Business Day reported yesterday that additional candidates were approached on Friday to stand for appointment as judges of the Constitutional Court to replace Constitutional Court Judge Tholakele Madala at the end of the year because the original list of five applicants was “weak”.
It is understood that the original long list consisted of magistrate Samuel Mashimbye, Judge Nigel Willis of the Johannesburg High Court, former Wits professor Mervyn Dendy, Judge Shenaz Meer of the Land Claims Court and Pretoria High Court Judge Eberhardt Bertelsmann. On Friday, three judges from the Supreme Court of Appeal (SCA) — Edwin Cameron, Frans Kgomo and Chris Jafta — were approached to augment the list.
An anonymous Business Day source said that it was “really worrying” that the pool of choices for the Constitutional Court was so small and weak, not drawing enough candidates from the “outstanding options available”. He said the seeming reluctance of potential appointees might be attributable to the “serious pressure” the Constitutional Court is under at the moment. According to Business Day:
He was referring to the complaint laid by the judges of the Constitutional Court against Western Cape Judge President John Hlophe, that Hlophe had tried to influence the outcome of the Jacob Zuma/Thint cases, and the political fall out, which led to unprecedented criticism of the court by political organisations.
Another factor he suggested was that white potential candidates perhaps felt they had a better chance of being appointed under ANC president Jacob Zuma than President Thabo Mbeki, because “some people think Zuma will give them a fairer chance ”.
I have no direct knowledge of what motivated many credible candidates not to make themselves available for this position, but I would be surprised if the anonymous source is correct in his or her assessment. There seems to me a far more obvious reason why so few heavy hitters made themselves available.
According to the Constitution apart from the Chief Justice and the Deputy Chief Justice, ordinary judges of the Constitutional Court are appointed by the President, after consulting the Chief Justice and the leaders of parties represented in the National Assembly. But the President must choose from “a list of nominees with three names more than the number of appointments to be made” submit to the President by the Judicial Services Commission (JSC).
This means the JSC will send four names to President Mbeki who will have to choose one of the four nominees to serve for the next fifteen years on the Court. But if a new Chief Justice is selected next year from among the members of the Constitutional Court, there will be four vacancies in the Court. The JSC will then send a list of seven names to the President who will have to choose four.
I am not a betting man but it seems to me this year one will have a one in four chance of being selected by the President if one is nominated by the JSC. Next year one will have more than a 50% chance of being selected. If I had an eye on a Constitutional Court post, I would wait until next year and rather take my chances with the JSC.
I would be surprised if this consideration did not play a role in decision of many candidates to make themselves available this time around. I would be really surprised – and also deeply disappointed – if the top tier candidates would be so lily-livered that they would not make themselves available because of the “serious pressure” the Constitutional Court is under at the moment.
If one is so faint hearted that one would decide not to apply for the dream job just because of the pressure on the Court, one really would not deserve to serve on this Court at all. It is in the very nature of constitutional democracy that there would be political pressure on the highest court of the land. Good judges would not be swayed by such pressure but would interpret and enforce the Constitution according to precedent and their conscience – which was exactly what Deputy Chief Justice Dikgang Moseneke said at his birthday party before he was attacked by uninformed and reactionary members of the ANC NEC.
Such attacks are part of the job. Its a small price to pay to have so much power and to do such an intellectually stimulating and interesting job. Let’s hope next time more candidates with good credentials and the necessary backbone make themselves available. The health of our constitutional democracy depends on it.
Prof, you may be correct, but the fact is that you are speculating – we do not know why the top judges did not make themselves available to serve in the Concourt – so allow me to vent my own speculation.
This could be a vote of no confidence on Langa CJ and Moseneke DCJ as leaders of the Concourt. The credible top judges may be forgiven for not wanting to align themselves with the institution whose leaders have unwittingly allowed it to be vulnerable to political attacks and imminent constitutional crisis – obviously this is because of the manner in which CJ and DCJ handled (or should I say ‘mishandled’) the Hlophe JP saga.
Do judges only get one shot at it – if they are nominated now and not selected does that mean they can’t be nominated next year when their odds are better?
Bongs, I would have thought that the courageous stand taken by the CJ and DCJ against the recent attempts at intereference would inspire judges of substance to join up……..
Edwin Cameron, plesae GOD may it be Edwin Cameron ! He has the type of legal mind i dream one day of having !
