Nicole Fritz: JSC interviews: We should all be concerned about the exclusion of talent

Last week saw a marathon sitting of the Judicial Service Commission (JSC) in order to interview candidates for appointment to South Africa’s various courts. All eyes however were likely drawn to the first day’s proceedings when the JSC interviewed candidates for appointment to South Africa’s highest court – a process it was forced to undertake a second time after the Council for the Advancement of the South African Constitution (CASAC) had challenged the earlier April interviews on the basis that these and their outcomes were procedurally unfair and unlawful.

But while the conduct and demeanour of the JSC at the Monday interviews was plainly different from that on display during the April interviews, this rerun of the process produced the very same outcomes: the same five names were shortlisted and forwarded to the President for him to make a selection of two for appointment to the Constitutional Court.

That the previously defective process produced the very same result as Monday does not on its own mean we should dispute these latest proceedings. And it must be said at the outset that several on that shortlist of five are entirely deserving of their positions.

If you were watching the proceedings you could’t not to be struck by the considerable talents of those who made themselves available for appointment. There were moments too of poignancy. Judge Jody Kollapen lyrically referenced his parents, a waiter and a seamstress, and remarked that it would have been impossible to imagine growing up that he would one day be offered the opportunity of ascending to South Africa’s highest court.

That is true of the majority of those who made themselves available on Monday, underlining that even in appointing those tasked to realise justice in South Africa today there is a justice to be served.

It is a peculiarly South African reminder, making us marvel at our journey but also leaving us queasy – for the extensive suffering and hardship that apartheid imposed but also for the inordinate loss it inflicted by depriving this country of so much talent and skill.

And it is for the exclusion of talent and skills that we should be most concerned about Monday’s proceedings. For a start, one of the original eight candidates interviewed in April chose not to make herself available for Monday’s proceedings. The treatment to which Judge Dhaya Pillay was subject in April was so egregious – including that the Chief Justice put to her a version of events which seemed designed only to politically impugn her and to which she could not possibly be fairly expected to respond – that it is perfectly understandable if she chose to exempt herself for this reason. But her absence was an important underlining that when constitutional bodies fail to discharge their functions properly, as was the case of the JSC in April, harms cannot always be undone.

Pillay’s absence also meant that a potential pool of three female candidates from which new appointments to the Constitutional Court might be made was whittled down to two.

However it is the exclusion of David Unterhalter (to whom I was once, long ago, briefly married) and Alan Dodson from the shortlist ultimately compiled by the JSC that has invited most criticism. That is particularly so when referenced against the almost inexplicable inclusion of Judge Bashier Vally who seemed to show at every turn his unfitness for elevation to our highest court – demonstrating irascibility towards commissioners, discourtesy to his judicial peers, and blame of his subordinates.

That interview performance and subsequent inclusion made it appear that the JSC would have preferred any candidate, bar another white male, over Dodson and Unterhalter.

Neither Dodson nor Unterhalter is just any candidate. Both have had exceptionally distinguished legal careers, serving respectively on internationally appointed bodies concerned for land and property disputes and international trade disputes. That neither man’s resume seemed worth putting before the President, that their expertise and skills should be thought of little significance to the Court, seems extraordinary. 

I am conscious that discussions of this sort can be heard to suggest that it is white men who offer the intellectual acumen and rigour and Black candidates and women who offer the other attributes we might want on the bench: most significantly an ability to represent all in our society and the ability to meaningfully relate to and reflect the lived experiences and circumstances in which so many South Africans find themselves. The divide is false as is any sense that in making appointments to the bench, whether at the Constitutional Court or lower court level, we need too make a choice between commitment to transformation and legal skill and expertise. The history of our country and indeed our highest court prove that white men have no monopoly on intellectualism, on black letter law, on legal interpretation.

But the opposite must also be true: that white men can embody a jurisprudential vision that will allow meaningful transformation and the realisation of the rights and values enshrined in our Constitution in the deepest, most impactful way.

