Sharp divisions on the Constitutional Court about the right to strike

In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.

Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.

Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.

For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.

As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:

The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.

It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.

This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:

to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.

The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.

In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:

if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?

The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”

The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.

The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.

The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.

Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.

Source: Constitutionally Speaking

Surprising insights on transformation from the Constitutional Court

What do we mean when we talk about transformation of the judiciary and of the legal culture? Do the members of the Judicial Service Commission (JSC) and the President believe in the substantive transformation of the legal culture and legal doctrine away from its colonially-inspired formalistic roots and away from the deeply embedded assumptions about free choice and equal bargaining power, (assumptions that promote the interests of the wealthy over those who are marginalised, disempowered or poor)?

Or do they use the term rather disingenuously to try and justify the appointment of essentially anti-poor, deeply formalistic judges whose judgments will disregard the interests of the marginalised and might even champion the interests of the rich and powerful? Moreover, which judges are best placed to take on the challenges of legal transformation — within the disciplining boundaries of the separation of powers doctrine — and which judges merely cling to notions of legal formalism to the detriment of the poor and marginalised and in resistance to the transformation of the legal culture?

These questions are all raised by the fascinating Constitutional Court judgment in the case of Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd, which was handed down today.

The majority judgment, written by Justice Edwin Cameron (Moseneke DCJ, Froneman J, Nkabinde J, Skweyiya J, Yacoob J and Van der Westhuizen J concurring), grapples with the transformative effects of the Constitution and the Rental Housing Act on the relationship between landlords and tenants. The judgment also attempts to empower Rental Housing Tribunals, Tribunals created by the democratic legislature to protect the rental housing market while also addressing the unequal power relations between landlords and tenants.

The minority judgment, written by acting judge Ray Zondo, who has reportedly been earmarked for appointment to the Constitutional Court (Mogoeng CJ and Jafta J concurring), displays a surprisingly formalistic and pre-constitutional attitude to the law that applies between landlords and tenants. The minority judgment, relying on what seems to me to be misguided technical arguments, would have upheld the freedom of a landlord to cancel a lease, hike rents or have tenants evicted who cannot afford the steep hikes on rentals, regardless of how unfair the landlord might have acted (all because they supposedly failed to plead their case correctly). The minority judgment also seems rather disrespectful of the principle of separation of powers, which would have required them to engage seriously with the Rental Housing Act, a piece of legislation passed by our democratic Parliament.

The narrow question in this case seemed to turn on the question of when a landlord could legally cancel a lease and evict its tenants. But behind this formal question lurked the larger question of how the constitutional protection against arbitrary eviction (enshrined in section 26(3)), as well as the protections afforded to tenants by the Rental Housing Act, limited the discretion of the landlord to evict tenants or raise rents.

The applicants are tenants in Lowliebenhof, a ten-storey block of flats in Braamfontein, in the inner city of Johannesburg. The flats are their homes, and they live there in terms of various leases. The respondent landlord bought the building, upgraded it, and then wanted to increase the rent. To do so, it cancelled the tenants’ leases, but offered them new tenancies, on identical terms, though at rents of between 100% and 150% higher than the original rents. The tenants resisted and the landlord brought eviction proceedings. The original lease only allowed an annual rent increase of between 10% and 15% and the cancellation of the leases were aimed at circumventing these clauses.

The tenants put forward several arguments about why the landlord was not permitted to cancel the leases to raise the rents, based on the Constitution, contract law and public policy as well as on the interpretation of certain provisions of the Rental Housing Act. In the end the majority argued that it was unnecessary to develop the common law of contract to deal with this case. Instead it relied on the provisions in Rental Housing Act, which state that the landlord may not engage in “unfair practices” in its dealings with tenants. The Supreme Court of Appeal (SCA) had found that this phrase did not apply to a case like the present because an unfair practice contemplated in the relevant section was “incessant and systemic conduct”, not a once off termination of a contract aimed at hiking the rents.

The majority rejected this view and said that the Rental Housing Tribunal should have decided whether there was an unfair practice in this case. It pointed out that the Act provides that an unfair practice ruling “may include a determination regarding the amount of rental payable by a tenant” or may relate to any termination of the lease in respect of rental housing property “on grounds that do not constitute an unfair practice “.

The Act states that when a Tribunal makes a determination about the rent to be charged, it “must be made in a manner that is just and equitable to both tenant and landlord”. In addition, the rent determination must take “due cognisance” of “(a) prevailing economic conditions of supply and demand; (b) the need for a realistic return on investment for investors in rental housing; and (c) incentives, mechanisms, norms and standards and other measures introduced by the Minister in terms of the policy framework on rental housing…”.

The majority thus found that the Act demands that a ground of termination must always be specified in the lease, but even where it is specified, the Act requires that the ground of termination must not constitute an unfair practice. A Tribunal can decide whether such a termination constituted an unfair practice — regardless of what the lease might have stipulated. The effect of these provisions is that contractually negotiated lease provisions are subordinate to the Tribunal’s power to deal with them as unfair practices.

It means that unfair practices are not determined by taking into account only the common law legal rights of a tenant or landlord, but by considering also their statutory interests. This makes it even clearer that the statutory scheme does not stop at contractually agreed provisions, and conduct in reliance on them. It goes beyond them. It subjects lease contracts and the exercise of contractual rights to scrutiny for unfairness in the light of both parties’ rights and interests.

Given this expansive interpretation of the Rental Housing Act (an interpretation influenced by the provisions in the Constitution that prohibits arbitrary evictions from housing and guarantees for everyone the right of access to housing), the majority held over final determination of the appeal (which was originally based on the request to have the tenants evicted) to enable the landlord and tenants, if so advised, to bring suitable proceedings before the Tribunal.

If the Tribunal should hold that the termination of the tenants’ leases was an unfair practice, and should the relief it grants include an order setting aside the termination, the eviction order granted against the applicants may have to be set aside. The parties must be granted leave to set the matter down in this Court for finalisation of the appeal on papers supplemented as they think fit.

The minority had no truck with this airy-fairy, bleeding heart, approach to the old fashioned area of contract law, which would have shown some deference to the democratically elected Parliament who passed the Rental Housing Act. Instead the minority would have preferred to rely on traditional contract law principles that would have allowed the landlord to cancel the lease, and to evict the tenants unless they agreed to a 150% hike in their rents. The minority argued that this case was never argued on the basis of the Rental Housing Act (although the SCA interpreted this Act narrowly in making a finding in favour of the landlord) and hence that the majority was wrong now to rely on this progressive piece of legislation to come to the assistance of the tenants.

The minority, seemingly channeling early twentieth Century British attitudes about the distinction between law, on the one hand, and values and morals, on the other, (as if there was an absolute distinction between these), argued that whether the landlord had engaged in unfair practices was not a legal question at all, but rather a value judgment requiring a judge to rely on moral values (not “law”). The Constitutional Court should therefore not have engaged with this issue at all, according to the minority.

