An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
In a few months the Chief Justice and three Constitutional Court judges must retire. The President will then have to appoint a new Chief Justice as well as four new Constitutional Court Justices (assuming the Chief Justice will be appointed from among the existing members of the Constitutional Court).
Section 174(3) states that the President must appoint the Chief Justice and the Deputy Chief Justice “after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly”. This means the President has to consult but need not follow the advice of anyone he consulted before making these appointments.
Section 174(4) states that the other judges of the Constitutional Court must be appointed by the President, after consulting the Chief Justice and the leaders of parties represented in the National Assembly. But the Judicial Service Commission must prepare a list of nominees with three names more than the number of appointments to be made (probably seven names in this case), and submit the list to the President and the President will usually then appoint from this list.
As Judge Dennis Davis pointed out last week at a talk I chaired, this will be one of the defining moments for our democracy (and, I might add, of the Zuma Presidency). Four new judges will have a profound influence on the direction our highest court take and it is imperative that the “right” appointments will be made.
But what qualities would the “right” appointees have? I suppose we will all differ about this, but to get the ball rolling I will suggest what qualities such appointees should have.
First, such appointees should have demonstrated that they have internalised the values of the Constitution and, in particular, through their life and work, should have displayed an appreciation and respect for the human dignity of all. We do not need patriarchal sexists, racists, homophobes or other narrow minded individuals on our highest court. A respect for difference and for the “right to be different” (as justice Albie Sachs might say) is imperative.
Second, appointees should have a keen appreciation of (and should be concerned about) our social and economic context and the vast discrepancies between rich and poor in our society. They should understand that our “post-liberal” Constitution protects the marginalised and the poor and that the role of the Constitutional Court must often be to stand up for the poor and voiceless who do not have the power to stand up for themselves.
Third, appointees should have an understanding of the urgent need for (as well as the inherent danger of) transformation as set out in our Constitution. Social and economic transformation can either be hindered or facilitated by the Constitutional Court and we need judges that would not hinder transformation and would facilitate it by imposing the necessary discipline on the way in which it takes place.
Fourth, appointees must have a keen understanding of the need to uphold the separation of powers between the judiciary and the other two branches of government, without believing that judges should cravenly obey the dictates of the majority party (who, in the past, has often dressed up its own self-interest as the interests of “the masses of our people). In other words, to put it bluntly, judges should be brave and independent without displaying knee-jerk anti-government attitudes.
Lastly, appointees must have displayed some considerable emotional and academic intelligence, must be well versed in constitutional law and must have shown some respect for such law, must be disciplined and hard-working and, of course, ethically beyond reproach.
No guess which serving judge fails to meet every single of these requirements. None other than that reactionary, anti-poor, and ethically challenged judge president from the Western Cape. If he is appointed I would imagine Cosatu and the SACP would make a big stink, given the fact that he heartlessly ordered the eviction of shack dwellers living in Joe Slovo to little asbestos houses in far off Delft and co-owns a wine farm with probably the worst and most reactionary judge ever to have served during the apartheid era.
How President Zuma deals with the task of appointing these judges will say much about his commitment to progressive politics. We should not only hold our breath, but should also begin a conversation about this issue to ensure that comrade Zuma is well informed when he decides and we are not saddled with anti-poor reactionaries like John Hlophe on our highest court.BACK TO TOP