South Africa’s Constitution enjoins that we are “united in our diversity”. What does that mean when we appoint men and women to our highest court, the ultimate guardian of that constitution. There have been few times in our country when it has seemed so important to seriously grapple with this question. The President has yet to make his pick of the two Constitutional Court judges from the shortlist of five. The JSC will very soon likely have to compile a further shortlist for him when Judges Khampepe and Jafta officially retire. And if the next chief justice is appointed from the ranks of already sitting Constitutional Court judges, there will be a further vacancy.

That is five of eleven seats on the Constitutional Court that potentially stand to be newly filled. It represents a potential reshaping of the Court. There is ample opportunity to we make available to the Court the greatest possible array of strengths, expertise and experience.

It is worth remembering that the Constitutional Court in its initial iterations was universally acclaimed here and abroad and while there were many judicial superstars on the Court, the undisputed star was the Court itself – the interplay and cohering of a diverse set of jurists and their very rich array of expertise, skills, life experience and attributes.

We must look to ensure that this is again true. 

FUL Supports Opening of Candidate Registration for Local Elections

The Constitutional Court has recently been petitioned to make orders relating to the upcoming municipal elections. The latest application by the Democratic Alliance asks the Constitutional Court to set aside the Electoral Commission’s decision to reopen candidate registration.

Freedom Under Law maintains in its submissions as amicus curiae (friend of the court) that the Court is being used as a political boxing ring with each party deriding the others as well as the Electoral Commission and attempting to us the Court for its own political ends. This is to be deplored. The Court, as the ultimate guardian of the Constitution, is to be treated with the respect and deference that it deserves rather than as an arena for bald political contestation.

FUL also maintains that the Electoral Commission’s decision to reopen candidate registration is lawful and rational. Ordinarily in electoral administration, where candidacy is dependent upon inclusion in the voters’ roll, registration of candidates logically follows after the voters’ roll has been updated, challenged and verified, i.e.“closed” in electoral jargon.

This is essentially commonsense. The voters’ roll is the authoritative record of all the enfranchised voters in a particular voting district, and is therefore the authoritative source of reference in determining whether a particular candidate is resident in that voting district. If the voters’ roll is amended, the names of candidates may have been deleted and those of potential candidates may have been added. Names of individuals may also have been moved from one voting district to another, thus— where a residential qualification is required, as in our local government elections—allowing or disallowing those individuals to stand as candidates in particular voting districts. Registrability of candidates is determined against the latest closed voters’ roll. This means that if you change the roll, you have to reopen candidate registration.

FUL’s Intervention in Application to Postpone Local Elections

The Constitutional Court recently heard argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021.

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy.

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with.

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia.

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so.

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution. 

Judge President Hlophe Matter

After a period of thirteen years since the then judges of the Constitutional Court directed a complaint to the Judicial Service Commission (JSC) alleging that Western Cape Judge President John Hlophe attempted to interfere with and influence their consideration of cases involving then Deputy President Jacob Zuma, the JSC finally held in August 2021 that Judge Hlophe is guilty of gross misconduct.  The process has now been referred to the National Assembly for it to begin the process of impeachment.

FUL has intervened at various stages in this process – in 2012 successfully obtaining a Court order to review and set aside an earlier decision on the part of the JSC not to proceed with the complaint against Judge Hlophe. Now that the JSC has finally determined that he is guilty of gross misconduct, Judge Hlophe is seeking to have that decision set aside and for the National Assembly to be interdicted from proceeding with the impeachment process.

FUL is at present readying papers to intervene and oppose the application brought by Judge Hlophe.

What Criteria Does The Judicial Service Commission Use For Appointing Judges?

22 September 2021

The Judicial Service Commission (JSC) has recently been the focus of justifiable criticism, so much so that a constitutional challenge to the April round of interviews led to an ignominious capitulation by the JSC, without even an oral hearing of the matter.

