In the near future President Jacob Zuma will probably appoint Justice Sandile Ngcobo as our new Chief Justice. I have a high regard for Justice Ngcobo. Whether one agrees with him or not, his dissenting judgment in the Prince case (dealing with the religious freedom of a Rastafarian to use cannabis) is a work of great beauty. And every time I read the Hoffmann judgment, in which Justice Ngcobo declared that it constituted unfair discrimination on the part of South African Airways to discriminate against Mr Hoffmann on the basis of his HIV status, I feel proud to be a South African. When I get to the following passage I inevitably get a lump in my throat:
In view of the prevailing prejudice against HIV positive people, any discrimination against them can, to my mind, be interpreted as a fresh instance of stigmatisation and I consider this to be an assault on their dignity. The impact of discrimination on HIV positive people is devastating. It is even more so when it occurs in the context of employment. It denies them the right to earn a living. For this reason, they enjoy special protection in our law.
The appointment of Justice Ncobo will also come as a relief to those of us who think that Judge President John Hlophe is not fit to be on the bench – let alone to be appointed Chief Justice – because of his propensity to tell untruths, his numerous actions which appears ethically problematic and his undignified and un-judicial display of ambition.
However, it seems sad and a little bit worrying that an equally worthy – and more senior – candidate, Deputy Chief Justice Dikgang Moseneke, will probably be overlooked because of a completely innocuous remark he made at his birthday party when he said: “I chose this job very carefully. I have another 10 to 12 years on the bench and I want to use my energy to help create an equal society. It’s not what the ANC wants or what the delegates want; it is about what is good for our people”.
In private discussions the conspiracy theorists sometimes also note that Moseneke – who was sent to Robben Island at the age of 16 – might lose out because he was Deputy President of the PAC and from Sotho origin, while Ngcobo’s home language is Zulu, but I can’t imagine that the non-racial ANC who vehemently opposes tribalism will take such things into consideration.
For me the issue is one of principle, not of personalities. Given the fact that South Africa’s Constitution creates the position of Deputy Chief Justice, it seems appropriate to appoint the Deputy Chief Justice as Chief Justice when that position opens up because he or she would be the most senior judge and “next in line” so to speak. Establishing such a practice might also safeguard against the perception that the most pliant and trusted judge would be appointed to the top job by the President of the day and might help to prevent the overt politicisation of the judiciary.
Although judges will not be swayed by such considerations, respect for the judiciary (and the Chief Justice) does not only depend on the actual ability and willingness of judges always to act without fear, favour or prejudice but also on the perception created in the minds of the public that they will do so. Where a practice is established to appoint not the most senior judge to the position of Chief Justice, ordinary citizens will wonder why the next in line was overlooked and why another candidate was chosen and might well think that naked politics played a role in such a decision. This will not instill and further entrench respect for our judiciary.
In any case, the appointment of Justice Ngcobo will be good news for those who champion the rights of accused persons. In the Zuma case justice Ngcobo displayed a very progressive view of criminal procedure rights – a view not shared by most judges or ordinary citizens in South Africa who seem – like me – to be a little less bleeding heart progressive on this issue than those who believe the criminal justice system should bend over backwards to safeguard the rights of accused persons (often wrongly called “criminals” by politicians) in order to secure their right to a fair trial.
Good post Prof – One thing though, on what do you base the ‘probability’ that Ngcobo will be appointed.
Anonymouse, call it an educated guess……
Pierre, from your lips to Zuma’s ears…
Or, perhaps, a ‘calculated’ one? … The JFHA is going to like this, fo sho! … I just hope that the Presidency will evidence the erudition required to make the best choice, legally and constitutionally, which would not necessarily be the ‘popular’ one.
On the matter of discrimination on the basis of a person’s HIV status, why are life insurance companies allowed to compel an HIV test as part of their screening procedures?
I understand that they also check if you do take liquor and if you are a smoker, but is it fair to subject people to an HIV test as the result can hardly be a barometer for ones lifestyle.
Answers, anyone!!
Khosi – You busy with a thesis or something on HIV/AIDS?
Piere
Only the other day you were castigating the friends of Hlophe for nominating their choice for CJ. Are you not doing the same here?