I’m new at this probability thing myself. Probability theory states that you divide the amount of favourable outcomes with the total amount of possible outcomes, and you have your odds.
Assuming I understand probability correctly:
If there are a total of 7 judges applying for the job (each judge could get selected, meaning 7 is the total number of outcomes), and only 4 get selected (the favourable outcome for a judge would be one of the 4), probability states that you each judge has a 4/7 chance of getting selected. This means each judge has a probability of 0,5714 of getting selected, meaning ~57%.
We do however know that white judges are less likely to be selected than black judges. A judge’s merit would obviously count too. This would affect the probabilities.
Next year their chances of getting selected would be more? Not so. If the judges think their chances of getting selected would be more, it means more judges would apply for the job. Yet still only 4 get selected.
Let’s say 8 judges apply next year (and we disregard their skin colour, what an ideal society). That means each judge would have a 4/8 chance, or 50% chance of getting selected.
Let’s say judges are more optimistic and the number of applicants rises to 12. This means 4/12 = 33,33% change of getting selected.
Judges, don’t apply now and increase the odds of your fellow judge getting selected!
Probability was probably besides the point. I think the entire Zuma debacle is taking our country into shaky territory and the judges are reserving their *ahem* judgement for now.
They’d like to see whether Zuma is finally going to have his day in court and how that plays out, which I think is sensible.
The constitutional crisis courtesy of Judge Hlope is also not really helping. During the energy crisis, would you apply to work at Eskom?
We all know what happened to the SABC board, and they also get appointed by the president. Or so they thought.
perhaps one of the (many) other urgently-to-be-implemented Polokwane resolutions may also be at play.
serving on the constitutional court in its current form is obviously not only an honour but also a pleasure (leaving aside for the moment one or two .. ahem .. distasteful cases) – what is it, maybe thirty cases a year? plus the best library in the country and your own personal ghostwriter chosen from the brightest young graduates our universities have to offer..
if i were considering stepping into the ring i would want to know whether my prospective workload was about to multiply tenfold once the SCA is binned; and thus whether i would in the near future be required to make those hard, hard choices with fewer resources and much less time.
do you think SCA judges would consider a move? perhaps just a little too suggestive of rats (with all due respect m’lord and ladies) leaving a scuttled ship..
Lets face it – except for Cameron, it’s a pathetically, pathetically weak list.
Remember, it’s not for some Provincial Division – its for the CC!!. Something serious is wrong.
My take on it, and having spoken to some colleagues, is that it has to do with the waning star of the current court. I think its Calland in his book who already noted that the current CC judges is not held in high esteem. There’s currently simply more esteem in being part of a top court like the SCA.
And very relevant factors are that white candidates simply have basically NO chance {so much for non- racialism } and then of course the kind of treatment candidates receive from the JSC. Very few lawyers [ and apparently judges, as they are the types that should qualify and apply for CC posts ] are willing to subject them to the kind of political questioning and treatment they receive at the JSC.
Interesting times indeed…
Bongs // Aug 26, 2008 at 8:12 am
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Your attack on the CJ and the DCJ is unfounded. The main reason why they decided to bring the matter forward is because of the rampant cover-ups done by the ANC all over the country. They decided that if the public were to be in the green light about this issue, then it would certainly be very difficult to cover up the matter and Judge J Hlophe would have no choice but to reap what he sow.
Of course there is certain public interest involved but it was not the main consideration. Ask yourself how would we have known about the scandals in the ANC-led government if brave individuals like the former deputy-minister of health Routlege would not have spoken up? How would we have known about the Land Bank scandal, Travelgate, etc.?
Instead of crucifying the CJ and DCJ, we should be applauding them for standing up for what is right and just. The ones to be crucified or criticised are the two judges who regarded the matter serious enough to report it to other judges and to the DCJ and regarded it not serious enough to lodge a formal complaint agaisnt Judge Hlophe. These two judges do not deserve to hold public offices as they have betrayed the accountability principle and decided to be influenced by extraneous issues in making a just decision about the then looming Constitutional crisis procured by Judge Hlophe’s conduct. Had these two justices been brave enough to stand up against Judge Hlophe, then we would have a different case in our hands right now. The public would know for a fact that our judges, at least some of them, apply the law without favour, fear, or prejudice. Right now we know that these two judges were scared to lodge a formal complaint against Hlople; how pathetic…
Sne // Aug 27, 2008 at 11:06 am
I agree wholeheartedly with what you’ve said.