Relying on the legal fiction that the parties “freely and voluntarily entered into leases with clauses that allowed either party to terminate them on notice and which did not say that the termination would not be permissible when effected for a certain purpose or when effected with a certain motive”, the minority would not have referred the matter back to the Rental Housing Tribunal (as the majority did).

Zondo AJ argued that:

the applicants may also have insisted on clauses that excluded certain reasons or motives for the termination of their leases. They did not do so and they have not put up any case to suggest that their bargaining position did not allow them to do so. The matter must then be decided upon the basis that, like the two tenants who included the unusual clauses that their leases could only be terminated at their discretion, the applicants, too, could have included a clause to the effect that their leases could not be terminated to enable the landlord to increase rents by amounts higher than those permitted by their leases. They failed to do so.

As Justice Froneman (in a concurring judgment) pointed out, this denial that it was permissible for the Constitutional Court to consider the interpretation of the Rental Housing Act (which might protect the tenants) in this case, was difficult to square with the law and the facts of this case.

Both the High Court and the Supreme Court of Appeal interpreted the Act and came to the conclusion that the respondent’s right to cancel the leases was unaffected by its provisions. The majority found “that interpretation to be wrong. That the interpretation of the Act lies at the heart of this matter, however pleaded, has never been doubted… I thus have considerable difficulty in understanding how this appeal can be determined in this Court without interpreting the Act. Whether the Act applies to leases in general is a matter of law. So is the question whether the cancellation.”

Moreover, justice Froneman also dispensed with the deeply conservative and formalistic argument about the distinction between morals and value judgments on the one hand and legal questions on the other:

It is common cause that section 26 of the Constitution is implicated. Interpretation of what constitutes an “unfair practice” under the Act in light of this is thus inevitably a constitutional issue, a matter of law. Interpretation and application of the law under the Constitution is never a mechanical application of rules; it always involves a value judgment. Our Constitution and law are infused with moral values. The days of denying the value-laden content of law are long gone.

The various judgments therefore illustrate a clear distinction between one set of judges who are engaged with the transformative project and with the transformation of legal culture and the interpretation and application of law (all done while displaying suitable respect for the elected branches of government who passed the Rental Housing Act) and another set of judges stuck in a colonial-inspired formalist mindset (with potentially adverse consequences for disempowered tenants) who rejected the notion that constitutional values and the morals underpinning them, have any role to play in the adjudicating process in this case.

For those of us studying court judgments and legal articles produced by a (still largely) conservative academia, this insight will perhaps not come as a surprise. The surprising aspect of the judgement arise from discovering which judges came out on which side of this profoundly important judicial and philosophical divide.

Source: Consitutionally Speaking

The bifurcated legal profession, an archaic and elite based system not compatible with our new constitutional ethos

The Minister of Justice has announced a Legal Practice Bill to restructure the legal profession and ease restrictions on entry into the profession to make it more representative.

The Bill contains important provisions including mandating one governing body for the legal profession. Absent from the proposals is the need for institutional transformation, better legal education and access to legal education.

Institutional changes namely the dismantling of the quaint and antiquated split profession and the elitism that accompanies the Bar and its attendant system of silk are essential. The Bar provides advocates a degree of freedom such as not maintaining a trust account nor adhering to accounting practices which attorneys are required to adhere to. Its historical origins and the grave collateral damage from this system are too serious to ignore. If ever a death was desirable, it's time to pull the plug on the split profession coupled with the implementation of a better legal education model. The current system benefits a few, produces consequences and incubates a mindset, which are not tethered to our constitutional ethos.

Institutions are important in channeling human behavior in certain directions and achieving certain results. The advocate's profession historically was not anchored in moral bearings and played a supportive role in apartheid. If one chronicles its past, it produced many shallow leaders and a blighted history of acting against struggle lawyers, who were struck off the roll of advocates at the behest of the Bar. Black lawyers had difficulty-obtaining pupilage.

The Bar has not dealt with its demons nor adjusted to the realities of our new constitutional order. The addict cannot self-medicate nor is it going to self-heal. The attorney's profession is not without its demons and fusion ultimately needs to address transformation within the entire profession. The structural impediments at the Bar are more intractable. The idiosyncrasies and oddities of the Bar is a relic from the British system suited to perpetuating an elite and class based system. In England, it has been chronicled that entry into and success at the Bar largely depends upon social connections. The Bar in South Africa partakes largely of white and male elite. These elites have historically reaped great financial rewards. The Bar sets its own fee guidelines in an opaque way without any public consultation. The traditional albeit suspect justification for the split profession is an independent barrister/advocate provides the client a separate independent opinion. There is substantial evidence that this ends up costing clients more money, which was highlighted by Sir David Clementi in his review of the legal profession in England. In England, there is a trend of solicitors keeping litigation work in-house employing in-house counsel, which saves clients legal costs.

Even though the Bar is not a statutory body, the legal culture has created a de facto situation, produced over a century, which evaluates and validates trial lawyering skills through the established Bar. Those that practice at the alternate Bar/s are relegated to a second-class status. Professional associations like trade unions are prone to group advancement even if this is at the expense of the needs of the larger society. Our Constitution has discarded the British Westminster system. Our bill of rights has both horizontal and vertical application. Freedom of association or autonomy has no talismanic quality that allows for a system of subordination, particularly when it impacts on access to justice or the rights of others to practice their profession based on equality.

The Bar is not about the bright and savvy succeeding where others fail, and the less accomplished at the bottom of the food chain fighting over scraps. It is about those driven by self-interest who by virtue of dubious historical factors, who are invested in certain outcomes. They are able to control who enters the profession and who benefits in an optimal way, wanting to keep things the way they are. Vestiges of the past, even from private actors, which perpetuate subordination, need to be dismantled.

There is nothing wrong with a program for specialists, implemented rationally under uniform conditions as could be the case with the medical profession. Under the current system, a law graduate might be refused entry into the establishment Bar (which is the first level to practice as an advocate), given that the Bar controls the number of pupils and the placement of the pupils in any given year. This might be alright in the elite based British system but not in a constitutional state that values equality and the right to practice one's profession. The German Constitutional Court in the Pharmacy Case held that a limit on the number of practicing pharmacists was unconstitutional because this amounts to a limitation on the freedom to choose an occupation. In that case, qualified pharmacists were prevented from practicing their trade in order to control competition. The court held this also violates the principle of equality. The case of the Bar is more egregious because a private association, which has acquired a status because of dubious historical factors, is enforcing the validation and numerical limitations.

The Bar also controls who is recognized as a "super advocate" to merit being called a "senior counsel" which entitles them to charge higher fees. Our Constitution demands rationality. There is a great opaqueness, which surrounds the awarding of senior counsel status leading many to believe it is an old boy "buddy buddy" network.

