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The Hlophe Saga, a Chronic Constitutional Crisis

The Constitutional Court, being the ultimate guardian of a progressive and universally admired Constitution, has manifestly been the most esteemed court in the land. Its erudite, exemplary and bold jurisprudence is perused and studied in the other illustrious courts of the world.

It is therefore a matter of profound sadness and regret that its reputation and esteem are now being tarnished by the on going saga involving the Judge President of the Western Cape, John Hlophe and Justices Jafta and Nkabinde.


Presumptuous? Not really

The word "presumptuous" and the way in which it was used by Adv William Mokhari SC, acting for the Chief of Police, in the Pretoria High Court last week, is at the centre of a storm between him and Mr Justice John Murphy. It is plainly not good advocacy to suggest to a presiding judge that he is displaying any of the characteristics of presumptuousness. In this case it seems to have served as a red rag to a bull.


Will Justice walk the talk?

While it is encouraging to read that our long-serving Minister of Justice and Constitutional Development, Jeff Radebe, has re-affirmed the government's commitment to the independence of the judiciary, the freedom of the National Prosecuting Authority (NPA) to act without fear or favour and the necessity to keep political interference in the work of both institutions in the realms of unlawful behaviour, it remains to be seen whether Justice will walk the talk.


Selecting Judges - the case for legislative reform

The method of appointing acting judges needs to be revisited and the role of politicians and politics in the Judicial Service Commission's activities must be diluted by reconstituting it.

The task of finding the right way to select suitable judges is a matter of vital public interest. It is too important to be left to the devices of our dysfunctional JSC alone.


Speech given at Ahmed Kathrada Foundation on Judicial Transformation

Mohamed Husain
Director Knowles Husain Lindsay Inc

I find the question "Lost in transformation?" in the conference theme most appropriate and wish I could have coined such a catchy question. I do believe that the transformation agenda of our young democracy has gone off the tracks and needs to be re-positioned.

Unfortunately, transformation is often not understood to be the revolutionary and all-encompassing process referred to by Pius Langa. Worse still, it is equated merely to race and gender representivity.

Class Action - Bread Cartel Case

Class Action Case before the Constitutional Court in the matter between Imraahn Mukkadam and the big bread manufacturing cartel formed by Premier Foods, Tiger Consumer Brands and Pioneer Foods.

Mukkadam to Marikana: no connection or fully connected?

The decision of Judge Raulinga in the Gauteng High Court is of interest in the matter of state financing for the Marikana miners who have been represented at the Farlam commission of inquiry into the massacre at the Lonmin mine near Rustenburg. The judge read into the record his full reasons for sending the miners away empty-handed.

The miners and the police are in a seriously heavy conflict over what exactly happened and who is responsible for whatever did happen at Marikana. The playing field is not level for the miners, for so long as the police are able, at public expense, to tap into the best legal talent available, while the miners are unfairly made to do without representation.


The Proliferation of Anti-Corruption Entities won't help

Hard on the heels of the announcement of the formation of the Public Service Anti-Corruption Bureau comes the announcement of the re-instatement of a special SAPS anti-corruption unit by police chief, Ria Phiyega. These two units join more than a dozen existing entities and organisations that are all tasked with preventing and combating corruption - to very little effect.

The need for proper anti-corruption machinery of state is evident. It is the first and most necessary step in the war on corruption.


The Rule of Law requires certainty

A critical element of the rule of law is that there should be certainty as to what the law is and what it requires, both procedurally and substantively.

The recent experiences of Mpumalanga businessman, Fred Daniel, who perennially butts his head against, what appear to be, corrupt elements of his provincial administration, illustrate the point.


Justice Delayed is Justice Denied

The subversion of the rule of law due to delays in "bringing on" and dealing with "hot potato" cases is endemic in South Africa.

The trouble about subverting the rule of law is that it damages business confidence, scares off foreign direct investment and undermines the value of the currency of the country in which respect for the rule of law (and, in particular, respect for property rights) is questionable.


