I am running a “competition” over on my Blog to try and stimulate intelligent debate on the looming appointment of four members of our Constitutional Court. There I invite all readers to propose their “dream candidates” for our highest court.
In several judgments — including the Doctors for Life case and the Matatiele case — the Constitutional Court has emphasised the important role that participatory democracy plays in our constitutional order. The problem is that many South Africans are world champions at complaining but far less enthusiastic about actually participating in debates or getting involved in actions to help build a more fair and just society that works for all.
The Judicial Service Commission opened nominations on Monday for four judges to fill vacancies in the Constitutional Court. Until July 15, the commission will accept the names of candidates and it will begin its interview process in Johannesburg on September 5.
So here is the deal.
All the clever, compassionate, obstinate, know-it-all or just plain experienced people out there must surely know lawyers, judges and academics who they think can serve with distinction on our highest court. So you are all invited to “nominate” your dream candidate (or candidates) on the Blog Constitutionally Speaking. Write a short motivation (no more than 350 words) on why you think a particular person will make a good Constitutional Court judge and post it in the comments section of the Blog. To encourage practising lawyers to participate, you are allowed to write under a pseudonym.
Readers are free to debate these “nominations” by either stating agreement or disagreement with a nomination.
I will read all the motivations and other contributions and on July 13 announce the winner of the Constitutionally Speaking competition. The winner will be the person who wrote the best motivation — regardless of whether I agree with the candidature of the person “nominated” or not. If you write a brilliant motivation in support of Judge President John Hlophe, say, you will be adjudged the winner. I cannot offer a prize, but if you find yourself in Cape Town I would be more than happy to buy you dinner.
At the end of the process I will put forward my own own list of “dream candidates” — for what it is worth and will also post my motivations on Thought Leader.
Let us debate and argue and engage! It is OUR democracy and we should get involved. If we do not, why would anyone need to take us seriously when we complain (as we surely will!)
Pierre, we don’t need permanent judges for any of our courts. Judges should be assembled for each case to discourage entrenching private interest judgements. If Justice Harmse knew that Justice Nicholson would one day get his own back, he wouldn’t have reaped on Nicholson judgement the way he did. We mortal souls we will never hear Justice Nicholson defending his judgement on the Zuma matter. The problem is that judges are not accountable to anyone, surely you don’t believe the JSC is equivalent to accounting to the voters. Judges never loose their jobs for “wrong” intepretation of the law. We are told we should never criticise judgements as this would undermine the judiciary and yet politicians are criticised and this is supposed to be normal – no harm is done on the other two spheres of government.
Judge Hlophe would be Chief Justice. As shown by the election of Zuma to the presidency of the republic, if these nominations were open to a democratic referendum, South Africans will always prefer the “victim of media gang-bullying tactics”.
I can only give you the names of the two I surely do not want there. Not so much for what they did wrong but for the way they try to escape the consequences of their deeds: (1) Hlophe and (2) Motata.
Not knowing or sure who I would choose – I think it better that I leave that to the “know-it-all or just plain experienced people out there” who may know one or two people right for the job.
Otherwise, this is a greatly new start in ‘Participatory Democracy’ and what a way to start it. Good luck to the participants, and winners in advance.
will do prof! My nomination for Chief of the Con Court is Jacob Zuma…. I mean why have a clone?
Glory
Pierre
I enjoy your blog a lot. I have linked it to my little Facebook rant on why the Constitution is so important.
But surely it is more important to run a competition about which **politician** you think is most likely to respect the Constitution and not to change it with stupid, lazy and irresponsible laws like the 17th and 18th Constitutional Amendment Bills (CABs)?
Seriously, how much practical use would it be to have the most sober, intelligent and passionate judges on the bench if they are going to spend most of the next five years putting out the fires that have been lit by irresponsible and stupid lawmakers?
This just the sort of debate we need. Just a pity South Africa will get puppets in our courts for judges rather than puppets on TV for our political celebrities. Maybe we can have the judges puppet show on SABC TV. There can’t be any controversy there.
Oh well, we can’t win them all – come to think of it, when it comes to honesty, integrity and hard work among civil servants, all we can do is lose, lose and lose some more.
