Running the Gauntlett: Why the struggle for appointment?
- Pierre de Vos
- 09 Nov 2012 01:34 (South Africa)
Almost everyone agrees that Gauntlett is a brilliant lawyer – at least in the narrow, technical sense. But personally I do not think that he would be a very good judge in a country like South Africa, where there is a need for the law to be developed and applied in ways that would protect the vulnerable and marginalised against exploitation by the rich and politically powerful (both in business and in government).
Given his conservative legal philosophy and his inability to recognise that – like everyone else – his views about legal reasoning and technique are based on ideologically loaded assumptions, I see Gauntlett as a candidate more suitable for appointment to the bench in the Tory-governed UK, than in a progressive constitutional state like South Africa.
It is unclear whether, as a judge, he would enthusiastically develop the (often unjust) common law rules to bring them in line with the demands of the Bill of Rights. Judges who are stubbornly wedded to the fiction of legal clarity and certainty often show a reluctance to develop the common law rules to align them with the values contained in the Bill of Rights. They see such an approach as being too activist and as leading to too much legal uncertainty.
I suspect Gauntlett would be the kind of judge who would want to hide behind old-fashioned formalistic methods of interpretation to shield the common law from needed development. In fact, as far as I can tell, his legal philosophy is closer to that of Chief Justice Mogoeng Mogoeng and recently appointed Constitutional Court judge Ray Zondo than it is to that of progressive lawyers and judges who see legal transformation as something far broader than the need to replace conservative white patriarchal judges with conservative black patriarchal judges.
But because many members on the JSC are spectacularly uninformed and out of their depth, or share the deeply conservative, anti-transformative, agenda of the present Minister of Justice and his government, candidates before the JSC are seldom asked the tough and probing questions that would help us to determine what their broader views on the transformation of the law and legal culture might be and whether they would protect the interests of the vulnerable and marginalised or the powerful and rich (inside and outside government). Instead the JSC often focuses on completely irrelevant factors, asking questions about a candidate's religion or how often they have ruled against the government – as if there is anything wrong for a High Court in a constitutional state based on human dignity, equality and freedom to rule against big business or the government in order to protect the vulnerable, marginalised and poor.
In Gauntlett’s case, the JSC expressed a concern that “he has a ‘short thread’ and that he can be acerbic at times”. While some Commissioners accepted his assurance that as a judge, one is removed from the immediate combative situation that counsel usually find themselves in, others expressed “strong reservations” whether, as part of his attributes, “he has the humility and the appropriate temperament that a Judicial Officer should display”. In short, some JSC members decided not to appoint him because they did not like his guts.
Has anyone ever heard a more ridiculous reason for not appointing a lawyer to the judiciary? Let’s face it, advocates seldom become successful because they are humble servants of the court and lack a sharp tongue. If the JSC is now going to refuse to appoint any senior advocate to the bench because he or she is not dripping with humility and is too combative, then it is going to be hard-pressed to find any half decent lawyer to appoint to the bench.
On the face of it, the second reason is slightly more plausible. According to the JSC a “very important consideration” it took into account was the demographic composition of the Western Cape High Court Bench:
“It was argued that considering the number of white male Judges in that Court as compared to other races was such that were two white males to be appointed (at that stage the focus was on Advocates Gauntlett SC and Rogers SC) the Commission would be doing violence to the provisions of section 174(2) of the Constitution.”
Section 174(2) of the Constitution states that “the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”. There are two important reasons why this provision was included in the Constitution.
First, in order for the judiciary to become more legitimate and more credible in the eyes of ordinary citizens, it was imperative for the judiciary to shed its almost exclusively white and male character. Given the deeply entrenched and pervasive racism and sexism in our society an all-male and exclusively white judiciary would hardly instill confidence with the vast majority of citizens.
Second, we live in a diverse society. Many white male lawyers live a relatively insular middle-class life and few would normally be in tune with the lived reality of the vast majority of South Africans. Creating a more diverse bench helps to bring more people of diverse backgrounds and with diverse experiences and opinions into the judiciary and can enhance the quality of justice dispensed by our courts.
Despite these being laudable goals, I find the reasoning of the JSC to be depressingly narrow-minded and on shaky legal grounds to boot. While there is a need to keep on working at changing the racial and gender composition of the bench, it seems rather absurd to equate judicial transformation solely with the change in the racial and gender composition of the bench. Race and gender should be the starting point, but if one is serious about the transformation of the judiciary, one would have to take into account whether candidates for appointment have embraced the values enshrined in the Constitution.
