The real winner? Justice, for now

2012-10-13 12:33

Forced removals, pre-publication censorship, the death penalty and a president who goes his own way when it comes to the justice system.

These may sound like a litany of responses to the question: “What was apartheid?”

But they are actually topics the Constitutional Court has ruled on in the past three months.

In all these cases, South Africa’s highest court once again carried the little guy on its shoulder and flexed its human-rights muscle.

The recent judgments are particularly significant because they came after the appointment of Chief Justice Mogoeng Mogoeng to the highest judicial office in the land.

Mogoeng’s ascendancy took place amid characteristically heated South African debates concerning his fitness to be chief justice.

The primary argument against Mogoeng’s appointment was that he did not have the jurisprudential background for the top job.

It was also argued that his conservative world-view and seemingly preferential treatment by President Jacob Zuma raised questions about a bench led by justices who might “owe” the president something.

In that context, it’s interesting to see where the new chief justice stood in the Constitutional Court’s recent rulings, which involved the rights of ordinary people measured against the power of the state.

It may surprise his detractors, but Mogoeng sided with the little guy every time, even when it came to a direct challenge of a presidential decision by the official opposition, the DA, in the Menzi Simelane judgment.

“It’s encouraging,” says a senior counsel.

But he hastens to add that the court is yet to hear a “hard-core” case where it has to go up against the establishment.

A case, for instance, in which it must review the decision to drop corruption and fraud charges against Zuma.

Constitutional law expert Professor Pierre de Vos has said before that the top court’s ethos has always been one of debate.

Its bench strives to reach as broad a consensus as possible between 11 very different people.

The court still consists largely of a progressive bench, including constitutional rock stars like Deputy Chief Justice Dikgang Moseneke, Justice
Zak Yacoob and Justice Edwin Cameron.

Writing a judgment that seriously seeks to take on the views of such jurists is probably the intellectual equivalent of attempting to go up against a Joburg mob boss in a back alley.

But there are at least three members of the bench who are perceived to be more judicially conservative: justices Chris Jafta, Ray Zondo and Mogoeng himself.

As De Vos points out, there are 11 justices in total, so three more conservative appointments would create a quorum to carry a judgment.

In this regard, South Africans who hold the Constitution in high esteem would do well to consider Zuma’s last two Constitutional Court choices.
In the last round of appointments, which was a neck-and-neck race, Zondo was appointed to the bench despite a strong showing by Judge Mandisa Maya.

Maya’s pedigree and her performance at the interviews meant many saw her as a favourite to become only the third woman permanently appointed to the court, where a lack of gender representivity continues to dog the bench.

Only justices Bess Nkabinde and Sisi Khampepe prevent the court from being an all-male show.

Questions still linger, too, about why Moseneke was again overlooked for the top job.

He enjoyed overwhelming support for the position within this nation’s often-divided legal profession.

But he’s been outspoken in criticising the ANC, and many suspect it’s this that scuppered his promotion.

On Constitution Hill, though, it’s business as usual.

And while the wheels keep turning, it’s important that South Africans keep watching and discussing all the men (and hopefully more women) that the president appoints to defend our democracy.

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