After the appointment of the new Chief Justice, the General Council of the Bar asked the respective Bar Councils to scrutinize judicial nominees more closely. Elites from the Bar are not getting onto the bench in the numbers they were accustomed to. There has been an outcry from arguably the most untransformed Bar, the Cape Bar Council because several of their members were passed over for judicial appointments. It is at its core an incursion and attempt to influence the selection of judges from a special interest group. One cannot help but gawk at the spectacle of a group that collaborated and benefited from a repressive system and which remains largely untransformed, performing the role of the unapproving and self appointed head master, to vet and certify suitable judicial nominees.

At the JSC hearings, a lot of frustration has been vented on individual nominees that came out of the hierarchal system. Of late, the hearings have become demonstratively nastier. Those that came through and benefit from the opiate of the Bar are prone to defend their privileges and the mantra of the Bar's virtues in validating who are the "best and brightest" advocates. This mind set can infect white and the few people of colour within the Bar alike. We cannot afford to go through years of JSC hearings scapegoating individual nominees, usually white males. Progressives need to engage in deconstruction of the racial, gender and power tilt, which produces the hierarchies and the form of subordination and mind set that is incubated within the Bar. Ultimately, our democracy requires dismantling institutions, which do not capture and frame the deep paradigm and normative shift of our constitutional order.

The supreme irony is the Bar operates in the worse tradition of the British class and elite based system, and sanctions its members if they deal with the public directly. One cannot fathom the absurdity of this and how can this be in conformity with our new constitutional ethos? It is from this isolated group, which operates under a rarified existence, the Bar would want appointments to the bench to be made. Democracy involves a connection between institutions and people. The courts represent the third branch of government. Under most legal systems, lawyers are considered as officers of the court. Interaction between lawyers and the broader society has to produce a better understanding of people's struggles, emotions, euphoria, aspirations or hard luck. Even in England, the Public Access Scheme introduced in 2004 allows Barristers under certain circumstances to deal directly with the public. Ultimately, our struggle for social justice will benefit from a change in the institutions of the profession. A judge that comes from the ranks of a legal profession connected with the community and client they served is more likely to have the profile the new social contract mandates.

It is incongruous that we have kicked this can down the road for so long. The timidity and failure to deal with the elite based legal profession, which does not comport with the paradigm and normative values of our constitutional order, is no longer an option. The challenge is how to truly transform the universities and the legal profession into instruments of change, which serve the South African population as a whole. That is what a new Legal Practice Bill must address.

By Ziyad Motala, Professor of Law Howard Law School and Extraordinary Professor of Law University of Western Cape.

Source: Legalbrief

JSC bruising keeps Justice Mogoeng on the ropes

Justice Mogoeng Mogoeng's interview for the Constitutional Court chief justice position by the Judicial Service Commission in Cape Town on Saturday was no heavyweight fight. Despite the only contender's initial swagger as he entered the Eastern Ballroom of the International Convention Centre at around mid-morning to open his interview with an attack on those, especially the media and legal commentators, who had been critical of his nomination by president Jacob Zuma, this was a mismatch for Mogoeng. One where, especially in the session following lunch, he had to contend with several bruising jabs from commissioners over whether he had the intellectual capacity to be the "flag-bearer of the judiciary"; gender insensitivity; perceived homophobia; and his ethics.

Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."

It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.

Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."

While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.

Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.

Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").

Jacob Zuma met Mogoeng Mogoeng for the first time at a dinner in Mafikeng in 2008

He also attempted to rebut perceptions that he was sympathetic to the executive by citing four cases where he had ruled against government and denied claims that he had a close relationship with Zuma that might have influenced the president's choice. Mogoeng said he had "no relationship whatsoever" with Zuma, and stated that a 2008 meeting with the president -- exposed by the Mail & Guardian -- had been their first and that he had met the president three times since then. But Mogoeng reiterated that he had spoken to Zuma only at their first meeting, and their last meeting, which took place when he was informed of the president's decision to nominate him for the chief justice position. Mogoeng added that he did not believe this would lead to a "corrosion of the separation of powers".

It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.

Source: Mail & Guardian

NADEL do not recommend Justice Mogoeng

On 20 August 2011 the Judicial Services Commission (“JSC”) resolved to interview the President’s nominee for the position of Chief Justice, Justice Mogoeng Mogoeng, and to invite relevant stakeholders, including the National Association of Democratic Lawyers (NADEL), to make submissions on his suitability for the position.

NADEL is committed to the promotion of the values enshrined in the Constitution of the Republic of South Africa within the legal profession, judicial system and society at large.

NADEL’s Constitution is aimed toward the realisation of the goals and objectives as set out in the Constitution in particular to meaningfully and assiduously strive for a truly democratic and just society, free from oppression and exploitation; and combat and prevent all instances of injustice, malpractice and unfair discriminatory practices based on race, colour or creed.”

NADEL raise a number of serious concerns by Mogoeng J’s record regarding his commitment to the espousal of foundational values of the Constitution, his knowledge and appreciation of the nature and reality of domestic violence and sexual assault, his seemingly sexist views of women’s rights within the home and his role as an Apartheid prosecutor.

NADEL feels strongly that under the circumstances Justice Mogoeng Mogoeng’s appointment as Chief Justice, in light of the importance of the position and its requirements, is not recommended.

Source: Constitutionally Speaking

The National Association of Democratic Lawyers (NADEL) is a voluntary organisation of progressive lawyers and a significant stakeholder in the South African legal profession. Its primary goal is a legal and judicial system that realises access to justice for disadvantaged people, fosters the rule of law and constitutional values.

NADEL was founded in 1987 by among others, the late Adv Dullah Omar, who became the first Minister of Justice in our democratic South Africa, Chief Justice Pius Langa and Deputy Chief Justice Dikgang Moseneke.

NADEL membership comprises members of the legal profession including attorneys, advocates, academics, legal advisors, paralegals and law students. Most members are private practitioners who have traditionally serviced working class and poor communities and who practise primarily in the areas of human rights, gender and access to justice.

Ngcobo case: What were Zuma and Radebe thinking?

The section of the Judges' Remuneration and Conditions of Employment Act, on which President Jacob Zuma relied to extend Chief Justice Sandile Ngcobo's term of office, was "almost certainly unconstitutional", constitutional expert Pierre de Vos said on Thursday. De Vos said on his blog site Constitutionally Speaking that Ngcobo had "unwisely" accepted Zuma's offer to extend his term of office.