Lobengula, I think not for two reasons. (1) Nowhere do I state that I am “nominating” anyone for any position (unlike our friends at the JFHA); (2) I am responding to what I suspect is a fait accompli – not canvassing for anyone (watch the papers in the next few days to see if I am correct!).
@Anon,
I am no academic, so NO, I am not authoring prolific dissertation on the matter.
I just want to assess if the practice of screen HIV results is not a violation on any sorts.
Mmmm this is quite a speculative post no Pierre?
If I was a betting man I’d bet that its almost certain that J Moseneke wont get the post for saying what he did.
Secondly J Sadile Ngcobo has proven to be quite independent minded and the government wont like that (See Pikoli et al). I hate to say it, but I have become quite a pessimist. And its evident that the ANC see the constitution as an impediment to their power.
With Hlophe theres no such problems. Hlophe is going to get this post me thinks.
Well, just for fun: I spotted this paragraph in a piece on politicsweb about the Helen Suzman Foundation (criticised for not being liberal enough): “The legal ‘analyst’ Professor Pierre de Vos is no fan of liberalism, or liberal politics. He sees it as a cold and detached philosophy, which protects minority interests at the expense of the majority. He detests Tony Leon and has used his blog to attack Helen Zille on numerous occasions; often badly overextending himself in the process.” Wonder what the JFHA would say….
Pierre why dont you install a voting plugin on your site, then you can ask your readers who they think become will become Chief Justice. And also perhaps who they think *should* become chief justice.
Prof,
I think you are doing exactly what the JHA is doing, you are just not calling it that. The fact that your “guess” might eventually prove to be correct does not detract from the fact that your actions are not different from those of JHA – substance, not the form Prof.
Be that as it may, I agree with you, Ngcobo J would make a good CJ, if for nothing else but for his views in the thoughful dissenting judgment in the Zuma matter.
I would definitely not lose any sleep if Moseneke does not get the job and this has nothing to do with the comments he made (which I find to be quite harmless by the way, unless you are a staunch ANC/Zuma supporter who believes that ANC/Zuma is the Almighty). His, and Langa’s handling of the Hlope complaint still leaves me doubting his management skills – note: not his judicial skills.
khosi,
The Bill of Rights Handbook [Currie I et al, 4th ed Juta 2001] esp p210 par9.4 a-g…fair/unfair discrimination. Hoffman v SAA 2000(11)CC might help although it explains the position of people with HIV-positive status with regard to their ability to perform duties / employment policy / unfair dismissal / (un)fair disrimination.
Its scary
Khosi. Life assurers collect a lot of data including lifestyle (sport one plays and hobbies); state of health (TB, HIV, etc) and many other things. The ideas is to assess the risk of you dying before, at or after their average life expectancy. From that they are able to price the insurance product they are selling you. The HIV status informs them of the likelihood of you dying early. They may reject you on those basis as they reject people who do dangerous sports like skydiving and parachuting.
So you would find it rather difficult to prove unfair discrimination in this regard. It might be viewed as purely a business discussion. I hope this helps.
Thank you Joe. Additionally, the Hoffmann case furthermore distinguishes between three stages of HIV. Not every person who is HIV positive poses the risks alleged by SAA, only those who are at the immunosuppressed stage. Mr Hoffmann was not immunosuppressed either at the time he applied for the position or when he brought the matter to the Constitutional Court. [http://www.constitutionalcourt.org.za]. It only makes sense that assurers would consider similar criteria, eg how far the virus has developed etc.
Student, you are right. What the case does, and this must be applauded, is make differentiations that are necessary to always find balances between competiting interest. There is another case Statev Molomi that makes such differentiation to ensure that our law is flexible enough. So insurers would eventually have to differentiate either in the pricing or acceptance and rejection of those who want to join on the basis of the advance in the stage of HIV.
On judges, we need these judges to constitutionalise our law. So far they have not done enough. It is still amazing that law of contract is not subjected to our constitution, even though the latter is the supreme law of the land. The argument that freedom of contract is supreme is problematic and even the western democracies do restrict freedom of contract by having peices of legislation that strike out unfair contract terms. Great as our constitution is, the judges across the spectrum seem hell bent on applying case law that at times contradict our supreme law. This is really sad.
