Comments on: Who will be our next Chief Justice?

By: JR

JR — Thu, 06 Aug 2009 11:53:06 +0000

Seems you were right prof. Zuma has announced Sandile Ncgobo as his nominee for CJ

By: Chris Mcdaniel

Chris Mcdaniel — Mon, 27 Jul 2009 08:35:35 +0000

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

By: nkululeko

nkululeko — Mon, 27 Jul 2009 06:19:57 +0000

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.

By: Charlotte A

Charlotte A — Fri, 24 Jul 2009 20:20:16 +0000

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…)

By: Henri

Henri — Fri, 24 Jul 2009 14:57:42 +0000

Interesting take on the issue :http://www.volokh.com/posts/1248424558.shtml

By: Sne

Sne — Fri, 24 Jul 2009 12:16:29 +0000

Thanks for the link Vuyo. Nkululeko, interesting opinion you got there. I agree with you on the S V Jordan case though.

By: nkululeko

nkululeko — Fri, 24 Jul 2009 12:06:30 +0000

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.

By: Sne

Sne — Fri, 24 Jul 2009 11:46:39 +0000

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.

By: Anonymouse

Anonymouse — Fri, 24 Jul 2009 11:32:51 +0000

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.”

By: Anonymouse

Anonymouse — Fri, 24 Jul 2009 10:10:15 +0000

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.