Zuma recently extended Ngcobo's term for five years after being told it would expire at midnight on August 14. De Vos said Zuma had merely informed political parties and the Judicial Service Commission (JSC) about this decision. This was followed by a Constitutional Court challenge brought by the Justice Alliance of SA (Jasa), Freedom Under Law (FUL), the Centre for Applied Legal Studies (Cals), and Council for the Advancement of the SA Constitution (Casac). Despite an urgent remedying Bill having been tabled in Parliament, the case was heard on July 18 but the court had yet to pronounce on the matter. The applicants contended that Section 8(a) of the Act was inconsistent with the Constitution because Section 176(1) of the Constitution provided for an Act of Parliament -- and only an Act of Parliament -- to extend the terms of office of any Constitutional Court judge.

The second reason was that the delegation of power by Parliament to the president was too wide and provided no guidelines for the exercise of the power. It was also submitted that Section 176(1) precluded the extension of the term of office of a particular Constitutional Court judge, including the chief justice, as distinct from extending the terms of all Constitutional Court judges. The fourth argument was that, even if the president had the power to extend the term of office of the chief justice, the Constitution placed an obligation on that office to consult with the JSC and political parties before making any extension.

De Vos said the inevitable controversy that resulted threatened the integrity of both the office of the chief justice and the incumbent.

Playing party politics
"The government made things worse by refusing to admit that the section on which the president had relied might be constitutionally problematic, and by then trying to play party politics with the extension by suggesting that those who were challenging the constitutionality of Section 8(a) were motivated by a hatred for the chief justice."

With the issue having been politicised and personalised, Ngcobo was placed in an almost impossible situation, De Vos said.

On Wednesday, Justice and Constitutional Development Minister Jeff Radebe announced that Ngcobo had withdrawn his decision to accept the extension of his term of office, and Zuma had accepted this. Ngcobo had taken the decision to protect the integrity of the office of the chief justice and the esteem of the judiciary. "Chief Justice Ngcobo said he found it undesirable for a chief justice to be a party in litigation involving the question of whether or not he or she should continue to hold office, as this detracts from the integrity of the office of the chief justice and the esteem with which it is held," Radebe said.

De Vos said government's original intransigent stance had threatened to destroy the integrity of a judge who had served South Africa with distinction. "By then -- belatedly -- proposing an amendment to the Act that would only extend the term of office of the chief justice and the president of the Supreme Court of Appeal (SCA) ... Radebe further complicated matters as it was far from clear that this new proposal would pass constitutional muster."

Vos questioned why the justice minister and the president had not thought -- a year or two ago -- whether Section 8(a) was constitutional, and what other legal mechanism could be used to extend the term of the chief justice. "How can one govern a country when one does things at the last minute in the hope that one can bluster one's way through by denigrating those who insist on upholding the Constitution? By resigning, Chief Justice Ngcobo is displaying the kind of integrity and respect for his office and for that of the Constitutional Court that those of us who have always admired him, came to expect from him."

Vos said the big question now was who Zuma would appoint to the position. Also on Thursday, Casac said Ngcobo had served the Constitutional Court, the judiciary, and the people of South Africa with great skill, ability, and dignity. "We are aware that this would have been a very difficult decision for the chief justice to take."

It was unfortunate that government's failure to deal with the proposed extension in a constitutionally compliant manner had created the conditions for Ngcobo to take this decision. In the legal challenge, Casac had made it clear it was not taking issue with the person of the chief justice. It was the use of Section 8(a) that was the focus of the challenge. The court's decision would provide clarity on the process to be followed in any extension of a term of office of a chief justice in future. "We trust that the president will now follow the provisions of the Constitution in properly consulting with the JSC and the political parties represented in the National Assembly before appointing a new chief justice," Casac said.

Source: Mail & Guardian

Due consultation is crucial

South Africa is expected to start the process of appointing a new chief justice soon. Exactly what does the process entail? The chief justice of South Africa, like the speaker of the legislature and the president, is an important head of one of the three authorities of government. His or her appointment must thus rightly engage the interest and attention of all South Africans.

The process of appointing the incumbent should reflect the constitutional values of a democratic, open and transparent society, based on human dignity, equality and accountability. It must imbue the office with the legitimacy that justifies the exercise of an authority so critical on behalf of all of us.

Our constitution provides that the chief justice and the deputy chief justice be appointed by the president, as head of the national executive, after consultation with the Judicial Service Commission (JSC) and leaders of political parties represented in the National Assembly (section 174(3)).

What is consultation?

It is important to bear in mind the legal framework and requirements of consultation before one looks at each of the forms of consultation prescribed. Consultation has to be real, not formalistic. The principles according to law that govern consultation are:

* It entails the involvement of more than one person, namely the consultant, in this instance the executive (the president) and the consulted, who confer in the sense of applying their minds to consider the pros and cons of a matter;
* It may be formal or informal; oral or in writing (the form does not matter);
* The essence is the communication of ideas on a reciprocal basis;
* It must allow a reasonable opportunity to both sides to communicate effectively and achieve the purpose for which consultation is prescribed;
* It must be seen as an opportunity for the consulted to make real and effective representation;
* For this to happen, consultation must be accommodated at the formative stages of a proposal before the mind of the executive has become unduly fixed;
* The invitation to consult must be communicated and thereafter there must be adequate time for the consulted to advise and adequate time for the consultant (executive) to consider the advice given by the consulted; and
* The mind of the executive must be open and receptive when consultation is sought and received. If the mind is already fixed, then consultation is not genuine.
* The chief justice and the deputy chief justice are the only judicial officers for whose appointment the representatives of the legislature are consulted outside the JSC. The president is required to consult not only with the leader of the party with the majority in parliament, but also with the leader of all parties represented in parliament. The consultation must be as inclusive as possible.

The objective is clear: the whole country, not just a section, is taken along.

In appointing the chief justice (and the deputy chief justice) and, indeed, in exercising any of the authority that is vested in him by the constitution, the president exercises not a personal power but a public and constitutional one. It is public power that he exercises on behalf of the people of SA. He acts as president only when he acts in accordance with the constitution and the law.

In consulting with him, the various opposition leaders also carry forward the wishes and aspirations of those that they represent. Consultation with leaders of political parties ensures that the legislative authority of the republic is heard on the appointment of their chief justice.

Consultation with the JSC is an important constitutional requirement which ensures that the body that advises the president on all judicial appointments is heard on this highest of all judicial appointments.

Consultation with the JSC is not consultation with its leader or some of its members, but with all of its members. The JSC is itself a constitutional body separate from its members. It acts when it is properly constituted and in accordance with its rules and procedures. When any of its members, or indeed all of them, act other than according to the rules and procedures of the JSC, then those actions may be set aside on the basis that the law was not followed.

In order to consult on a candidate, the JSC must make up its mind on the suitability of a candidate and then communicate its opinion to its consultant, the president. Unless it has made up its mind, it will not be possible for the JSC to advise.

