CHAPTER SEVEN
THE URGINGS OF A FRIENDLY FOUNDING FATHER: KADER ASMAL AS AMICUS CURIAE IN THE SOUTH AFRICAN JUDICIAL SERVICE COMMISSION CASE
Max du Plessis
I. Introduction
Professor Kader Asmal’s contribution to the creation of South Africa’s new constitutional order and the role he played in it thereafter are well known—and rightly heralded in and by this book. That contribution con- tinued after the achievement of democracy in 1994 through his work as a minister in the South African government, but also afterwards. One of his last engagements before his death, and as a continuation of his legacy as a founding father of the new constitutional order, was his decision to intervene as an amicus curiae (friend of the court) in the High Court (HC) and Supreme Court of Appeal (SCA) in a case going to the very heart of South Africa’s young democracy. The case, Freedom Under Law v The Acting Chairperson: Judicial Service Commission,1 involves the saga around Judge President Hlophe (hereinafter “Hlophe JP” or “Judge Hlophe”),2 and the accusations made by the judges of the Constitutional Court (CC) that he improperly sought to influence them in respect of a high profile case involving one Jacob Zuma, the man who would become president. For Professor Asmal, a centrally important feature of the case was the manner in which the Judicial Service Commission (JSC), the con- stitutional body3 tasked with investigating the Hlophe complaint, had failed in its duty.
1 [2011] (3) SA 549 (SCA); [2011] 3 All SA 613 (SCA); [2011] ZASCA 59; 52/2011 (31 March, 2011) (hereinafter “Judicial Service Commission case”). 2 At the time of writing John Hlophe is the Judge President of the Western Cape Division of the High Court of South Africa. A former academic, he was among the first judges appointed after the demise of apartheid and was hailed as one of the rising stars of the new judicial order. 3 Established in terms of the provisions of section 178(1) of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”).
Professor Asmal, by virtue of his intimate and founding engagement with the constitution-making process in South Africa, and his understand- ing of and work within the constitutional order that resulted from that process, felt that he had an historical and ongoing interest in the issues raised and the relief sought in the matter. Because of his background, he believed he was in a position to provide valuable insights regarding the questions presented in the case. During a conference held in Johannesburg in honour of another South African law professor—John Dugard—I shared the stage with Kader Asmal, Anton Katz SC, and Justice Albie Sachs as we gave various view- points about the importance of Dugard’s legacy in the continuing struggle for human rights in South Africa. At some point I must have been speak- ing about the threat to South Africa’s constitutional democracy posed by the “Hlophe saga” and the failure by the JSC properly to investigate the complaint against him. By that time Freedom Under Law (hereinafter “FUL”), an NGO with a distinguished leadership including Justice Johann Kriegler, a former justice of the Constitutional Court, Dr. Mamphela Ramphele, a former academic and Vice-Chancellor of the University of Cape Town and political activist, Jeremy Gauntlett SC, one of the coun- try’s leading lawyers, and Professors Hugh Corder and Jeffrey Jowell, legal academics and constitutional law experts, had launched a legal challenge in the South African courts to the JSC’s abdication of duty as regards the Constitutional Court’s complaint against Judge Hlophe, and his counter- complaint against the Constitutional Court Justices who had made the allegations about his misconduct. Aware of the case, Kader leant over to me and said that he thought it would be a good idea if he intervened in the matter so that, as he put it, he “might have something to say about the role that the founding fathers of the Constitution envisaged for the JSC”. He asked me if I would be willing to act on his behalf as counsel for his inter- vention as a “friend of the court”, which I immediately agreed to.4 In this chapter, I explain the background to the litigation. I also high- light the submissions that Professor Asmal advanced: in particular his contention that the JSC’s failure to deal with the complaint amounts to dereliction of its constitutional duty to protect the independence of the judiciary by properly examining the complaints relating to apparent executive interference (either directly or through the agency of third par- ties) with the judicial office. In that regard, I attempt to throw light on the
4 Angus Stewart SC led me and Omphemetse Mooki as counsel; we were instructed by Webber Wentzel’s Pro Bono Practice with the sterling support of Moray Hathorn.