Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
26 August 2008

Why the “weak” shortlist for Constitutional Court vacancy?

Business Day reported yesterday that additional candidates were approached on Friday to stand for appointment as judges of the Constitutional Court to replace Constitutional Court Judge Tholakele Madala at the end of the year because the original list of five applicants was “weak”.

It is understood that the original long list consisted of magistrate Samuel Mashimbye, Judge Nigel Willis of the Johannesburg High Court, former Wits professor Mervyn Dendy, Judge Shenaz Meer of the Land Claims Court and Pretoria High Court Judge Eberhardt Bertelsmann. On Friday, three judges from the Supreme Court of Appeal (SCA) — Edwin Cameron, Frans Kgomo and Chris Jafta — were approached to augment the list.

An anonymous Business Day source said that it was “really worrying” that the pool of choices for the Constitutional Court was so small and weak, not drawing enough candidates from the “outstanding options available”. He said the seeming reluctance of potential appointees might be attributable to the “serious pressure” the Constitutional Court is under at the moment. According to Business Day:

He was referring to the complaint laid by the judges of the Constitutional Court against Western Cape Judge President John Hlophe, that Hlophe had tried to influence the outcome of the Jacob Zuma/Thint cases, and the political fall out, which led to unprecedented criticism of the court by political organisations.

Another factor he suggested was that white potential candidates perhaps felt they had a better chance of being appointed under ANC president Jacob Zuma than President Thabo Mbeki, because “some people think Zuma will give them a fairer chance ”.

I have no direct knowledge of what motivated many credible candidates not to make themselves available for this position, but I would be surprised if the anonymous source is correct in his or her assessment. There seems to me a far more obvious reason why so few heavy hitters made themselves available.

According to the Constitution apart from the Chief Justice and the Deputy Chief Justice, ordinary judges of the Constitutional Court are appointed by the President, after consulting the Chief Justice and the leaders of parties represented in the National Assembly. But the President must choose from “a list of nominees with three names more than the number of appointments to be made” submit to the President by the Judicial Services Commission (JSC).

This means the JSC will send four names to President Mbeki who will have to choose one of the four nominees to serve for the next fifteen years on the Court. But if a new Chief Justice is selected next year from among the members of the Constitutional Court, there will be four vacancies in the Court. The JSC will then send a list of seven names to the President who will have to choose four.

I am not a betting man but it seems to me this year one will have a one in four chance of being selected by the President if one is nominated by the JSC. Next year one will have more than a 50% chance of being selected. If I had an eye on a Constitutional Court post, I would  wait until next year and rather take my chances with the JSC.

I would be surprised if this consideration did not play a role in decision of many candidates to make themselves available this time around. I would be really surprised – and also deeply disappointed – if the top tier candidates would be so lily-livered that they would not make themselves available because of the “serious pressure” the Constitutional Court is under at the moment.

If one is so faint hearted that one would decide not to apply for the dream job just because of the pressure on the Court, one really would not deserve to serve on this Court at all. It is in the very nature of constitutional democracy that there would be political pressure on the highest court of the land. Good judges would not be swayed by such pressure but would interpret and enforce the Constitution according to precedent and their conscience – which was exactly what Deputy Chief Justice Dikgang Moseneke said at his birthday party before he was attacked by uninformed and reactionary members of the ANC NEC.

Such attacks are part of the job. Its a small price to pay to have so much power and to do such an intellectually stimulating and interesting job. Let’s hope next time more candidates with good credentials and the necessary backbone make themselves available. The health of our constitutional democracy depends on it.

2015 Constitutionally Speaking | website created by Idea in a Forest