In this instance, the Council for the Advancement of the South African Constitution (Casac) argued that the manner in which some members of the JSC behaved during the public interviews of candidates for judicial office, and also the manner which characterised their discussion of the candidates, rendered their recommendations irrational. Sadly, such aberrant conduct was not confined only to the party-political members of the JSC; indeed, some of the most objectionable interventions emanated from those representing the legal profession.

How has the JSC fared generally in its vital role of appointing judges? Despite some moments of controversy and some glaring and inexplicable anomalies, most would agree that it has done, until recently, a reasonable job in the execution of its appointments mandate. In particular, the JSC has vigorously pursued the demographic transformation of the judicial corps, in fulfilling its constitutional obligation to appoint “any appropriately qualified woman or man who is a fit and proper person” while simultaneously “[considering] the need for the judiciary to reflect broadly the racial and gender composition” of the South African population. 

So the JSC had by 2013 already ensured that more than 60% of our judges were black, and over 30% were women; although leadership positions were still almost exclusively filled by men. An important contributor to this radical but overdue and entirely justifiable “recomposition” of the Bench was the widening of the pool from which judges were appointed, to include attorneys, law academics, and magistrates.

What criteria does the JSC use to make its decisions? Beyond the constitutional provisions set out above, three attempts have been made to interpret those requirements, situated within the context of the administration of justice and the practices and ethics of the legal profession in this country. When the JSC sat to recommend the appointment of justices to the first Constitutional Court in 1994, the following characteristics were highlighted:

  • Independence, open-mindedness, integrity and courage;
  • Diversity, empathy and sensitivity;
  • Intellect;
  • Fairness, judgment and perceptiveness; and
  • Stamina and industry; and vigorous internal debate.

In April 2009, the following statement was issued on behalf of the JSC: 

 “There are a wide variety of factors that are taken into account by the Screening Committee before deciding to include or exclude a particular nominee. These include but are not limited to the recommendation of the Judge President, the support of the candidate’s professional body, the need to fulfill the constitutional mandate… to ensure transformation of the Bench… the particular needs of the division concerned, the candidate’s age and expertise, including whether he/she has served as an acting judge in the division or at all, and the relative strengths and merits of the various candidates in relation to one another.”

Chief Justice Ismail Mahomed’s 1998 guidelines for appointability were subsequently subsumed within an official pronouncement during Chief Justice Sandile Ngcobo’s term as chair of the JSC, as follows:

At its Special Sitting held in Johannesburg on 10 September 2010, the Judicial Service Commission resolved….  to publish the criteria used when considering candidates for judicial appointments. This decision is in line with the JSC’s principle that the process of judicial appointments should be open and transparent to the public so as to enhance public trust in the judiciary.

 The following criteria are used in the interview of candidates, and in the evaluation exercise during the deliberations by the members of the Commission:

 Criteria stated in the Constitution

  1. Is the particular applicant an appropriately qualified person?
  2. Is he or she a fit and proper person, and
  3. Would his or her appointment help to reflect the racial and gender composition of South Africa?

Supplementary Criteria

  1. Is the proposed appointee a person of integrity?
  2. Is the proposed appointee a person with the necessary energy and motivation?
  3. Is the proposed appointee a competent person?
    (a) Technically competent
    (b) Capacity to give expression to the values of the Constitution
  4. Is the proposed appointee an experienced person?
    (a) Technically experienced
    (b) Experienced in regard to values and needs of the community
  5. Does the proposed appointee possess appropriate potential?
  6. Symbolism. What message is given to the community at large by a particular appointment?

What does it mean to be “appropriately qualified” and “fit and proper”?  A decade ago, Cowen argued that “appropriately qualified” included forensic skill, intellectual capacity, writing and analytical abilities, knowledge of the law and of courtroom procedures, language skills, capacity for hard work, the ability to manage a courtroom, and breadth of professional experience. It is hard to disagree with this set of requirements.

