Quote of the week

Mr Zuma mistakenly assumes that loyalty to the ANC is synonymous with loyalty to him. His assumption is both factually and constitutionally untenable. Falsely or erroneously, Mr Zuma believes that his recall as President was against the wishes of the ANC. However, it was the ANC NEC itself that insisted on Mr Zuma resigning as President of South Africa. Furthermore, it is not only the wishes of the ANC that matter. Mr Zuma offers no evidence that the people of South Africa were opposed to his recall. The people have an interest in what goes on in the ANC not least because it is the majority governing party.

Judge Pillay
Hanekom v Zuma (D6316/2019) [2019] ZAKZDHC 16 (6 September 2019)
23 June 2009

So WHO indeed must serve on our highest court?

Enough of the side-show. Let us return to the bussiness at hand, namely who should be appointed as Chief Justice and to the other positions opening on the Constitutional Court later this year. Regular readers of this Blog will recall that I have started a “competition” to allow for some informed debate on this crucial question.

For the rules of the “competition”, and for the contributions thus far click here.

Maybe it is time to focus not on the negative (who are not suited) but on the positive (who are those great legal minds with progressive views who will stand up for the downtrodden and marginalised while respecting the separation of powers).

So far it seems there is a strong feeling that Belinda Van Heerden, a judge on the Supreme Court of Appeal, should be appointed to the highest court. Sello S Alcock – one of the best reporters on legal matters in South Africa – also published an interesting article on possible candidates last week in the Mail & Guardian.

Azhar Cachalia, Dennis Davis, Mandisa Maya and Leona Theron are also mentioned as good candidates by him. To me this list seems like quite a good one as it contains the names of several good female candidates as well as one wild card (Davis) who could fill the shoes of Justice Albie Sachs, probably the most interesting and consistently progressive voice on the court today.

As faras the competition is concerned, so far we have two front-runners.

First, on a serious note, Allistair writes:

I would like to see Belinda van Heerden appointed to the Court. She is a very impressive lawyer, with an outstanding academic history as a student and later as a Professor. She is also an experienced judge, at HC and SCA level. She has also acted for the CC. She’s demonstrated a commitment to justice beyond her judicial work, especially for children and families, and for the Black Sash during the 80s. With two women leaving the court (O’Regan and Mokgoro JJ), it is very important that female candidates be nominated and appointed. Although I don’t know Judge van Heerden personally, it seems to me that she is an ideal candidate for the highest judicial office.

Second, on a more irreverent note, an Advocate writes:

Section 174(2) of the Constitution asks that race and gender be considered. There are too few women, will be no Jews, and a paucity of pale males after the retirements take effect. So it makes perfect sense to promote women and Jews and perhaps Jewish women too. Now it becomes necessary to look around for suitable candidates having taken the constitutional concerns into account. Kill two birds with one stone by giving Dennis Davis the nod. Not only does this take care of the pale male and Jewish vacancies in one fell swoop, it may even have the effect of terminating his tv personality role in the interests of the jurisprudence of the Court. That can’t be a bad thing. [It has always worked for Springbok rugby to have a Jewish player on board, lets keep the Concourt similarly lucky.] Now for three women: eenie mienie mynie mo: Leona Theron, for her persistence, Belinda van Heerden for her all round brilliance and Cora Hoexter for auld times sake. Where and when do I collect my dinner?

It is heartening to be reminded again that there are truly impressive legal minds who share a commitment to the values of non-racism and non-sexism enshrined in our Constitution, understands the transformative nature of the Constitution, and will uphold the rule of law, who will serve with distinction on the highest court.

Let us hope the unpleasant fights around certain candidates have not scared off these  worthy candidates from applying.

The competition is still running, so post your motivation for your preferred candidates in the comments section of this post. I said I would buy the winner a meal. (Some wags would probably comment that the runner up should get two meals in my company.)

This is our democracy and our court and we should take part in a serious debate about the best candidates for appointment. That is surely what the “active citizenship” that Mamphele Ramphela talks of, is all about.

In South Africa we have a tendency not to debate, but rather to shout and scream. That cannot be good for democracy. The more voices engage, surely, the better.

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