How does the JSC make up its mind on the suitability of a candidate for a particular judicial appointment? The JSC has over the years, since its inception in 1994, developed well-established rules and procedures on how it makes up its mind on the suitability of candidates for judicial appointments.

The rules and procedures are as important as the JSC itself, for unless it follows its own rules and procedures, the JSC does not act as the JSC.

In brief, the following are the rules and procedures:

* The JSC announces the available judicial vacancy and invites the public to submit nominations;

* Then any person may nominate a candidate for judicial appointment. The empowering of any person to make a nomination ensures that every South African is given the right to participate in the process at this early stage. The people of SA are brought into the process. No one is disqualified;

* Once the candidates have been nominated, a committee of the JSC short-lists the candidates on behalf of the whole JSC. Any member of the full JSC may insist on a nominated candidate being short-listed. This is yet another rule that ensures inclusivity;

* The names of short-listed candidates are published in the Government Gazette and national newspapers. The public are invited to comment on the short-listed candidates. Again, literally any person may submit a comment to the JSC about any short-listed candidate, yet another important window for continued public participation;

* Thereafter, and after expiry of the period of public comments, the candidates are interviewed in a hearing which is open to the media and the public; and

* Only once all these steps have been traversed does the JSC deliberate and decide on the suitability of a candidate.

Each and every one of the steps is important in the process of the JSC making up its mind. The decision-making power of a juristic body is dependent on the proper procedure being followed for that purpose. This procedure allows for an open and fairly transparent process which is among the best in the world.

Public participation and transparency are evident at every level. When it comes to the appointment of the chief justice, the steps listed above for the JSC are important not only for legality, but also, more importantly, for the legitimacy of the process. The fact of the matter is that when consultation is not genuine, then it is not legal.

In the last appointment of the chief justice, the JSC did not announce the vacancy and invite nominations. Steps (a) and (b) in the JSC procedures did not take place. The public did not nominate candidates. They were not afforded an opportunity to do so. The decision-making process of the JSC was robbed of an important element of legitimacy, that is, public participation at its initial stages. Consequently, the process was, I submit, critically impoverished.

There was understandably public outrage when the process was opened by a presidential nomination. The public rightly felt excluded from participation at inception. The process was so unsatisfactory that "nomination" was confused and conflated with "appointment" not only in the public mind, but also in the vocabulary used by public representatives or spokesmen.

It so happened that the candidate appointed was a worthy and deserving candidate. It was unfortunate that failure to follow procedure created an outcry around his appointment.

South Africa must not allow the process of appointing our highest judicial officer to again be tainted by a lack of proper consultation. We cannot afford the risk of a lack of public support in this field where legitimacy and public accountability are crucial.

Source: Times Live: Phineas M Mojapelo

Hlope, Judicial Services appeal dismissed

The Supreme Court of Appeal has dismissed an appeal by the Judicial Service Commission and the Judge President of the Western Cape High Court John Hlophe in regard to possible disciplinary hearings against Hlophe

The SCA held that the JSC was not properly constituted, nor did it act with the requisite majority, when it dismissed a complaint lodged by Justices of the Constitutional Court against Hlophe. The proceedings of the JSC and its decision were declared unconstitutional and set aside.

The Justices complained that Hlophe had improperly sought to influence two of them in a case involving President Jacob Zuma before he became president. The SCA also held that in terms of the Constitution, the Premier of the Western Cape Helen Zille, was entitled to be present when the complaint was considered by the JSC.

Zille had brought the application in the High Court against the acting chairperson of the JSC, the JSC itself, past and present Justices of the Constitutional Court and the Judge President of the Western Cape. She did not ask for any relief against the Justices, who were cited because of the interest they might have in the application.

During the appeal hearing in the SCA, the JSC submitted that the decisions taken should not be set aside because of considerations of pragmatism and practicality. However, in a unanimous judgment, five appeal court judges held that it would be a sorry day for the country’s constitutional democracy if serious allegations of judicial misconduct were swept under the carpet for such reasons. The JSC was also criticised for its initial refusal to disclose how many people had voted for and against a resolution to drop an investigation into the alleged misconduct charges against Hlophe.

Hlophe had argued in the SCA that setting aside the decisions of the JSC would be an exercise in futility because Zille had disqualified herself from sitting on the JSC because of bias. The SCA rejected the argument. The Bloemfontein court found that the JSC had not performed its constitutional mandate to consider and make findings on whether there was judicial misconduct on the part of Hlophe.

The SCA judgment found it necessary that the findings of the JSC be set aside to enable it to perform the function which it was still obliged to perform under the Constitution.

The appeal by the JSC and Hlophe was dismissed and they were ordered to pay Zille’s legal costs.

Source: The Sowetan

Should Freedom Under Law appeal the Hlophe judgment?

A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state, a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

Source: Consitutionally Speaking

Hlophe application dismissed

An application by legal advocacy body Freedom Under Law (FUL) to force the Judicial Service Commission (JSC) to reopen its investigation into Western Cape Judge President John Hlophe was dismissed in the North Gauteng High Court in Pretoria on Friday.

FUL applied to the court to set aside four different decisions by the JSC in respect of a complaint by 13 Constitutional Court judges, who accused Hlophe of gross misconduct, and his counter-complaint against them. The organisation also wanted the court to order the JSC to hold a formal inquiry into the complaints.

The judges accused Hlophe of trying to improperly influence judgements in pending matters involving Jacob Zuma before he became president. Hlophe in turn accused the judges of violating his constitutional rights by publishing their complaint before lodging it with the JSC and before giving him a hearing.

The JSC in August last year decided to discontinue its investigations by announcing the matter as finalised. FUL contended the only way to restore the public's trust in the judiciary was a full public inquiry and that the JSC's decision not to continue with the investigation threatened the rule of law and the country's future as a democracy.

FUL argued that when judges were accused of gross misconduct, the JSC had to undertake an investigation in order to vindicate the judges who were innocent and to condemn those who were not. Hlophe, who opposed the application, accused FUL if having an attitude that it knew better and simply dismissing the attitude of the judges concerned as being irrelevant. The court was told that Hlophe had no intention of pursuing his counter-complaint against the Constitutional Court judges and that the judges had also accepted the JSC's findings.

Judge Peter Mabuse ruled against FUL on every legal argument raised in support of its application. He stressed that it was not the court's duty to determine the veracity of the complaint and counter-complaint, but to establish if the JSC had followed the procedure laid down in its rules when it considered the complaints. Mabuse said he was satisfied that there was no merit in FUL's complaint that two of the commissioners involved in the decision -- Andiswa Ndoni of the Black Lawyer's Association and advocate Ismail Semenya of Advocates For Transformation -- were biased and should not have participated.