But I forget. Africa has few civil servants. There are very few governments that serve their people and even less that are civil while doing it.
i wont nominate judge harms & moseneke, for reasons everyone else knows.
my nominations are:
* vuka tshabalala
* qedusizo msimang
* judge nicholson (retired or not)
Prof,
I thought and thought; with the following criteria:
(I) Charlie Houston’s dictum: lawyers are either social engineers or parasites: ‘Charlie Houston set out to teach us the difference between what the laws said and meant and how they were applied. His avowed aim was to eliminate that difference. He was a man you either liked intensely or hated’;
(II) Thurgood Marshall’s common sense listening criteria: “He’ll take ideas from a chimneysweep if they sound right to him.” [Simple Justice, by Richard Kluger].
In a political criminal trial that has spanned 7 years, and reached out to thousands of RSA’s legal and goverment intelligentsia; I have not come across one Advocate, or lawyer, who (i) wanted to take part in a Brown v. Board of Educ. precedent setting case (be a social scientist); and (ii) recommended I tell the court, ‘the truth, the whole truth and nothing but the truth’; and (iii) thought active impartial listening was an important aspect of clear legal communicating.
I don’t know any, or of any, Braam Fischers; I only know Legal Priests and Bishops selling Legal Indulgences; demanding respect for a Legal System Corrupt to its Core.
I wish it were otherwise, perhaps there are BvBoE Lutheran Fischers somewhere hiding; committed to eliminate the difference between what
the laws say and mean and how they are applied; as a matter of constitutional honour, not legal indulgence prostitution.
Lara Johnstone
Would it not help to start with educating people what a judge does?
Most members of the public think that a judge is some kind of Solomon who finds out the truth and dispenses justice, when that is the last thing a judge is or does.
Judges enforce and interprete the law, using strict rules, they don’t make the law.
The law does not enforce justice – only God can do that.
Lhe law merely enforces the law.
Sipho
You are a prime example of someone who does not understand the law.
Judge Nicholson was playing politics not law – which was why Harms was so p*****d off! Judges are NOT supposed to do that.
Which is my point to Pierre.
Pierre
Your links are not working.
Lyndall Beddy writes “Sipho you are a prime example of someone who does not understand the law”
I suppose that puts me in the same league as Justice Nicholson, Paul Ngobeni and Justice Hlophe. The only people who understand the law, as far you are concerned are those who interpret it the way you like. The article by Pierre is more about lobbing for a particular judicial approach that promotes judiciary independence over the bill of rights. Just like running to make allegations in the media before you’ve heard the other side of the story. The judiciary that you can conduct a hearing without the accused to avoid scrutiny of your actions by the incoming administration.
Sipho
Pierre’s link was not working, so have not read it.
Sipho
In history, there have been many successful political Judges. The simple question is, have they improved justice of their country or not? The judges have usually done well but what was the cost to the country they were supposed to serve?
Puppet judge cause a country to slide into judicial anarchy. I have never heard of a country where this hasn’t happened, perhaps you know of a successful country with puppet judges and can direct me to a link on the web.
The best example of the danger to South Africa’s Judicial future is summed up by this judicial record, I truly hope not.
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Alstoetter.htm
Justice is a thankless job, often having to make rulings that are against public sentiment. Our judges have to show no fear or favour. Unlike Judge Nicolson (who seemed to make a ruling to protect his job), they have to make the hard choice.
You and I have two choices, we can chant “Viva the failed State viva” or we can make some hard and painful choices. The decision is yours and mine.
Choose wisely Sipho, choose wisely. Your grandchildren’s future depends on it!
@ Pierre
You once chided me for referring to our government as malevolent.
You have read the latest M&G article on the NIA/SAPS illegal spying on the Scorpions. You are also the expert on our failing judicial service. You have probably read about the World Bank report that 300 000 people died unnecessarily from AIDS to support Mbeki’s warped views on the illness. You may be aware that last year we spent R 1.1 Billion on “Blue Light” vehicles to protect a couple of hundred politicians yet have insufficient funds to provide the Freestate with Anti Retroviral to keep hundreds of thousands AIDS people alive.
Does that sound like malevolence to you? It does to me!
What we need are judges who have integrity and honesty, people who agonise over their decisions. They have to be great and deep thinkers, individuals who see the full implications of their actions, yet follow the law to the letter. People like this are exceedingly rare.
To choose first on political affiliation, then on gender and race and only after this choose the best thinkers is a recipe for disaster. I believe Great Judges are born, not made.