To do that, members of the JSC would have to be conversant with the basic Constitutional issue and would have had to ask candidates about their views on the important litmus issues that would give a clear indication of whether a potential appointee will respect the Constitution and whether he or she will hand down judgments that will protect the rights of everyone, but in particular the marginalised and vulnerable in society.
In my opinion a candidate who believes that the Constitutional Court’s affirmative action jurisprudence may be too radical should not be appointed to the bench. Neither should one who is reluctant to use section 39(2) of the Constitution to speed up the transformation of the common law to bring it in line with the “spirit, purport and objects” of the Bill of Rights. Neither would a candidate who is not eager to protect freedom of expression and access to information or would be willing to endorse censorship aimed at hiding corruption.
Personally, I would be reluctant to appoint a judge who does not support the Constitutional Court’s jurisprudence on sexual orientation discrimination, who holds sexist or racist views or who harbours prejudices against people with disabilities. And a candidate who disagrees with recent Constitutional Court jurisprudence on evictions which leans towards placing a duty on municipalities to provide alternative accommodation when large scale evictions from either private or publicly owned land are planned, would not get my vote either.
Section 174(2) requires the JSC to take into account the need for a more racial and gender diverse bench. It does not require the JSC to appoint a candidate with a questionable commitment to some of the broader transformation goals set out in the previous paragraph merely to meet racial quotas.
Surely if the JSC wanted to appoint good judges that would drive the transformation agenda, it would not only look at race (and as an afterthought, gender) when making appointments.
It would look for candidates who understand that legal rules often benefit the rich and powerful and often harm the poor and vulnerable; candidates who understand that formal legal rules that are interpreted in a formalistic manner will often not produce a just outcome; candidates that are willing to interpret legislation and develop the common law to make the law ever so slightly more just and equitable. DM
- To call Mandela a saint is to dishonour his memory
- Love me tender: Why ‘it’s complicated’ applies to corrupt private tender processes too
- Nkandla report - the incontrovertible facts no smokescreens can cover
- The colonial roots of conferring silk on advocates
- Structural racism: the invisible evil
- E-toll civil disobedience reveals lack of respect for democracy
- We recognise sex and gender as classifications, so why not race?
- Nkandla Report blackout: It is all about PW Botha's law
- Elections are coming: Can we have some substance, please?
- The JSC: It’s not all bad, and here’s why
- The remembrance and forgetting of things past
- Nkandla: Untangling that rather sticky web
- Employment equity: the trick is in how it’s implemented
- Justice: that elusive prize, and how to get it
- Elections: The tightrope of fairness
- Teen sex: The law can’t replace parenting
- The Hlophe conundrum, revisited
- Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Media freedom is a right that benefits all
- Attempts to discredit Madonsela could backfire
- The Mdluli matter: Nxasana’s first big test
- Sparing the rod: what it really entails
- Secrecy Bill: a touch more confusion, and a glimmer of hope
- Zuma's Secrecy Bill move: The Darker Side
- Hoffman’s complaint: why it was bound to fail
- Freedom of expression – and the quest for living meaningfully
- When a joke is not a joke
- The bad news: Qwelane’s constitutional challenge might just work
- Restoring the Electoral Commission: What happens next?
- A vote of no confidence is not to be taken lightly, by majority or minority
- The murky marriage of money and politics
- FF+ vs. EFF: doomed to fail
- Spy Tapes: A clear and simple case
- Hell is other people (trolling the Internet)
- Colour me irrational
- Women’s day – just another day for men to call the shots
- Arms Deal Commission: It’s the moment to make or break
- Marikana Commission: More questions than answers
- The court of individual identity
- Pius Langa: A man who knew the meaning of change
- Dear Film and Publications Board, please review your own rules
- Animal antics, and the separation of powers doctrine
- Hypocrisy fit for a king
- Take care with those ‘insults’
- ‘Top secret’ Nkandla report: On the highway to embarrassment
- Traditional leadership: Cat can look at a king
- Equal Education: The Minister doth protest too much
- Willing buyer, willing seller works… If you have a lifetime to wait
- Polygyny: Our human rights half-job
- Trial by media? Actually, that’s impossible
- Pistorius: The horror of a broken (white) body
- Oh what a tangled legal quagmire... when first we practise an NDPP to hire?
- Breytenbach: too little fear, favour and prejudice?
- The curious case of the pastor punished for honesty
- What’s that smell? Must be the name droppings.