It is also generally agreed that being a “fit and proper” candidate for judicial appointment requires at least: 

  • A demonstrated commitment to independence (both from party-political and personal interests), fairness, and impartiality;
  • An unquestioned record of professional and personal integrity;
  • A judicial temperament (including a degree of humility, courtesy, self-restraint decisiveness, and collegiality); and
  • A resolute commitment to the values of the Constitution (including the rights to dignity, equality and freedom, respect for diversity, a degree of compassion and empathy, a critical respect for the separation of powers, and a commitment to the transformative goals of the Constitution).

Some may also expect aspirant judges to have some grasp of theories of adjudication, especially as the JSC now seems to have elevated service as an “acting judge” to the level of a criterion.

As regards the constitutional imperative for the demographic transformation of the judiciary, the practice of the JSC thus far seems to express this only in terms of numbers of women or black judges appointed. It is imperative that this requirement must also include the judicial philosophy and life experience of candidates, to ensure that all those appointed are committed to socioeconomic transformation and justice.

Beyond the criteria against which the candidates should be assessed, a fair and transparent process is essential for public confidence in judicial appointments. This means that interview questions must be linked directly and clearly to the above-listed criteria. In addition, the JSC should ensure that each candidate is treated in a broadly similar fashion, especially with regard to the length of the interview, and an equivalence of questioning. In this regard, the role of the Chief Justice as chair of the JSC is critical; part of the reason why the JSC has agreed to rerun the April interviews for Constitutional Court vacancies must be because of failures in this respect. In addition, the necessity to give some reasons for the JSC’s recommendations requires a reasonable degree of fairness of consideration of each of the candidates, and a rational level of justification for decisions. Again, the record of the deliberations in April failed this test of minimal fairness.

The JSC is set to hold interviews within the next few weeks for the appointment of at least four Constitutional Court justices, as well as candidates for appointment in other superior courts. It will also, in a separate process, interview candidates for the Chief Justiceship, where additional criteria will apply. Adherence to the highest standards of respectful professionalism and fairness should be demanded of every commissioner.

This piece was first published in the Daily Maverick on the 21st September 2021, as a collaborative op-ed by CASAC, FUL and Judges Matter.

Nicole Fritz: A Fractured ANC Requires a New Chief Justice Who is Principled, Courageous and Articulate

27 August 2021

In October, Chief Justice Mogoeng’s term comes to an end and a new chief justice will need to be appointed. This new chief justice, while the senior judicial officer within the entire judiciary, will also be the presiding judicial officer for South Africa’s apex court, the Constitutional Court. She or he will take the helm of this court at roughly the same time four new judges of the Constitutional Court take office. 

If President Ramaphosa nominates as his candidate for chief justice a judge already serving on the Constitutional Court, there is then the potential for a fifth seat on the court to be filled – as Chief Justice Mogoeng’s seat as judge, and not chief justice, becomes vacant.

Quite apart from all the other requirements of the role of the chief justice, this new chief justice will potentially then lead a reconfigured Constitutional Court (almost half its seats – 5 of 11 – filled with new appointments), required to provide coherence and stability to a court and a judiciary that faces increasing and unprecedented attack.

Traits a chief justice needs to embody 

Writing earlier this year in The Conversation, distinguished legal scholar (and Freedom Under Law board member) Hugh Corder identified the following as traits the next chief justice would need to embody:

  • Strong credentials as an intellectual leader on the bench. The person appointed must enjoy the respect of their peers in the superior courts.
  • Demonstrated support for the transformative nature of our constitutional order, evidenced in judgments that secure and promote transformation to secure social justice.
  • An ability to lead the judiciary as a whole. As Corder notes, “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”.
  • Proven administrative and managerial skills as the chief justice not only leads a department of state, the Office of the Chief Justice, requiring that she or he provide operational and administrative guidance to the entire administration of justice but she or he must also oversee the management of her own court, the Constitutional Court.
  • Skillful public engagement, reassuring the general public “of the fair-minded, principled, fearless and incorruptible nature of those appointed as judges, and of the superior court system as a whole”.

