Identifier
Created
Classification
Origin
09PRETORIA2141
2009-10-21 16:25:00
CONFIDENTIAL
Embassy Pretoria
Cable title:
COURT SELECTIONS SHOW HOW CONCERNS ABOUT JUDICIAL
VZCZCXRO6172 PP RUEHBZ RUEHDU RUEHMR RUEHPA RUEHRN RUEHTRO DE RUEHSA #2141/01 2941625 ZNY CCCCC ZZH P 211625Z OCT 09 FM AMEMBASSY PRETORIA TO RUEHC/SECSTATE WASHDC PRIORITY 9922 INFO RUEHZO/AFRICAN UNION COLLECTIVE RUCNSAD/SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE RUEHTN/AMCONSUL CAPE TOWN 7246 RUEHDU/AMCONSUL DURBAN 1325 RUEHJO/AMCONSUL JOHANNESBURG 9607 RHEFDIA/DIA WASHINGTON DC RHEHNSC/NSC WASHDC RUEAIIA/CIA WASHINGTON DC
C O N F I D E N T I A L SECTION 01 OF 03 PRETORIA 002141
SIPDIS
E.O. 12958: DECL: 10/23/2019
TAGS: PGOV PREL PHUM KDEM PINR SF
SUBJECT: COURT SELECTIONS SHOW HOW CONCERNS ABOUT JUDICIAL
INDEPENDENCE ARE HYPED
PRETORIA 00002141 001.2 OF 003
Classified By: Political Counselor Walter N.S. Pflaumer for reasons 1.4
(b) and (d).
-------
Summary
-------
C O N F I D E N T I A L SECTION 01 OF 03 PRETORIA 002141
SIPDIS
E.O. 12958: DECL: 10/23/2019
TAGS: PGOV PREL PHUM KDEM PINR SF
SUBJECT: COURT SELECTIONS SHOW HOW CONCERNS ABOUT JUDICIAL
INDEPENDENCE ARE HYPED
PRETORIA 00002141 001.2 OF 003
Classified By: Political Counselor Walter N.S. Pflaumer for reasons 1.4
(b) and (d).
--------------
Summary
--------------
1. (C) President Jacob Zuma finalized his appointment of
five new justices to the Constitutional Court, the nation's
highest legal body, on October 11. For most of the past
year, and particularly during the election campaign period
ahead of the national election in April, opposition leaders
and some political pundits argued that judicial independence
was threatened under a Zuma administration. Such fears were
largely based on the argument that Zuma himself was involved
in separate court bids involving rape and corruption and that
he was a "victim of a political conspiracy" at the hands of
some of the country's top justice administrators. Zuma's
appointment of five new justices -- almost all with solid
legal qualifications and records of upholding the
Constitution -- was largely praised by the same critics and
demonstrates his commitment to judicial independence. End
Summary.
--------------
Zuma Finalizes Constitutional Court Picks
--------------
2. (C) After a selection process that began nearly one year
ago, Zuma confirmed his appointments to the Constitutional
Court on October 11. Zuma appointed Eastern Cape Judge Johan
Froneman, Supreme Court of Appeal Judge Chris Jafta,
Northwest Judge Mogoeng wa Mogoeng, and Johannesburg High
Court Judge Sisi Khampepe. Zuma named Sandile Ngcobo as
Constitutional Court Chief Justice. The South African leader
made his selections following the Judicial Services
Commission's deliberations and recommendations. With the
exception of Mogoeng, all of the selections matched the names
the Commission submitted on the shortlist to the President.
(Note: The process for selecting justices involves months of
interviews and internal debate by the Judicial Services
Commission. The Commission then opens the process up for
public comment and scrutiny before finalizing a shortlist of
preferred candidates and submitting those names to the
Presidency. The President can either confirm the
Commission's list or add names from the pool of justices the
Commission might have placed lower on its own list. End
Note.)
3. (C) Each of the new justices brings a wealth of legal
experience. Below are brief biographies for each of the new
justices:
-- Chief Justice Sandile Ngcobo was born in Durban in 1953
and graduated with law degrees from the University of
Zululand in 1975. He was held in detention from 1976 to
1977. He went to work in the Maphumulo Magistrate's Office
upon his release. In 1978, he joined KK Mthiyane and
Company, a law firm in Durban. As an articled clerk and then
an associated attorney, he performed general law office work
such as registering corporations, advising corporate
directors, and administering private property estates. In
1982, he moved to the Legal Resources Center in Durban where,
as an attorney at law, he tried public-interest civil and
criminal cases involving the ejection of tenants from
townships, the forced removal of black communities to
homelands, and police torture. From 1986 to 1987, he served
as a law clerk and research assistant to A. Leon
Higginbotham, former Chief Judge of the U.S. Court of Appeals
QHigginbotham, former Chief Judge of the U.S. Court of Appeals
for the Third Circuit. During this time, he also taught
seminars at Harvard University and Stanford University. He
returned to South Africa in 1988 to become Acting Director of
the Legal Aid Services Clinic at the University of Natal and
to practice privately. From 1992, he practiced as an
advocate in Durban, focusing on labor and employment law,
constitutional law, and general practice. He was appointed
in 1999 to the position of acting Judge President of the
Labor Court and Labor Appeal Courts.