The three maritime silks, the missed briefs and the lost Zimbabwean

A young Zimbabwean advocate, recently admitted to the Cape Bar, has complained to the Competition Tribunal that three silks and four firms of attorneys in Cape Town are engaged in anti-competitive behaviour in breach of the Competition Act because they have all overlooked him as a junior member of the Cape Bar.

The thrust of the complaint against the three silks is accordingly a demand that they be required to infringe the rules of the Cape Bar, by which they are bound, in order to satisfy his frustrated ambitions or sense of entitlement.


The Bread Cartel Case:
Casting bread upon the water - how to deter delinquent corporate conduct

Constitutional Court hears arguments from bread distributors seeking to pursue claims for damages against three leading bread producers.


The difference between a "requirement" and a "consideration"

Retired justice of the Constitutional Court, Justice O'Regan has entered the fray over the apparent inability of the Judicial Service Commission (JSC) to understand its constitutional mandate. The dismay expressed by Justice O'Regan in relation to the lack of gender transformation of the Bench needs to be explained and to be addressed by the JSC.

The activities of the JSC ought to be focused around human dignity and the achievement of equality via judicial education rather than the perpetuation of "racial [and gender] exclusion and disadvantage". Reverse racism and continuing sexism is clearly not what the Constitution contemplates.


Transformation of the Judiciary: what the law says and means

It is unfortunate that the debate on transformation of the judiciary recently conducted by the Judicial Service Commission (JSC) took place in secret.

The JSC's secrecy has the unfortunate side effect of leading to speculation that what is actually going on is aimed at securing hegemonic control of all levers of power in society to the detriment of the independence of the judiciary.

The task of the JSC is to sift available candidates through the sieves of fitness, properness and appropriate qualification. Only then should the consideration of race and gender come into play.

The quest for a non-racial and non-sexist order in South Africa calls for a transformation of mind-set, not a counting of chromosomes and measuring melanin cells. Perpetuating racism and sexism in the JSC's processes is not what the law intends.


Nathi Mthethwa drops the ball

Minister of Police, Nathi Mthethwa appeared before the Police Committee of the National Assembly. He flew in to explain police brutality and wrongdoing to the members of Parliament.

For the best part of half an hour, he managed to say absolutely nothing new about the problems facing the police service and the symptoms of dysfunction in its ranks. He did concede that there is a problem with the command and control of the police. This much has been clear to any objective observer for years.


The Judicial Service Commission has a chance to redeem its reputation

We are never going to create a non-racial, non-sexist society (in which the colour and gender of judges is irrelevant), if we continue to allow the Judicial Service Commission (JSC) to slavishly study accurate statistics, with a view to achieving with exactitude a form of transformation that need only be taken into consideration on any fair reading of section 174(1) of the Constitution. To convert this into an "imperative" is to overstate the case for transformation.

This round of interviews and this "contest" present the JSC with the opportunity of redeeming itself. It can break with the outmoded practice of the past and appoint both Gauntlett and Rogers to the Western Cape High Court.


The Legal Practice Bill - hegemony replaces constitutionalism

The rights to freedom of association and to property of the organised legal professions are under threat due to the failure of government to take on board suggested amendments to the Legal Practice Bill.

The submission of the legal profession to state control will inevitably impact negatively on the independence of the judiciary. Without an independent legal profession dedicated to acting for its clients without fear or favour, a judiciary that is impartial and independent will wither away and be replaced by a body of jurists who have succumbed to the hegemonic control of the levers of power in the legal practice sector.

This is what the visionaries of the ANC's national democratic revolution are bent on achieving.


Mdluli - muddy, murky and mysterious

The Hankel report on Richard Mdluli, head of police crime intelligence, details the list of offences he is accused of in great detail and is available for scrutiny by anyone with internet access, yet mysteriously, all charges have been withdrawn by the National Prosecuting Authority (NPA), reportedly for want of evidence.

