I am not the greatest of fans of President Thabo Mbeki - as readers of this Blog might know - but I was rather surprised by an article by one James Myburgh published on Politicsweb today in which he argues the real reason so few people applied for the vacant position on the Constitutional Court is because President Mbeki has consistently appointed judges to this court on ideological grounds.
So, this is all Mbeki's fault! Next he will be blamed for the hurricanes in the US or for the runderpest.
Myburgh - who used to write speeches for Tony Leon, if I am not mistaken - writes:
Over the course of his presidency Mbeki's appointments to the Constitutional Court were characterised by ‘negative selection.' As under Communist systems "ideological, organisational, and personal loyalty" was preferred over competence, and independent-mindedness.
In terms of the Constitution Mbeki was required to go through the motions of consulting with the then leader of the opposition, Tony Leon. In his autobiography, On the Contrary, Leon sets out the perverse quality of some of the appointments made by Mbeki. In 2004 two of the most formidable jurists in the country, Johann Kriegler and Laurie Ackermann, were due to retire from the court. In November 2003 nine candidates were interviewed for the vacant positions one of whom was Jeremy Gauntlett SC.
Leon writes that Gauntlett "was one of the busiest and brightest advocates in South Africa... [and] would, by common consent in legal circles, have made a significant contribution to the Court. But he was not one of the names forwarded by the JSC to Mbeki for consideration."
The five names forwarded to the President were Justices BR du Plessis, Christopher Jafta, YS Meer, Thembile Lewis Skweyiya and JV van der Westhuizen. Mbeki's legal advisor, Mojanku Gumbi, wrote to Leon advising him that the president was ‘considering appointing' Skweyiya and Van der Westhuizen.
Leon notes "It was clear that the choices were flavoured by the nominees' close connection to the ANC. Senior members of the Bar and judiciary were dismayed at the exclusion of [Ben] du Plessis, who had already acted in the Constitutional Court, and was generally regarded as the top jurist in contention." By contrast, at the time he had to deal with the issue, Leon writes, a family he knew in Johannesburg had been waiting for two years "for Van der Westhuizen to deliver a judgment on a relatively simple matter."
I find this kind of reasoning breathtakingly naive. It seems to suggest that there are two kinds of candidates for appointment to the Constitutional Court. On the one hand, there are highly skilled, "independent" and non-ideological candidates which never get appointed. On the other hand there are candidates who are less competent, less "independent" and ideologically tainted who are always appointed by Mbeki instead of the first group.
There are at least two problems with this line of reasoning.
First, every candidate for appointment to the bench has an ideology and is therefore only "independent" in relation to some other group whose views the candiate do not share. The view that some candidates are independent and non-ideological while others are not is a typical liberal falacy based on the inability of a certain kind of liberal to see that he or she also has an ideology.
For those kinds of liberals - they often have a libertarian bent and thinks the state should not interfere in the "market" - only other people have an ideology while they just know the Truth and what is best for the nation.
I am sure Jeremy Gauntlett appears non-ideological to Tony Leon and James Myburgh but that is only because they share Gaunltett's politics and do not see his ideological bent as a problem. President Mbeki on the other hand do not share Gauntlett's ideology so he could easily argue that Gauntlett is not independent or too ideological because of this.
Second, the Constitutional Court's job is highly politicised and it has to interpret a Constitution that seems to demand a very specific engagement with issues of transformation and social justice. This, to my mind, is a good thing because without this element of social justice the Constitution will lose its legitimacy. Most South Africans are poor and do not sit in airconditioned offices marvelling over the wonderful technical legal arguments conjured up by a Gauntlett or a Cameron.
Appointing libertarian judges to the Constitutional Court might therefore be counter-productive and might affect the legitimacy of the Court and the Constitution because the Court would begin to make decisions that are ideologically not in the best interest of the vast majority of South Africans. Property rights will be sacrosanct and evictions will be ordered at the drop of a hat.
It could therefore be argued that President Mbeki has been rather wise (yes, I have said it!) in appointing judges whose vision is more closely aligned with that of the majority of the country. The very credibility of our Constitution depends on it.
By all accounts none of the appointments to the Constitutional Court are stupid or lazy. In fact, they are all highly qualified judges who happen not to share the political views of Tony Leon. They might not meet the exacting black letter law credentials of the liberals but this, I would say, is a good thing.
Those brilliant black letter lawyers might not be the best Constitutional Court judges because they would not want to disturb the common law too much and might be reluctant to infuse the common law with the values of the Constitution.
So on this one I am with President Mbeki. I sure hope he continues the good work in the next round of appointments.
Pierre de Vos is Professor of Constitutional Law at the University of the Western Cape. This article first appeared on his Constitutional Speaking blog August 29 2008