-- Johan Froneman was born in the Eastern Cape in 1953 and is
widely regarded as a judicial activist whose passion for the
Constitution is "etched in the lines of his judgments,
lectures, and public statements." Prominent legal scholar
PRETORIA 00002141 002.2 OF 003
Pierre de Vos believes that Froneman "has written some
excellent and innovative judgments to try and address the
systemic problems with the administration of public grants in
Eastern Cape." He has told reporters that he views the
Constitution as the "Never Again" document designed to ensure
the atrocities of apartheid are never repeated. He has
argued that the Constitution is a "pro-poor document" that
provides for socio-economic rights such as access to water,
health, and education. In 2000, he ruled to allow four
persons with disabilities to bring a class action lawsuit on
behalf of thousands of other persons with disabilities whose
grants had been cut by the Eastern Cape government. His
judgment paved the way for thousands of disabled individuals
to secure justice and access to their grants without legal
representation. Described as reserved and softly spoken,
Froneman teaches as an adjunct professor at the University of
Stellenbosch.
-- Chris Jafta has long been on the Constitutional Court's
list of acting justices. He earned his law degrees at the
University of Transkei in 1988 and steadily worked his way up
in the legal field after graduation. From 1993 to 1999, he
practiced law in the Eastern Cape. He was appointed as the
Judge of the Transkei High Court in 1999. In 2001, he was an
acting Judge President for the Supreme Court of Appeal before
serving from 2003 to 2004 as an acting Judge in the Labor
Appeal Court. From 2004 until his present appointment, Jafta
served as a Judge in the Supreme Court of Appeal.
-- Mogoeng wa Mogoeng was considered a surprise choice by
Zuma and has the weakest background of the new justices.
Mogoeng was a prosecutor from 1986 to 1990 before practicing
law privately in Northwest and Gauteng. He served as Deputy
Chairman of the Mafikeng Society of Advocates from 1993 to
1997 and served on the boards of several parastatals and
companies during this time period. He was appointed to the
Labor Court of Appeal in 2000 and in 2002 was named Judge
President of the Mafikeng High Court. De Vos thinks Mogoeng
"interviewed very well and was very charismatic when he
appeared before the Judicial Services Commission." De Vos
added that he performed in the tradition of a "lay preacher
or a gospel singer." During the interview, Mogoeng
reportedly stated that he has very little constitutional law
experience or knowledge.
-- Sisi Khampepe was the only woman selected by Zuma to serve
on the court. During her interview with the Commission,
Khampepe said, "Women in our society comprise a majority (of
the population) ... Women bring their own perspective in the
adjudication of issues. They don't only bring knowledge, but
bring in their own reasoning with it. There are issues that
men would not take as seriously as women would." Khampepe
earned her Bachelors degree from the University of Zululand
and a Masters degree from Harvard University. From 1998 to
2002, she served as Deputy Director of Public Prosecutions.
In 2002, she was named as Judge to the High Court of the
Witswatersrand Division of Gauteng. She has held a number of
positions and chairmanships in addition to her court
appointment. Khampepe served as a member of the Public
Service Commission, the Truth and Reconciliation Commission's
QService Commission, the Truth and Reconciliation Commission's
Amnesty Committee, the Electoral Appeal Tribunal, and as a
candidate attorney for Bowman Gilfillan Attorneys. She also
served as a chair for the National Council of correctional
Services.
4. (C) Zuma faced immediate criticism for the shortage of
female appointments. However, the government argued that the
selections balance the need for strong judicial backgrounds
on the nation's highest court with the need for diversity at
lower courts. For instance, most legal scholars say Zuma's
appointment of only one female judge reflects a government
push to appoint more women as judge presidents -- where there
are currently no female justices -- in courts below the
Constitutional Court. De Vos has said that without strong
justices as lower courts, the future of higher courts could
be bleak and "without diversity." (Note: Legal advocate
Peter Mothle affirmed to Poloffs in recent months that there
is very little diversity in lower courts and the lack of
female candidates is "shocking." End Note.) The Democratic
Alliance also criticized Zuma for his selection of Mogoeng
because Mogoeng had failed to recuse himself from a case
heard in his court involving a family member.