He found that the JSC had been properly constituted and entitled to make the decision it took not to continue with the matters. The decision was also supported by the majority of members. Mabuse said he agreed with the argument advanced by the JSC that it was objective in considering and determining the complaint and counter-complaint and found that the decision had been rational. "... Having considered all the evidence, the JSC found that there was no prima facie evidence which, if proven, could establish a case of gross misconduct against anyone of the parties.

"That is the end of the inquiry by the JSC. It would be wrong for the JSC to extend its inquiry beyond what it was required to do," Mabuse concluded.

Source: Mail & Guardian

JSC 'changed tack on Hlophe'

The Judicial Service Commission (JSC) "changed tack" on controversial Western Cape Judge President John Hlophe after President Jacob Zuma appointed four new members to it last year, the North Gauteng High Court heard this week. Advocate Wim Trengove, acting for the NGO Freedom Under the Law (FUL), told the court that the JSC appeared to have discarded its earlier inquiries into Hlophe's conduct, and his counterclaim against the judges of the Constitutional Court, after the change in its composition.

In the application, FUL is seeking to overturn the JSC's decision not to proceed with its investigations. The non-governmental pressure group, in which former judge Johann Kriegler plays a prominent role, argues that the reopening of the case is essential to maintaining the rule of law and protecting the image of the judiciary.

Trengove submitted to Judge Peter Mabuza that the JSC had been "doing everything right" in terms of its own rules when it launched an investigation into claims by judges of the Constitutional Court that Hlophe had attempted to influence the outcome of a corruption case involving Zuma. At the time, it was thought that the corruption charges were all that stood between Zuma and the country's presidency. Trengove added that the JSC's inquiry into Hlophe's counterclaim that the justices had breached his constitutional rights by the manner in which they had lodged the complaint against him was also according to its rule-book. But, he noted that the JSC "changed tack" after Zuma's appointment of advocates Ismail Semenya, Dumisa Ntsebeza, Andiswa Ndoni and Vas Soni to the JSC.

The four men replaced advocate George Bizos; state advocate Kgomotso Moroko; former head of the ANC's legal and constitutional commission and acting Northern Province premier, advocate Seth Nthai; and a representative of labour and the Public Service Commission, John Ernstzen. The JSC then appeared to drop its earlier inquiries, which had included interviewing Constitutional Court judges. It eventually set up a sub-committee to investigate the matter afresh before deciding not to follow up with a formal hearing. That decision, Trengove asserted, was procedurally irregular and unconstitutional. He also said that, according to the JSC rulebook, the sub-committee's role was "not to evaluate the evidence" but merely to determine whether the claims against the judges were frivolous. "At that point [the sub-committee] doesn't inquire if it's true or not," said Trengove. He said the matter of Hlophe's conduct and his counterclaim were an obvious case where misconduct had to be ascertained because the "complaints were of gross misconduct … judges were accused of impacting upon a judgment while others were accused of conniving, cheating and lying to the public".

These allegations had grave implications for the image of the judiciary. In its heads of argument, the JSC contends that no decision was made on whether to pursue the complaints at the time of the JSC's reconstitution in July last year. Its new members had to acquaint themselves with the case, which was why it was started afresh.

But Trengove attacked these denials, calling them a "misapprehension". He asserted that the decision to follow through with a formal JSC hearing had been taken a year earlier. He provided transcripts of a JSC meeting on July 5 2008 at which the matter was discussed by the commissioners. According to the transcripts, there was unanimity that the charges of gross misconduct had to be tested.

The JSC's subsequent conduct -- including calling for a submission on whether the hearings should be open or closed -- and affidavits bore out the fact that it was preparing for a hearing, Trengove argued.

Source: Mail & Guardian

Court rules Hlophe proceedings were invalid

The high court in Cape Town on Monday found last year's proceedings of the Judicial Service Commission (JSC), where it dismissed a complaint of gross misconduct against Western Cape Judge President John Hlophe, were "unconstitutional and invalid". High court Judges Jos Jones and Chamin Ebrahim, in finding against the JSC, also ordered it to pay the costs of an application brought by Western Cape Premier Helen Zille, who mounted a legal challenge against the JSC's decision.

Zille had questioned the constitutional validity of the Hlophe decision, saying that she should, as premier, have been invited to be part of the commission when it met to consider the complaint against him. The premier also argued that the JSC, at the time it sat to hear the matter, was improperly constituted because it did not have the required 15 members in attendance during the proceedings and decision-making process. Further, that any ruling of the JSC had to be supported by a majority of its members, which had not been the case in its decision on the Hlophe matter, when only six of the commission's 15 members had voted that the complaint be dismissed.

Zille on Monday welcomed the court's finding and hailed it as precedent-setting. "It sets a precedent: every time the government does something that cuts corners on the Constitution, they will be called into line," she told journalists at a media conference in Cape Town. The JSC would now have to redo the process. "I certainly will be expecting an invite to attend," Zille said, adding that she was looking forward to it.

In their judgement, Jones and Ebrahim found the proceedings of the JSC "and the decision to dismiss the complaint and counter-complaint, which were the subject of those proceedings, are declared to be unconstitutional and invalid". Further, that the "respondents are ordered to pay the costs of this application, which shall include the costs of two counsel".

Source: Mail & Guardian

Bench probed for judgments outstanding

South Africa's judiciary is again under the spotlight - this time for failing to deliver a long list of outstanding judgments, some of which have been pending for six or even 10 years.

This has prompted the General Council of the Bar of South Africa (GCB) to formally lodge a complaint with Chief Justice Sandile Ngcobo, requesting that the issue be addressed and that incompetent judges "should be persuaded to do the right thing before we have another public spectacle involving the judiciary".

"We should accept that our society no longer recognises the ivory tower where judges used to be," GCB chairman Patrick Mtshaulana SC said in a letter to the chief hustice. He asked that the matter receive urgent attention for the sake of the judiciary and the legal profession. "The judiciary is vulnerable and criticism of this nature may lower its image in the eyes of the public," he said.

Chief Justice Ngcobo responded that he was aware of cases where there were outstanding judgments and that these were reported to the Judicial Service Commission (JSC). He asked the GCB to furnish him with details of all cases in which there were outstanding judgments and to include the names of the responsible judges as well, as whether the issue had been reported to the head of the court. The General Bar Council issued its members with a circular on January 25, asking for these details by Friday.

The Cape High Court's up-dated list of reserved judgments shows that 10 judgments have been outstanding since April 2008, an additional 29 since March 2009 and 16 since the beginning of this year. Acting judges were responsible for 19 of the 55 judgments. Two of the outstanding judgments were to have been delivered by Acting Judge Patrick Maqubela, who died before he could deliver them. Mtshaulana said Judge Maqubela's cases would have to be reheard before another judge.

