PBL2000W, Constitutional Law

Tutorial 5, Week 13

Recommended Reading:

1. Constitution of the Republic of South Africa(relevant provisions)
2. Van Rooyen and Others v S and Others2002 (8) BCLR 810 (CC) paras [1]-[86]
3. Helen Suzman Foundation v Judicial Service Commission (CCT289/16) [2018] ZACC 8.
4. Singh v Minister of Justice and Constitutional Development and Others (57331/2011) [2013]

ZAEQC 1

1. Susannah Cowen "Judicial selection in South Africa" (2013) (DGRU) pp 28-73
2. Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v

Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15) [2016] ZACC 11

1. Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC)

Questions:

1.Assume that the Judicial Service Commission (JSC) is interviewing for a vacant judge position on the Supreme Court of Appeal. For purposes of its interview, assume that the JSC is scheduled to interview three candidates. The first candidate, Advocate Shane Wafer (a white male) is a member of the Cape Bar. He completed his law degree at the University of Cape Town, graduating top of his class. In his 25 years of experience as an advocate, he has appeared before the High Court, Supreme Court of Appeal and Constitutional Court. Advocate Wafer has also had several opportunities to act as a judge. In all the cases he has worked on, he has never worked with a female junior advocate. The majority of his junior co-counsel have been white males. His failure to work with female junior advocates and alleged preference of white male junior advocates has led to some criticism. Several commentators on a popular podcast on law in South Africa have suggested that he is not committed to transforming the legal fraternity and South African society.

The second candidate, Professor Thandi Moraka (a Black female), is a constitutional law professor at the University of Stellenbosch. Professor Moraka has two masters degrees and a doctorate in constitutional law from the University of Pretoria. In her 20-year academic career, she has written extensively on constitutional law, and her work is often cited by the courts, including the Constitutional Court. Having gone straight into academia after completing her undergraduate and postgraduate studies, she has no legal experience outside of academia. In 2012, she was invited to act as a judge in the Eastern Cape High Court but was unable to take up the invitation because, at the time, she was the primary caregiver of three minor children and could not pull them out of school. She has never been invited to an acting judge position since. While respected in her field, she often criticises the Constitutional Court's judgements for failing to adhere to textual and originalist approaches to interpreting the Constitution and legislation. Accordingly, many consider her to be conservative in her approach to constitutionalism, a conservatism that is contrary to a commitment to transformative constitutionalism.

The third candidate, judge Menzi Mkhonza (a Black male), is the Judge President of the Western Cape High Court. He completed his law degree at the University of Cape Town.

Before his appointment as a judge, he was the first Black public law lecturer at the University of Cape Town, teaching constitutional and administrative law. With over 30 years of experience in academia and as a judge, he is widely regarded as a brilliant legal mind. While he has an impeccable record as an academic, his judicial career has been marked with much controversy. In particular, he has been criticised for allegedly using his position to further the interests of members of the ruling party (the ANC) by allocating himself and persons considered to be his allies to hear cases brought against members of the ruling party.

You are a legal advisor appointed to help the JSC execute its constitutional mandate. Assume that a new Chief Justice has been appointed. As the new head of the JSC, and having read the criticism from NGOs and the media that the JSC does not apply clear and coherent criteria, the Chief Justice approaches you and asks that you draft a memo in which you advise him on:

1. What the provisions in s 174(1) and s 174(2) of the Constitution require, and how the JSC should apply them. In addition, he asks that you advise him on, in light of the information provided, which of the three candidates most fully meets the criteria for appointment and why. Your advice should refer to the relevant case law and other authority. [15]

1. Whether a person interviewed for the vacant position but who is not ultimately appointed can bring a legal challenge to the JSC's decision and seek access to the JSC's reasons for not appointing them and its deliberations in making the decision, your advice should refer to the relevant case law and other authority. [5]

1. Is the Public Protector's remedial action always binding? Provide reasons for your answer [5]

In Tongoane and Others v Minister for Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC), the Constitutional Court distinguished between the test for the 'tagging' of a bill and the test for determining the competence of the national and provincial legislatures. Briefly explain what each of these tests are, and how they differ from each other. [5]