I nominate the great Bishop Desmond Tutu (or a clone of him if the Anglican/Episcopalian church will permit) for Judge President. This amazing man has all the attributes we need. Most of all, he agonises over his decisions and understands the full implication of what he says, yet he says it anyway.
Pierre
You spoke well on SAFM today.
Hopefully, so did I.
John Bond, so what is your defination of a puppet judge? Why would judge Nicholson made a judgement to protect his job when judges cannot be dismissed? Be honest now, your defination of a puppet judge is anyone who break racial and class rank, and rule in favour of Zuma or anyone perceived to be his associate. Pierre and the Mail & Guardian are wellknown for their anti Zuma crusade, so whatever initiative they come up with is viewed in that light. It would be nice if they never used the judiciary as their cover when pursuing their race,class and personal interests. Class and racial based judiciary is not good for the future of my children either. Personally I don’t believe most of the stuff I read from the Mail & Guardian, I regard it as fiction.Remember the story about the cars in Blade Nzimande’s garage, which was later retracted?
John Bond,your nomination of Arch Bishop Tutu is revealing. I have no doubt you are one of the people who vilified him in the 80s when he called for international sanctions. Be honest now, did you agree with him when he was campaigning against apartheid? I guess not.
Sipho
There is a quote in the King James Bible “by their fruits shall ye know them”. It has served me well. Talk is cheap. Measure peoples action. How well does the ANC’s ACTIONS or lack of action measure up. Pretty swack né…
So my Brú, what are your actions. Did you read the link I posted?
There are things in my life that I am not proud of, one more shameful was in 1969-70 when, as a teenager, I joined the ANC in Kliptown. I became their white lakkie. (look up ANC/Kliptown up on the web). The dishonesty, the self seeking, the engandisement and the arrogance troubled my conscience. Good policies, bad people.
I was picked up by the SAP and I found that while I hated their Apartheid policies, they were honest and often humble individuals. They had evil policies and while I could not like them, I could respect them.
For 30 years, I became apolitical.
But the Afrikaaner, even at his worst, never caused the death of 300 000 people, just to prove that HIV didn’t cause AIDS. I got ANGRY.
The KGB controllers of the ANC military wing gave some interesting interviews (hardly mentioned in South Africa) of the ANC during the 30 years KGB attempted to get the ANC to overthrow the Apartheid government. Their experience was the same as mine.
So Brú, what’s more important. Unpopular but honest justice or lots more bling for the political puppets?
Pierre
The recent statement by the “Justoce for Hlophe Alliance”, which is an attack on Tony Leon and Israel, sounds exactly like the Palestine Liberation Organisation.
Which would explain a lot of things.
If they think a Chief Justice in our Constitutional Court sets policy like the Supreme Leader or Ayatollah of an Islamic state.
Pierre
I have now read the whole of Paul Ngobeni’s article on the front page of the M&G. I still can’t log in to comment there – the computer can’t find my e mail address (which has never changed). So I am commenting here.
There are 2 main reasons why Hlophe should not be a judge at all:
1. Ethics (pretty well covered by all the comments)
2. The Seperation of Powers (Politics), which no-one has covered at all.
I see that Paul is an American. Do they have seperation of powers? Certainly not at local level – where judges are elected (allegedly causing a lot of cover ups and corruption).
Which is why Paul would write rubbish about “the masses” wanting Hlophe like they wanted Zuma. The masses are entitled to want, and to vote for, Zuma, because Zuma is a politician and our politicians are elected by the people. But NOT our judges, because our judges must NOT be political at all.
Which also explains why the best jurists did not accept appointment to the bench in the apartheid days – because to do so would take them out of opposition politics (and I include both my father and my grandfather who turned down appointemets to the bench as offered by the Nats).
Which might explain to Paul why Hlophe has “unmatched and unrivaled qualifications”.
Because his “rivals” would have been in politics.
And how did Paul get his appointment at UCT at all?
John Bond, I wonder why you talk to me about the ANC. Is it because I have an African sounding name? Let us not parade our suffering to advance a judicial argument.As a white person you had a choice to fight or embrace apartheid. As a black person I never had that choice. My point is simply that if you want to lobby for a self serving judiciary, don’t hide behind objectivity. Pierre and Shadrack Gutto are not known for objective engagement when it comes to Zuma. They may come across honest to you but please don’t impose that view on others.
By the way, black people can hold dissenting views to yours without being members of the ANC.