--------------
PRETORIA 00002141 003.2 OF 003
Comment
--------------
5. (C) Zuma's appointments end a lengthy process that many
feared would turn out badly for the Constitutional Court and
for South Africa. While the choices are not as stellar as
those in the "Class of 1994" made by former President Nelson
Mandela, each of the justices brings experience, diversity,
and respect for judicial independence. The selection by Zuma
of Ngcobo, Froneman, Jafta, Mogoeng, and Khampepe was
transparent and, on the whole, followed the recommendations
made by the legal experts on the Judicial Services
Commission. Although the shortage of female representation
to the nation's highest court is disappointing for this round
of appointments, stronger women justices along with greater
diversity at the lower levels of South Africa's judicial
system bode well for the future. End comment.
GIPS
SIPDIS
E.O. 12958: DECL: 10/23/2019
TAGS: PGOV PREL PHUM KDEM PINR SF
SUBJECT: COURT SELECTIONS SHOW HOW CONCERNS ABOUT JUDICIAL
INDEPENDENCE ARE HYPED
PRETORIA 00002141 001.2 OF 003
Classified By: Political Counselor Walter N.S. Pflaumer for reasons 1.4
(b) and (d).
--------------
Summary
--------------
1. (C) President Jacob Zuma finalized his appointment of
five new justices to the Constitutional Court, the nation's
highest legal body, on October 11. For most of the past
year, and particularly during the election campaign period
ahead of the national election in April, opposition leaders
and some political pundits argued that judicial independence
was threatened under a Zuma administration. Such fears were
largely based on the argument that Zuma himself was involved
in separate court bids involving rape and corruption and that
he was a "victim of a political conspiracy" at the hands of
some of the country's top justice administrators. Zuma's
appointment of five new justices -- almost all with solid
legal qualifications and records of upholding the
Constitution -- was largely praised by the same critics and
demonstrates his commitment to judicial independence. End
Summary.
--------------
Zuma Finalizes Constitutional Court Picks
--------------
2. (C) After a selection process that began nearly one year
ago, Zuma confirmed his appointments to the Constitutional
Court on October 11. Zuma appointed Eastern Cape Judge Johan
Froneman, Supreme Court of Appeal Judge Chris Jafta,
Northwest Judge Mogoeng wa Mogoeng, and Johannesburg High
Court Judge Sisi Khampepe. Zuma named Sandile Ngcobo as
Constitutional Court Chief Justice. The South African leader
made his selections following the Judicial Services
Commission's deliberations and recommendations. With the
exception of Mogoeng, all of the selections matched the names
the Commission submitted on the shortlist to the President.
(Note: The process for selecting justices involves months of
interviews and internal debate by the Judicial Services
Commission. The Commission then opens the process up for
public comment and scrutiny before finalizing a shortlist of
preferred candidates and submitting those names to the
Presidency. The President can either confirm the
Commission's list or add names from the pool of justices the
Commission might have placed lower on its own list. End
Note.)
3. (C) Each of the new justices brings a wealth of legal
experience. Below are brief biographies for each of the new
justices:
-- Chief Justice Sandile Ngcobo was born in Durban in 1953
and graduated with law degrees from the University of
Zululand in 1975. He was held in detention from 1976 to
1977. He went to work in the Maphumulo Magistrate's Office
upon his release. In 1978, he joined KK Mthiyane and
Company, a law firm in Durban. As an articled clerk and then
an associated attorney, he performed general law office work
such as registering corporations, advising corporate
directors, and administering private property estates. In
1982, he moved to the Legal Resources Center in Durban where,
as an attorney at law, he tried public-interest civil and
criminal cases involving the ejection of tenants from
townships, the forced removal of black communities to
homelands, and police torture. From 1986 to 1987, he served
as a law clerk and research assistant to A. Leon
Higginbotham, former Chief Judge of the U.S. Court of Appeals
QHigginbotham, former Chief Judge of the U.S. Court of Appeals
for the Third Circuit. During this time, he also taught
seminars at Harvard University and Stanford University. He
returned to South Africa in 1988 to become Acting Director of
the Legal Aid Services Clinic at the University of Natal and
to practice privately. From 1992, he practiced as an
advocate in Durban, focusing on labor and employment law,
constitutional law, and general practice. He was appointed
in 1999 to the position of acting Judge President of the
Labor Court and Labor Appeal Courts.
