tag:theconversation.com,2011:/au/topics/justice-mogoeng-mogoeng-23266/articlesJustice Mogoeng Mogoeng – The Conversation2022-02-10T14:42:40Ztag:theconversation.com,2011:article/1768962022-02-10T14:42:40Z2022-02-10T14:42:40ZSouth Africa has its first woman Deputy Chief Justice: here’s who she is<figure><img src="https://images.theconversation.com/files/445670/original/file-20220210-40846-10mewag.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Mandisa Maya, South Africa's Chief Justice-elect.
</span> <span class="attribution"><span class="source">Photo by Gallo Images / The Times / Simphiwe Nkwali</span></span></figcaption></figure><p><a href="http://www.supremecourtofappeal.org.za/index.php/judges/judges-of-the-supreme-court-of-appeal/9-judges/maya-mandisa-muriel-lindelwa">Mandisa Maya</a>, Judge President of South Africa’s Supreme Court of Appeal, has been appointed the country’s new Deputy Chief Justice of the Constitutional Court by President Cyril Ramaphosa. She takes up the position <a href="https://ewn.co.za/2022/07/25/ramaphosa-appoints-maya-as-deputy-chief-justice">from 1 September 2022</a>.</p>
<p>She is the first woman Deputy Chief Justice since South Africa became a constitutional democracy following the end of apartheid <a href="https://www.tandfonline.com/doi/abs/10.1080/04597239308460952?journalCode=tssu20">in 1994</a>.</p>
<p>Here are some interesting facts you need to know about Judge Maya.</p>
<h2>The early years</h2>
<p>Mandisa Muriel Lindelwa Maya was born in Tsolo, Eastern Cape, one of the country’s poorest areas, which <a href="https://www.britannica.com/place/Eastern-Cape-province-South-Africa">borders the Indian Ocean</a>, in 1964. She has five younger siblings, three children and is <a href="http://www.supremecourtofappeal.org.za/index.php/judges/judges-of-the-supreme-court-of-appeal/9-judges/maya-mandisa-muriel-lindelwa">married to Dabulamanzi Mlokoti</a>. Both <a href="https://www.news24.com/News24/newsmaker-mandisa-maya-making-history-20170409-2">her parents were teachers</a>.</p>
<p>She grew up in King William’s Town and Mthatha where she matriculated (finished high school) from <a href="https://www.facebook.com/stjohnscollegeUta/">St John’s College,</a> in 1981. The school is one of the oldest – and one of the most highly rated – in the country. It it closely associated with the Anglican Church of South Africa, having been established in 1879 by a Church of England missionary.</p>
<p>Maya’s early childhood were in the former <a href="https://www.sahistory.org.za/place/ciskei">Ciskei</a>, which was one of the four <a href="https://www.sahistory.org.za/article/homelands">Bantustans or homelands</a> – together with Transkei, Bophuthatswana, and Venda – which were granted nominal independence by the apartheid government. They were some of the mainly rural and impoverished areas set aside by the apartheid government where black people exercised nominal “self-rule” along ethnic lines. They offered little opportunity for advancement and upward mobility.</p>
<p>Nevertheless, growing up in a Bantustan did not deter Maya’s from her commitment to justice and human rights saw her pursuing studies in law. She holds B.Proc from the University of Transkei, LLB (University of Natal), and LLM (Duke University, North Carolina in the USA). She is a Fulbright Scholar, was a fellow of Georgetown University law and gender programme as well as a Commonwealth Foundation fellow and a Duke Law School International Alumnus. </p>
<h2>Career and achievements</h2>
<p>Maya began her legal career as an attorney’s clerk in a professional firm in Mthatha. She went on to become court interpreter and prosecutor of the Magistrates’ Court in the town. This was followed by the job of Assistant State Law Adviser before she did her pupillage at the Johannesburg Bar. She subsequently became a a practising advocate associated to the Transkei Society of Advocates. </p>
<p>Maya also had a stint as Law Lecturer at the University of Transkei. </p>
<p>The positions she held before becoming a judge imbued in her values that make her a suitable candidate for Chief Justice. These include ideals and values of integrity, impartiality, professional ethics and court decorum. </p>
<p>She also has a footprint in other jurisdictions – notably Lesotho, Namibia and US. In Washington DC she was policy counsel and lobbyist intern at the Women’s Legal Defense Fund. She has also acted as a judge in the Supreme Court of Namibia and the Appeal Court of Lesotho.</p>
<p>In 2016 Judge Maya became the first woman President of South Africa’s Supreme Court of Appeal. The Supreme Court of Appeal, established in 1910, is the country’s second highest court after the Constitutional Court. This makes her the third most senior judge in South Africa after the Chief Justice and the Deputy Chief Justice.</p>
<p>She has been honoured and acknowledged in the legal profession, including honorary doctorates of law by a number of universities. Her leadership qualities have been recognised in various other ways too. For example, she was elected the President of the South African Chapter of the International Association of Women Judges.</p>
<h2>Highlights on the bench</h2>
<p>Her years on the bench, including the current position, have been characterised by the championing of children and women’s rights, the poor, and many other marginalised groups.</p>
<p>In 2012 she received the <a href="https://law.mandela.ac.za/recent-news-and-events/justice-maya">South African Women Lawyers Icon award </a> for her role in empowering and mentoring women in both the judiciary and the broader legal profession.</p>
<p>Maya is one of the few judges in South Africa with a strong commitment to changing the approach of judges in adjudicating gender-based violence and femicide cases. </p>
<p>She <a href="https://www.judiciary.org.za/images/speeches_from_the_judiciary/Gender_Based_Violence_and_Femicide_Summit_Speech.pdf">told</a> a summit on gender based violence and femicide in 2018:</p>
<blockquote>
<p>So while there has been a marked ideological shift in the ways judges adjudicate matters relating to gender-based violence and femicide in recent times, including the abolition of cautionary rule in respect of sexual offences, and the conduct of many judicial officers can be commended, the fate of these victims should not be left to the off-chance that the individual Judges hearing their cases will be attuned to the sensitivities. There should be a formalisation and standardisation of these norms so that it is incumbent on the Courts to pay particular attention to the treatment of victims in these cases.</p>
</blockquote>
<p>Through her judgments she has demonstrated comprehensive knowledge of the law and the Constitution. She is also considered a jurisprudential thought leader given that some of her judgments have – directly and indirectly – influenced nation-building. </p>