Could it be that Mdluli is just too useful to some to be jettisoned for his alleged criminality at this delicate stage in the run up to Mangaung?


Bravo, Chief Justice Chaskalson

Chief Justice Chaskalson, the Administrative Justice Association of South Africa, and the clash in values between the Constitution and the values of the National Democratic Revolution.


Judging the Judges

The parliamentary committee tasked with processing the regulations concerning the disclosure of judges financial interests found itself faced with a mighty phalanx of retired and sitting judges when it met recently.


Without Fear, Favour OR Prejudice: The Courts, The Constitution and Transformation

At the Spring Graduation Ceremony on 8 December 2011, George Bizos was honoured by the University of Pretoria for his extraordinary contribution to law and justice during his long and illustrious career. The title which he gave to his comments, Blame Neither the Constitution nor the Courts, was prompted by what he described as unfair and unjust criticisms of the Constitution and the courts by some political leaders.

The case for lawfare

To the uninitiated, the made up word "lawfare", describes an offensive activity of little social utility that is counter-majoritarian and downright dangerous. The fear is expressed that by using the law to seek justice, the law itself is exposed to attack by the powerful with consequences that are deleterious to justice, liberty and "all things bright and beautiful".


Simelane in the soup

Menzi Simelane has let it be known that he disagrees with the unanimous finding against him in which five judges of appeal ruled that his appointment as NDPP is invalid. The basis upon which he so disagrees reveals his woeful lack of understanding of the basic tenets of constitutionalism and is yet another indicator of his unfitness for the office he holds.


Motala: beware polemics masquerading as analysis

Under the heading "SCA: Beware politics masquerading as law" and the sub-heading "The appeal court's Simelane ruling is a lapse in fairness" Professor Ziyad Motala has unleashed a broadside of criticism against the unanimous decision of the Supreme Court of Appeal.


Anonymous Whistle Blowing

Estimates of the scale of corruption in South Africa vary considerably, but it is safe to say that it runs into billions of Rand every year.

The reporting of suspicious incidents or situations by the public is one of the prime components in the process of detecting, preventing and prosecuting corrupt activities.


The JSC does it again

Business people, especially those who find it necessary to litigate in the High Court on occasion, would do well to have regard to what has emerged in the judgment in the spat between the Cape Bar Council and the Judicial Service Commission (JSC) following the decision of the latter to leave open two vacancies on the Cape Bench rather than fill them with available appropriately qualified, fit and proper candidates.


Kill the Boer, indeed

The ANC, the followers of Julius Malema, and also the ANC Youth League leader himself, ought to acquaint themselves with the provisions of the Riotous Assemblies Act and the Intimidation Act before they embark on civil court appeals and even consider singing or chanting "Kill the Boer" again.


Hendricks Judgement

In the matter between:

The State vs Clifford Joseph Hendricks relating to the reliability of the Dräger Alcotest 7110 MK 111 device used in South Africa to test the breath alcohol concentration of a person in an endeavour to combat the increasing number of drivers under the influence of alcohol.

The Judicial Service Commission has lost its way

The Judicial Service Commission (JSC) has once again signally failed to fulfil its primary function. This occurred in its processes designed to find suitable candidates to fill three vacancies on the Cape Bench.


Hlophe What Next?

The Supreme Court of Appeal, has spoken out clearly.
It has decided by a margin of 10 Judges of Appeal to nil in favour of those questioning the way in which the Judicial Service Commission tackled the dispute between all of the Justices of the Constitutional Court who graced its bench back in 2008, and Cape Judge President John Hlophe.


The Hlophe Inquiry Papers

{An annex to the above submissions}

The various complaints of gross misconduct and judicial incompetence laid against Judge John Hlophe, the Judge President of the Cape High Court, have so far come to almost nought.


