As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
When a candidate is interviewed by the Judicial Services Commission (JSC) – either for a promotion or for first time appointment on the bench – he or she must expect to field difficult questions from commissioners. But when do the questioners overstep the line by asking unfair questions not in keeping with the spirit of the process or of the Constitution?
In 2005 Judge Anna-marie de Vos was interviewed for the position of Deputy Judge President of what is now the North Gauteng High Court and was then asked by advocate Silas Nkanunu about her sexual orientation. Referring to the written questionnaire handed in by the judge, Nkanunu wanted to know whether De Vos was not concerned about the perception of other judges of the fact that De Vos had a woman “partner” and not a husband.
This was obviouly an outrageously homophobic question and should not have been allowed by the chairperson. (I would have said this, even if Anna-marie was not my sister.) Section 9 of our Constitution guarantees the right to equality for everyone, including on the basis of one’s sexual orientation and the question clearly was based on the presupposition that there was something strange or wrong with being a lesbian – something the Constitutional Court has explicitly rejected.
When it comes to questions about judicial transformation the issues might be less clear cut.
On Sunday Advocate Dumisa Ntsebeza – perhaps still smarting from his rough treatment at the hands of the SCA when he appeared for Judge President John Hlophe before that court – asked Judge Frans Malan who had applied for one of three postitions on the SCA why he had not “withdrawn” from the race as having a white man at the SCA would not contribute to transformation. There were only four shorlisted candidates for the three posts, three of the candidates being white.
This seems to me to have been an unfair question not comporting with the spirit of the Constitution as it might have created the impression that Ntsebeza believes transformation was only and exclusively about the appointment of black judges – regardless of their values, ideological commitments, experience and judicial temperament – especially given the fact that three of the four candidates for the three vacant positions were white.
As a believer in redress, I would be the first to say that when suitably qualified black candidates are available they should be given preference in appointment to the bench. But this was not the case here and Ntsebeza seems to have overstepped the mark.
Advocate Hennie de Vos conceded during questioning that he served as chairperson of the Waterkloof branch of the far-right CP from 1982 to 1987, a time when he said “the supposition still was that South Africa must be divided in areas where black, white and coloured are totally independent of each other”.
He denied the party believed that black people were inferior to whites, and said he left the National Party for the breakaway CP in what was a “dispute between Afrikaners as a small group trying to talk politics among each other” about the merits of the National Party’s tri-cameral Parliament.
The CP took the view that “mathematically” it would be impossible to give whites, coloured and Indians representation, but exclude the black majority, he said. De Vos said he had not been involved in politics for the past 22 years and has for years taken in black law graduates as trainees because he believed it was the best way of transforming the judiciary. Many of the graduates were talented and taken silk, he said.
But advocate Dumisa Ntsebeza, one of President Jacob Zuma’s new appointees to the JSC, said he had failed to explain his conversion from right-winger to a promoter of racial parity on the bench. “You are not on trial, but in a sense people here would like to know people they are putting on the bench have the values of the Constitution at heart. I would be a happier person if you are ready to say: ‘I’m a person who was part of a bad past.’ I do not get that sense from you.'”
The CP opposed the negotiating process, refused to be part of it and boycotted the first democratic election. It might well be that Adv De Vos has had a change of heart and now supports the new order, but it seems perfectly legitimate for JSC members to ask him about his past to try and establish how he really feels about the new order.
In my opinion, it would not be legitimate to tell such a candidate that because of his past he was automatically disqualified from appointment to the bench. People do change – although the sincerity of such changes of heart might often legitimately come under suspsicion. JSC members have a duty to probe such a candidate to try and establish whether a candidate had genuinely changed or had merely had a Damascus experience in order to get ahead in the world.
Advocate Ntsebeza’s seems to me to have been legitimate in expressing disquiet at the lack of contrition on the part of Adv De Vos about his apartheid past. Although the questioning might have been uncomfortable, I for one would not want to see someone appointed to the High Court bench who is not fully committed to the new democratic order and may not have come to terms with their own dark past.
Some would say – and reading the letters pages of Afrikaans newspapers there seems to be quite a few such people – that the kind of questioning unleashed on Adv De Vos requires whites to grovel and apologise for being white and that this represents an unfair attack. I see it differently. The Constitution guarantees equality for all and also requires us to respect the inherent human dignity of all – even people we do not like or agree with. But if one wants to be appointed as a judge, one must surely have demonstrated through one’s words and one’s actions that one has rejected a dark past that one might once have been part of.
Otherwise one has no place on the High Court bench. It is not about grovelling but about taking responsibility – something a good judge has to do if he or she wants to become a wise dispenser of justice.BACK TO TOP