Acting Cape Judge President Jeanette Traverso did not want to comment on the situation in the Cape, saying that it was already before the chief justice. Cape Bar Council chairperson Jeremy Muller SC said the Bar "periodically" received complaints about outstanding judgments. He said the situation in the Cape appeared to have improved since the court started distributing a list of reserved judgments to judges and advocate Mtshaulana said he could not give an idea of how widespread the problem was because he had been receiving the information in "dribs and drabs".

Mtshaulana said he had initially thought the complaints related to three or four cases, but added that "it's far bigger than I realised". However, he said that litigants in Johannesburg and Cape Town had been more vocal about the situation than in other areas. This did not mean that Johannesburg and Cape Town were the main culprits, he stressed. Mtshaulana said judges had to deliver judgments within a reasonable time, although this depended on the circumstances of each case. In addition, judges were also allocated new cases once a matter was finalised and often did not have time to prepare their judgments.

Some cases were also more complex than others and warranted more preparation. However, Mtshaulana said that if judges were simply lazy or incompetent, they should be dealt with.

"It's unacceptable that people have to wait so long for judgments...

"Justice delayed is justice denied," Mtshaulana said.ocates.

Muller said he had personally spoken to advocates at the Bar about any judgments they may have left outstanding after completing a stint on the Bench.

Source: IoL

Radebe job-hunts for Mpshe

Justice Minister Jeff Radebe has been working hard to secure a new job for the prosecutions chief who dropped charges against President Jacob Zuma, the Mail & Guardian has learned. Mokotedi Mpshe has been appointed an acting judge -- setting him on a path towards a more permanent position on the Bench. It is understood that to pave the way for the appointment, Radebe approached at least two senior high court judges.

Mpshe, who took over as acting National Director of Public Prosecutions after Vusi Pikoli was axed, went on to let Zuma off the hook. The equally controversial Menzi Simelane has since been appointed to the post. Radebe has now finalised Mpshe's appointment in the North West Provincial Division after first trying to get him a post in the Western Cape.

The Constitution allows Radebe, in consultation with the most senior judge of any high court, to appoint acting judges. However, his determined "shopping around" on Mpshe's behalf has fuelled perceptions that Radebe is fast-tracking him to the Bench as a reward for relenting on the graft charges against Zuma. It will raise questions, too, about the separation of executive and judicial powers, still a fraught issue in the aftermath of the long battle over Zuma's charges.

Mpshe decided not to prosecute Zuma after recordings gathered by the National Intelligence Agency (NIA) revealed a political conspiracy against the ruling party's president. He was later forced to admit that much of his legal argument for the decision had been plagiarised from a Hong Kong judgment later overturned on appeal.

A source in the Western Cape division told the M&G that Radebe had telephoned the acting judge president of the division, Jeannette Traverso, to ask that she make an acting position available to Mpshe. The call took place on Wednesday last week, this person said. When it did not bear fruit immediately, it seems Radebe turned to the North West division.

One judge with extensive experience of the procedures surrounding acting appointments told the M&G the "pressure" applied by Radebe was highly unusual. "The way it usually happens is that the judge president concludes that one or more acting judges are required to cover for colleagues working in, for example, the Labour Court, or on long leave. He or she then turns to people who may be considered suitable. "Of course, people may make suggestions -- pointing out a ­particularly promising advocate, for example. Also, the Council of the Bar may be approached for suggestions. "Previous justice ministers may have lobbied for their friends, but this degree of pressure and shopping around is really extraordinary and disturbing."

Radebe's spokesperson, Tlali Tlali, confirmed that Radebe had approached Traverso but vehemently denied that he had "shopped" around to secure a position for Mpshe: "Those desperate to generate ­sensation out of this appointment will conveniently omit to state … what our legal framework provides for. The minister exercised constitutionally conferred authority." There was nothing "irregular" about Mpshe's appointment, he said. Radebe's request to Traverso is complicated by the fact that one of the judges on leave in the Cape is her boss, John Hlophe, who was accused of campaigning for the dropping of charges against Zuma.

Traverso, after being a close ally of Hlophe early in his career, was accused by him of racism in 2004-05 and has since been a quiet adversary. Asked whether Mpshe would appear before the Judicial Service Commission (JSC) in April, Tlali said: "That's putting the cart before the horse. The JSC doesn't interview candidates who do not make themselves available for permanent appointment."

The JSC is due to interview candidates for various vacancies in Cape Town from April 12 and the M&G has established that Mpshe's name is not one of the five nominations received to date by the JSC. Traverso did not respond to a telephone message.

Source: Mail & Guardian

Read a follow up commentary by Pierre De Voss on his Blog "Constitutionally Speaking"

An opportunity for women missed

One of President Jacob Zuma's preferences for the four vacant seats on the Constitutional Court, North West Judge President Mogoeng wa Mogoeng, refused to comment this week on a DA complaint that he is unfit for the position because of an incident during the time he served on the Truth and Reconciliation Commission's amnesty committee.

DA MP Natasha Michael could not provide precise details, but said that while a member of the amnesty committee, Mogoeng failed to recuse himself in a case in which his wife was the prosecutor. The DA has called for KwaZulu-Natal High Court judge Leona Theron to replace Mogoeng on Zuma's list of proposed Constitutional Court judges. Mogoeng's PA, who refused to give her name, said on Thursday: "Judge Mogoeng told me to say 'no comment'." A further objection is that although Mogoeng has written judgments with constitutional ramifications, he is largely a labour law specialist who previously served in the Labour Court. But even in this area, says Unisa law professor Shadrack Gutto, Labour Court Judge President Ray Zondo -- also a candidate for a Constitutional Court seat -- has stronger credentials.

Judicial Service Commission (JSC) member and leading advocate Dumisa Ntsebeza defended Mogoeng's proposed appointment, saying that Chief Justice Sandile Ngcobo might have influenced the decision. Zuma is known to have consulted Ngcobo. Ngcobo's passion for labour law -- he acted as both Labour Court and Labour Appeal Court head for many years -- might have influenced him. But a source close to the Constitutional Court, who spoke on condition of anonymity, said that Mogoeng's inexperience could create a perception that he is open to influence. Most junior judges sought guidance from senior judges as a matter of course, the source said.

The DA's objection to Mogoeng in part reflects broader criticism that the president’s list does not reflect a commitment to gender equality. Only one judge on Zuma's list of four, Sisi Khampepe, is a woman. Several commentators said that at least two women should replace outgoing judges Yvonne Mokgoro and Kate O'Regan. A female judge of the Supreme Court of Appeal (SCA), Mandisa Maya, had been strongly tipped for the Constitutional Court, but now looks set for a judge president's position, possibly in her native Eastern Cape. Eastern Cape Judge President Cyril Somyalo retires next May. Theron is heavily tipped as the next judge president of KwaZulu-Natal when the incumbent, Vuka Tshabalala, retires next April.