-- Johan Froneman was born in the Eastern Cape in 1953 and is
widely regarded as a judicial activist whose passion for the
Constitution is "etched in the lines of his judgments,
lectures, and public statements." Prominent legal scholar
PRETORIA 00002141 002.2 OF 003
Pierre de Vos believes that Froneman "has written some
excellent and innovative judgments to try and address the
systemic problems with the administration of public grants in
Eastern Cape." He has told reporters that he views the
Constitution as the "Never Again" document designed to ensure
the atrocities of apartheid are never repeated. He has
argued that the Constitution is a "pro-poor document" that
provides for socio-economic rights such as access to water,
health, and education. In 2000, he ruled to allow four
persons with disabilities to bring a class action lawsuit on
behalf of thousands of other persons with disabilities whose
grants had been cut by the Eastern Cape government. His
judgment paved the way for thousands of disabled individuals
to secure justice and access to their grants without legal
representation. Described as reserved and softly spoken,
Froneman teaches as an adjunct professor at the University of
Stellenbosch.
-- Chris Jafta has long been on the Constitutional Court's
list of acting justices. He earned his law degrees at the
University of Transkei in 1988 and steadily worked his way up
in the legal field after graduation. From 1993 to 1999, he
practiced law in the Eastern Cape. He was appointed as the
Judge of the Transkei High Court in 1999. In 2001, he was an
acting Judge President for the Supreme Court of Appeal before
serving from 2003 to 2004 as an acting Judge in the Labor
Appeal Court. From 2004 until his present appointment, Jafta
served as a Judge in the Supreme Court of Appeal.
-- Mogoeng wa Mogoeng was considered a surprise choice by
Zuma and has the weakest background of the new justices.
Mogoeng was a prosecutor from 1986 to 1990 before practicing
law privately in Northwest and Gauteng. He served as Deputy
Chairman of the Mafikeng Society of Advocates from 1993 to
1997 and served on the boards of several parastatals and
companies during this time period. He was appointed to the
Labor Court of Appeal in 2000 and in 2002 was named Judge
President of the Mafikeng High Court. De Vos thinks Mogoeng
"interviewed very well and was very charismatic when he
appeared before the Judicial Services Commission." De Vos
added that he performed in the tradition of a "lay preacher
or a gospel singer." During the interview, Mogoeng
reportedly stated that he has very little constitutional law
experience or knowledge.
-- Sisi Khampepe was the only woman selected by Zuma to serve
on the court. During her interview with the Commission,
Khampepe said, "Women in our society comprise a majority (of
the population) ... Women bring their own perspective in the
adjudication of issues. They don't only bring knowledge, but
bring in their own reasoning with it. There are issues that
men would not take as seriously as women would." Khampepe
earned her Bachelors degree from the University of Zululand
and a Masters degree from Harvard University. From 1998 to
2002, she served as Deputy Director of Public Prosecutions.
In 2002, she was named as Judge to the High Court of the
Witswatersrand Division of Gauteng. She has held a number of
positions and chairmanships in addition to her court
appointment. Khampepe served as a member of the Public
Service Commission, the Truth and Reconciliation Commission's
QService Commission, the Truth and Reconciliation Commission's
Amnesty Committee, the Electoral Appeal Tribunal, and as a
candidate attorney for Bowman Gilfillan Attorneys. She also
served as a chair for the National Council of correctional
Services.
4. (C) Zuma faced immediate criticism for the shortage of
female appointments. However, the government argued that the
selections balance the need for strong judicial backgrounds
on the nation's highest court with the need for diversity at
lower courts. For instance, most legal scholars say Zuma's
appointment of only one female judge reflects a government
push to appoint more women as judge presidents -- where there
are currently no female justices -- in courts below the
Constitutional Court. De Vos has said that without strong
justices as lower courts, the future of higher courts could
be bleak and "without diversity." (Note: Legal advocate
Peter Mothle affirmed to Poloffs in recent months that there
is very little diversity in lower courts and the lack of
female candidates is "shocking." End Note.) The Democratic
Alliance also criticized Zuma for his selection of Mogoeng
because Mogoeng had failed to recuse himself from a case
heard in his court involving a family member.
--------------
PRETORIA 00002141 003.2 OF 003
Comment
--------------
5. (C) Zuma's appointments end a lengthy process that many
feared would turn out badly for the Constitutional Court and
for South Africa. While the choices are not as stellar as
those in the "Class of 1994" made by former President Nelson
Mandela, each of the justices brings experience, diversity,
and respect for judicial independence. The selection by Zuma
of Ngcobo, Froneman, Jafta, Mogoeng, and Khampepe was
transparent and, on the whole, followed the recommendations
made by the legal experts on the Judicial Services
Commission. Although the shortage of female representation
to the nation's highest court is disappointing for this round
of appointments, stronger women justices along with greater
diversity at the lower levels of South Africa's judicial
system bode well for the future. End comment.
GIPS