<p>For instance, in the 2020 <a href="http://www.saflii.org/za/cases/ZASCA/2020/79.html">AfriForum NPC v Chairperson of the Council of the University of South Africa and Others</a> case, she ruled that the removal of Afrikaans as a medium of instruction at the University of South Africa was unlawful and unconstitutional. The decision was later <a href="https://www.concourt.org.za/index.php/judgement/411-chairperson-of-the-council-of-the-university-of-south-africa-and-others-v-afriforum-npc-cct135-20">confirmed by the Constitutional Court</a>. </p>
<p>Her dissenting minority judgment in Minister of <a href="http://www.saflii.org/za/cases/ZASCA/2011/3.html">Safety and Security v F, 2011</a> greatly influenced the decision of the Constitutional Court. The Constitutional Court reversed the Supreme Court of Appeal’s majority decision and <a href="https://collections.concourt.org.za/handle/20.500.12144/3642">confirmed her minority decision</a>. </p>
<p>The matter before the Supreme Court of Appeals was about a claim for damages arising from the rape of a woman by an off-duty policeman. The majority of the court held that the Minister of Safety and Security was not vicariously liable because the policeman committed the rape when he was off duty. Maya penned a dissenting judgment in which she argued that members of the police services were entrusted with the constitutional role and the responsibility to conduct themselves properly to foster the community’s trust. And that this could not be suspended because a member was off duty.</p>
<h2>Deputy Chief Justice role</h2>
<p>Maya has overcome career labyrinths faced by all female judges in South Africa.</p>
<p>The steeliness with which she will approach the job is reflected in her response to the question in a previous interview for the position of Chief Justice: Is South Africa ready for a woman Chief Justice? She <a href="https://mg.co.za/news/2022-02-02-chief-justice-interviews-mandisa-maya/">responded</a>:</p>
<blockquote>
<p>I’m not here because I’m a woman, I’m a worthy judge … I’m just a good woman judge. </p>
</blockquote>
<p><em>The article was updated following Justice Maya’s confirmation as the Deputy Chief Justice</em>.</p><img src="https://counter.theconversation.com/content/176896/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Omphemetse Sibanda does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Her values of integrity, impartiality, professional ethics, and court decorum make her the ideal person to head the country’s judiciary.Omphemetse Sibanda, Executive Dean and Full Professor, University of Limpopo Faculty of Management and Law, University of LimpopoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1593382021-04-22T15:08:25Z2021-04-22T15:08:25ZSouth Africa is set to appoint a new chief justice. The stakes have never been so high<figure><img src="https://images.theconversation.com/files/396033/original/file-20210420-13-1izfv92.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African chief justice Mogoeng Mogoeng's term ends in September. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>By October, South Africa’s Chief Justice, <a href="https://www.concourt.org.za/index.php/judges/current-judges/13-current-judges/71-justice-mogoeng-mogoeng">Mogoeng Mogoeng</a>, will have finished his 12-year term at the helm of the Constitutional Court. How will his successor be selected, and what qualities are needed by the holder of this high office?</p>
<p>To answer these questions we need to understand the context. This is because the country’s judiciary has been increasingly drawn into party political wrangling and contestation.</p>
<p>Any form of constitutional democracy which allows judicial review of the exercise of public power thrusts the courts into the political limelight. Inevitably, acts and decisions of parliament, the president and cabinet will be challenged against the constitutional framework. The <a href="https://www.gov.za/about-government/contact-directory/judicial-institution/judicial-institution/superior-courts-south#">superior courts</a> of the country provide the forum in which this plays out. </p>
<p>If there is no rule of law, brute force, random acts of violence and popular anarchy become the avenues for settling scores. In South Africa, the determination never to repeat the devastating legacies of apartheid resulted in <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">“the supremacy of the constitution and the rule of law”</a> being enshrined as fundamental values, justiciable and enforceable by the courts.</p>
<p>This has inevitably raised the political profile of the judges, especially their leaders, given that they effectively have the final say on what the words in the constitution mean. </p>
<p>The judicial process is thus hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality. Without such qualities, the judiciary runs the risk of losing its legitimacy among the public, ultimately its surest form of protection from interference.</p>
<h2>Out of sync</h2>
<p>The exercise of constitutional authority in South Africa is constrained by the checks and balances inherent in the <a href="http://www.saflii.org/za/journals/DEREBUS/2014/118.pdf">doctrine of the separation of powers</a>. It requires each branch of government (parliament, the cabinet and the courts) to show mutual respect to the others.</p>
<p>If one branch of government fails in its regulatory role, an imbalance is created. In turn this means that other branches are subject to unjustified pressure.</p>
<p>This happened in South Africa between <a href="http://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>, when the regime of former President Jacob Zuma manifestly and <a href="https://www.loot.co.za/product/richard-calland-the-zuma-years/lwlk-1845-g5a0">corruptly abused its constitutional authority</a>. Parliament failed dismally to fulfil its constitutional obligation to <a href="https://www.dailymaverick.co.za/article/2021-04-19-speaker-thandi-modise-does-damage-control-apologises-for-parliament-seeming-to-be-sleepist-and-pleads-for-more-resources/">hold the executive accountable</a>. </p>
<p>As a result, those who wished to challenge such abuse of power and to uphold the constitution, approached the courts. This increasing resort to the courts came to be known as <a href="https://www.litnet.co.za/reader-impression-lawfare-judging-politics-in-south-africa-by-michelle-le-roux-and-dennis-davis/">“lawfare”</a>. The more frequently the courts found against actions and decisions of the government, the more virulently the political leadership of the governing African National Congress <a href="https://www.sowetanlive.co.za/news/2011-08-18-full-interview-ancs-mantashe-lambasts-judges/">criticised the judges</a>.</p>
<p>The level of such lawfare has subsided since President Cyril Ramaphosa came to power in <a href="http://www.thepresidency.gov.za/profiles/president-cyril-ramaphosa%3A-profile">February 2018 </a>, with one exception. Those whose abuse of power has been exposed through the <a href="https://www.sastatecapture.org.za/">Zondo Commission into state capture</a> or through the investigative media have <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">vilified the courts</a> generally in public, or targeted specific judges for <a href="https://theconversation.com/how-zuma-uses-war-metaphor-to-fight-allegations-of-graft-in-south-africa-156223">scandalous attack</a>.