Submissions by IFAISA to the parliamentary committee on the Code of Conduct and Regulations concerning disclosure of interests by Judges

Comments by IFAISA regarding the draft code and regulations concerning disclosure of interests by Judges.


Dewani and the SA criminal justice administration

"Will Shrien Dewani get a fair trial?" is becoming a central issue in the media clamour preceding the extradition proceedings launched by the South African authorities.


Simelane not out of the woods yet

Menzi Simelane's fitness and propriety for appointment as National Director of Public Prosecutions under question.


Opacity and Unaccountability at the Judicial Service Commission

Putting judges on the Bench with due consideration of factors of race and gender is a constitutional imperative, but the basic requirements remain duly qualified, fit and proper persons.


The qualities expected of candidates for judicial office

In the interests of openness and transparency, the Judicial Service Commission took an unusual step on 15 September 2010. It published a press release listing the qualities it expects of those it recommends for appointment as judges.


Vigilantism: the last resort of the unprotected

Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators low.


Bheki Cele's Misperceptions

Section 207(2) of the Constitution reads:

"The National Commission must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing"

How Cele is able to ignore this provision of our supreme law in favour of re-incarnating as a star spangled "General" is difficult to comprehend, but he has done it, all the while thinking that he has no management functions at all.


Who should judge the judges?

The news that the Judicial Service Commission (JSC) is opposing the review brought by Freedom Under Law (FuL) in the High Court, in which its unfathomably incomprehensible decision to let beleaguered Cape Judge President John Hlophe off the hook is attacked, should come as no surprise to keen observers of the gyrations of the JSC.


The Curious Case of Gauntlett SC

"The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."

The unpalatable truth is that just as it is impossible to make bricks without straw, it is impossible to appoint black women candidates if there are no black women who are prepared to apply and are appropriately qualified, fit and proper persons.

By some strange alchemy, the JSC has apparently decided to overlook Jeremy Gauntlett SC. Unusually, an assortment of distinguished retired judges, current judges of appeal and the chief justice of Swaziland have let it be known that they regard Gauntlett worthy of elevation to the Bench.


Is the testing right of the courts in South Africa anti-democratic?

Since 1994 with the new democratic dispensation, as a result of the kind of wise political leadership displayed by President Mandela in the Western Cape, we have avoided a constitutional crisis caused by judicial review and the anti-majoritarian dilemma, although some statements made by ANC politicians have disparaged the independence and legitimacy of the courts.


Simelane's Start

Since his appointment last November as National Director of Public Prosecutions, Menzi Simelane, former Director General of Justice, has comported himself in a manner that confirms the well founded nature of the concerns of his critics.


The Wages of Quiet Diplomacy

The long running campaign by Free State farmer, Crawford von Abo, to obtain redress following the illegal seizure of his farms in Zimbabwe by the Mugabe regime, raises interesting points.


The legacy of Lategan

The appointment of Mokotedi Mpshe, the former Deputy National Director of Public Prosecutions, by the Minister of Justice, currently Jeff Radebe, as an acting judge in the North West High Court is under question.

It is inappropriate that a public servant, especially one who has devoted his professional life to the task of prosecuting suspected criminals, should become a judge. This is because the independence and impartiality of such a person is questionable.


Repent Radebe

The Minister of Justice, Jeff Radebe, not one to disappoint his friends, proceeded to canvass for a place on the Benches favoured by Molokoti Mpshe with a view to securing him an acting appointment.

Reaction from the legal professions was swift and sharp. Invoking the doctrine of the separation of powers, the independence of the judiciary and its legitimacy, they called for a rethink.


The more things change, the more they stay the same

Advocate Mokotedi Mpshe is certainly a controversial character. When he was acting head of the National Prosecuting Authority he perplexingly decided to drop all charges against Jacob Zuma, thus opening the way for the Zuma presidency.


Defending the Indefensible

The brouhaha around the appointment of Menzi Simelane - Director of Public Prosecutions, is unlikely to die down any time soon.