- KZN University: A storm in a (Zulu) teacup
- Nkandla: The details will, and should, be made public
- Great speech vs. hate speech: how it really works
- Cape Town evictions: Brutal, inhumane, and totally unlawful
- The new, tamer Secrecy Bill: Still not constitutional
- Zuma and the Guptas: the ‘symbiosis’ continues
- Discrimination is illegal. When will we learn this?
- It’s not a democracy if our children aren’t equal
- An upside-down world: What would happen if we cared about the ‘others’?
- JSC: Let’s inject some common sense, shall we?
- Rose-tinted amnesia: The struggle to ‘rebrand’ SA’s Apartheid past
- Cardinal Napier: the plot thickens
- Redefining ‘merit’: first task for a transformed JSC
- The dating race
- Putting the ‘dread’ into ‘dreadlocks’
- Liars, damn liars, and the SA government
- Constitution clear on troops in the CAR: Zuma must talk to Parliament
- SA in CAR: the questions that remain
- Why are South African soldiers dying in CAR?
- Covering up sexual abuse is a crime, Cardinal
- Nkandla: Oh, what a tangled web we weave…
- The education MEC, children's heads, and a knobkerrie
- In black and white: the truth about ‘unconstitutional’ race quotas in universities
- Losing battles: Why the FMF doesn’t stand a chance
- Democracy vs. traditional leadership: the delicate ballet
- Police brutality comes as a surprise? Really?
- Sometimes a Tweeter is just a Twit
- Lady Justice’s scales appear to be faulty
- Pistorius trial: The legal principles that will decide the case
- Oscar Pistorius case: Bail isn’t denied as easily as you think
- Public opinion: Is there really any danger of prejudice against Oscar?
- All we know is that a woman is dead
- The secret history: Unearthing the mysterious Presidential Manual
- Sexwale abuse allegations: Very much our business
- SA’s rape epidemic: The limitations of outrage
- Will the real freedom of expression please stand up?
- But what of the people of Khayelitsha?
- WWE Smackdown: Zille vs. TNA edition
- Nkandla: Everything that's wrong with the Zuma government
- Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read
- Beyond all (t)reason
- Judicial transformation: South Africa's appalling non-commitment
- The criminal stupidity of criminalising teen sex
- Careful, Mr Mthembu: The re-emergence of Apartheid's 'volksvreemdes' mentality
- Unequal education: the problem with providing learning for all
- SA troops in CAR: Why we should all be worried
- Mulholland column: Ignorance squared is still ignorance
- Elective processes: Something is rotten in the kingdom of the ANC
- Outa application: Courts can't fix political processes
- Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism
- Carlisle and car key confiscation: Don't go with the (traffic) flow
- Dear Contralesa, please approach your nearest healer for a diagnosis
- Simelane: You can't end what never truly began
- Playing by the rules: The balancing act of Judge Dennis Davis
- Sunlight is the best disinfectant
- Lenasia: The haunting abandonment of humanity
- Lies, damn lies, and Zuma's 'bond'
- Show us the money, Mr Zuma
- The opposition doth protest too much: Why the ANC is hellbent on crushing debate
- Note to Zuma: Try commanding respect, not demanding it
- Dear Nxesi, your fantasy is damaging South Africa’s reality
- Running the Gauntlett: Why the struggle for appointment?
- Affirmative action: a decidedly middle-class problem
- Hate crime: there is no such thing as an excuse - ever
- Mfeketo and Zuma: You scratch my back, I'll scratch yours?
- Ramaphosa: Where does corruption begin and end?
- The Zuma recordings: SA is the crayfish, corruption the boiling water
- No safety in numbers: Why a bigger opposition isn't a stronger opposition
- Specs, lies and audiotape - the hidden Zuma recordings
- The ANC on school closures: can they win?
- Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'
- Democracy: it starts in Parliament
- The National Key Points Act: not just unconstitutional, but totally invalid
- Simelane and 'rational' thought
- Halt the witch-hunt, Minister
- Home is where the taxpayer's money is
- Will Malema's case stand up in court?
- South Africa's Striking Miners: A Menace to Society? Or just to the middle class?
- E-tolling judgement: Sorry for Gauteng, but it's perfectly lawful
- Silence is golden - if the speakers are criticising the State
- Malema at the SANDF: Inappropriate? Yes. Illegal? No.
- Freedom of religion: not so free after all
- Whites against Woolworths: doth they protest too much?
- From the NPA with fear, favour - and prejudice
- Marikana murder charge withdrawal: the first glimmer of sanity
- Abuse, Inc: The 'miners made us do it' murder charge
- A marriage made in hell
- Lonmin's Farlam Commission: not bad, not bad at all
- Marikana: Avoidable, unconstitutional… and entirely predictable