This is the context in which a new Chief Justice will be appointed in South Africa later this year.</p>
<h2>What should be taken into account</h2>
<p>Formally, the constitution is clear: <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">section 174 (3)</a> provides that</p>
<blockquote>
<p>The President as head of the national executive, after consulting the [Judicial Service Commission] and the leaders of parties represented in the National Assembly, appoints the Chief Justice.</p>
</blockquote>
<p>This means that the president must act in consultation with his cabinet, and after consultation with the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/about-the-jsc">Judicial Service Commission</a> and other political leaders (consultation is required but the advice given need not be followed).</p>
<p>Given the highly contested nature of the judicial process, I would argue that the following criteria should be uppermost in Ramaphosa’s mind when selecting the next chief justice:</p>
<ul>
<li><p>Strong credentials as an intellectual leader on the Bench, enjoying the respect of their peers in the superior courts. The Chief Justice needs to be able to be confident that, having taken a stance on behalf of the judiciary as a whole, the judges will support him or her;</p></li>
<li><p>A clear proponent of the transformative nature of the entire constitutional framework, with a jurisprudential track record to back up such a stance. In other words, that a judge has given judgments in the past that show their understanding of – and commitment to – transformation to achieve social justice. The <a href="https://www.justice.gov.za/legislation/constitution/saconstitution-web-eng.pdf">constitution</a> demands this;</p></li>
<li><p>Proven capacity to lead the judiciary as a whole. Precisely because they should be appointed for their independence of mind, among other qualities, judges need particularly nuanced and skillful leadership to ensure that they remain committed to the overall success of the constitutional project. An engaged and wise leader will ensure this;</p></li>
<li><p>An impressive record as a manager, preferably within the administration of justice. The <a href="https://nationalgovernment.co.za/units/view/28/office-of-the-chief-justice-ocj">Office of the Chief Justice</a> has been a department of state for a number of years. This means that the incumbent must also give operational and administrative guidance to the entire administration of justice. At the same time, the Chief Justice must maintain his or her judicial profile by presiding over matters in the apex court;</p></li>
<li><p>Manifest ability to engage credibly with the general public, reassuring it of the fair-minded, principled, fearless, and incorruptible nature of those appointed as judges, and of the superior court system as a whole. </p></li>
</ul>
<h2>Independence is key</h2>
<p>Furious controversies have been sparked by the failure of the current Chief Justice Mogoeng to <a href="https://www.businesslive.co.za/bd/national/2021-03-04-chief-justice-mogoeng-mogoeng-chided-for-wilful-misconduct-over-israel-comments/">separate his religious views</a> from his public office.</p>
<p>His successor must tread carefully when tempted to enter the broader political terrain. This is a key quality. Legitimacy (in the sense of public trust and confidence) is the final guarantor of judicial independence. Without it the courts are susceptible to party political abuse and undermining. The judiciary needs a strong, principled, articulate and fearless person to lead it.</p>
<p>These are high stakes indeed. The appointment of the next Chief Justice is a matter which should concern all South African and, I would argue, those who value the rule of law across the continent and beyond.</p><img src="https://counter.theconversation.com/content/159338/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder has received funding in the past from the National Research Foundation of South Africa.. He serves as a Director of Freedom under Law and on the Executive Committee of the Council for the Advancement of the South African Constitution (CASAC). This article is written in his personal capacity, and it does not necessarily reflect the views of any of the above bodies.. </span></em></p>The judicial process in South Africa is hugely contested. This places an exaggerated burden on the courts to act with maximum independence and impartiality.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1222092019-08-22T09:36:33Z2019-08-22T09:36:33ZCritics of South Africa’s judges are raising the temperature: legitimate, or dangerous?<figure><img src="https://images.theconversation.com/files/288903/original/file-20190821-170946-1ika9zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Chief Justice Mogoeng Mogoeng has had to intervene to protect judges from unfair criticism.</span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>The South African judiciary is once more centre stage in the political drama unfolding around the <a href="https://www.moneyweb.co.za/news-fast-news/south-african-corruption-fighter-seen-amplifying-anc-battles/">battle for supremacy</a> within the governing African National Congress (ANC). </p>
<p>In any constitutional democracy worth the name, the judiciary will be the ultimate guarantor of the rule of law and the supremacy of the Constitution.</p>
<p>If the judges act independently and impartially (as prescribed in <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-08.pdf">section 165</a> of South Africa’s Constitution), their judgments will inevitably, on occasion, displease party politicians and members of the Executive.</p>
<p>And when the political process increasingly frustrates the enforcement and implementation of the Constitution, politicians and civil society will turn to the courts to seek endorsement of their concerns. </p>
<p>These actions, now known in South Africa as a form of <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2019-releases/lawfare-judging-politics-in-south-africa-detail?Itemid=6">“lawfare”</a>, frequently place the courts in an awkward position. That’s because they have to rule on emotive political questions. But, provided that they resist the temptation to exceed their assigned constitutional role, the judges must engage with the issues and attempt to resolve the disputes presented to them.</p>
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Read more:
<a href="https://theconversation.com/storm-around-south-africas-public-protector-shows-robustness-not-a-crisis-120902">Storm around South Africa's public protector shows robustness, not a crisis</a>
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<p>Judges thus function on the political plane, not in a party political sense, but because they exercise public authority.</p>
<h2>Judicial accountability</h2>
<p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence. </p>
<p>Accountability is achieved by judges sitting in open court and through their work being critically analysed through the media and the legal profession. Judges are also held in check by the necessity that they justify their decisions with reasoned judgments, which can be appealed to higher courts.</p>
<p>The right to free expression encourages critical engagement with court judgments. This is lawful, provided that it doesn’t incite violence, amount to propaganda for war, or advocate hatred accompanied by incitement to harm <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-02.pdf">section 16(2) of the Constitution</a>.</p>
<p>There have been times in the past when the courts have come under attack from politicians. For example, this happened when the <a href="https://oup-arc.com/static/5c0e79ef50eddf00160f35ad/casebook_24.htm">appeal court stopped the apartheid regime</a> in its early attempts to remove coloured men from the voters’ roll in the 1950s.</p>
<p>In the early 2000s, the then Minister of Health Manto Tshabalala-Msimang resented the Constitutional Court judgments <a href="http://www.saflii.org/za/cases/ZACC/2002/15.html">compelling the state</a> to provide life-saving HIV medication.</p>