Effective service delivery requires radical change

We cannot expect loyalty, work ethic or extra miles from departments as long as the people in charge are despised for their incompetence, which is often associated with unbearable arrogance.

Article in Business Report 16th February 2009

Cape judge president has a duty to stay away while under cloud

Article in Business Report 10th February 2009

Cape judge president has a duty to stay away while under cloud.

The Cape judge president is in the news again. On January 26, after an absence of many months on specially arranged leave while a charge of gross misconduct was pending against him, he simply appeared in his office and instructed his deputy to step aside.


Agenda item for next JSC meeting.

Letter addressed to Ms Masangwana


Ministers don't order Judges around.

The new developments in the perennial saga of Cape Judge President John Hlophe ought not to be over-dramatized. When newspaper headlines scream "Hlophe told to stay home" and "Minister orders judge to go back on leave" and the reportage is to the same effect with an opening paragraph that reads: "...Hlophe has been ordered by Justice Minister Enver Surty to remain on leave - just days after Hlophe returned to work" then it is necessary to explain accurately the import of developments.


Protecting the Dignity of the Courts.

An onerous responsibility of the organs of state in post 1994 South Africa is to "assist and protect" the dignity and effectiveness as well as the impartiality and independence of the Courts.


The Judicial Service Commission must be reformed

There is a need for those in authority to take a close look at the functioning of the Judicial Service Commission (JSC) in order to determine whether it is capable, as constituted at present, of properly and accountably fulfilling its constitutional mandate.


Transformation of the Judiciary - WHAT THE CONSTITUTION DEMANDS

There can be no rational South African of any political persuasion who does not regard it appropriate to have a court system which is accessible, efficient and legitimate.

Last year, during the parliamentary debate concerning the demise of the Scorpions, the then Deputy Minister of Justice, Johnny de Lange, conceded that the criminal justice system in South Africa is "dysfunctional":


Constitutionally compliant transformation of the Judiciary

In South Africa, we now have a system in which the Constitution is the supreme law. Recognizing that the legitimacy of the Bench is best served by a diverse judiciary, the Constitution also stipulates that "the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."


Debating the Transformation of the Judiciary

It is clear that the ANC is pursuing an agenda intended to "transform" the judiciary.

Why the resolution to promote the "transformation of the judiciary" taken at Polokwane? This is best answered by examining the language of the resolution itself. The "transformation" is apparently aimed at making the judiciary "more responsive to the aspirations of the people".
Responsiveness to either "the masses" or to "the people" is clearly at odds with the Constitution. The judiciary is not a pro-active entity, it exists to manage conflict between state and subject and between the people themselves.


Guardian of the Constitution

The authority, dignity and independence of the Constitutional Court are dependent on the Constitution. If the Constitution is weak or is not respected by the institutions of state and the government, the Constitutional Court will be the immediate victim.

International Affairs, Corruption and a culture of Human Rights

Transparency International (TI) defines corruption as "the abuse of entrusted power for private gain". It is political leaders and public administrators to whom society entrusts political power. In practice bribery and corruption are complex transactions that involve those offering a benefit of some kind and those who accept it.


Of Winnie, Allan and Tony's Criminal Records

A lot of misinformation has been generated in recent days around the eligibility of Winnie Madikizela Mandela, Allan Boesak, and, to a lesser extent, Tony Yengeni to stand for public office. It is perhaps time to inject a little rational analysis of the facts and the law into the debate raging in the media and wherever politically aware people meet.



Criticism of the judiciary.

In its December 2008 issue "Without Prejudice" carried a health risk warning for those who may be inclined to criticize the judiciary. (Criticism of the Judiciary pg 5) This has been followed by a public appeal from the Chief Justice that critics should not impugn the integrity of the Bench. This is a salutary general rule and fits the constitutional admonition that: "No person or organ of state may interfere with the functioning of the courts." S 165(3).