You be the judge

2009-09-01 11:00

Path: /Published/CityPress/2009/08/30/CP/Texts/mwcon.xml Creator: system Last Modified by: system Print Chanal: CityPress Edition: CP Publication Date: 20090830 Section: Features Folio: Page Ref: 27 Book: Source: MethodeOn Saturday, the Judicial Service Commission will begin interviewing shortlisted candidates who have applied to become Constitutional Court judges. MARIECHEN WALDNER profiles 18 of them.

A GROUP of 22 judges and two senior advocates are on the shortlist for the four

positions to be vacated when judges Pius Langa, Yvonne Mokgoro, Kate O’Regan and

Albie Sachs retire from the Constitutional Court in October.

Some of the

nominees have excellent records as defenders of the rights, freedoms and dignity

of citizens. Others have records tainted by controversy. The interviews will be

conducted by the ­Judicial Service Commission in Kliptown, Soweto, from

September 5 to 7. We profile 18 of the 22 candidates below. Who should be the

new righteous knights of our ­judicial round table? You be the judge.

Judge Eberhardt Bertelsmann is one of the most respected judges on the

Pretoria High Court bench.
In one of his judgments he attempted to reduce

the trauma suffered by child-rape victims when they testified against their

rapists. Bertelsmann ruled that criminal proceedings involving children must be

given top priority and courts must provide intermediaries to assist child

witnesses. On appeal this judgment was overturned by the Constitutional Court,

but it ordered that the justice department submit a full report setting out the

needs of all regional courts with regard to intermediaries.
It was

Bertelsmann who came to the rescue of 36 families who were dumped in the veld in

the middle of winter after their shacks in the Brazzaville informal settlement

were destroyed by the Tshwane metro council. When the council ignored a court

order to re-erect the shacks, Bertelsmann found it in contempt of

court.
“Evicting people without a court order in the middle of winter,

without even keeping a record of who is being evicted and what happens to them,

belongs to a period in the history of this country which one would have hoped

would forever have passed,” he said.

Advocate Geoff Budlender headed the

­anti-apartheid National Union of South ­African Students in his student days.

He also represented many clients charged with political offences against

apartheid.
In 1979 he was one of the founders of the Legal Resources Centre,

South Africa’s first public interest law centre. He fought cases involving

forced removal of Africans from their land, the influx control laws which

prevented free movement of ­Africans and detention without trial.
He served

as director-general of the ­Department of Land Affairs in the new democratic

government, but returned to the Legal Resources Centre in 2000 to undertake

constitutional litigation.
Two cases earned him considerable ­acclaim. In

the Grootboom case, Budlender won a trailblazing ruling that government had a

duty to implement a reasonable plan to progressively realise the right to

housing. In a Treatment Action Campaign case he won a ruling compelling the

government to implement a reasonable plan to prevent mother-to-child

transmission of HIV/Aids.
Budlender has served as an acting judge of the high

court.

Judge Azhar Cachalia has an impressive struggle record. Banned by

the apartheid government, he was a member of the ­Transvaal Indian Congress and

the United Democratic Front.
Cachalia served as convener of the team that

drafted the new Police Act. He was ­secretary for safety and security and chief

policy adviser to the minister for safety and security in the first

post-apartheid government. He was also responsible for the implementation of the

National Crime Prevention Strategy. Cachalia resigned from Parliament to become

a judge.
Last year he set aside the convictions and sentence of a robber

convicted of car theft. The criminal had based his appeal on the admissibility

of evidence obtained from an accomplice by police torture. The torture stained

the evidence irredeemably, said Cachalia.
In 2006, during his JSC interview

for a permanent position on the Supreme Court of Appeal (SCA), he stirred a

hornets’ nest by warning that some provincial judges were making grave,

fundamental mistakes in their decisions. Reacting to angry outcry from black

judges and lawyers, Cachalia remarked that if concerns of this kind could not be

raised without risking complaints to the JSC it boded ill for free speech, the

rule of law and the right of every citizen to an effective judicial

system.

Judge Dennis Davis is a judge of the Cape High Court, president

of the Competition Appeal Court and an outspoken voice on contentious South

African issues.
He was director of the Centre for Applied Legal Studies and

the head of the Society for the Abolition of the Death Penalty. He also served

as a technical adviser in the Constitutional Assembly negotiations for South

Africa’s democratic constitution.
Host of two television programmes, ­Future

Imperfect and Judge for Yourself, Davis is also the author of books on

constitutional law, tax, insurance, criminology, and South African politics.