These criteria are in addition to the requirements that all judicial officers be fit and proper, that they be independent-minded and capable of applying the law impartially and without fear, favour of prejudice.

It may seem a tall order – requiring that one person embody all of this. But the next chief justice must be both that exceptional candidate and an exceptional leader: able, as Corder explains, to lead both the judiciary and be a public leader.

Attacks on judiciary 

This requirement to lead, always essential, becomes even more critical in a time of pronounced attack on the court and judiciary. As characterised by Justice Khampepe in the recent Constitutional Court judgment finding former president Zuma guilty of contempt of court: “Never before has this Court’s authority and legitimacy been subject to the kinds of attacks that Mr Zuma has elected to launch against it and its members. Never before has the judicial process been so threatened.”

This is by no means a single threat. The nature of the argument, legal and public, directed by Ace Magashule in an attempt to undo his suspension from the ANC, the various rescission applications mounted by both the former president and the current Public Protector, demonstrate that attacks on the judiciary, its legitimacy and authority are increasingly considered fair game. The coordinated violence and looting that broke out following Zuma’s incarceration arguably demonstrates that attacks on the judiciary and the judicial process have morphed into threats against the constitutional order itself.

The most senior leader of the Constitutional Court and the of the judiciary as a whole will need to be especially circumspect when engaging in the broader political terrain. But there can be no gain saying that she or he will need to be astute, deliberate and considered in shoring up and promoting the judiciary’s legitimacy and authority.

A fractured ANC 

This is not a new calculation. Delicately balancing principle and pragmatism has always been required of the Constitutional Court and its leader. But for much of its lifetime, the Court has been able to rely, as legal scholar Theunis Roux has written, on the ANC political elite for broad support and to shield it from the political repercussions of its most politically unpopular decisions (such as the death penalty) – this elite largely appreciative of the importance of the constitutional consensus and the values of supremacy of the Constitution and rule of law.

That is not true today. A fractured ANC means a fractured ANC elite. And those aligned with Zuma and the RET faction, far from protecting the judiciary from decisions that may register as unpopular, seek actively to incite and inflame derision for the judiciary.

Now more than ever, a chief justice who is principled, courageous and articulate is needed.

Nicole Fritz is the CEO of Freedom Under Law.

This piece first appeared in News24, on the 27th August 2021, available here.

Nicole Fritz: Honoured Only in Death, Babita Deokaran Deserved Far More

26 August 2021

We talk a lot in this country about public service, or more especially its absence. Those who captured the state did so in disguise: wearing the attire of public service. And so you can forgive us for being fairly cynical, for thinking public service is all just subterfuge – a ruse by which enrichment of a few, not service to the greater public, is pursued.

Holding that view would however be to ignore how truly exceptional many of South Africa’s public servants are. One of those was Babita Deokaran, chief director of financial accounting in the Gauteng Department of Health. Her courageous service seems to have required that she pay the ultimate price: on Monday morning she was gunned down outside her home in Johannesburg, having just returned from dropping off her daughter at school.

That killing bears all the hallmarks of a hit – the Daily Maverick reports that multiple shots were fired at Deokaran at point-blank range through her car window and that no valuables, including her phone and laptop, were taken form the car.

Deokaran was at the time of her murder a witness in the investigation conducted by the Special Investigating Unit (SIU) into the PPE procurement scandal in the Gauteng Department of Health. But it wasn’t only in relation to the PPE matter that Deokaran gave evidence. The SIU has indicated that she had been a witness for some time, trying to secure a turnaround of a department that has seemed only to lurch from one inhumane corruption-related scandal to another.

That contribution earned praise from Gauteng Premier, David Makhura on her death: “She took to heart the call to bring perpetrators of corruption and looting of public resources to book …The result of her good deeds led to successful dismissals within the department and saw the institution of civil claims to recover public funds from businesses and government officials responsible for malfeasance and corruption.”

But any pretence that Deokaran was a much-valued, cherished employee within the Gauteng health department is a lie. She is said to have been harassed at the time of her death by senior officials in the department and was not protected by the department head.

