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.
Retired Chief Justice Arthur Chaskalson has published a good article today on the unprecedented campaign by a certain individual to have Judge President John Hlophe appointed Chief Justice. In it the Chief Justice tries to address – in a rational manner – on this campaign and concludes:
One comment, however, needs to be made. It is a complaint alluded to by Ngobeni in his campaign; the complaint against Judge President Hlophe, which is presently before the Judicial Service Commission (JSC). It comes from 13 of the most senior judges in our country. All but four are black. Unlike Judge President Hlophe, who took no part in the struggle against apartheid, the present chief justice and deputy chief justice and others who signed the complaint have a proud record of having been active in that struggle, the ultimate struggle for transformation, and having done so at considerable risk to themselves and their families.
No one could legitimately suggest they are “self-hating blacks” opposed to transformation, or are part of a racist conspiracy to undermine the judge president because he has shown himself to be in favour of transformation.
What about transformation? Judges are not appointed by judges; they are appointed on the recommendation of the JSC. Of the 23 members of the JSC, only three are judges. All three are black. When appointments to a particular High Court are dealt with, the judge president of the court concerned and the premier of the province form part of the commission. Apart from five nominees of the broad legal professions, including the academy, the other members are either members of parliament or nominees of the president.
The JSC, of which I was a member for more than 10 years, has taken seriously its constitutional mandate to recommend fit and proper persons for judicial appointment, and in doing so, it has always kept in mind the constitutional requirement to consider “the need for the judiciary to reflect broadly the racial and gender composition of South Africa”.
In 1994, all but five of the more than 100 judges of the higher courts were white men. There were only two female judges, both white, and three black male judges. There was a somewhat different but substantially similar profile within the legal profession, and because of our history, a comparatively small number of experienced black and women practitioners.
Today, seven of the 11 judges of our highest court, the Constitutional Court, are black. The chief justice, the deputy chief justice, the president of the Supreme Court of Appeal and all judges president of the high courts and the Labour Court are black. All of them, and not only Judge President Hlophe, support the transformation of the judiciary.
Comparing the calm and rational voice of the retired Chief Justice with the ranting and frothing at the mouth of Hlophe’s Supporter in Chief, it is difficult not to laugh at the “campaign” being run on the Judge President’s behalf. I suspect it is doing the Judge President more harm than good – even among those who might otherwise have been sympathetic to his cause. If I was the Judge President I would call off this campaign to stop futher embarrasment.BACK TO TOP