Newsmaker: Gauntlett – I have no regrets

2012-11-17 16:49

Lawyer humbled after Constitutional Court nomination floodgates open

When word got out that Mamphela Ramphele was nominating Cape Town silk Jeremy Gauntlett for a position on the Constitutional Court bench, the floodgates opened.

Now the nominations are flooding in from, among others, politicians Mangosuthu Buthelezi and Helen Zille, academics like University of Cape Town (UCT) vice-chancellor Max Price, Naspers chairperson Ton Vosloo and former Cape Town Anglican archbishop Njongonkulu Ndungane.

All the support has humbled the man who the Judicial Service Commission (JSC) has described as “not humble enough” to serve as a judge on the Western Cape High Court bench.

Gauntlett said he did not solicit this support, and some of the nominations have taken him by surprise. “People are actually feeling strongly. A message is being sent and it is quite heart-warming.”

If all goes well, he will, on February 22 next year, again sit in front of the same JSC that last month turned him down for a fourth time because “he has a short thread”, “can be acerbic at times” and is a white man.

So why is he doing it again?

“My daughter asked me the same question and I said I feel stronger about it than ever,” he told City Press.

Firstly, the requirement in the Constitution for the bench to broadly reflect the racial composition of South Africa has, in his view, led to “an approach that is disturbingly focused on population demographics, and if taken to its logical conclusion, will take on an obsessive concern with race”. (Census 2011 indicated that only about 4%
of the population comprises white men.)

Gauntlett said this provision in the Constitution needed to be taken together with finding “appropriately qualified” people to fill the positions, and this didn’t only mean having the right qualifications, but also
the competence.

“I am concerned that senior white practitioners will not make themselves available for the Bench because of this kind of experience,” he said.

“There is a serious confusion (on the JSC) about the concepts of servility, civility and humility. They use humility when they talk about unchallenging white men who should apply.”

It is, however, not only the JSC which has voted him unsuitable for the Bench.

UCT Professor Pierre de Vos recently wrote in a column that Gauntlett’s real problem was, although he’s a “brilliant lawyer”, his “formalistic approach made him unsuitable to be a judge in a constitutional state like South Africa”.

It is also this perception of Gauntlett’s letter-of-the-law approach that has contributed to the rumour that Chief Justice Mogoeng Mogoeng might favour his appointment to the Constitutional Court bench as a counterpoint to more “activist” judges.

Gauntlett said he knew nothing about this rumour, and that De Vos’ opinion wasn’t based on a proper analysis of his work.

Gauntlett spent 14 years on the bench in Lesotho’s court of appeal, during which he wrote between 50 and 60 judgments. He said many of these concerned constitutional issues.

In apartheid South Africa, he was a lawyer for ANC and Swapo insurgents in human rights challenges under state of emergency regulations, when it took “creative lawyers” to argue that these regulations were wrong.

“In the old days, it took even greater creativity, because we didn’t have a Bill of Rights. We had to live between the two flat stones of the statutes,” he said.

Gauntlett hasn’t been afraid to take on powerful figures in the legal fraternity.

He was one of the advocates who spearheaded a call for Cape Judge President John Hlophe to step down two years ago because of a conflict of business interests.

Hlophe called Gauntlett a racist in a document he submitted to then justice minister Brigitte Mabandla in 2005, so there’s no love lost between the two men. Hlope apologised in 2008 but Gauntlett said he had “no regrets”.

“It would be sad if the judiciary is seen, now that the constitutional aspect is realised, as mired in events (like conflict of business interest) like Hlophe had done,” he said.

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