The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective

In this opinion piece I share my perspective about the state of South Africa’s constitutional democracy as an advocate who practises in all the higher courts of South Africa. Indeed, I thank the avalanche of turgid reaction to Minister Lindiwe Sisulu’s take on the same issue this past week.

While I shan’t engage with the content or even merits of what strikes me as Minister Sisulu’s political manifesto, and the cacophony of squeals and meandering political rhetoric that followed it, I think an opportunity has arisen for practising lawyers to express their views, individually and from personal experience, on the state of South Africa’s fabled constitutional democracy. In a constitutional democracy, lawyers should be free to express their views on this issue free from fear of victimisation by those who control the purse strings of legal work in government and elsewhere. After all, those of us who practise in the courts experience the impact of the Constitution directly at the level that matters most: the judicial adjudication of contesting rights.

I accept that Minister Sisulu has been part of the executive that has failed to deliver her party’s promise of “A Better Life for All”. However, my focus is not the messenger and her track record; it is an aspect of her message.

I accept also that there are some heart-warming good stories to tell about the successful invocation of some provisions of the Constitution in the highest court. But these should not be allowed to drown out the shrill cry of probably hundreds of thousands, if not millions, of South Africans who still, despite the Constitution, suffer the indignities of race and gender unfair discrimination. They are my focus in this opinion, as hardly anyone ever genuinely speak for them without exerting some mileage – whether political or economic – for themselves.

My thesis is this: The Constitution is a document with lofty ideals and aspirational virtues. It is not a panacea to all societal ills. For example, equal protection and benefit of the law (s 9) is a virtue to which we all aspire, not one we all possess. One need only look at how selective the application of the law has been, and continues to be. Some people are persecuted by organs of state and publicly pilloried on mere allegations of wrongdoing. Examples include Mr Matshela Koko (former Acting Chief Executive at Eskom) who is being relentlessly pursued under the guise of “state capture” but in truth seemingly for doing his job at Eskom which, to the chagrin of people in positions of power and their benefactors, meant lost opportunities for pilfering at the state power utility. Admissible evidence of criminality against him I am yet to see. Whether it will come is anyone’s guess.

Others seem protected even after a forensic investigation points to possible defalcation. Examples in this category include former Minister of Health.

The President himself has been implicated at the State Capture Commission in facilitating “state capture”. Yet, not so long ago, the President officially received (and is scheduled to continue receiving) the State Capture Commission Report in tranches as President. He will decide what recommendations made in the Report to accept and which to ignore or reject. But what of the allegations that the President may have facilitated the very conduct that the State Capture Commission was established by the former President to investigate?

Let’s remind ourselves:

The evidence was that Mr Ramaphosa was chairman of the board of directors of Optimum Coal Holdings (OCH) from 26 March 2012 until 22 May 2014. He held a 9.64% shareholding (via the Lexshell company) in OCH and through its subsidiaries, including Optimum Coal Mines (OCM). OCH had provided a parent company guarantee to Eskom to step in if OCM was not able to perform its obligations in terms of the OCM Coal Supply Agreement (CSA). Mr Ephron, OCH and OCM CEO at the time, told the State Capture Commission that Mr Ramaphosa divested his entire interest in OCH on 22 May 2014. At that stage, the Eskom penalties claims against OCM for the supply of sub-optimal coal in breach of terms of the CSA amounted to over R1.4 billion. Mr Ramaphosa had an association with Glencore and its public representatives for a number of years. In his statement to the Commission, he referred to it as a long-standing relationship that started in 2005.

Between March 2012 and May 2014 OCM failed to pay to Eskom the coal penalty claims of over R1,4 billion. The President (still Mr Ramaphosa then) resigned as a director and Chairman of OCH in May 2014 to take up Deputy-Presidency of the country under President Zuma on 25 May 2014.

Between June 2014 and May 2015 the coal penalty claims that were not paid to Eskom by Glencore’s Optimum Mine increased by R740,000 000 to R2.17 billion from R1 431 429 719.