Prof
Its a bit dangerous to calculate Zuma’s next move, he’s got interesting advisers. I guess Ngcobo J wouldn’t be a bad choice.
How would the testing be a violation? You either agree ton test and get the policy OR disagree and don’t get it. It makes some sense for a test to be done whereas it doesn’t always make sense for employment.
Zuma supporters cried out loud at rallies and fora for Zuma: “Zuma is the Deputy President, therefore he should be the next President!!!”
Why doesn’t that logic apply in the case of Moseneke?
Of course I know why, and all those reasons are implausible and very sinister.
Prof, You ll remember that in the run up to Polokwane, the Zuma camp reasoning in wanting him ANC president was based on the firm belief that he was “next in line”. Kgalema Motlanthe was made caretaker President because JZ then couldnt, again because he was “next in line”. Just after the elections there was speculation as to who would deputise Zuma and Mantashe said that said he didnt understand what the noise was about because, Kgalema was/is “next in line” after Zuma. It might not have followed 100% the same pattern on SARS Governor s issue, but still, the governor-in-waiting was “next in line” till 2004, i.e, more/less same pattern by the Zuma inner circle. My educated guess, as shown, would have Moseneke DCJ as the next CJ.
…Reserve Bank governor I meant!…(just that I m going to SARS tommorow)…sory!!!
I too thought that Justice Ngcobo would be the most likely candidate to be appointed as Chief Justice. But I am not so sure anymore; the movement to appoint Hlophe, JP is strong and seems well supported. Anyway, we’ll see.
However, Pierre, the reason why Justice Moseneke is not going to be considered is not “because of a completely innocuous remark” made at his birthday (that was probably deliberately blown out of proportion to send a message) . But because he was a Mbeki appointee – it is alleged that he was Mbeki’s preferred candidate for the position of CJ of the Constitutional Court – notwithstanding that Langa was the Deputy. But the then President was pursuaded to give Langa a few years in the position until retirement, it seems. So, while Moseneke might be eminently qualified for the position, we should not forget that he himself was also an – at the time – politically expedient choice by a sitting President. We can’t suggest or pretend that political appointments into the Judiciary is something new or started under President Zuma.
Khosi – insurers must charge the correct premiums for HIV applicants, in the same way that they discriminate between old, young, male, female, smokers, heart bypass, poor family history etc. If not, they will be undercharging the “poor” risks at the expense of the “good” risks, and the result is that, as poeple seek the lowest premiums, the good risks will go off to the competition and they will atttract the poor risks. This becomes a spiral of losses to an insurer.
The only solution to this is for laws to be passed forcing all insurers not to charge higher rates for HIV – but then the same sort of arguments can be applied to most health based differentiation in premiums, and this would shake the foundations of the industry.
It is interesting to note that medical schemes (which are technically not-for-profit) can legally only discriminate based on income and number of dependants. This causes all sorts of problems as schemes try to exclude the unhealthy, and has lead to plans for a messy “equalisation fund” where schemes filled with young healthy yuppies (discovery) will need to pay into a fund that subsidises schemes filled with the old and sick.
Also, employer group schemes cannot discriminate and all workers pay the same rate (regardless of gender age or health status), due I think to the fact that these are linked to employment where employers may not discriminate.
Individual life insurance contracts are devoid of any such solidarity, and are voluntary contracts entered into between the insurer and the applicant and both sides are free to decline.
It does seem that the plans for a state pension scheme, including death benefits, will try to overcome these problems by forcing everyone into the scheme and then cross-subsidising on a grand scale. There is a lot to be said for this – although I tend to think that elaborate schemes to facilitate cross-subsidies are wasteful and that these things should just be funded straight out of the fiscus in line with the way that the current grants are.
PS Many insurers offer insurance for HIV positive applicants these days in light of the ballooning life expectancies due to ARV roll-out. However, for those at the AIDS sick stage it is unlikely that any insurance will be available unless a member of a group scheme or insurance was purchased when still HIV neg.
Pierre De Vos // Jul 23, 2009 at 5:42 pm
“Professor Pierre de Vos is no fan of liberalism, or liberal politics.”