In a Cape Town railway safety case ­Davis, with co-judge Belinda van

Heerden, found that Cape Metrorail and the SA Rail Commuter Corporation had a

legal duty to protect the lives and property of commuters while on railway

property.
This judgment overturned by the SCA but was upheld by the

Constitutional Court .
Judge Johan Froneman is an Eastern Cape High Court

judge, acting appeal judge and deputy ­labour court judge.
One of his

landmark decisions allowed four disabled people to bring a class action on

behalf of about 100 000 other disabled people whose grants were unilaterally cut

by the Eastern Cape authorities. Froneman found that the grants of the

individual applicants were unlawfully stopped in violation of their

constitutional rights and ordered that they be reinstated and that arrears be

paid.
His judgment paved the way for thousands of disabled people who could

not ­afford legal representation to secure justice for

themselves.

Advocate Jeremy Gauntlett is a widely respected academic,

author and legal ­practitioner. A former member of the Cape bar and chairperson

of the General ­Council of the Bar, Gauntlett is currently a member of the SA

Law Commission.
In 2005 he was one of the legal practitioners accused of

“racist attitudes” in the ­controversial report on racism given to then justice

minister Brigitte Mabandla by Cape Judge-President John Hlophe.
Gauntlett and

the contentious judge-president were also involved in an acrimonious battle over

Hlophe’s appointment of African acting judges from junior ranks of the Cape bar,

some of whom Gauntlett believed were not fit for the positions.

Judge

John Hlophe , South Africa’s most contentious judge, was the first full-time

academic to be appointed to the high court bench in 2000. His short career has

been tainted by controversy and scandal.
He was accused of “unreasonably”

delaying his judgment on leave to appeal in the 2004 case between former health

minister Manto Tshabalala-Msimang and elements of the pharmaceutical industry.

The industry, tired of waiting, took its request for leave to appeal directly to

the SCA. Hlophe refused the industry leave to ­appeal a few days before its case

was due to be heard by the SCA.
Not only did the SCA consider the matter and

summarily overturn Hlophe in a harshly critical judgment, a complaint about his

conduct was laid with the JSC.
This complaint was followed by other

complaints of misconduct against Hlophe, ranging from the acceptance of

financial favours from companies to disparaging ­remarks about fellow judges and

legal practitioners.
These problems were mild, however, compared to what the

full bench of the ­Constitutional Court accused him of last year. Hlophe, they

said, had tried to influence judges Chris Jafta and Bess Nkabinde in the Jacob

Zuma search warrant matter.
During a JSC hearing on the matter ­earlier this

month Hlophe denied wrongdoing, arguing he was the victim of a ­political plot

and that he, being crucified in public, had suffered as much as the

­president.

Judge Chris Jafta, acting Constitutional Court judge, was one

of the judges who complained that Hlophe had tried to ­influence him. He and

Hlophe are friends – a friendship that dates back to their days as lecturers at

the University of Transkei.
Jafta practised as an advocate before being

appointed to the Transkei High Court bench in 1999. He was ­appointed to the SCA

in 2001 and became a judge of the Labour ­Appeal Court in 2004.

Judge

Mahomed Jajbhay is a constitutional law expert who has advised many sporting

federations on constitutional and ­other matters. It was he who ruled in ­favour

of freedom of speech in the legal ­battle between Tshabalala-Msimang and the

Sunday Times.
The minister took exception to a report that she had, while

hospitalised for a liver transplant at the Medi-Clinic hospital in Cape Town,

indulged in wine and whisky and had sent hospital staff to fetch her food from

Woolworths.
Jajbhay ordered the newspaper return all copies of her medical

records, but allowed journalists to keep their notes. He refused to order the

newspaper to stop publishing any comments on the minister’s records or

conduct.
To the delight of journalists, Jajbhay warned public figures that

they couldn’t regulate or control their publicity. Although unlawfully obtained,

Jajbhay said, the information went beyond being simply interesting to the

public. There was a pressing need for the public to be informed about the

information in the records, information capable of contributing to the debate

relating to a politician in the exercise of her functions in a democracy.

Judge Sisi Khampepe has served on the appeal tribunal for electoral

disputes as well as the Truth and Reconciliation Commission’s (TRC) amnesty

committee. She is vice-chairperson of the National Council of Correctional

Services.
She was appointed to the Johannesburg High Court bench in 2002 and

the Labour Appeal Court bench in 2007.
She was a relatively unknown judge

until former president Thabo Mbeki appointed her to head the commission of

inquiry into the mandate and location of the Directorate of Special Operations.

She was asked to decide whether the Scorpions should remain under the justice

ministry or be absorbed by the police.
It was a hot potato, but Khampepe’s

politically incorrect defence of the unit’s prosecurial independence earned her

kudos.

Judge Frank Kroon was admitted as an­ ­advocate in July 1964. He

served as acting judge in the Natal and Grahamstown high courts between 1983 and

1985.
In 1997 he was appointed as a part-time Labour Appeal Court judge. He

has also served as acting appeal court judge.

Judge Francis Legodi is the

Pretoria High Court judge who killed the National Prosecuting Authority’s (NPA)

secret attempt to indemnify apartheid criminals instead of prosecuting them.