In July 2015 Eskom served Combined Summons on OCM and OCH, claiming payment of the R2,17 billion coal penalties. OCM and OCH elected to go into business rescue rather than deal with the summons in court. They also avoided going through the arbitration proceedings as provided for in the CSA. They demanded that Eskom scrap the R2.17 billion. Eskom refused. The Business Rescue Practitioners elected to sell the business to Tegeta. Glencore claimed that Eskom pressured them to sell by refusing to scrap the R2.17 billion penalties that were rightfully due to Eskom.

In January 2018, Mr Ramaphosa (who had been Chairman of OCH just over 3 years previously and held a substantial shareholding in the company) was now head of government business and Deputy President of the country and of the ruling party. In that capacity, so the evidence goes, he sent an instruction to the Department of Public Enterprises to appoint a new Eskom board and for the new board that was yet to meet to dismiss Mr Koko and other executives. The Labour Court set aside that decision. Mr Koko remained dismissed nonetheless.

That, in my view, is the state of our constitutional democracy.

There is more. The President told the State Capture Commission, under oath, that the ruling party’s deployment committee did not discuss recommending candidates for judicial appointment. It has now reportedly emerged from minutes of the ruling party’s deployment committee that it did. That, by definition, would ordinarily constitute perjury and a serious violation of the law and the Constitution by a sitting President. But, will the President be hauled before Parliament to account to us on pain of a vote of no confidence or, possibly, impeachment? Will the State Capture Commission Report make any recommendation about what appears to be Presidential mendacity under oath? In light of this revelation, will the Acting Chief Justice (and, indeed, the Judiciary and the organised legal profession) still find it appropriate that a President seemingly compromised in this way should still receive the Commission’s Report and be the one who decides which recommendations to accept or reject?

The answers to these questions will further reflect the state of South Africa’s constitutional democracy. It is not the Constitution that is to be judged. Rather, it is to the institutions that have been put in place to give effect to its lofty ideals that we should look: Parliament. The Judiciary. The Executive (Cabinet). Will they fail South Africans once again?

People wax lyrical about a Constitution that guarantees the right to human dignity (s 10), yet we see black graduates at traffic intersections begging for work, any form of work, to make ends meet, alongside decent ordinary South Africans begging for food with toddlers in tow. Whose dignity is contemplated in s 10 if not that of the most vulnerable among us? We extol the virtues of a Constitution that guarantees the right not to be detained without trial [s 12(1)(b)], yet countless numbers of black people who cannot afford bail or effective legal representation for “poverty crimes” like theft of food, or items intended for sale in order to buy food, languish in South Africa’s gaols. Is the right not to be detained without trial guaranteed only for those who can afford a lawyer, or for those lucky enough to be assisted by Legal Aid SA?

We have a Constitution that guarantees freedom of association (s 18), yet “cancel culture” forces people out of business and employment merely for being perceived as being associated with persons of whom the establishment does not approve. Is this freedom reserved only for pre-approved association?

That is the state of South Africa’s constitutional democracy.

We have a right, in theory, to freedom of thought, conscience, belief and opinion [s 15(1)], yet the legal profession seems unperturbed by a provision in the covid-19 regulations that criminalises the expression of a view on covid-19 that contradicts the government’s official position, subject only to the cynical caveat that the view expressed must be intended to mislead. But “intention” can only be determined by the criminal court after criminal prosecution has already been instituted; and so the caveat is open to abuse.

That is the state of South Africa’s constitutional democracy.

The President is talking of plans to force (euphemistically termed “mandate”) people to take injections of what some experts regard as experimental, in order to, apparently, “save lives”, yet there is no evidence that vaccination prevents transmission of the covid-19 virus, or that it prevents death from covid-19 complications, or that vaccination prevents hospitalisation from severe covid-19 effects. We are now told that vaccination “reduces” chances of infection, or hospitalisation or death. If one dares ask basic commonsense questions about the rational connection between compulsory vaccination and so-called “vaccine passports”, on the one hand, and the information that is available as regards the provenance and purpose for which these things are intended, one tends to be “cancelled” and labelled “anti-vaxxer” or “flat-earther” or “anti-science” or “covidiot” and more.

This is the state of South Africa’s constitutional democracy.