So Sipho, you silence saddens me. Do your bigoted assumption about me now shames you…
The strength of a man is not his arrogance when winning but his fortitude when loosing. I am amazed at the fortitude of my heroes. The bishop is one but others include that “unpleasant” cartoonist David Shapiro with perfect struggle credentials, but who can only tell it like it is. His cartoons are the same whether the perpetrator is Apartheid Afrikaaner or ANC freedom fighter. Pieter Dirk Uys has also spent his life challenging all evil, regardless of their sources.
Witness the strength and honesty of these three great men, especially when, like the rest of South Africa they are losing against the despotic ANC…
All three have perfect struggle credentials yet they speak out against what is wrong. Who got it right? These men who were our guiding light in the past! Who got it wrong? Those of us who refuse to follow the light, those who prefer the shamefully dishonest bling of government office and the darkness of evil.
Think carefully my friend; our grandchildren depend on your response. It’s time for all South Africans to choose right from wrong, good from evel…
John Bond “All three have perfect struggle credentials” Compared to who? And who decides these things? Is perfect struggle credentials an antidote for racism? Asseblief Mnr Bond, make your argument respectable.
Every outspoken black person in the judiciary it seems is hounded out. I wonder if those black remaining are quiet because they are content with the situation or because they dont want to Ngobenised or Hlopised. There is cabal that is telling the population who is a good black person and who is devil incarnated.we live in interesting times indeed.
Sipho – An odd response??? Did you think before you wrote? Are you letting some bigotry and racism show?
Is the problem that all three are white, yes even the Bishop. He’s just a coconut, uses brown shoe polish. Let’s add additional astonishing whites who unfortunately also have perrrrfect struggle credentials, better than most in Parliament. Zille, yes the Helen we love to hate. Please don’t hold it against her. She’s still honest and hard working. Next, the miniscule Doctor Orr, also an honest and respectable person. At hardly five foot six, she challenged the burly SAP cops when the PAC were too scared to. I could go on and on…
Robert Mugabe also has perrrrfect struggle credentials.
“Struggle credentials” are not some standard set by the ANC Politbureau at Lutuli House. Gandhi was an Indian struggle hero, but then so were the repulsive Nehru and Jenna. The Boer generals de La Rey and Reitz were cheered as the struggle heros of the Afrikaans Nation during the 1922 Fordsburg uprising.
This is an international phrase, merely borrowed and corrupted by the ANC.
Do you know anything about Shapiro? Which cartoon of 1976 stirred up such international condemnation of the Nats that the Secret Police to visit him, then Botha to threaten to ban his cartoons and various other government sanctions. You don’t know! find out… (you’ll find many other aspects to this amazing guy.)
How can you condemn someone when you know nothing about him?
Sipho
Hlophe is simply not a good judge – even if he is black. His judgements have been pro-ANC but not pro-poor. He judged poor people could be evicted (because the ANC wanted a show piece building for housing) and he judged incorrected against New Clicks to help Mbeki and Manto in their Aids denialism.
He was accused of allowing another black judge to be sued (after taking momney from the people sueing him).
He was accused of letting his son’s education costs be paid by a law firm , whose attorneys would appear in court before him. Would he then be expected to rule in their favour?
He has only written a few minor articles, not major legal works or books.
He was accused of calling a white advocate ” a piece of white s**t” and only AFTER that started to claim racism against himself.
The bench is 55% black already. There are 110 black judges to choose from for the new Chief Justice.
Hlophe is not the right person.
Pierre
Congratulations on your appointment at UCT.
What about a post on the proposed Constitutional Amendment no 18?
Especially in light of Zuma’s pre election boasts that the ANC had not, and did not intent to, change the constitution?
John Bond, stop basking in other people’s glory. Those people you claim to have perfect struggle credentials didn’t do whatever they did for you. The fact that some white people invented something of great value does not automatically make you an invetor on the basis of the colour of your skin. Your argument of who has perfect struggle credentials is pedestrian, try to work harder on it and make it respectable.
Sihpo, I don’t baste in any one elses glory, I live my own life. Remember, “By MY astonishing fruit shall ye know me”! Astonishing is a strange word for me to use because I’m by nature a modest soul. As I stop a moment to look back on my life, I am amazed and humbled at what GOD has called on me to do. It almost seems to me as though someone else did many of my most outstanding achievements.