Sne et Maurice – Ditto
Bongs
My speculation is that it is a vote of no confidence Yes, but not on CJ and the DCJ’s leadership, but rather on the CC institution that will, in six months time under Zuma presidency and possible Hlophe CJ by then, have to abandon its constitutional mandate to serve the public without fear or favour and on fair and equal basis to serve the interests of JZ and his friends and supporters on the one hand, while unfairly punishing his perceived enemies on the other. Surely, a year could be too long for a credible judge to serve in such an institution and Presidency, let alone 10 to 15 years that justices in this institution serve.
Bongs, by thinking that the “weak shortlist” could be a vote of no confidence on the CJ and DCJ’s leadership of the CC are you implying that the CJ and DCJ as leaders of the CC have erred in publishing their complain against Hlophe JP and also in seeking recourse from the JSC in this regard?
Are you also condoning the attack on the CC by Nzimande, Vavi, Mantashe and co for having found against JZ and also for the CJ’s orbiter dictum on the failure of Hlophe JP’s alleged influence on the CC through the two justices concerned is justified?
I share the same view as Sne // Aug, 27 2008 at 11:06 am in this subject.
But one of those two were now regarded as good enough by the JSC to be interviewed for the CC opening!!
Sne and Mdanisi,
I think you have miscontrued Bongs’ position wrt to the CJ & DCJ’s handling of the complaint against Hlope J. If I understood Bongs position all along in this whole debate, he never questioned the need to have the complaint made public but rather the manner in which it was done. This is a view that I share as well.
I strongly believe that the cover ups that Sne is talking about and the whole issue about public interest would have still been addressed had the CC ACTUALLY laid a complaint with the JSC first before issuing the media statement. More to the point, had the CJ & DCJ properly utilised their energies (instead of spending time preparing a media statement) and convinced the two errant judges to lay a proper complaint with the JSC, the avenue they have now created for the JP would have been closed.
My understanding is that the same media statement that I received on 30/05/08 is the same “complaint” that was forwarded to the JSC. Accepting this as the truth, I truly believe that the approach was wrong. I think any other judge (other than Hlope) would have felt aggrieved if this had happened to them. A proper complaint MUST precede a media statement!!! NB: I do not consider the document sent to the JSC on 30/05/08 to be worthy of being called a complaint.
Furthermore, last week we heard most commentators in this blog lambasting Hlope and his legal reps for failing to disclose / complete some quote (or something to that effect), however, none of these ethical and expert lawyers see anything wrong with the fact that the CJ failed to inform the rest of us (and the JSC) that the two “complainant judges” in fact did not want to lodge a complaint and did not consider themselves to be complainants. We all thought they were the complainants until they issued the (in)famous joint statement. How anyone cannot see anything wrong with this conduct is beyond me.
I agree with Sne that Nkabinde and Jafta’s conduct in this whole saga has, to a large extent, led us to where we are now. The conduct of the CJ, the Acting DCJ and the DCJ has worsened the situation. In the end though, once the JSC deliberates on the matter (should it ever get to that stage) we may find that the JP was the root cause of all this mess. However, what I am against is people failing to see that the JP is not the only one to blame in this whole saga (let alone the fact that, as matters currently stand, no blame can really be placed at his door until the matter has been dealt with by the JSC and his conduct found to have been improper).
That the JSC may never get to deal with this matter is the fault of the CJ, DCJ and the Acting DCJ. Had they acted with cool heads and due consideration of their actions, we would not be where we are now and Hlope would not have been given a platform to delay the hearing of the merits of the complaint.
My view is simply, I do believe that the CJ, DCJ & Acting DCJ were wrong in their approach. However, and contrary to what the JP seems to be arguing, I do not believe that any infringement of his rights (such as there may be) was strong enough to stop the JSC from hearing the merits of the complaint. Therefore the matter must serve before the JSC. Once it has been considered, and should the JP be found to have done something wrong, a proper and appropriate sanction shall be imposed on him and, I feel, the JSC should condemn the CC for the manner in which they handled the whole matter.
Mzo // Aug 27, 2008 at 3:26 pm
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Sorry, what was your point again?
Monday the JSC announced they will readvertize the vacancy
http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A830882
I have to say that I am quite surprised with people uncritically agreeing with Sne’s comments. I had a problem with the final paragraph in particular.