The former Chief Justice spoke out, outside the courtroom, on matters of corruption involving the state and private sector. He also expressed religious and other views on matters of state involving Israel. For that he was pilloried and, for the latter, ultimately censured by the Judicial Conduct Committee for “becom[ing] involved in political controversy or activity, in breach of Article 12 (1) (b) of the Code [of Judicial Conduct]”. The former Chief Justice appealed against the censure. Contrastingly, the Acting Chief Justice speaks out, outside the courtroom, in response to a politician’s tirade about matters of state involving the role played by a demographic of the judiciary as she sees it. He is commended, including by a retired Justice of the Constitutional Court. There is no complaint to the JSC of which I am aware that the Acting Chief Justice has “become involved in political controversy or activity in breach of Article 12 (1) (b) of the Code”. How can there be, when a retired Justice of the Constitutional Court and an association of advocates have already lent credibility to what some consider a political intervention by the Acting Chief Justice?

That is the state of South Africa’s constitutional democracy.

There is another serious consideration. Before his public excoriation of a politician for doing what politicians generally do (namely, shoot from the hip for political mileage), did the Acting Chief Justice stop to consider his position (and that of the Judiciary he leads) if Minister Sisulu’s political outburst against a demographic of the Judiciary were to give rise to litigation which engages the politician’s right to freedom of thought, belief, conscience and opinion (s 15) and her right to freedom of expression (s 16), which ultimately ends up in the higher courts, including the Constitutional Court? How impartial can ordinary South Africans expect the courts to be in their determination of a case when the leader of the Judiciary, publicly supported by a retired Constitutional Court Justice and an association of advocates, has already publicly pronounced his aversion on behalf of the Judiciary?

That is the state of South Africa’s constitutional democracy.

Not so long ago, another politician (the Minister of Transport) referred to the State Capture Commission on which the Acting Chief Justice presides as “the place where people go to urinate”. Yet another politician (leader of the third largest party in Parliament) launched an extraordinary broadside at the entire judiciary when he said: “There is gross incompetence at the highest level of the judiciary, starting with the incompetent Acting Chief Justice, Zondo … We are not going to be afraid to talk about incompetent judges of the Constitutional Court who take four months to resolve an urgent matter”.  He made this statement seemingly oblivious of how the Constitutional Court goes about its business of judgment consideration and writing. (Clearly he had not watched an episode of this publication under “Judicial Voices” where Justices of the Constitutional Court explain the process). I am not aware of scarcely the sort of outrage we are now witnessing against Minister Sisulu’s tirade from the Acting Chief Justice in defence of the Judiciary.

That, in my view, is reflective of the state of South Africa’s constitutional democracy.

Some large white firms win tenders from state-owned enterprises with the assistance of small black firms and then, on the award of the contract, either terminate the partnership or (playing one black firm against another in their pursuit of bread crumbs falling from the master’s table) replace the original black firm with another small black firm to which it pays lesser revenues than those agreed with the original black firm. On the rare occasion when the termination is challenged in court, all manner of technical points are often raised with the specific purpose of draining the financial resources of the small black firm and, with that, its resolve to fight. In cases of this kind – economic transformation cases – our courts have tended in my experience rather to go with form over substance, technical niceties over justice. Having ruled that former Chief Executive of Vodacom lied when he claimed to have invented a technological application that had in fact been invented by a young black man, why did the Constitutional Court not make a finding in favour of the young black man and award him his claim instead of sending the matter for determination of the amount of damages to be paid back to the Chief Executive of the very company with which the young black man is in dispute? Although this had been the contractual bargain made by the parties themselves, the manner in which Vodacom litigated this case, as lamented by the Constitutional Court itself in its judgment, called for a measure of judicial activism in the interests of justice and in pursuit of a goal higher than a common law sanctity of contract: equity and constitutional redress. An opportunity was lost to develop the common law in a case that cried out for it.

