Analysis Will Help JSC Pick the Right Candidates for the Constitutional Court
BYLINE: Christopher Reeves
In 2007, the Constitutional Court held that the property on which an illegal casino had been operated should not be forfeited to the State; that the forfeiture sought would, in this instance, be disproportionate.
The judgment ran to 85 pages, included three separate opinions and implicated the constitutional prohibitions on the arbitrary deprivation of property and cruel, inhuman and degrading treatment.
But the court was deeply divided. Five of its members, including the Chief Justice, Pius Langa, aligned themselves with the minority judgment of Belinda van Heerden.
If Van Heerden is interviewed for a permanent position on the Constitutional Court in September, will the Judicial Service Commission (JSC) has read this judgment?
Given the length and complexity of such cases, and the limited time and resources available to the JSC, it would be impossible for the commission to examine all of the applicants' judgments thoroughly.
It is for this reason that researchers at UCT's Democratic Governance and Rights Unit and the South African Institute for Advanced Constitutional Law have compiled a report on the judgments of potential applicants. It sets out not to critique the judgments, but to explain them.
Leading civil society organisations and members of academia were asked to suggest the names of potential nominees. Of the 23 individuals proposed, seven currently sit in the Supreme Court of Appeal and 10 in High Court; the remaining six are divided equally between advocates and professors of law.
For the seven members of the Supreme Court of Appeal, the study undertakes a statistical analysis of their judgments over the past five years. It notes the number of judgments written by each individual judge and it also considers those occasions when another member of the court thought it necessary to deliver a separate opinion, which nevertheless concurs with the leading judgment, or a dissenting judgment.
For example, in 2007, Mandisa Maya heard 23 cases and delivered four leading judgments. In one of those cases, a colleague concurred in the decision but felt it necessary to comment upon a particular aspect of her judgment.
The analysis serves to highlight those instances where there has been a genuine disagreement on the interpretation of a constitutional right.
In a 2007 case, two members of the court ordered the preservation of evidence that had been unlawfully obtained, with a further two reaching a different conclusion but concurring in the order all the same. …