As I understand the position of Justice Nkabinde and Acting Justice Jafta (who Pierre tells us has been asked to apply for a permanent position at the Court), they were not happy with Hlophe raising the matter of privilege with them in the way he did, but did not feel that it was sufficiently serious enough to lodge a Complaint with the JSC. That does not sound to me as though they were “scared”. It sounds more like the two of them consider this issue to have been blown out of proportion – a position shared by the JP.
Accordingly, I am pleased that this matter has been referred to the JSC, just as I am pleased that the JP is free to ask for his constitutional rights to be determined and respected. I also wait to see whether the JSC will regard the matter as overblown or not before condemning any of the actual people involved.
Sne,
Anything unclear about the summary of my views on teh last paragraph of my last post?
Mzo, I could not have articulated it better…
Mzo, Bongs and Mpho you logical clear thoughts are quiet impartial, thank you-Sne I suspect you are a legal novice. so you can be excused-finish and klaar!
Mdu // Aug 28, 2008 at 9:52 am
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“Sne I suspect you are a legal novice.”
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I am disappointed that you have decided to attack me personally instead of attacking my views as I have done with Bongs’ views.
I will not do what you have done and attack you personally. I will let it slide out of respect for you, myself, other people who use this blog, Prof Pierre, and the legal profession as a whole. Have a great day. Bye
Sne // Aug 28, 2008 at 11:03 am
I still agree with your views, which I believe you set out quite clearly.
The personal attack on you, because of a difference of opinion, is unacceptable.
I agree, however, with your decision not to retaliate in like manner.
Sne, you seem to be too sensitive to what you perceive as a personal attack on you but you are forgetting that you also accused me of attacking CJ and DCJ. If you read my post correctly you wil notice that I ‘attacked’ (if you want to use that word) the MANNER in which they handled Hlophe JP matter.
Bongs // Aug 28, 2008 at 12:46 pm
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My sincere apologies if that came out that way.
A more prudent look at my submission would reveal that you did not attack the CJ and the DCJ in their personal capacities but in their professional capacities.
I cannot ignore the fact that you have noted merely an “exception” against my submission and have not advanced an argument against the merits thereof. Well, we all know what happens to an allegation if not denied in a Pleading in civil law.
Sne
Apology accepted.
I have written in this blog ad nausseam about my position on how CJ and DCJ handled the Hlophe JP saga. So, I did not want to rehash those arguments here since the topic is not about that and especially after Mzo correctly articulated our positions above.
If it pleases you, I take issue with whatever you said which is inconsistent with my views expressed in this blog on the manner in which Concourt handled Hlophe JP’s issue!
Bongs – “If it pleases you, I take issue with whatever you said which is inconsistent with my views expressed in this blog on the manner in which Concourt handled Hlophe JP’s issue!”
Typical lawyerly remark that, but without legal spunk. It is almost like: “Is there anything (else) you want to change in your testimony?” – A question lawyers frequently ask a witness who has already indicated that he/she cannot remember all the details and before confronting a witness with his/her police statement; and, that while the witness has not even confirmed yet that he/she told the police something different. You remark, quoted above, almost daily presents itself in courts all over the country, notably by undefended accused persons, who would, almost invariably (after having confirmed [or not placed in issue] certain aspects of a particular witness’ evidence) put it to a witness: “I put it to you that everything you have said is false.”; or, more in line with what you have said above: “I put it to you that, in every respect where we disagree, your version is false.”; but, without any legal argument to support that averment. Pity you don’t really bolster your argument above (and elsewhere on this blog) with real ‘legal’ arguments; but you just keep on coming back to the same ‘lame’ accusation, namely that, because the CJ and the DCJ did not keep their complaint confidential, Hlophe JP is the victim rather than the perpetrator; and, that, therefore, he should be treated as if he is the one who was wronged, and not the CC judges.
Mzo
I must commend you for such a substantive and factual submission you have made. I really enjoyed reading it. Back to the business of the day, I do get your point Mzo and will try to clarify my position in this regard thereby also providing reasons for my support to Sne’s submission. In my response to Bongs comment, I have not unfortunately considered what he might have said in the past about these issues. He also did not provide any substance to prevent us from misinterpreting his argument. But be that as it may, without support by any case law, both you and Bongs’ argument that the CJ and DCJ erred in going to the media before lodging their formal complaint with JSC is still as good as a speculation. And the same applies to Sne and I’s argument that, in accordance with the principle of accountability which is also central to the CJ’s justification of his (the ADCJ and DCJ)’s act, they were correct; until the JSC hears the matter and makes its ruling in support of either position in this regard.
