finding that magistrates courts are not competent to enquire into or rule on the constitutionality of “any law” (the Magistrates Courts Act), therefore, including rules of the common law, instead of “any legislation” (s 170). This effectively means that, in terms of teh Masiya Precedent, magistrates courts may not enquire into or rule on the constitutionality of any law (regardless of whether the law emanates from statute or in terms of the common law or custom) – and magistrate’s courts can therefore not do what they are enjoined to do in terms of s 8(3) and s 39(2). A wrong reading of teh Constitution (or a neglect to read and apply provisions of the Constitution) can therefore have far-reaching results, which is not what was intended by the Constitution.

    Can you help us out here?

  • Anonymouse

    Prof de Vos – I know that my questions above are a little off-topic, which is probably why you (or anyone else) have not bothered to respond to date – but, can’t we have a discussion about Constitutional Interpretation and development of the common law and customary law – where we examine the different constitutional provisions that are applicable and also spend some time focussing on the faults in constitutional jurisprudence (where constitutional provisions are either ignored or misconstrued)?

  • Mike17

    It is a sad day for all when the judiciary accepts interpretation of law rather than the absolute of law. Where the law is “bent” depending on the judge’s social (or worse racial) lens leaving the citizen to the at whim of the judge and the judge to the whim of his heritage. This deception called “progressive law” is nothing more than a mechanism to reduce justice to empower bias and it is obvious that injustice will become justified to the detriment of all. Cry this damned and once beloved bloody country!!

  • Mikhail Dworkin Fassbinder

    @ mike17

    “is a sad day for all when the judiciary accepts interpretation of law rather than the absolute of law.”

    Mike 17 is right. It was especially sad that Davis J applied a literal interpretation to a 167(4)(e), that says ONLY the const court has jurisdiction to tell parliament what to do. This is petty minded literalism at its worst!

  • Anonymouse

    Prof de Vos – my earlier post today on the Davis J judgment refers – see my postings here and please do consider writing a piece on such mistakes in constitutional judgments?