<p>These disputes pitted the elected government of the day against the top court.</p>
<p>More recent cases have involved contestation between factions within the governing party. For example, some in the ANC have complained that the courts were <a href="https://mg.co.za/article/2008-07-04-anc-boss-accuses-judges-of-conspiracy-against-zuma">exceeding their authority</a> when they declared the conduct by former President Jacob Zuma and some of his close associates unlawful. </p>
<p>These criticisms didn’t seem to threaten the courts’ constitutional role, or the judges themselves.</p>
<p>But over the past few months the mood has shifted palpably and become more menacing.</p>
<p>The volatile political atmosphere in the country, and the litany of judgments handed down <a href="https://mg.co.za/article/2019-07-29-high-court-suspends-public-protectors-remedial-action-on-sars-rogue-unit">against the current Public Protector</a> as well as <a href="https://mg.co.za/article/2019-06-06-eff-suffers-second-court-defeat-in-a-week">against the opposition Economic Freedom Fighters</a> (EFF), have escalated the temperature to dangerous levels.</p>
<p>This holds potential harm for the judiciary.</p>
<h2>Attacks on judges</h2>
<p>The most vindictive and undermining attacks – including the use of threatening and populist rhetoric – have come from the leader of the EFF, Julius Malema. He has characterised the courts and individual judges who have found against the Public Protector or the EFF in <a href="https://www.sowetanlive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">denigrating terms</a>. </p>
<p>For example, he referred to the race of one judge who ruled against the Public Protector, and demeaned the standing of another black female judge in another such case. Most threateningly, in one attack he said that if the courts continued to find in the manner in which they had, the EFF might have to return “<a href="https://www.news24.com/SouthAfrica/News/advocates-body-slams-effs-julius-malema-for-his-attack-on-sas-judges-20190816">to the bush</a>”.</p>
<p>Malema is one of the six Members of the National Assembly representing Parliament on the <a href="https://www.judiciary.org.za/index.php/judicial-service-commission/members-of-the-jsc">Judicial Service Commission</a>, which is responsible for appointing judges. At the very least he should resign or recuse himself from such a role given his recent outbursts.</p>
<p>But are there no limits to being critical of the judiciary? </p>
<h2>Protections</h2>
<p>Judges can’t get involved in popular political exchanges, particularly when the charges levelled at them are irresponsible, sinister and increasingly personal. </p>
<p>So, what can be done to preserve their integrity and fearless pursuit of constitutional governance?</p>
<p>Firstly, the Chief Justice as head of the judiciary has a responsibility to speak out in its defence. Chief Justice Mogoeng Mogoeng <a href="https://www.politicsweb.co.za/politics/general-gratuitous-criticism-of-judiciary-unaccept">did so</a> when criticism from the Zuma administration became irresponsible. </p>
<p>Secondly, the legal profession and public commentators can come to the courts’ support. The General Council of the Bar has <a href="https://www.timeslive.co.za/news/south-africa/2019-08-16-general-council-of-the-bar-criticises-malemas-veiled-attacks-on-judges/">just done so</a>. </p>
<p>Thirdly, South African law recognises a form of the crime of contempt of court, known as “scandalising the court”. In a 2001 case, the Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2001/17.html">found that</a> freedom of expression should not be granted the exalted status in South Africa which it enjoyed in the US. It also said that a balance needed to be achieved between “the commitment to open and accountable government” and speech which was “likely to damage the administration of justice”.</p>
<p>In other words, those who recklessly criticise judges run the risk of being prosecuted for criminal conduct. This is particularly the case when statements lead to an unwarranted erosion of public confidence in the courts as a legitimate governmental institution. </p>
<p>As <a href="http://www.justice.gov.za/sca/judgments/sca_2007/sca07-056.pdf">stated by Appeal Justice Nugent in 2007</a>:</p>
<blockquote>
<p>…If the rule of law is itself eroded through compromising the integrity of the judicial process then all constitutional rights and freedoms … are also compromised.</p>
</blockquote>
<h2>Need for caution</h2>
<p>Those who value the rights and processes enshrined in the South African Constitution should be alarmed by the threatening disregard for them displayed by critics like Malema. And they should speak out in support of the lawful exercise of judicial authority. </p>
<p>I would further argue that the critics should pause, and ask themselves to which constitutional institution they will turn for protection in the future, their intemperate outbursts having undermined the courts.</p><img src="https://counter.theconversation.com/content/122209/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder is a director of Freedom under Law and a member of the Advisory Council for the Advancement of the South African Constitution (CASAC). He writes in his personal capacity.</span></em></p>As a branch of government, the courts must naturally be accountable for the exercise of their power. The means of achieving their accountability must be balanced against their necessary independence.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1074432018-11-26T13:34:21Z2018-11-26T13:34:21ZIs South Africa’s Constitutional Court protecting democracy?<figure><img src="https://images.theconversation.com/files/246887/original/file-20181122-182050-16wr165.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Chief Justice Mogoeng Mogoeng. </span> <span class="attribution"><span class="source">EFE-EPA/Mike Hutchings</span></span></figcaption></figure><p>A recent <a href="http://www.saflii.org/za/cases/ZACC/2018/45.html">decision</a> by South Africa’s Constitutional Court on the right to <a href="https://www.iol.co.za/news/politics/what-does-the-constitutional-court-judgment-on-peaceful-protests-mean-18190008">peaceful protest</a> has drawn renewed attention to its role in safeguarding the country’s democracy. In declaring a section of the <a href="https://www.gov.za/sites/default/files/Act205of1993.pdf">Regulation of Gatherings Act</a> partly unconstitutional, the Court confirmed its function as a protector of democratic rights.</p>
<p>But, how in general should we measure the success of a constitutional court when it comes to protecting democratic rights?</p>
<p>The answer isn’t straightforward because there are conflicting views about the standard we should use.</p>
<p>For most lawyers, constitutional courts’ success in protecting democracy should be measured by their jurisprudential record - their performance according to legal professional standards of appropriate decision-making. </p>
<p>On this view of things, courts are essentially reactive institutions. The only power they have to influence the quality of democracy is to interpret democratic rights in the cases they happen to be asked to decide. </p>
<p>For many political scientists, this legalistic measure is inadequate. What needs to be assessed is the actual impact of a court’s decisions on the overall quality of democracy.</p>
<p>On this alternative account, constitutional courts have much greater agency than lawyers give them credit for. They should be seen as political institutions with the capacity to adjust their decisions according to their likely effects. </p>
<p>The Colombian Constitutional Court, for example, famously thwarted President Alviro Uribe’s <a href="https://www.nytimes.com/2010/02/27/world/americas/27colombia.html">bid for a third term</a>. In a bold decision, the Court correctly calculated that it had sufficient institutional legitimacy to stand up to a charismatic politician. </p>
<p>The political science account represents a more realistic picture of the discretion constitutional courts enjoy in shaping the law. The problem, however, is that it is difficult to assess the influence of any particular decision on democratic health. There are just too many intervening variables.</p>