Ouch Sipho, you just keep getting it wrong, wrong, wrong. Sorry Brá sorry…
I have one weakness though, one fatal flaw. I enjoy pricking the bubble of arrogance in those who talk big but bear the bitter fruit or small fruit or diseased fruit so…
What is your glory my black friend, what have you done for my great South Africa so I can be proud of you too? Anything? Anything at all?
Let’s hear of your fruits Sipho, lets see that what you have achieved is worthy of our great country.
As I have said before, our great country is in more danger than at any time in the last 60 years. We need the good, honerable and honest people of our country to stand up and take appropriate action.
My final questions to anyone still reading this blog – Are you one of those good people? Will you take some action to save our dear land? Are you prepared to stand up and be counted?
John Bond, I haven’t done any spectacular thing. I’m just an ordinary family man who tries harder to raise his children the best way possible. I don’t steal other people’s things, I don’t undermine others, I honestly respect the constitution and the laws of this country, I don’t seek to dominate anyone, in competition I play by the rules without seeking unfair advantage over my competitors, I pay my taxes without qualms, I tolerate other people’s cultures, I could have been a criminal but I chose not to, thanks to my parents counsel, I have my prejudices but I try harder to keep them in check.
Lyndall Beddy, I’m not arguing for the poor but I’ll forgive for assuming I’m for the poor for obvious reasons. I thought the argument was about the judiciary not about whose side the law should be on. The fact that I have access to a PC and Internet does not mean I’m rich, I’m just credit worthy. But that’s not the point, the law should never consider a person’s economic status before reaching a verdict.Your critic of Hlophe’s verdicts is flawed since you’re not a judge and your previous stance on Hlophe betrays everything you say about him. I’m told Hlophe has five degrees and two of them from a pretigious international university, surely that must count for something for the man. You may not like him but give credit where it is due. For the record I have never met Hlophe, nor do I claim he is squirky clean. But then the same can be said about his accusers. It seems for you it’s a matter of choosing what you consider to be lesser evil.
Sipho
Maybe it is personal for me. You see – I DO KNOW some of the people involved.
I know many of the advocates of the Cape Bar, who worked for me in the past, including those involved in the conflict and the one Hlophe called racist.
And I knew Dullah Omar. I was a liquidator in Cape Town when he was minister of justice.
In fact his wife bought a house from one of my estates – the estate of a contract killer from Eastern Europe whose home had very good security (for obvious reasons).
I sent a memo to Dullah Omar and Cosatu about The Master of the High Court not allowing employees votes to count for appointments of liquidators. I sent it through a mutual Muslim friend – also a friend of Judge Desai.
I would stake my own reputation that Hlophe lied. Dullah Omar would never have given him permission to take a retainer from Oasis. Easy for Hlophe to claim after he was dead.
Given what we experienced as native South Africans under the judges of the apartheid government, we would like to see judges who will not be the puppets & continue to serve the agenda of the oppresors. We need judges who will rise above politics, who will not be used to destroy political ambitions of those, they don’t prefer.
People like you Mr De Vos, I wish they can take time to use the energy and the influence they have to try to influence the change when it comes to the imbalances of the past, for instance the land issue, economy etc., because we can have the right jugdes and it’s good, but if the imbalances of the past are not given the attention they real deserve, and we are only occupied about who can better protect what we current have, we are heading for disaster that will explored one day. It is for our best interest if we start we the first things first.
Lyndall Beddy writes “I would stake my own reputation that Hlophe lied. Dullah Omar would never have given him permission to take a retainer from Oasis. Easy for Hlophe to claim after he was dead”.
There’s no way of knowing the truth here. We can only use our personal feelings towards Hlophe to make a judgement.I’m always cynical when a dead person is credited with generous probity or malicious accusations. But that’s just me.
Regarding nominations for the Constitutional Court Judges I would like to propose Bruce McGregor (MacGregor?) formaly of Deneys Reitz, Durban Office. Having had many dealings with him as our labour attorney, I found him to be a man of integrity, courage and conviction – not able to be intimidated, not even by the client paying his fees, and a highly moral and ethical gentleman. Totally fair and thorough, unbiased and a critical, deep thinker. Additionally I found him humble in his approach, nothwithstanding the success he had achieved at a young age. What always impressed me was the manner in which he handled the “accused” – always with dignity and respect and living in KZN, was fluent in Zulu and was able to converse with them in a relaxed and genuine way to get their side of the story. I couldn’t be more sincere in this recommendation and believe a gentleman of his callibre should definitely be considered for this office.