The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
News that 23 of the 27 nominated candidates for the four openings on the Constitutional Court were short-listed by the Judicial Services Commission (JSC) and will be interviewed in early September suggests that the JSC decided to avoid the tough questions on this matter until after the completion of the interviews. In the past the JSC has applied an informal rule that it would not consider anyone for appointment or elevation to a higher bench if serious charges of misconduct were pending against the nominee.
This practice has not been followed in the present round. Both Judge President John Hlophe and Judges Frank Kroon and Chris Jaftha (who were acting on the Constitutional Court when Hlophe allegedly tried to interfere with one of its decisions) have been short-listed for interviews – despite the fact that charges of misconduct relating to the Constitutional Court complaint are still pending against all three.
One could argue that in order for the JSC to act in a fair manner, it either had to include all three men on the short-list or exclude all three from consideration. In the circumstances it was probably the correct decision to include the three along with a wide array of other credible and not so credible candidates. It is clear that the real debate within the JSC will only happen during and right after the interviews when the list of seven names are drawn up for presentation to the President. (The President will have to choose four names from this list of seven.)
In April this year the JSC stated that it took into account a variety of factors when drawing up a short-list and when selecting suitable candidates for appointment. These include but are not limited to:
the recommendation of the Judge President [or one assumes the President of the SCA and Chief Justice when appointments are considered to the SCA and the Con Court respectively]; the need to fulfill the constitutional mandate of the JSC to ensure transformation of the Bench so as to reflect the ethnic and gender composition of the population; the particular judicial needs of the division concerned; the candidate’s age and range of expertise, including whether he/she has served as an acting judge in the division concerned, or at all; and the relative merits and strenghts of the various candidates in relation to one another.
In any event, the interviews in September will present special challenges to the JSC and to the judges involved.
If the subcommittee which was formed last week to decide (for a second time!) whether the complaint against Hlophe by the Constitutional Court judges are serious enough to proceed to a full hearing, decides to “kick for touch” and finds in favour of Hlophe, it will expose Hlophe to vigorous questioning by JSC members – in public – on this very question because the matter will then not be sub judice anymore. An early “victory” for Hlophe may therefore backfire because it will expose him to serious questioning on his lack of understanding of judicial ethics.
Why, a JSC member might ask, did he tell a Cape Radio station that he never approached any judge of the Constitutional Court, only to admit in his submission to the JSC that he did indeed approach both Jaftha and Nkabinde? Was this a lie or does he just have an extraordinary bad memory? What did he mean when he told Chris Jaftha “Sesithembele kinina (you are our last hope)”? How would he work with a colleague (Bess Nkabinde) who had claimed Hlophe had told her that “he was politically well connected” and was “connected to members of National Intelligence” – a claim Hlophe has denied? If his denial is true, then Nkabinde is a liar, so would he be able to work with a colleague who is a liar?
If the JSC sub-committee decides to proceed again to a full hearing, Hlophe will be spared extremely awkward questions about the Constitutional Court complaint, but he will still face serious questions about his unethical behaviour in the Oasis matter. Why did he lie about receiving “out of pocket expenses” from Oasis when he was in fact on a retainer of R10 000 per month? Why did he grant permission to Oasis to sue a fellow judge after Oasis increased payments to him? Why did he not recuse himself? How can it be true that he received permission from Minister Dullah Omar to receive money from Oasis when Omar stopped being the Minister of Justice 18 months before Hlophe started receiving any money from Oasis?
But the hearings may not only be bad news for Hlophe. The JSC members sitting on the disciplinary committee will have to take extraordinary care not to act in any way that would create a reasonable apprehension of bias on their part. If these JSC members grill Hlophe too vigorously, he may well ask such members to recuse themselves from the panel considering the complaint against him and this may swing the balance of forces on the JSC in his favour.
In any event, the short-list of 23 names suggests that there are relatively good candidates – candidates who have not lied, have not engaged in unethical conduct, candidates who are deeply committed to transformation – from which the JSC could choose when it prepares a list for consideration by the President.
I suspect the front-runners include SCA judges Azar Cachalia, Mandisa Maya and Belinda van Heerden and High Court judge Leona Theron. Personally I would not mind having a judge on the court who has read his Marx (Karl, that is, not Groucho), so I would be thrilled if Judge Dennis Davis was appointed as well. Given the fact that the complaint between the Constitutional Court and Hlophe has not been dealt with yet, I do not think that it would be wise to appoint either Hlophe or Kroon and Jaftha.
Well, whatever happens, the interviews in September will tell us more about the politics (and the ethics) of the JSC. I can’t wait.BACK TO TOP