Not a bad list – all things considered

When a journalist phoned me late yesterday afternoon and told me that Judge President John Hlophe did not make it on to the list of seven names sent to President Jacob Zuma by the Judicial Services Commission (JSC) for possible appointment to the four vacancies on the Constitutional Court, I felt like quoting my father when I told him that I was gay. “This does not come at all as a surprise to us,” my father said. (He was surprised when I proudly whipped out a picture of my new boyfriend and he realised that I was involved with a black man – but that is a story for another day….)

As I predicted on Monday, the JSC decided to steer clear of Hlophe. If it had put Hlophe on the list, the little credibility that the JSC might still have left would have been destroyed, so the JSC rather opted for a mixed bag of seven names. Although not always inspiring, the list of names seems mostly credible, perhaps because most of us think (like my father probably did before I showed him that picture) that it could have been much worse.

At least two of the women on the list are strong candidates and I am holding thumbs that our President will appoint them both. Judge Mandisa Maya of the Supreme Court of Appeal (SCA) has written several strong majority and dissenting opinions while serving on that court and has demonstrated a sensitivity for gender issues. In Ntaka v S Maya wrote a dissenting judgment in a case where the majority of the SCA reduced a ten year sentence of a rapist to five years, noting the importance of taking into account the effect of the rape on the complainant.

In Zanner v Directorate of Public Prosecutions she wrote a majority judgment in which she refused to grant an accused a permanent stay of prosecution after he had been indicted for murder more than ten years after a charge of culpable homicide was withdrawn against him. She said one should focus solely on whether the accused had suffered any significant trial related prejudice when deciding to grant a permanent stay of prosecution. If President Zuma’s corruption trial is ever revived, this might become an interesting precedent when he applies for a permanent stay of prosecution for suffering prejudice not directly related to the trial.

Judge Leona Theron has also dissented in a rape sentencing case when she was acting on the SCA, opting for a harsher sentence from the one which her colleagues wished to impose, indicating a certain compassion for the survivors of rape less pronounced in some of the other judges of the SCA. She has also handed down several judgments in which she strongly punted the fair trial rights.

Of the other candidates on the list a surprise name must be that of Judge Johan Froneman. Although he has written many excellent and innovative judgments to try and address the systemic problems with the administration of social grants in the Eastern Cape and although he has a very sound and comprehensive knowledge of constitutional law (he regularly teaches as a guest lecturer in LLM classes at Stellenbosch University), commentators generally thought that Judges Eberhardt Bertelsmann and Dennis Davis were probably more likely to make it on to the list than Froneman. Nevertheless, I think he would make a great Constitutional Court judge and hope that our President appoints him.

The most likely other appointee is probably Judge Chris Jaftha who had already acted as a judge on the Constitutional Court. Although he has been involved in the fight between the Constitutional Court and Judge President Hlophe and although he has admitted to being a friend of Hlophe, this will probably enhance rather than hinder his chances of elevation to the highest court. Given the fact that Hlophe has been dumped, the appointment of Jaftha – who is a senior judge and serves on the SCA – might placate the Hlophe die-hards.

Of the other names on the list judge President Mogoeng Mogoeng was definitely a surprise pick. My sources tell me that he interviewed very well and that he was very charismatic when he appeared before the JSC – performing in the tradition of a lay preacher or a gospel singer. But as he admitted to the JSC he has very little constitutional law experience or knowledge and he is therefore somewhat of an unknown quantity. Maybe the fact that he owns 55 cattle served in his favour.

Of some concern must be that probably the most striking case he has been involved in is that of S v Dube in which he refused to recuse himself despite the fact that his wife was the prosecutor in the case. A full bench of the SCA overturned the decision, applying the test for recusal as set out by the Constitutional Court.

The one name that is absent from the list and should have been there is Azhar Cachalia of the SCA, probably the strongest candidate nominated this time around. Sadly, his statements about racial transformation – he had the temerity to say he and his family would prefer to have their case heard by a fair judge than by a judge of the same race as them – probably torpedoed his candidacy. He is extremely hard working and has handed down numerous reported judgments while on the SCA and he would have really strengthened the Constitutional Court bench.

Wonder though what my father would have said about the list….

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