<p>Thus, for practical purposes, we are forced back to assessing constitutional courts’ performance by looking at their record in interpreting democratic rights. But this doesn’t mean we have to treat them as reactive institutions. The key to appreciating their role in safeguarding democracy is to fuse the sense lawyers have of their duty to decide cases according to law with a political science perspective.</p>
<h2>Track record</h2>
<p>Every time a court decides a case it not only settles the issue in dispute but also invites other types of litigation. That happens because the court’s interpretation of the law in one case sends out signals about how it’s likely to interpret the law in the next. </p>
<p>A constitutional court, on this understanding, has the power either to play itself into the business of safeguarding democratic rights or play itself out. It plays itself in when it takes a decision that enhances its capacity to take further decisions protective of democracy. It plays itself out when its decision forecloses that possibility.</p>
<p>Judged by this more nuanced measure, South Africa’s Constitutional Court has performed remarkably well since 1995.</p>
<p>The major threat to South Africa’s democracy during this time has been the governing African National Congress’s entrenchment as a <a href="https://theconversation.com/south-africas-anc-has-remained-dominant-despite-shifts-in-support-base-63285">dominant political party</a>. Denied the sunlight of regularly rotating governments, South Africa’s democracy has developed certain well-known pathologies.</p>
<p>Faced with this situation, one approach the Constitutional Court might have taken would have been to decide cases according to its assessment of the threat posed by the ANC to South Africa’s democracy. But this approach would have undermined the special legitimacy the Court enjoys as a legally constrained actor, and exposed it to political attack. </p>
<p>Instead, what the Court has done has been to progressively expand the scope of its authority. In small, incremental steps, it has built public understanding of its legitimate power to review all aspects of the democratic process, from the quality of <a href="https://theconversation.com/south-africas-anc-has-remained-dominant-despite-shifts-in-support-base-63285">democracy within political parties</a> to the functioning of the legislature.</p>
<p>The best-known recent example of this was the Court’s ruling that the National Assembly’s failure to make rules regulating the removal of a President in terms of section 89(1) of the Constitution <a href="http://www.saflii.org/za/cases/ZACC/2017/47.html">violated that provision</a>.</p>
<p>The majority decision in this case provoked a forceful response from Chief Justice Mogoeng Mogoeng. He <a href="https://www.news24.com/SouthAfrica/News/mogoengs-deep-seated-agony-and-bafflement-over-majority-concourt-judgment-20171229">argued in dissent</a> that the Court’s insistence that an inquiry should always be held before impeachment violated the separation of powers.</p>
<p>Mogoeng’s dissent shows that the question of the appropriate scope of the Court’s authority is always legally fraught. But it also shows how creative the Court has been in pushing the limits of its authority to protect the democratic system.</p>
<h2>Oiling the wheels of democracy</h2>
<p>This, in conclusion, is arguably what constitutional courts established on the liberal-democratic model have to do. The current populist threat to democracy is not coming out of thin air. It exploits a sense, however unjustified, that liberal constitutionalism has failed a large section of the population.</p>
<p>To counteract this threat, constitutional judges need to demonstrate that they are not on the side of the status quo. Rather, their role is to support democratic social change, wherever that might lead. </p>
<p>Ultimately, this is what the Court’s recent judgment protecting the <a href="https://www.iol.co.za/news/politics/what-does-the-constitutional-court-judgment-on-peaceful-protests-mean-18190008">right to protest</a> was about. By protecting the applicants’ right to demonstrate, the Court oiled the wheels of democracy as the primary vehicle of peaceful social transformation.</p><img src="https://counter.theconversation.com/content/107443/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Theunis Roux does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s Constitutional Court has performed remarkably well in protecting democracy since 1995.Theunis Roux, Professor of Law, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/746302017-03-15T11:14:10Z2017-03-15T11:14:10ZSocial grants crisis tests the powers of South Africa’s Constitutional Court<figure><img src="https://images.theconversation.com/files/160902/original/image-20170315-5321-qm337c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People queue to register for government grants in Cape Town, South Africa.
</span> <span class="attribution"><span class="source">EPA/Nic Bothma</span></span></figcaption></figure><p><em>South Africa’s Constitutional Court is once again being asked to deal with a highly politically charged matter that affects the government of the country. The last time was over the question of President Jacob Zuma’s failure to repay state money spent on his personal homestead at <a href="https://theconversation.com/important-lessons-for-africa-as-strong-institutions-win-out-over-a-strong-man-57182">Nkandla</a>. This time the government’s Minister for Social Development, Bathabile Dlamini, is at the centre of a storm over the payment of 17 million social grants. The contract to do this was given to an independent contractor whose contract expires on March 31. The court ruled in 2013 that the contract was illegal because of tender irregularities and ordered the minister in <a href="http://www.politicsweb.co.za/documents/sassa-must-rerun-social-grants-tender--concourt">2014</a> to make alternative arrangements. She failed to do so and instead has sought to renew the contract. Politics and Society Editor Thabo Leshilo asked Constitutional court expert Pierre de Vos to explain.</em></p>
<p><strong>Why is this case before the constitutional court?</strong></p>
<p>The case is before the Constitutional Court because civil society organisations – the <a href="https://www.blacksash.org.za/index.php/sash-in-action/oversight-of-grant-payment-system">Black Sash</a> and <a href="https://www.dailymaverick.co.za/article/2017-03-07-freedom-under-law-asks-concourt-to-make-new-sassacps-contract-details-public/#.WMj1PVWGPIU">Freedom under Law</a> among them – approached the court to ask it to intervene in the matter to ensure, first, that grants will be paid after April 1st.</p>
<p>Second, they want to make sure that Cash Paymaster Services <a href="http://www.net1.com/business-structure/transactional-solutions-cluster/cash-paymaster-services-(cps)/">(CPS)</a>, the private company contracted to pay out social grants on behalf of the government’s <a href="http://www.dsd.gov.za/">Department of Social Development</a>, will not abuse its position to exploit grant recipients. Specifically, they want the company not to use the information it has about social grants recipients to push all kinds of financial products on them. These products include funeral policies and micro loans. </p>
<p>Third, the civil society organisations want to get the <a href="http://www.constitutionalcourt.org.za/site/thecourt/role.htm">Constitutional Court</a> to oversee the grants payment process to ensure that the South African Social Security Agency <a href="http://www.sassa.gov.za/">(Sassa)</a> and CPS don’t enter into a new contract with terms that will allow CPS to make exorbitant profits. Sassa administers the application, approval and payment of social grants in the country.</p>