Last year, facing the most dubious of misconduct charges as the PPE procurement was taking place, she was suspended. As she explained: “Once all the PPE orders etc were done and some payments made, they dropped all charges against the two supply chain directors [who had also been suspended] and called them back to work. They offered the payments director [who, facing harassment, had resigned] to come back to work on a one year contract and the moved me to Jhb Health District.”

“My assessment of the situation is that they wanted us out of the way because if these were real charges, why are they not pursuing them. I also see they do not want me back at the Province as they see me as an obstacle in payments they want to make to certain companies.”

Certainly it seems someone or some people didn’t want her back at all. And while she will be hailed in her death, she never received in her lifetime the recognition that she should have for the conscientious, exemplary service she provided the public.

Instead, as with so many courageous public servants who have sought to do their jobs the reward she saw was only struggle: having to fight for job security and to fight off spurious misconduct allegations, harassment and intimidation.

State capture has given South Africa a seemingly endless roll of shame. It has also given us a roll of honour. While perhaps of little comfort to the immediate and extended family who grieve her, Babita Deokaran is among those on this roll of honour.

Nicole Fritz is CEO of Freedom Under Law.

This opinion piece was published first in Business Day, on the 25th August 2021, available here.

FUL Welcomes Decision to Prosecute Bathabile Dlamini

24 August 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

Freedom Under Law welcomes the decision by the Gauteng Director of Public Prosecutions to prosecute former Minister of Social Development Bathabile Dlamini for perjury or alternatively for giving false evidence. This is an important step in securing accountability in the long-running social grants crisis.

The charges relate to Ms Dlamini’s testimony provided before the Constitutional Court in connection with her personal involvement in the social grants crisis.

An application by Black Sash, in which FUL intervened, resulted in an exhaustive set of orders from the Court, among them that an inquiry be established to determine the Minister’s role and responsibility in the social grants crisis.

Following its consideration of the inquiry’s report, the Constitutional Court ordered that Ms Dlamini be held personally liable and that she herself pay a portion of the legal costs of the proceedings. It noted that the inquiry’s report suggested “very strongly that some of Minister Dlamini’s evidence under oath in the affidavits before this Court and orally before the Inquiry was false” and accordingly directed the registrar of the Court to forward a copy of the report to the National Director of Public Prosecutions.

The disclosure today of the decision to prosecute Ms Dlamini is an outcome of the Court’s direction. Important as it is, FUL maintains there is yet further accountability to be secured. While it was successful in its recent application to the Constitutional Court for an order to rerun the auditing and verification process of the profits earned by Cash Paymaster Services (CPS) in the unlawful social grants contract, that process has yet to be concluded.

FUL is hopeful that the conclusion of a proper auditing and verification process will ultimately result in an  an order that those profits be repaid.

FUL Opposes Delay to Local Government Election

19 August 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

On Friday the Constitutional Court will hear argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021. 

The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy. 

It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with. 

Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia. 

But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so. 

Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution.

Download FUL’s written submission below:

FUL Disappointed in Choice of Hlophe to Preside over Speaker Appointment Ceremony

19 August 2021

MEDIA STATEMENT BY FREEDOM UNDER LAW

The National Assembly is meeting to elect from among its ranks a new Speaker, a person of awesome responsibility in our multi-party democracy. Fittingly the Constitution provides that this solemn ceremony is to be presided over by the Chief Justice or another judge designated by the Chief Justice. 

The symbolic significance of the occasion is obvious, underscoring as it does both the power and responsiblilty of our country’s Legislature and the national unity and indivisibility of the Republic. It is therefore regrettable that of all the judges in the country who could have been designated to represent the judicial authority in performing this function, the designation has fallen on Judge John Hlophe. 

Freedom Under Law believes it speaks on behalf of all South Africans that hold the Rule of Law in high esteem when it expresses its profound disappointment at so inappropriate a choice.