The court’s concluding remarks in Makate v Vodacom are worth reproducing to demonstrate the opportunity lost:

“The stance taken by Vodacom in this litigation is unfortunate. It is not consistent with what was expected of a company that heaped praises on the applicant for his brilliant idea on which its “Please Call Me” service was constructed.  The service had become so popular and profitable that revenue in huge sums of money was generated, for Vodacom to smile all the way to the bank.  Yet it did not compensate the applicant even with a penny for his idea.  No smile was brought to his face for his innovation.  This is besides the fact that Vodacom may have been entitled to raise the legal defences it advanced.  As a party, it was entitled to have its day in court and have those defences adjudicated.  This is guaranteed by section 34 of the Constitution.  However, it is ironic that in pursuit of its constitutional right, Vodacom invoked legislation from the height of the apartheid era, to prevent the applicant from exercising the same right.

In not compensating the applicant and persisting in advancing the legal defences even after the trial Court had emphatically found that an agreement was concluded, Vodacom associated itself with the dishonourable conduct of its former CEO, Mr Knott-Craig and his colleague, Mr Geissler. This leaves a sour taste in the mouth.  It is not the kind of conduct to be expected from an ethical corporate entity.”

An opportunity was, indeed, lost to develop the common law for the sake of justice, equity and the pursuit of equal protection and benefit of the law as enshrined in the Constitution that we so lavishly celebrate. What is the point of all these lofty constitutional values if our courts are not prepared to stretch their imagination in pursuit of them in cases that cry out for such intervention against a litigant of the kind the Constitutional Court describes in this passage?

That is the state of South Africa’s constitutional democracy.

We have a provision in the Constitution that demands that organs of state implement a procurement policy that favours the advancement and protection of persons disadvantaged by unfair discrimination and the procurement of goods and services from categories of persons disadvantaged by unfair discrimination. Yet the legislation that Parliament enacted in order to give effect to that constitutional provision forces black and women owned firms to compete on equal footing with established white firms on price, knowing full well the impossibility of that competition. In the result, the preferential procurement constitutional provision is an empty promise.

That is the state of South Africa’s constitutional democracy.

In order to give effect to broad-based black economic empowerment as provided for in s 217(2) of the Constitution, Parliament enacted the Broad-Based Black Economic Empowerment Act. But in reality, black people buy shares in existing white companies through new companies with huge loans obtained from banks and other finance institutions to be repaid over time from the appreciation of the share price. The shares are used as guarantees for the repayment of the loan and if the share price should fail to appreciate sufficiently to cover the amount of the loan within the period of the loan, the shares are forfeited to the bank or finance institution that provided the loan. And our courts have ruled that the white company, even though the shares are no longer in black people’s hands, remains “empowered”.

That is the state of South Africa’s constitutional democracy.

In a case where a woman raped by 3 on-duty policemen sought damages against the Minister of Safety and Security, both the High Court and the Supreme Court of Appeal dismissed her claim saying the Minister was not vicariously liable for the conduct of the 3 policemen. The woman had accepted a lift from the 3 policemen after she had found herself stranded in the early hours of the morning. Instead of chaperoning her to safety, the 3 policemen took turns to rape her, and the High Court and Supreme Court of Appeal denied her damages against their boss. Had it not been for Justice Maya’s lone voice on that SCA bench, the case would likely not have attracted the attention of the Constitutional Court and reversed. Had the woman no funds, or her legal team discouraged by the loss in 2 courts, our judiciary would have failed her. How many similar incidents of unresourced women go unreported almost everyday?

That is the state of South Africa’s constitutional democracy.

The controversy surrounding Minister Sisulu’s political assessment of South Africa’s constitutional democracy provides an opportunity for us all in the country – especially lawyers – to take stock of our constitutional democracy, assess how far we have come with it, subject it to stringent review of its shortcomings through public dialogue, come to grips with the failures of implementation of its lofty ideals, and chart a new path if our review should reveal that the fortunes of a more prosperous, egalitarian South African society lie elsewhere.

That begins with discouraging “thought policing” and censorship of socio-political views that do not find favour with some powerful forces in society. No one should have monopoly of thought or conscience or thought leadership in a constitutional democracy. Everyone should be free to express an opinion about the state of South Africa’s constitutional democracy, however unpalatable or even outrageous it may appear to some of us, subject only to the strictures provided for in the Constitution itself: incitement of violence, propaganda for war and advocacy of hatred. Absent any of these, there should be no censorship of free speech whether by a politician, a Judge, a vagrant, a civil servant, a practising lawyer, or any ordinary citizen concerned about the direction his or her country is taking.