Your argument that the possible cover-up that could have occurred had the CJ, ADCJ and DCJ lodged their complaint with the JSC first could still have been avoided, I think both Sne and I (not in this post) have correctly argued in our respective submissions that the matter was eventually going to come to the open Yes, but with more damage to the Concourt and the justice system in the country than to Hlophe JP. And if I were to choose between the two, I would rather sacrifice Hlophe JP – taking into account his contribution in the genesis of the whole saga – and spare the Concourt and the justice system. This I would do not in the interest of seeing Hlophe JP humiliated and suffer as a result, but rather in the interests of justice.
On your argument that “the CJ failed to inform the rest of us (and the JSC) that the two “complainant judges” in fact did not want to lodge a complaint and did not consider themselves to be complainants” – until they made a joint statement to this effect – I think you are incorrect. If you have read through the CJ’s 27 page submission to JCS, you will realize that the CJ explains the procedure followed after he had been made aware of the incident including the fact that the two justices refused to be the complainant themselves as well as the ground upon which he (the CJ), together with the ADCJ and the DCJ took it upon themselves to seek recourse from the JSC in this regard.
I am glad you also agree with Sne and I that “Nkabinde and Jafta’s conduct in this whole saga has, to a large extent, led us to where we are now”. But I do not agree with you that “[t]he conduct of the CJ, the Acting DCJ and the DCJ – presumably for having gone public with the matter – has worsened the situation”. Depending on where you stand with regard to this matter and the rule of law this might be the case, but I for one think the three justices could have made the situation worse only if they had, inter alia, allowed any proportion of act that could have given rise to a claim of cover – which is not the case here. The same argument goes for your argument that Hlophe JP is not the only one to blame in this fiasco – meaning the CJ, ADCJ and DCJ must share the blame for the manner in which they (mis)handled the case. We can only hope the hearing finally takes place in order for the JSC to help us close this matter once and for all, although of course there will always be post mortem debate on its findings.
Your contention that had the CJ, ADCJ and DCJ “acted with cool heads and due consideration of their actions, we would not be where we are now and that Hlophe would not have been given a platform to delay the hearing of the merits of the complaint”, is unfounded. Looking at his effort to block the matter from being heard by the JSC and the reasons advanced in his frivolous submission to both to the JSC and the High Court, as Prof de Vos critically analyzed them in one of his posts, there is no doubt that the man would have found another scapegoat to avoid facing his own sins before the JSC inasmuch as he would, I can safely bet, still find another scheme to do so in the event the High Court finds against him.
I might have come a bit late for this one. It is an interesting one prof. it is the character of transions to have speculations about what is to come. Joel phrases it better ” its a fear of the unkown.” But I believe BONGS is very much correct. The senior judges of this counrty concur with us, the CJ and his DCJ messed up in handling the Hlophe issue and the whole Zuma saga. I support them, no one would want to live in a dirty house. Pity they leaving us with this whole mess.
T, by us, you mean the political party who is responsable for a very bitter situation in our country: The John Stratton, Brett Kebble bribes to Mr. Selebi, the Thint, President fiasco, the travel gate scandal, the JH mess to name but a few.
It is cristal clear that a radical change is needed before the Rand hits rock bottom, but instead the revolutionary voters, who puts loyalty before commons sense, will fight this losing battle to the bitter end even if it confirms the suspicion of mass stupidity, have a nice day
Well Friend I get you. It is improper of you to take an individuals mess to that of many. The “political party” realy did no wrong. It is the individual, who afterall was removed by the party. The party had no business with Kebble or Stratton. One could hardly blame us.
It is true we need radical change, but I must inform you we already got that. Polokwane delivered it for us. wats your take?
I agree with you that individuals problems cannot be attached to a group as a whole, but one of the problems, we bloggers have identified through our various debates, is where the blame has to go and this could be used to anyone’s advantage, because no one has to be held accountable. If a problem gets identified people gets scared of proposing a solution, because somebody is going to have to take the rap.
Polokwane addressed the solution and not the problem. Unless there where other topics on the agenda than the DSO.