Judicial autonomy frightens the JSC
Prospective Constitutional Court judges were grilled on their interpretations of separation of powers. Niren Tolsi analyses the process.
Former Constitutional Court justice Albie Sachs’s book The Strange Alchemy of Life and Law is poetic both in title and in its ruminations on how empathy and humanism influenced his time as a jurist as much as reason and logic.
Commenting on concern about trends in the judiciary in the United States, Slate legal correspondent and senior editor Dahlia Lithwick, in her review of Strange Alchemy, notes: “We are so terrified by the prospect of uncabined judicial authority that we forget to be horrified at judicial authority operating in total isolation. We are so fearful of judges ‘evolving’ toward some ideological viewpoint, that we discount the need for a judiciary that evolves to inhabit the world as it is.”
That “terror” – of judicial authority and ideological evolution – was palpable during the Judicial Service Commission’s interviews of four judges for the vacancy at the Constitutional Court held at the Southern Sun Hotel at Johannesburg’s OR Tambo airport last Saturday.
That the media and the public were discussing judges’ jurisprudence and concluding – rightly or wrongly – whether they were ideologically progressive or conservative on matters such as socioeconomic rights and whether they were independent or executive-minded appeared to rile some commissioners, confound them almost.
This sort of public analysis healthy discourse, one would assume – was first identified as a “trend” by Chief Justice Mogoeng Mogoeng, who asked Supreme Court of Appeal Judge Mandisa Maya to comment on it during her interview.
Scathing of the judiciary
ANC member of Parliament and Deputy Minister for Correctional Services Ngoako Ramatlhodi pursued the “trend” by constructing progressive jurisprudence to mean “anti-government”.
“Progressive is interpreted to be anti-government. Any judge who is anti-government is said to be progressive. Explain what that means?” he asked Maya.
The influential Ramatlhodi has been scathing of the judiciary, especially when judges find against the executive. At the AB Xuma lecture delivered in Upington in the Northern Cape, days before the interviews, Ramatlhodi reinforced his perception – and that of other ANC leaders, including secretary general Gwede Mantashe – that the courts were acting in a counter-revolutionary manner through their judgments against government.
These, suggested Ramatlhodi, buttressed apartheid-era privilege at the expense of majoritarian will. “There is a tyranny, a minority tyranny, that is using state institutions to undermine democratic processes at this juncture in our country,” he said. Ramatlhodi is one of the more vocal members of an ANC faction highly critical of the judiciary.
Earlier, Ramatlhodi quizzed Supreme Court of Appeal Judge Ronnie Bosielo on “judicial restraint and your judicial philosophy regarding the separation of powers”.
Bosielo posited the Constitutional Court’s judgment in Glenister vs President of the Republic of South Africa and Others last year as an example of the court being conscious of the separation of powers and not over-reaching on its constitutional mandate. In Glenister, the court found that the Hawks, the anti-corruption unit that replaced the Scorpions, was not sufficiently independent and ordered Parliament to draft new legislation to make it so.
A dark horse
Bosielo, who must be a dark horse for the position, and was allowed the longest and most spacious of interviews to allow to him to engage on a variety of issues, said: “Judges must be conscious at all times of the limits of their powers.” To which Ramatlhodi responded grumpily: “It’s one thing saying it and another doing it. I’ll leave it at that.”
Later, pushing Maya on the Glenister judgment, Ramatlhodi, apparently reading the Constitution narrowly, noted: “There is nothing in the Constitution that says the anti-corruption unit must be independent of [the] justice [department] or the police” and asked where the Constitutional Court “gets the authority to strike down legislation” that created the Hawks.
To which Maya replied that the Constitutional Court derived the power of judicial review from the Constitution and “I would presume that is the power exercised”.
The commission, as a collection of individuals with egos and constituencies, can be extremely prickly, as appeal court Judge Robert Nugent, one of the country’s foremost jurists, found when he faced a barrage of questions about statements attributed to him that he had withdrawn his 2009 nomination to the Constitutional Court because he “did not trust” the commission to fulfil its constitutional mandate at that “painful time in its history”.
The statement – which Nugent admitted to – was made at a time when the commission had chosen not to investigate fully charges and countercharges between Constitutional Court judges and the judge president of the Western Cape, John Hlophe. The appeal court later found that the commission had reneged on its constitutional duty to investigate fully the matter with cross-examination.
The commission can also be soft, as it was with the perceived favourite for the post, North Gauteng High Court Judge Ray Zondo. Thorny issues regarding excessive travel and subsistence claims were dealt with perfunctorily.
The institution does offer insight into the thinking and perspectives of various forces within the legal fraternity and broader society: from advocates concerned about the proposed Legal Practice Bill curtailing practitioners’ independence to how the ANC, from its moderate elements to its more extreme, perceives the effect of judgments on government’s policies, legislation and service delivery.
It also allows for a deeper understanding of the chief justice’s own perspectives on the country’s evolving jurisprudence. Chief Justice Mogoeng appears to welcome the role the Traditional Court Bill, currently open for public comment, and customary law in general can play. The Bill has been criticised by civil society organisations, especially those dealing with gender, for returning rural women to a state of patriarchal feudalism.
Mogoeng asked Bosielo: “Are you aware that there are women who are traditional leaders … How would these women prejudice other women?”
Imperatives of government
During Maya’s interview, Mogoeng, noting that government had “policies” and specific “budgets” to address the housing backlog, stated that recent judgments dealing with housing meant the “courts have interpreted the right to housing that inadvertently prioritises the rights of illegal occupants” and wondered whether this was “undermining the policy imperatives of government”.
Later, North and South Gauteng High Court judge president Bernard Ngoepe noted that “in the Concourt, the perceptions expressed is that so-and-so is progressive, so-and-so is conservative. Worse than that is the tendency to see certain judges as always being right … some sort of judicial cult has developed”, he said before asking Maya to respond on how she would retain judicial independence in this environment.
Presidential spokesperson Mac Maharaj confirmed that the commission had recommended all four judges to President Jacob Zuma. It is now left to Zuma to appoint a Constitutional Court judge who “evolves to inhabit the world as it is” – as much as a world that the Constitution envisages.