That is what the state of South Africa’s constitutional democracy should be.

By |2022-01-17T10:56:41+02:00January 16th, 2022|Blog, General, News|Comments Off on The State of South Africa’s Constitutional Democracy: A Practising Lawyer’s Perspective

MOGOENG MOGOENG CJ and the end of an Era: A Brief Perspective

To my knowledge, neither until, nor since, the nomination of then Justice Mogoeng as Chief Justice of South Africa has a candidate for judicial appointment in post-1994 South Africa been subjected to such virulent attack in the media by laymen, political parties and lawyers alike. One remembers a Daily Maverick headline that screamed “Why Why Mogoeng Mogoeng?”

The Western Cape Judge President and two Justices of the Supreme Court of Appeal who have endured virulent attacks from the same source for penning a judgment with which the journalists did not agree, were already judges when attacked.

As if the candidate were a beached whale, every man and his dog felt entitled to take a bite. It was all in bad taste.

But for me, most disturbing of all were the testy exchanges between the candidate and the Deputy Chief Justice who chaired the proceedings of the  Judicial Service Commission that is charged with recommending persons for judicial appointment to the President. That weekend in early September 2011, at the Cape Town International Convention Centre and the Westin Grand Hotel, probably ranks among the most unfortunate and regrettable episodes in post-1994 South Africa’s judicial history.

From that example, an opposition political party, the Democratic Alliance, took heart and threatened to challenge the appointment in court. This it did after a stillborn (and constitutionally delinquent) political ploy of advancing an alternative name for consideration for the position of Chief Justice. At the time, I dared the then leader of that political party to challenge the appointment. She did not bite.

Here is how I did it, in September 2011:

Why DA Legal Challenge Will Fail

If anyone had any doubt that the Constitutional Court is fast becoming a political battleground through which contestants compete for dominant space in which to assert their philosophical leanings, the Democratic Alliance (DA) has made this perfectly clear.

The DA has taken the view that if it can’t beat the ANC at the polls, it will seek to impose its philosophy through the Constitutional Court by ensuring no candidate whose philosophy seems anathema to its own takes the reigns there. The ANC calls it “counter-revolutionary”. I call it seditious.

It seeks to do this by challenging the President’s appointment of the chief justice. Since its application papers have not yet been made public, one can only speculate about what relief the DA will seek and what the bases therefor will be. My guess is that it will seek a review application to set aside the decision of the JSC and the President.

The basis for the review application is likely to be, among other things, that Justice Mogoeng is not the best candidate for the position [as members of the party have said in public] and that the JSC acted capriciously in refusing to entertain the DA’s eleventh hour proposal of another candidate for consideration and interview.

If that is what the DA has in mind, it is likely to fail in my view. Let me tell you why.

Section 174(3) of the Constitution is the provision under which the President exercises the power to appoint the Chief Justice. The President, and only he, has that power. The only limitation is that he must consult the JSC and leaders of political parties represented in Parliament before making the appointment.

In consulting, the President is not required by the Constitution to obtain the “approval” or “acquiescence” of the JSC and political party leaders in the choice of his preferred candidate for Chief Justice. Meaningful consultation does not mean that at all. All it means is that the President must be open to persuasion; but the final decision is his and his alone. The DA seems to have lost sight of this and that is likely to be the first soft under-belly of its challenge.

I was initially sceptical about Justice Mogoeng’s nomination. I decided to fly down to Cape Town and satisfy myself that I was right in my scepticism. My mind was made up that he was not a suitable candidate for the job. But after listening to his address, and to his responses to sometimes virulent attack, I changed my mind. I am now convinced that Justice Mogoeng is suitable for the job.

That leads me to the second weakness in the DA’s case. It says Justice Mogoeng is not the best candidate for the job because he is not “exceptional”. That is not the standard set by the Constitution. Section 174(1) describes succinctly the qualification criteria for a judge: “a fit and proper person”. As a Constitutional Court judge, Justice Mogoeng is clearly “fit and proper”. There are no special criteria for a Chief Justice.