Ntsebeza said that Zuma's decision not to appoint Maya could have been motivated by the need to keep her at the SCA, so as not to "deplete [the] SCA of good people". But he did not dismiss the possibility that she could be heading for a judge president's position. Ntsebeza said he does not see Zuma changing his mind unless there is "strong lobbying" from gender groups. "An opportunity missed" was how Gutto described Zuma's failure to appoint at least two women to South Africa's highest court Gutto said there were legitimate expectations that the president would appoint "two, if not three" females. He believes there is sufficient competence to make such appointments.

It would be "understandable" if Zuma intended to appoint both Maya and Theron to other leadership positions in the judiciary. There was a dearth of female leaders, with Western Cape Deputy Judge President Jeanette Traverso being the most senior woman judge. Although no strong objection was raised to Zuma’s preference for Eastern Cape High Court Judge Johan Froneman, there are some misgivings about Justice Minister Jeff Radebe’s open liking for him at the recent JSC hearings.

Froneman's legal approach has been described as "revolutionary" and he told the hearings that he had caught the "vibe" of the Constitution before others. Ntsebeza lauded him as a progressive judge whom Zuma was certain to confirm. Froneman, who has served on the Labour Court as deputy judge president and has been an acting judge in the SCA, is celebrated for a landmark judgment allowing social-grant recipients to pursue a class action suit against the Eastern Cape government. He first attracted admiring attention for his 1994 judgment in the Qozeleni case, later relied on by the new Constitutional Court under Arthur Chaskalson. In that ruling, handed down while the Constitution was still being negotiated, he used the Ciskei's Bill of Rights to reinforce the principle of equality before the law.

Source: Mail & Guardian

Kriegler turns to court over JSC Hlophe decision

Freedom Under Law (FUL) chairperson Johann Kriegler will turn to high court action in his bid to challenge the Judicial Service Commission's (JSC) decision over Judge John Hlophe. The organisation, headed by the former Constitutional Court judge, said in a statement on Thursday that the JSC had not responded to a letter it had sent.

The letter requested written reasons for its decision not to pursue a formal inquiry into a complaint and counter-complaint between Hlophe and Constitutional Court judges. "To date, no response has been received and as such FUL will now proceed to the next stage, which requires the filing of founding affidavits in the high court," said FUL.

The organisation said the letter advised the JSC that the organisation would apply to court to have the decision on Hlophe set aside on review. However, before doing so -- in accordance with the Promotion of Administrative Justice Act -- a request was made to the commission for written reasons. The letter was sent to the acting JSC chairperson Lex Mpati on September 10 and the organisation was given until September 15 to respond.

The matter was considered urgent by FUL as the JSC would be conducting interviews with candidates for the Constitutional Court from September 20. No response was received and now the organisation was preparing to file high court papers next week. "Justice Kriegler will be meeting with counsel this weekend to finalise ... [founding affidavits], to facilitate papers being filed in the course of next week."

Last week, according to a Mail & Guardian article, Kriegler said the JSC's decision not to hold a formal enquiry had left Hlophe with a cloud over his head. He said nobody could know whether the allegations against Hlophe were true or not, because the JSC had not pursued the matter fully. "That is the basic malfunction -- it has left poor Judge Hlophe with a cloud over his head." His remarks related to the charge laid by Constitutional Court judges against Hlophe last year for allegedly making an inappropriate approach to the judges regarding a judgement on Jacob Zuma before he became president.

Hlophe had also laid a counter-complaint that the Constitutional Court judges had made public their concerns before he had had a chance to respond. After a preliminary hearing, a reconstituted JSC decided not to go further with the matter and Hlophe ended his special leave by returning to work. On Thursday FuL said the letter sent to Mpati indicated that the organisation felt the JSC's decisions had contravened its constitutionally mandated role. "[These decisions] have left unanswered a very serious complaint and counter-complaint, pervaded by factual disputes, concerning the conduct of judges of the highest court in our country and a judge president of a provincial division of the high court." "Great harm" had been caused to the administration of justice, FuL said in its letter.

The organisation also said the decision had "undermined the independence and impartiality of the courts". There was no resolution as to whether the judges involved in the matter were "fit and proper" or ought to be impeached.

Source: Mail & Guardian

Zille seeks legal advice on Hlophe hearing

The Judicial Service Commission (JSC) could find itself facing a second challenge to its decision on Judge John Hlophe, this time from Western Cape premier Helen Zille. Zille said on Friday her office was seeking legal advice on whether she had been "unconstitutionally excluded" from the JSC committee that met on the Hlophe issue last week.

The JSC said it would not to proceed with a probe into allegations that Hlophe tried to influence Constitutional Court judges in a matter relating to President Jacob Zuma. Zille's announcement followed a piece published earlier in the day by constitutional law expert Pierre de Vos, on his blog Constitutionally Speaking.

De Vos asked whether Zille should have been part of the committee when it took the decision. "A clever and alert reader of this blog thinks so -- and I agree," he said. "This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court," he said. He said section 178(k) of the Constitution laid down that when the JSC considered "matters relating to a specific high court", the premier of that province or her representative had to form part of the body. Premiers already formed part of the JSC when it decided on appointments for the high court in their provinces, so the composition of the high court was deemed to be "a matter relating to a high court". "It seems to me that it follows by necessary implication that if the premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge," De Vos said.

The article by Pierre De Vos can be found here.

Source: Mail & Guardian

Hlophe decision welcomed

The fact that the Judicial Service Commission (JSC) had made a decision on the Hlophe matter meant the long process of restoring faith in the judiciary could begin, the Cape Bar Council said on Tuesday. The findings of the JSC's disciplinary committee would not undo the damage which had been caused by the saga, council chairman Jeremy Muller said in a statement.

However, the decision had at least brought to a conclusion a process which, because of its drawn-out nature, could "only have aggravated the problem. It is in this context that the Cape Bar welcomes the fact that the JSC has at last arrived at a decision," he said. "The long process of restoring the public's faith in the judiciary and repairing the inevitable divisions and tensions which these unfortunate events have engendered can at least now commence."

Source: IoL

Judicial Service Commission

Section 178 of the Constitution of South Africa: There is a Judicial Service Commission consisting of-

a. the Chief Justice, who presides at meetings of the Commission;
b. the President of the Supreme Court of Appeal;
c. one Judge President designated by the Judges President;
d. the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member;
e. two practising advocates nominated from within the advocates' profession to represent the profession as a whole, and appointed by the President;
f. two practising attorneys nominated from within the attorneys' profession to represent the profession as a whole, and appointed by the President;
g. one teacher of law designated by teachers of law at South African universities;
h. six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly;
i. four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces;
j. four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and
k. when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.

The Judicial Service Commission may determine its own procedure, but decisions of the Commission must be supported by a majority of its members.

Source: the Constitutional Court of South Africa