<p>As the original contract was declared invalid by the Constitutional Court <a href="https://www.dailymaverick.co.za/opinionista/2017-03-07-new-sassas-cps-contract-might-be-illegal-heres-what-the-concourt-can-do-to-fix-the-mess/#.WMkVS1WGPIU">in 2013</a>, because of an <a href="http://www.heraldlive.co.za/news/2017/03/14/gordhan-says-cps-contract-illegal/">unlawful tender process</a>, and because entering into a new contract with CPS would almost certainly be unlawful because the requisite tender procedures were not followed, it’s important for the Court to validate the new contract to legalise the process. If it fails to do that the grants might still be paid on 1 April, but not in a legally valid manner.</p>
<p><strong>What big legal issues are at stake?</strong></p>
<p>The first issue is: what powers does the Constitutional Court have to fix a situation where the only way to deliver social grants – which the state is obliged to do because of a constitutional obligation – would be through a process that, without court validation, would be unlawful and invalid. </p>
<p>The second legal question is: what are the legal obligations of a private company (CPS) to deliver state grants. The court has already ruled that CPS is an organ of state for the purposes of paying social grants, which means it cannot walk away from the contract like a private party because it is fulfilling much the same function as a government department. This is because it’s delivering social grants to give effect to a <a href="http://www.saflii.org/za/cases/ZACC/2014/12.html">constitutional right</a>. This means that the court may order it to continue delivering grants if it remains the only body capable of doing it – even if CPS doesn’t want to continue and doesn’t make a profit.</p>
<p><strong>What powers does the Constitutional Court have if it’s ignored?</strong></p>
<p>The Constitutional Court depends on other branches of government to implement its orders. </p>
<p>But it can do the following: </p>
<ul>
<li><p>It can issue cost orders against a litigant. In this case, for example, it could order the Minister for Social Development Minister Bathabile Dlamini to pay the cost of the court case from her personal funds. This would be quite extreme but the court could make the case that she had ignored its instructions. </p></li>
<li><p>In the most extreme case it could find a person in contempt of court and can then have them jailed for being in contempt. </p></li>
</ul>
<p>But ultimately the power of the court lies in the hands of citizens who can decide to punish those in power who ignore court orders and flout the law by voting for another party and electing a new government.</p>
<p><strong>What’s the significance of the stand-off?</strong></p>
<p>The stand-off affects the lives of millions of people. More than 17 million grants are disbursed to <a href="https://africacheck.org/factsheets/separating-myth-from-reality-a-guide-to-social-grants-in-south-africa/">adults and children in the country</a>. It is therefore imperative that the crisis is resolved in a way that does not threaten their livelihoods. </p>
<p>But it is also significant because it is testing the power of the court when confronted with political delinquency. Courts are reluctant to challenge the political branches of the state head on. But, in certain circumstances, like the present, the Constitutional Court stands to lose more by trying to avoid a confrontation. Instead, it stands to gain more credibility and legitimacy if it manages to confront the impunity of Sassa and the Minister of Social Development, and if it ultimately manages to ensure that grants are paid in a legally valid way.</p><img src="https://counter.theconversation.com/content/74630/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pierre de Vos receives funding from National Research Foundation - funds granted automatically as an NRF rated researcher. </span></em></p>South Africa’s Constitutional Court is in a fix. The only way to deliver social grants that support millions would be through a process that’s without validation, would be unlawful and invalid.Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/602102016-05-30T16:00:25Z2016-05-30T16:00:25ZSouth Africa marks the end of a remarkable judicial career<figure><img src="https://images.theconversation.com/files/124490/original/image-20160530-7722-1xm81gt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Deputy chief justice Dikgang Moseneke, left, and
chief justice Mogoeng Mogoeng at a special session to mark Moseneke's retirement. </span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>The fall of the Berlin Wall in <a href="http://www.history.co.uk/shows/the-rise-and-fall-of-the-berlin-wall">1989</a> led to a rash of constitution-making in central and eastern Europe, as those national entities released from Soviet domination wrote the charters for their future governance. This was frequently done under American influence.</p>
<p>A similar tide of constitutional revisionism swept through Africa south of the Sahara. It was triggered by the long-brokered United Nations deal to free Namibia from South African occupation in <a href="http://www.sahistory.org.za/dated-event/namibia-gains-independence">early 1990</a>. It was later given a great boost by the arrival of formal democracy in South Africa itself in <a href="http://overcomingapartheid.msu.edu/unit.php?id=65-24E-6">1994</a>.</p>
<p>The adoption of the founding principle of limited government authority under law, percolated in turn through a number of countries in southern and east Africa. This took the form of a <a href="https://theconversation.com/how-commonwealth-countries-have-forged-a-new-way-to-appoint-judges-56090">written constitution</a> based more on the European post-war model than the American approach.</p>
<p>This trend had inevitable consequences for the judicial branch of government. The top court under each such constitutional system became the final arbiter of the lawfulness of the extent and manner of exercise of any government power. </p>
<p>The courts thus became more frequently involved in “political” decisions, with direct impact on the qualities deemed appropriate for appointment to the Bench, and the method of appointment of superior court judges. A nuanced understanding of the limits of judicial authority became essential, a quality often developed through participation in struggles for justice.</p>
<p>Some countries took the opportunity to create new courts or to change the membership of the most senior judiciary. South Africa chose the first approach, establishing the <a href="http://www.constitutionalcourt.org.za/site/thecourt/history.htm">Constitutional Court (Concourt)</a> in 1994, and appointing to its ranks seven members new to judicial office, and four drawn from the ranks of serving judges.</p>
<p>The <a href="http://www.justice.gov.za/m_speeches/2016/20160520_DCJMoseneke.html">retirement</a> of Dikgang Moseneke, one of South Africa’s eminent judges and the Concourt’s deputy chief justice, invites a moment to reflect on the court’s place in society, and his legacy.</p>
<h2>Diverse tapestry of legal minds</h2>
<p>Just as had occurred in 1910, when the first <a href="http://www.justice.gov.za/sca/historysca.htm">unified appellate court</a> was created as part of the new country called “South Africa”, the background and experiences of the first eleven Concourt justices represented a remarkably rich and diverse tapestry of legal and political involvement. </p>
<p>This had two immediate consequences: most importantly, and led by President Nelson Mandela, the judgments of the Concourt were accepted unquestioningly by the executive and parliament, even when they went counter to the government’s own actions and decisions. </p>
<p>Secondly, the justices displayed a sophisticated and adept approach to the doctrine of the separation of powers, exercising <a href="https://theconversation.com/how-a-countrys-constitutional-court-can-consolidate-and-deepen-democracy-54184">due restraint</a> at times, when the temptation must have been strong to intervene more emphatically when government had erred in law. Thus the Concourt soon established its legitimacy in the eyes of party politicians and the broader public alike.</p>
<h2>The shaping of an erudite legal mind</h2>