Sorry to say this Prof, but by my perception on this blog that quote is fairly spot on.
But not knowing you personally, it is just a perception and I might be wrong.
Mzo:
There is a distinction between (a) predicting that someone WILL be appointed CJ; and (b) arguing / advocating that someone SHOULD be appointed CJ.
Pierre’s post does (a) in respect of Justice Ngcobo. The JFHA does (b) in respect of JP Hlophe.
A subtle but important difference.
Dumisani Mkhize // Jul 23, 2009 at 9:46 pm
I think you ought to differentiate between two institutions here: The ANC is autonomous political body that has its own policy. The leader of the ANC is elected, whilst the Chief Justice of the country is appointed.
I think there is something we must all be critical of here. A very good judge, an independent mind that has delivered some landmark judgments (Daniels v Campbells being my favourite) delved into politics. He made a statement that was political.
It braught back memories, that he was once apolitician. Ok, moving from that premise, didnt Moseneke DCJ betray his seat on the bench? can we ever truly trust that he will not be politial? Of course in this context, I acknowledge that even judges themselves are human beings and have views and feelings like the rest of us. However, the argument against Moseneke, must be taken in the context of him having broadcast such views in public.
Prof,
I am in full agreement with you. I would like to add to the brilliant judgments you mentioned, delivered by Justice Ngcobo: SA Fuel Retailers!!!!. One of the most astonishing things that Justice Ngcobo is able to do, is to write extra long judgments that keep you interested throughout.
I beileve though, that the experience in the Concourt is the only thing tha separates Justice Ngcobo from Justice Cameron.
It’s clear though that our judges appointment are going to be increasingly political, and in the light of this – its good that there is more debate.
Charlotte A mentions that Moseneke was a Mbeki political appointment and that dams him.
That might be.
But so was Vusi Pikoli.
Both these gents, Pikoli and Moseneke, did not dance the masters tune.
We desperately need more independent minded public officials in this country.
http://www.businessday.co.za/articles/Content.aspx?id=76747
Could this be an attempt to push for Ngcobo J as a “compromise” candidate (alas Polokwane) or to pacify (or neutralize) Hlophe’s backers and campaign? Could this mean that Hlophe’s ascendency is indeed gaining momemtum? One thing is for sure. There’s a lot of political tactics involved in this matter.
Anonymouse,
So much for wanting an independent judiciary….
http://www.saflii.org/za/cases/ZASCA/2009/73.html
I’ll let you make your own decision…
Sne – Thanks, I’ve read the Gibbs decision when it first became published. Unfortunately for the appellants, I agree that the Gibbs decision was good in law. In fact, the merit awards that Gibbs and others were fighting for presented a stunbling block in the way of judicial independence for magistrates. How can you even reconcile award to some magistrates for work well done and denial of award to others with judicial independence? Regional magistrates have years ago already decided that merit awards should not apply to the magistracy and have therefore refused to have themselves evaluated for that purpose. Thus, while distric court magistrates still got merit awards (at least those who qualified) from 1993 onwards, regional magistrates did not, although the Department of justice had budgeted for it. I feel sorry for the guys like Gibbs et al, who had to sacrifice a 14th cheque when they did good in the eyes of … (well, who? The Department of Justice? The Judicial Quality Assurance Office?), their receipt of merit awards ran counter judicial independence – magistrates could easily do ‘good’ things just to get merit awards, even though their judicial work was not really up to standard in legal and constitutional terms. Once again – if the man with the pusre can dictate how a judicial officer should do his/her job by paying when it is done and refusing to pay when it is not done (in his sole opinion), then the judiciary is not independent. I think the High Court judgment and the SCA judgment champions the cause of judicial independence in the magistracy. See also Vanja Karth “Transforming the South African magistracy: how far have we come?” Masters dissertation UCT 2007.
Sne – I was of course referring to this part of the SCA’s judgment:
“[23] Merit awards in which the Department of Justice was historically involved detract from the judicial independence that the Constitution demands. The criticisms over the years concerning merit awards and how they lend themselves to potential pressure by the executive are justified. Judicial officers should not require incentives to comply with their oath of office and their constitutional obligations. The Magistrates Commission and the respondents cannot be faulted for their decisions to put an end to merit awards. If anything, they should be commended for doing so.”
