Blog | On matters constitutional

I was surprised to read Martin van Staden’s strained interpretation of the Constitution (‘Constitution is clear: Alan Winde can call a referendum in the Western Cape’) in support of Cape separatism last Thursday. Van Staden adopts an approach to interpretation that the Constitutional Court has, rightly, often been castigated for: outcome-based reasoning. So badly does… Read more: On the constitutional argument for Cape exit

Law is order, and good law is good order. — Aristotle Jacob Zuma is a free man. On Friday 11 August, he was one of the first beneficiaries of a special remissions process that will see the release of some 9000-odd ‘low risk’ offenders from correctional centres countrywide over the next 10 months. It is… Read more: On hysteria and the prerogative of mercy

‘What, then, does the rule of law envisage? What does it add to rule by law? It envisages the possibility that the highest power in a society is bound by law and subject to law, and that governmental officials at every level – including the highest level – should exercise their power within a constraining… Read more: On the discipline of rules and the ill discipline of Braamfontein

‘The common law world today, however, casts the recusal net much wider. In one form or another it asks whether a sensible observer, knowing what the case was about, who the parties were and what connection the judge had with any of them or with the issues in the case, would think that the judge… Read more: For dishonest gain: bias, the President and the Public Protector

To BEE or not to BEE Sometime last year I woke up and wrote a thread on Twitter about how media reporting on a recent judgment was not only mistaken but had the potential to actively misinform the public about what the case was really about. The case in question was Minerals Council of South… Read more: To BEE or not to BEE

Almost all the commentary on the interviews for the next chief justice has been focused on the appalling conduct of several members of the Judicial Service Commission (JSC). The consensus, it would appear, is that the process was unfair and this has tainted the JSC’s ultimate decision to “recommend” judge Mandisa Maya for appointment. The… Read more: A requiem for the Judicial Service Commission

Yesterday was the first of five days set aside by the Judicial Service Commission (JSC) for its interviews of candidates nominated by the President for the position of Chief Justice left vacant by the retirement of Justice Mogoeng Mogoeng in October 2021. I write this in the early hours of the morning, troubled by something… Read more: Who appoints the Chief Justice?

Way back when, in one of the Public Protector’s crusades against public enterprises minister Pravin Gordhan, she had ordered President Ramaphosa to discipline him. Gordhan sought an interdict against the implementation of the remedial action, with the President joining the effort, presumably to buy himself some time to figure out the how to get out… Read more: The impossibility of an acting chief justice

Mogoeng Mogoeng, South Africa’s erstwhile chief justice, retired from the Constitutional Court on October 11. His appointment by former president Jacob Zuma in 2011 was highly controversial. It followed an unsuccessful attempt by Zuma to extend the term of office of Sandile Ngcobo, who was chief justice then. At the time, Mogoeng had only been… Read more: The Lord’s Chief Justice

In what may prove to be a first in our legal history, the Constitutional Court on 12 July 2021 heard an application for the rescission of an earlier judgment delivered on 29 June 2021. In that judgment, the court found Mr. Jacob Zuma, former President of this most Republic, guilty of contempt of court for… Read more: ‘My Sister is mistaken’ and Other responses to unreasonable dissent

[1] Justice Chris Jafta will retire from the Constitutional Court in October of this year. In the common law tradition of examining judges’ individual contributions to law and jurisprudence, I offer this brief comment on a subject his dissents have won me over: the so-called “Oudekraal principle” (in this article I will use ‘principle’ and… Read more: The Metaphysic of Oudekraal

When the first lockdown regulations under the Disaster Management Act were gazetted, I was surprised that, in the flurry of commentary that followed, no one was particularly bothered by the fact that the Minister of Co-operative Governance had, overnight, created new criminal offences. I wrote about this initially, pointing out that in my view, no… Read more: Who’s afraid of first principles?

In the Book of Esther we are told the story of Mordecai, an exiled Jew in Persia and cousin of Esther, who raised her as his own after his uncle died; and, who, when King Ahasuerus of Persia ordered that all of the virgins in the kingdom be brought to him for him to choose… Read more: A chief justice for such a time as this

The late former Chief Justice Ismail Mahomed once described the power of courts in this country as “awesome”. There was, however, an inherent paradox about this power: Unlike Parliament or the executive, the court does not have the power of the purse, or the army or the police to execute its will. The superior courts… Read more: Nary a soldier nor a purse

Bush v. Gore, the US Supreme Court case in which Florida’s presidential election was decided in favour of George W. Bush, “stands for the proposition that if Justices care enough about a case’s outcome, the law goes out the window.” This is the view of Professor Michael J. Klarman in his Foreword in the Harvard… Read more: An omnipresent jurisdiction