Thirdly, the DA baulks at the nomination of a single candidate for the position of Chief Justice. It prefers that the President selects his candidate from a list of “exceptional” persons. There is absolutely no basis for this in the Constitution. It is in the appointment of other judges of the Constitutional Court that the Constitution makes provision for selection from a list of candidates. Not so in relation to the appointment of the Chief Justice.

Fourthly, the DA attacks Justice Mogoeng for not having appeared as counsel in the Appeal Court in reported judgments, not having many reported judgments in his name as a judge, and not having produced commercial and civil law judgments.

Quite apart from ignoring historically skewed briefing patterns in South Africa, where black practitioners have largely been seen as good enough for legal aid work and would not see a commercial brief in the course of their practice, this attack also displays ignorance of the dynamics involved in the decision as regards what judgments get reported.

Speaking from experience, I have acted in the High Court and sat with senior judges who told me I should mark 3 of my judgments reportable. I did. They have still not been reported. The DA seems unaware of the fluidity of the criteria for reportable judgments.

Fifthly, the DA attacks Justice Mogoeng’s religious beliefs and says this will be an impediment to “an unwavering adherence to the Constitution”. The Constitutional Court has in at least two judgments recognised the “presumption of impartiality” and integrity in a judge. International instruments on judicial ethics do too. The DA seems to presume the opposite, that Justice Mogoeng will place his religious beliefs above his oath of office. This is wrong.

Sixthly, the DA attacks Justice Mogoeng as being gender insensitive. In support it refers to dicta in a handful of cases, ignoring scores of others where Justice Mogoeng expresses his distaste for sexual assault and rape on women. It also ignores the fact that deciding on an appropriate sentence is not an exact science, as demonstrated by at least two other post-Constitution judges of the Supreme Court of Appeal who reduced a life sentence in a rape case the facts of which are too ghastly to repeat here.

Seventhly, the DA attacks Justice Mogoeng as lacking the intellectual rigour to be Chief Justice. There is no such requirement in the Constitution. It is in any event factually incorrect. Clearly the DA did not listen to Justice Mogoeng’s answers. Perhaps it is offended, as persons of a liberal hue tend to be, that a black professional dared to articulate himself confident in his considerable abilities, confident in who he is and with the sureness of purpose as regards what real access to justice for ordinary South Africans requires. “Arrogant” is usually the chant of choice – and was.

Finally, the DA has a short memory. When former Chief Justice Chaskalson was appointed President of the Constitutional Court in 1994, he had never sat as a judge, had not a single reported judgment in his name as a judge, and practised largely human rights and public interest law at the Legal Resources Centre. Lack of commercial law practice was not an impediment to his elevation.

Back to the present:

Of the many qualities that Chief Justice Mogoeng has demonstrated over the years as Chief Justice, the one that stands out for me is his unwavering and fierce independence as a Judge and a Leader. These days it appears, for many, as if “judicial independence” is simply an attribute firmly lodged in the Constitution, only to be invoked from time to time in the odd judgment but not a lived experience. I particularly appreciate Chief Justice Mogoeng’s appreciation of the fact (for it is fact) that a Judge is also a citizen who enjoys all the rights in the Constitution, including the right to freedom of expression and opinion.

This idea that Judges should speak only through their judgments is, to my mind, so 1984 – yes, as in Orwellian. It is not even a true position in reality because judges are known to express views outside the courtroom. Judges speak through the ballot box too. Some vote for the ruling party, others for the main opposition. That is a political statement, right there. To pretend that judges express themselves only through their judgments is to be disingenuous. Recently, a former Constitutional Court Justice was quoted as likening people who question the provenance of covid19 vaccines to “AIDS denialists”. Another former Constitutional Court Justice is not shy to express his strong (and unflattering) views publicly about the suitability of a serving Judge of the High Court. A former Deputy Chief Justice, while serving still, famously expressed the view that in a judge’s decision-making it is not what the ruling party wants that matters but rather what is good for the people. Anyone who read that remark as being indicative of the Deputy Chief Justice’s antipathy towards the ruling party, and so incapable of judging a case involving the ruling party fairly, would need to have his or her head read.

