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.
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.
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.BACK TO TOP