By Clyde N S Ramalaine on Tuesday, August 2, 2011 at 10:07pm
Dr. Pierre De Vos, gets it wrong (The Star pg 10, Aug.2, 11)
The Constitutional Court has ruled on the invalidity of the extension of the Chief Justice as applied for by the President. We all said democracy is alive for in South Africa, the constitutional court proved independent in its findings.
Whilst the Constitutional Court ruled and struck down the law which was functional until last Friday the debates are running wild on the successor of Chief Justice Ngcobo. We all are expressing our wish lists and it is rather exciting that we can be free to air the prism of our thinking as to whom should get the nod.
In applying my mind to the findings and in concert with others who also observed this ruling, a fundamental observation began to crystallize that being; can we truthfully claim independence or conflict of interest when the Constitutional Court ruled the way it ruled when the very ones who participated in such adjudication are potential candidates, contesting by choice or default?
To understand this is to ask is there no case to argue a potential aspect for conflict of interest when Judges who are all potentially in the race for the top job can participate in such ruling and yet claim independence as a principle.
My premise for such contention vacillates on two levels, If the principle of a potentially one judge being in the race be found proven, as conflict of interest can we conclude that such case of conflict could also be material in the case of others. Deputy Chief Justice Moseneke is definitely in the race, his experience, his personal ambitions as vocalized in the last Sunday Independent pg 4, where he is at pains to explain, that the CC can continue without an Ngcobo, serves as undeniable prove for such contestation. He is also the judge who presided and pronounced on such application.
Perhaps a more concerning issue for me is the emerging perception that, democracy is best protected, defended with opposition parties as the custodians of such. I observe that South Africa must be the only country in democracy where the opposition parties who lost the popular vote granted automatic inalienable right to such custodianship, when equally the ruling party is considered counter-productive to such democracy.
This is advanced by a combination of jurists, intellectuals, analysts and untransformed constituencies who argue the relevance of such as necessary essential prove of our democracy being alive and intact.
To corroborate my assertion I shall refer to the Dr. De Vos article “Fit and proper –and just” as carried by the Star of August 2, 2011 page 10. De Vos gives the President advice who to choose, he is clearly lobbying for Judge Bess Nkabinde, his premise for this he shares with us is her sincerity and on social justice and respect for the dignity of all people. I am not going to challenge his assertion for that is his prerogative just as much as I want Deputy Chief Justice Moseneke not to get the nod, as advanced in an earlier note I penned.
What I find interesting about De Vos’ analysis cum advice is the fact that he states and I quote “However, the president would be ill-advised to appoint a controversial person as chief justice who is perceived to be a slavish and obsequious kow – tower to the government of the day and whose appointment is reasonable opposed by the JSC and all opposition parties”
He later on includes “will also want to make an appointment that will install public confidence in the judiciary”
This is a mouthful worth unpacking, the same we will not do here and now,
Firstly De Vos, clearly is suffering from convenient selective amnesia, for the existing President’s record for appointing a chief justice has necessarily proven to be intact and well advised as can be attested with the incumbent whom all now mourn his going except for one or two who believe the chief justice appointment is their birthright.
So the advice extended with public confidence in judiciary has previously been met by the President, hence the advice in that regard is an overstating of truth. My premise for asserting such comes singularly informed by my solitary claim that such is necessarily an overstated untested assertion for SA in democratic narrative has no history of any appointment to the office that ever warranted or merited the advice advanced by De Vos.
Hence if we do not have such unfortunate history exemplified in appointments to the highest court, why advice and advance such. It smacks of swart and rooi-gevaar draped in analysis.
Secondly, De Vos, for some reason like so many wants us to believe the trueness of our democracy is immanent in opposition parties. Whilst I believe our democracy enshrines a multi party ethic, the reality is one party has consistently won the confidence of the SA voter, such voter in a popular ballot has returned the ANC as the party it trusts to lead the furtherance of the democratic unfolding pursuit.
De Vos and others want us to believe the democracy we have paid for is best protected in custodianship of parties who necessarily were not trusted by the voters in the popular vote.
Such advanced notion, exemplified in need for opposition parties and the unilateral and singular prove of democracy paints the opposition parties as custodians and the legitimately ruling party who have consistently won the confidence of the masses as necessarily counter-productive to the praxis of democracy. This illogical argument is paraded in volumes and finds manifestation in sectors of our society, the same we necessarily need to challenge.
My third challenge with De Vos is the fact that he claims the obvious choice for the position is Deputy Chief Justice Moseneke; he cites cases of Van Heerden in which the Deputy Chief Justice on affirmative action ruled as one who embraces the transformative vision of the constitution.
De Vos cites these cases to underscore the issue of a transformative vision for the constitution. One is necessitated to ask, what transformation is being discussed by De Vos here. If the ruling was in favour of a ‘white’ application, who challenged the application of affirmative action, exemplified in the many cases Afri -Forum is winning, then it is safe to conclude we have a mountain to climb in getting to the ideal of equality as a transformed reality. It appears the courts have become the new place to contest ballots.
It reminded me of the time we laid a case at the HRC, on the disparity in equity distribution for ‘coloured people’, the then HRC Commissioner Jody Kollapen, shared with us that the late Dr. Van Zyl Slabbert and other Afrikaners at the time of our submission had instituted and equal case, in defence of the Afrikaner being sidelined.
I retorted the Afrikaners case remains on the table necessarily preventing others to bring their cases. As AFRICA’s case can never serve in international embrace for there is always an Israel that needs to be focused on.
De Vos, in seeing these rulings of Moseneke as prove of transformation is telling us, when you rule for Afrikaner interest you prove transformed in your thinking and necessarily not as bad as the ugly ruling ANC hence you are therefore entitled to become Chief Justice, regardless to how controversial you are, for making politically loaded statements at a very critical period of our democracy such as his “obvious choice” Deputy Chief Justice have done on several instances.
What De Vos and others must tell us is who determines the meridian of what constitute a transforming constitution? He must tell us why there is the insatiable need to argue that our democracy is necessarily the custodianship in birthright of opposition parties who failed to secure the confidence of the masses. He must share with us why the judiciary is used as means to rule this country.
For in the absence of such we will have to conclude, there is today in South Africa a third force operative, such third force comes exemplified in judiciary, media and opposition parties who have drunk from the cup of agreement to challenge even obliterate democracy as that which is attained in legal electioneering.
The applications of FUL and others is necessarily aimed at retarding the gains made and to hold this country ransom in a hung parliament of duality of governance informed by technical considerations in the name of defending democracy, and constitutionalism, when the very champions for such so-called defence are truthfully the enemies of transformation.
These now have found willing partners across the colour divide to aim at unseating the ruling party in ruling from a lost ballot.
One dare assert the independence of the judiciary for some us is never to be an assumed independence for we have seen under apartheid how the judiciary was used, and I am afraid we are still dealing with that mindset, cloaked in protection of democracy.
However, we shall not rest until we prove the myth of their contention. We dare not rest until we expose them for whom they are as those necessarily against the transformation agenda.