Mouse – Thanks bro. I was reading the case for the first time today and I found it a bit offensive to read especially in the context of the on-going judicial, albeit ConCourt, appointments. It may, by a stretch of imagination, be regarded as an attempt which shows that these Magistrates value financial gains more than anything else on the bench and that makes them very dangerous to the administration of justice by our courts. It appears like they were prepared to sacrifice judicial independance in order to maintain these “merit” awards. I am glad that our courts have come through for the judicial independance.
Vuyo
Interesting link. I’d like to know whether you agree that the CC justices are “too liberal”. I’d think that they can only be as liberal as the Constitution will allow them.
The issue of the Civil Union Act is irrelevant in the sense that the legislature had little choice. The CC said: if you don’t change it, we will (and rightly so)! If one can argue that the wishes of the people should prevail when such wishes are discriminatory then one could easily make the case for a re-introduction of Aparheid in our constitutional democracy. As far as sex-work is concerned, I know the Prof has written about it and believes that the status quo won’t change soon. The article is wrong to suggest that the CC was pro-legalisation of sex-work. If one reads the S v Jordan case one will see that it is not the case. The majority judgement, in fact, displayed quite a conservative view on the issue.
The law may be used as a guide for moral (or under apartheid – immoral) bahaviour. I doubt that we can simply blame the courts in this case. We should blame the people for the way they are and hope for change. Its possible that discrimination is the norm and that is the mindset that must be changed.
Thanks for the link Vuyo. Nkululeko, interesting opinion you got there. I agree with you on the S V Jordan case though.
Interesting take on the issue :http://www.volokh.com/posts/1248424558.shtml
Kameraad Mhambi, indeed, we need rather more politically independent officials than less. I wasn’t implying that Moseneke, as a political appointee, should be excluded. Not at all. I was not making any value judgment about the Justice (I think he is a fine judge) rather stating the fact, that we shouldn’t pretend that this wasn’t the case – that we can’t cry foul when we don’t like a person, and not when someone who we like is appointed in the same flawed way. We can’t switch our moral judgment on and off according to whether we like or dislike a recipient of a benefit. That’s all.
Nkululeko, I hear what you say, but the point of Eusebius McKaiser’s article (by the way a very fine journalist) in the Bussiness Day is a very valid one. In the appointment of judges there should be greater sensitivity to value-pluralism so that the gap between the people and that what the judges say does not become so large as to render judgments ineffective or lose credibility.
It is a debate we have avoided having in this country, and indeed it is time we should have an open dialogue on it (PS to persuade the socially more conservatives…)
Charlotte
I understand that we are a society with many prejudices and I don’t think that is what should guide us. I’m not so sure its “value-pluralism” as much as it it is our various prejudices. There are conservative Christians who’re very anti-divorce yet we have laws that allow it and its become common. Allowing society to decide what suits them and what doesn’t when the laws have been developed through the right processes is what leads to the state of lawlessness that we are finding.
I don’t know if you heard about the looting of two DBN shops (one was the Pick n Pay at the Workshop). The reaction of these criminals was one of entitlement. We should instill a culture of respecting the law. If we simply follow what the people want and not what is best for the country’s future then we will have a greater problem.
Society is too silent on the abuse of homosexuals (and disregard for their rights) in SA. We have allowed prostitutes to suffer untold abuse because we do not agree with it. What if we were in those positions? Our desire to go with society’s flow will soon lead to the end of what we can rely on to guide us.
Breaking news
Deputy Chief Justice Dikgang Moseneke is now back in the front running. it would seem Moseneke and the ANC kissed and made up
It is encouraging to note:
“Hlophe, if one takes the events of the past 18 months, would be disqualified from the job because he does not have the stature of a judge, is divisive, and not someone who can bring about unity and purpose to the judiciary. I don’t think he is qualified for the job,” said the JSC member.
This is getting exciting, its like horse racing…who wants to place a bet with me????? my money is on Moseneke
Seems you were right prof. Zuma has announced Sandile Ncgobo as his nominee for CJ