National prosecution policy enabled the NPA to consider indemnity from

prosecution for perpetrators of the crimes of the past who had either been

denied amnesty by the TRC or who had failed to avail themselves of the amnesty

offered by the TRC.
This policy was challenged by the Khulumani Support

Group, which argued that this policy was unconstitutional, unlawful and invalid.

The judge agreed with the organisation. His judgment was lauded as a landmark in

the struggle to secure justice for victims of apartheid’s gross human- rights

violations.

Judge Mandisa Maya has served as a SCA judge since 2005. She

practised as an advocate before her elevation to the bench in 1999.
She has

done judicial duties in various divisions of the high court and has acted as a

labour court judge.
Maya is the current deputy president of the South

African chapter of the International Association for Women Judges. She was one

of three appeal court judges who ruled last year that evidence obtained through

the use of police torture is inadmissible .
But Maya’s judgment with regard

to the death of a domestic worker at the hands of her employer was a different

kettle of fish. She fined the businessman R15 000 , with the option of five

years imprisonment for beating his domestic worker to death with a stick. She

made provision for the fine to be paid in instalments.

Judge Dunston

Mlambo is the current chairperson of the Legal Aid Board. He is also a SCA judge

and a member of the ­National Bar Examination Board.
In 2007, Mlambo was a

member of the bench of five SCA judges who could not agree on the validity of

the warrants ­authorising the search of Zuma’s house. He held that the warrants

expressed with enough clarity and certainty “the scope of the authority that

they confer”.
In a minority judgment SCA judges agreed with the Durban High

Court that the search warrants were invalid because they did not intelligibly

convey the ambit of the search.

Judge Yasmin Meer , the daughter of

­activist Fatima Meer, is a former director of the Legal Resources Centre.


She cut her ­judicial teeth as an articled clerk in the law firm of late

justice minister Dullah Omar. She was admitted as an attorney in 1983,

specialising in public-interest litigation.
Meer has a long history of

community involvement and human rights litigation.
She has served on the

Land Claims Court bench since 1996 and was appointed to the Cape High Court in

2003.
In 2003 Meer, in a first for South Africa, ordered a private company to

open its ­financial records to a shareholder in terms of the Promotion of Access

to Information Act. The judgment was hailed as a ­improvement in the rights of

minority shareholders.
Judge Thomas Mogoeng was appointed judge in 2000 and

North West judge-president in 2002.
He made news early this year with a

libel judgment against the king of Africa’s richest indigenous tribe and main

sponsor of the Platinum Stars football team.
Kgosi Leruo Molotlegi, king of

the Royal Bafokeng nation, was sued by a bodyguard who he fired in front of his

staff at the Royal Bafokeng Administration premises. The guard considered his

dignity, reputation and sense of self-worth damaged.
Mogoeng concurred.

“Summary dismissal for incompetence, particularly when communicated to the

plaintiff in a thoroughly discourteous manner, which it was in this matter, is

clearly defamatory.”

Judge Robert Nugent has served on the SCA bench

since 2001. He practised as an advocate before he was appointed as a Transvaal

High Court judge in 1993.
This judge is the author of the “sub ­judice

judgment”, a judgment much appreciated by the media because it effectively

neutralises the sub judice (Latin term for ­“under judgment”)

rule.
Journalists have vast experience of the misuse of this rule, deployed

by politicians as an excuse to avoid the public discussion of an issue and by

public servants to avoid requests for information.
Nugent dealt the rule a

nasty blow after considering an attempt by the national ­director of public

prosecutions to prohibit the broadcast of an e.tv documentary programme on the

Baby Jordan murder.
Nugent ruled that a prohibition on publication of

material relating to forthcoming criminal proceedings was permitted only if it

could be shown that the publication might cause substantial prejudice to the

trial and that there was a real risk that the prejudice would occur.
Mere

conjecture that it might happen, the judge ruled, to the glee of the media, was

not adequate ground for prohibition.

Judge Ntsikelelo Poswa is the

Pretoria High Court judge who refused to pay child maintenance to his former

lover because he regarded the paternity test results showing a 99.99%

probability that he was the father of her illegitimate son, as “inconclusive”.

The tests included blood tests as well as genetic profiling.
His logic also

landed him in legal hot water when the SCA overturned his decision to grant bail

to two men accused of strangling a grandmother?– despite the serious charges of

murder, attempted murder and aggravated robbery they were facing.
The public

prosecutor petitioned the SCA, which overturned Poswa’s decision, describing it

as “disturbing” and ordering that the two accused be re-arrested.
Poswa was

then hauled before the JSC to respond to a litany of complaints against him,

relating to alleged incapacity and/or incompetence, and/or misconduct.
But

last month Poswa gladdened the hearts of the media by setting aside Public

Protector Lawrence Mushwana’s Oilgate report against the Mail & Guardian,

widely held to have been a “whitewash”, ordering the protector to investigate

the scandal in more depth.

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