<p>With the passage of years, and given the fact that constitutional justices serve limited terms of office, it was inevitable and perhaps appropriate that those appointed to the Court should have less obviously strong <a href="http://www.sahistory.org.za/article/liberation-struggle-south-africa">“political struggle”</a> credentials.</p>
<p>Moseneke’s retirement is especially significant for that reason. His entire career <a href="http://www.constitutionalcourt.org.za/site/judges/justicedikgangmoseneke/index1.html">before appointment</a> testifies to his intimate knowledge of and involvement in the fight against injustice before 1994. Most of the remaining justices have no such record. Given this reality, will the Concourt be able to maintain its pre-eminence as protector of the Constitution?</p>
<p>There can be few South Africans who experienced the brutality of the apartheid regime as early in life and for such a long period as Moseneke. That he emerged from such trauma to exhibit the degree of compassionate, principled and courageous leadership that has characterised his life is even more astonishing. In 1963 he was only 15 when he was convicted of anti-apartheid crimes, and sentenced to <a href="http://www.constitutionalcourt.org.za/site/judges/justicedikgangmoseneke/index1.html">ten years’ imprisonment</a>. He served this term on Robben Island. He was not idle, gaining his matric as well as two Bachelor’s degrees.</p>
<p>He completed his formal tertiary education through an LLB degree after his release. He served as an articled clerk at a Pretoria firm of attorneys from 1976. After admission as an attorney, he founded his own firm. He moved to the Bar in Pretoria from 1983, a brave move as he broke a pattern of racist exclusion in that institution.</p>
<p>With the unbanning of political organisations in <a href="http://www.sahistory.org.za/dated-event/fw-de-klerk-announces-release-nelson-mandela-and-unbans-political-organisations">1990</a>, he assumed high office in the <a href="http://pac.org.za/">Pan Africanist Congress</a>. As such he played a central role in the drafting of the transitional <a href="http://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993">Constitution of 1993</a>. Thereafter he served as Deputy Chair of the <a href="http://www.elections.org.za/content/default.aspx/">Independent Electoral Commission</a> which organised the <a href="http://overcomingapartheid.msu.edu/multimedia.php?id=65-259-18">first democratic elections</a> in 1994. Later that year he acted for a short while as a judge, before immersing himself in business activities.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=489&fit=crop&dpr=1 600w, https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=489&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=489&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=615&fit=crop&dpr=1 754w, https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=615&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/124494/original/image-20160530-7687-tshagy.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=615&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Former President Thabo Mbeki bids deputy chief justice Dikgang Moseneke farewell. Looking on is former president Kgalema Motlanthe.</span>
<span class="attribution"><span class="source">GCIS</span></span>
</figcaption>
</figure>
<p>But, his commitment to the law as his first calling was renewed when he was appointed to the High Court in Pretoria in late 2001, followed a year later by his <a href="https://www.wits.ac.za/alumni/notable-alumni/honorary-degree-citations/honorary-degree-citation-justice-dikgang-moseneke/">elevation to the ranks of the Concourt</a> by President Thabo Mbeki. Less than three years later he was appointed deputy chief justice, in which office he served with distinction until retirement.</p>
<h2>Proud legacy of eloquence and loyalty</h2>
<p>Justice Moseneke delivered a number of very important judgments on behalf of the Concourt. Ironically, given the fact that, as deputy chief justice, he was passed over twice for appointment to the chief justiceship, he has frequently been associated with the notion of judicial deference in his interpretation of the separation of powers.</p>
<p>For instance, it was his judgment that finally put paid to the court challenges from those resisting the imposition of <a href="http://www.polity.org.za/article/national-treasury-and-others-v-opposition-to-urban-tolling-alliance-and-others-cct-3812-2012-zacc-18-2012-09-26">e-tolling in Gauteng</a>. This was chiefly because he thought that such polycentric policy decisions belonged in the sphere of the executive, and were not decisions for a court of law.</p>
<p>On the other hand, his fearless commitment to constitutional principle is seen in his being part of the majority which upheld the appeal which <a href="http://www.saflii.org/za/cases/ZACC/2008/19.html">set aside</a> the establishment of the Hawks corruption-fighting agency as insufficiently independent. The judgment cited South Africa’s international treaty commitments to take steps to eliminate corruption.</p>
<p>Moseneke conducted himself throughout with enormous restraint, loyalty and courtesy notwithstanding his treatment by the <a href="http://www.iol.co.za/sundayindependent/moseneke-in-new-clash-with-zuma-1296282">executive</a>. On the Bench, he was an eloquent and urbane participant in debates about the maintenance of the rule of law, democratic constitutionalism, and the transformation of society, in line with the values of the Constitution. He is the living embodiment of those ideals, tolerant and caring in all he does, and an inspiration to many.</p>
<p>This is best epitomised in the manner of his leaving office. As deputy chief justice, he had the unenviable task of chairing the Judicial Service Commission when it interviewed President Zuma’s nominee, Justice Mogoeng Mogoeng, to be the <a href="http://www.iol.co.za/sundayindependent/mogoeng-on-the-ropes-1131360">chief justice</a>. The tensions and animosity of that process were palpable. Yet when Moseneke spoke at the formal Concourt sitting to mark his retirement, he went out of his way emphatically to express his complete confidence in the chief justice, as follows:</p>
<blockquote>
<p>I can say without any fear of contradiction that your integrity has been shown to be beyond question.</p>
</blockquote>
<p>Such grace and magnanimity are rare in public life, so their impact is all the greater. South Africa and Africa need more leaders in the mould of Moseneke. He has just been in the news again, as one of the executors of <a href="http://mg.co.za/article/2016-05-27-mandelas-will-who-gets-what">Nelson Mandela’s estate</a>. From their meeting on Robben Island over 50 years ago, the late president must have realised that here was a man of utter integrity. May the standards set by Dikgang Moseneke long continue to inspire good governance in South Africa.</p><img src="https://counter.theconversation.com/content/60210/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hugh Corder does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The retirement of Dikgang Moseneke, one of South Africa’s eminent judges and the Constitutional Court’s deputy chief justice, is a moment to reflect on the court’s place in society and his legacy.Hugh Corder, Professor of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/520092015-12-09T07:06:49Z2015-12-09T07:06:49ZWhat the Pistorius trials tell us about racism in South Africa’s judiciary<figure><img src="https://images.theconversation.com/files/104873/original/image-20151208-32408-1jgfple.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Judge Thokozile Masipa during Oscar Pistorius' trial in the High Court. </span> <span class="attribution"><span class="source">EPA/Kim Ludrook</span></span></figcaption></figure><p>The state’s <a href="http://www.justice.gov.za/sca/judgments/sca_2015/sca2015-204.pdf">successful appeal</a> against the verdict in the Oscar Pistorius case brings the quality of work done by South African high court judges back under public scrutiny.</p>