Chief Justice Mogoeng expressed his personal views publicly. He did not hide his personal and philosophical outlook behind the judicial facade. I admire him for that. As a practitioner, I would much rather face a Judge whose world outlook (or inarticulate premise) is no secret, than one who pretends to be neutral on every issue that comes before him or her for determination – a human and judicial impossibility. It is when a Judge, known to be opposed to abortion, rules in favour of it in the particular circumstances of the case, that gives true meaning to judicial independence, fidelity to the law and judicial impartiality. A judge who feigns neutrality on every issue he or she has to decide, while bringing his or her deeply held convictions to bear on his or her judgments, with little or no fidelity to the law and the Constitution, is a danger to a Constitutional democracy.

Happily, I am unable to say that about Chief Justice Mogoeng. May his successor take a leaf from his book.

In fact, the Constitutional Court itself made the following poignant observation in the early years of its existence [in SACCAWU v I & J Ltd 2000 (3) SA 705 (CC)], effectively lending a lie to this oft-repeated mantra that judges speak through their judgments:

“‘[A]bsolute neutrality’ is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality – a distinction the Sarfu decision itself vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the Judge’s own predilections, preconceptions and personal views – that is the keystone of a civilised system of adjudication. Impartiality requires, in short, ‘a mind open to persuasion by the evidence and the submissions of counsel’; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding.”

A Judge should not hide behind a judicial facade while making decisions that are informed by hidden considerations that have little or nothing to do with fidelity to the law and the Constitution. A Judge should live openly, express his or her views openly and publicly on any subject. The judicial robe is not a muzzle. Judges should do the hard work of judging, which entails – inevitably – open-mindedness readiness to persuasion without unfitting adherence to his or her own publicly known predilections, preconceptions and personal views.

That, in my view, is the true art of Judging. On that score, I commend Chief Justice Mogoeng.

In closing, it is my fervent hope that we shall not again be subjected to the vituperative exchanges  between leaders of the judiciary that we witnessed on those two days in September 2011.

As for politicians, well, no bar is too low.

By |2021-10-11T19:20:22+02:00October 11th, 2021|Blog, General, News|Comments Off on MOGOENG MOGOENG CJ and the end of an Era: A Brief Perspective


This is Part 2 of a paper on the fabled “lifeboat” or “bailout” afforded by the SA Reserve Bank to the Bankorp Group and Absa Bank between 1985 and 1995.

As pointed out in Part 1 of the paper, this bailout has been the subject of three investigations:

  • the Special Investigating Unit (“the SIU”), led by Judge Willem Heath, following a proclamation by President Thabo Mbeki, which concluded that the SA Reserve Bank R1.5 billion bailout of the Bankorp Group and Absa Bank was a “simulated transaction” – a gift disguised as a loan. That Report was never released by President Mbeki or any other President after him.
  • the Davis Panel of Experts, led by Judge Dennis Davis, appointed by Mr Tito Mboweni – then governor of the Reserve Bank and now Minister of Finance – which reached the same conclusion as the SIU as regards the “simulated” nature of the bailout.
  • the Public Protector who found likewise and went further to direct that the money be recovered from Absa Bank and other beneficiaries.

In this Part 2, we discuss the findings and recommendations of the three investigations and propose the way forward with reference to Constitutional Court authority.

Read the full Analysis here The Unfinished Story – SA Reserve Bank Bailout of the Bankorp Group and Absa Bank – Part 2

By |2021-04-30T19:32:25+02:00April 30th, 2021|Analyses and Reviews|2 Comments

In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 5th segment

In this segment, we explore Transformation & related matters in the Legal Profession, particularly the dearth of black and women Counsel in the Constitutional Court appearing as Counsel and arguing cases. What is the reason for this?

Justice Mbuyiseli Madlanga of the Constitutional Court of South Africa discusses this and other matters with us, including

  • in what instances the Constitutional Court would reconsider its own earlier judgment
  • in what way, if any, Judges are influenced by media reports.
By |2020-09-25T11:18:47+02:00September 25th, 2020|Legal Voices|Comments Off on In Conversation with Justice Mbuyiseli Madlanga of the Constitutional Court – 5th segment
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