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.
The Judicial Services Commission (JSC) is currently interviewing candidates to fill the post of Justice Tholie Madala on the Constitutional Court. Business Day reports this morning that two of the six judges who are candidates for appointment to the Constitutional Court — Supreme Court of Appeal Judge Chris Jafta and Grahamstown High Court Judge Frank Kroon — withdrew their applications at the last minute yesterday.
The judges are entangled in the controversy surrounding Western Cape Judge President John Hlophe and the Constitutional Court as theyw ere both acting judges on the Constitutional Court when Judge President Hlophe allegedly approached judges of the Constitutional Court about the Zuma matter.
It is difficult to know why these judges withdrew but I would guess the JSC decided that it would be inaprpriate for them to consider the application by these two judges before the complaints against and by Judge President Hlophe have been dealt with.
Had the JSC considered the applications of these two judges and had they recommended any of these judges for appointment, Judge President Hlophe’s legal advisers could easily have argued that the JSC had pre-judged the case. It would then have been possible to say that the JSC had created the impression that it believed the allegations made by Jaftha against the Judge President. Justice would then not have been seen to be done. The Constitutional Court judges could have argued the same thing if the judges were not recommended for appointment.
Although unfortunate, it was therefore probably a wise move for the judges to withdraw their applications at this stage in order to ensure that the JSC deal with the Hlophe matter without exposing themselves to charges of bias.
The withdrawals leave just four candidates for the post — the exact number required by the constitution to be submitted to the president to choose from. These are Supreme Court of Appeal (SCA) Judge Edwin Cameron, high court judges Shehnaz Meer and Nigel Willis, and Northern Cape Judge President Frans Kgomo.
Obviously the name of Justice Edwin Cameron stands out among these candidates. As I had argued before, a candidate should qualify for a position on the Constitutional Court if he or she has the requisite legal skills and knowledge as well as the commitment to social justice required by the Bill of Rights. Cameron clearly has both. Although he was recommended for appointment before, then President Thabo Mbeki did not appoint him, probably because of Cameron’s harsh (but courageous and true) criticism of Mbeki’s stance on HIV/AIDS.
In his interview yesterday Cameron acknowledged that he might have “overstepped the line” with his outspoken public criticism of Mbeki and then-Health Minister Manto Tshabalala-Msimang’s poor leadership on HIV/AIDS but said that his own 22-year battle with the syndrome had left him feeling ‘that I could not keep quiet’. According to a Cape Times report, he told the JSC:
“I thought I was going to die at the end of 1997 … I was desperately sick, but my life was given back to me (through anti-retroviral treatment) …and I felt that I had to speak up.’ Cameron was then asked by Marumo Moerane SC, if his own HIV-positive status would stop him from hearing HIV-related cases brought before the Constitutional Court. The judge responded that he would not hear cases related to HIV treatment. Justice Minister Enver Surty, who attended the commission’s sitting, told Cameron that he ‘empathised’ with his struggle.
One may argue that judge Shehnaz Meer – who also displayed a strong commitment to social justice in her interview yesterday – might also get the nod from the Presaident despite the fact that she does not have the same technical knowledge of the law that Cameron has, seeing that there are currently only three women on the Constitutional Court.
But I would argue that given his vast knowledge of the law, his technical brilliance, and the fact that 5 million South Africans are living with HIV, the selection of Cameron would be the wise and correct choice. It would also be a bold affirmation of the rights of people living with HIV and would send a strong signal countering the prejudice and hate still experienced by people living with HIV.
Although the JSC can indicate their preferences when they forward the names to President Motlanthe, the President has the final say in this matter. If he chooses Cameron it will signal a move away from the vindictive attitude of Thabo Mbeki and will say much about Motlanthe’s integirty and wisdom. If it is not Cameron, it will be a sign that Motlanthe might not always be in a position to do the right thing and might be taking instructions from Luthuli house.
I am waiting with bated breath for the outcome because not only will it tell us something about our new President, it will also decisively influence the quality of the members serving on the Constitutional Court.BACK TO TOP