<p>This is not a new phenomenon in South Africa. But underlying the debate is much more than the quality of the country’s judges. It is also about race and gender. South Africa’s judiciary remains dominated by men and has a higher proportion of white judges compared to the country’s <a href="http://www.justice.gov.za/docs/articles/20130510-dm-tranformation.html">race demographics</a>.</p>
<p>The public debate on the quality of High Court judges started receiving public attention in earnest during the <a href="http://constitutionallyspeaking.co.za/transcript-of-jsc-interview-with-justice-mogoeng-2009/">formal interviews</a> of the current chief justice, Mogoeng Mogoeng, in 2011. When he was nominated, his previous judgments as a High Court judge were thoroughly researched by various public interest organisations. The findings were <a href="https://www.issafrica.org/iss-today/is-the-appointment-of-justice-mogoeng-mogoeng-as-chief-justice-in-the-interest-of-the-people">damning</a>.</p>
<p>Questions were asked about how he became the judge president of the North West High Court division and how he eventually made it to the Constitutional Court.</p>
<p>Public law professor <a href="http://www.randomstruik.co.za/books/the-zuma-years/5128">Richard Calland</a> described the episode as:</p>
<blockquote>
<p>… a class warfare; a cultural clash between the epitome of the modern, progressive Constitution … and the reactionary, socially conservative world view of another place.</p>
</blockquote>
<p>Perhaps the debate about the quality of High Court judges after the high-profile Pistorius trial reflects a different cultural clash in South Africa. This is one in which the un-transformed legal profession all too often associates incompetence with black people. </p>
<h2>The need to defend Masipa speaks volumes</h2>
<p>Black lawyers are regularly stereotyped and their competence <a href="http://www.bdlive.co.za/national/law/2015/10/16/storm-over-lack-of-black-counsel-in-landmark-silicosis-case">questioned</a>. The differences in judicial opinion, similar to the outcomes in the Pistorius case, are elevated to unfortunate magnitudes to portray the transformation of the judiciary as inherently bad.</p>
<p>The Supreme Court of Appeal in the Pistorius decision was conscious of this point. It recognised that the successful appeal might generate adverse commentary about Judge Thokozile Masipa, the black female judge who heard the case in the High Court. In particular, it was clearly concerned about questions being raised about her abilities as a judge.</p>
<p>The Supreme Court emphasised that:</p>
<blockquote>
<p>… the trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability … the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.</p>
</blockquote>
<p>This well-intended concluding paragraph is both ironic and unfortunate given the alarming way in which the court of public opinion <a href="http://www.foxnews.com/world/2014/09/16/oscar-pistorius-trial-judge-faces-criticism-threats-over-verdict/">disagreed</a> with Masipa’s initial judgement. </p>
<p>There is no doubt that social commentary at the time was also <a href="http://www.bdlive.co.za/opinion/columnists/2014/09/16/masipas-pistorius-ruling-puts-judicial-error-in-the-spotlight">racially prejudiced</a>.</p>
<p>It is unfortunate that the Supreme Court had to anticipate (rightly) the public discourse that might arise from its judgment, and that it felt the need to defend Masipa’s competence. </p>
<p>Had she been a white male whose decision was overturned, the Supreme Court would not have been compelled to defend him. His competence would not have come into question.</p>
<p>The Supreme Court’s concluding paragraph is a sad reflection of the fact that South Africa remains an inherently prejudiced society in which incompetency is associated with race.</p>
<p>It also puts the spotlight on transformation of the legal profession as a whole. Transformation is about creating conditions that are open, bias-free and non-hierarchical. It is also about removing prejudices so that talent can flourish, unhindered by assumptions often linked to race and <a href="http://www.wits.ac.za/files/25gim_578095001427098673.pdf">gender</a>.</p>
<p>Diversity is seldom debated as a pressing issue in the legal profession. The lack of diversity is usually only raised after interviews by the <a href="http://www.dgru.uct.ac.za">Judicial Service Commission</a> for the appointment of senior members of the judiciary. One of its roles is to ensure the transformation of the judiciary. How it balances the need for racial and gender diversity often comes under scrutiny. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=405&fit=crop&dpr=1 600w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=405&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=405&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=509&fit=crop&dpr=1 754w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=509&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/104876/original/image-20151208-32388-ftv6lz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=509&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Chief Justice Mogoeng Mogoeng, left, with President Jacob Zuma. The judge’s suitability as chief justice was questioned.</span>
<span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span>
</figcaption>
</figure>
<p>The commission has done fairly well in increasing the number of black judges. But the situation remains dire. There are currently only five female judges out of 24 at the Supreme Court and three female judges out of 11 at the Constitutional Court. </p>
<h2>What does transformation really mean</h2>
<p>The <a href="http://www.wits.ac.za/law/cals">Centre for Applied Legal Studies</a>, which is based at University of the Witwatersrand and uses law to protect human rights, has rightly affirmed that talent and diversity are not alternatives. Diversity after all is not inconsistent with talent and ability.</p>
<p>For a robust debate about the quality of High Court judges perhaps there first needs to be an understanding of three questions:</p>
<ul>
<li><p>What is meant by transformation?</p></li>
<li><p>What are the barriers to transformation?</p></li>
<li><p>How should these barriers be addressed?</p></li>
</ul>
<p>Transformation is often understood in the legal profession, as well as socially, as the appointment or promotion of black people to positions they would otherwise not qualify for. But as the centre’s report advocates:</p>
<blockquote>
<p>… transformation should be about the removal of barriers that hinder talented lawyers from opportunities to develop and gain skills to advance their careers.</p>
</blockquote>
<p>Barriers to transformation span across the different stages of a lawyer’s career. Black law graduates struggle to find jobs and have limited connections to established members of the profession. In addition, the cultural alienation in the legal profession affects the rise of black lawyers. The centre also identifies:</p>
<ul>
<li><p>covert racism;</p></li>
<li><p>briefing patterns that exclude black lawyers; and</p></li>
<li><p>the “trailblazer phenomenon”, in which a few black lawyers are used as the benchmark in assessing other black professionals.</p></li>
</ul>
<p>All these affect the rise of competent black lawyers to the bench.</p>
<p>Transformation of the judiciary is inextricably linked to the transformation of the legal profession. To settle the debate about the quality of High Court decisions, we first need to understand the barriers to transformation and then debate the various patterns that continue to entrench them. We must also be honest and accountable in our debate so that we can begin to find sustainable solutions.</p><img src="https://counter.theconversation.com/content/52009/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fola Adeleke does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The debate about the quality of High Court judges after the Pistorius trials reflects a different cultural clash in South Africa – one in which incompetence is often associated with black people.Fola Adeleke, Senior Researcher in Investment and Administrative Law, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.