Johannesburg Bar Council, Submission on short listed candidates to be interviewed for appointment to the Constitutional Court, submitted by the GCB to the JSC, May 30 2012

APPLICANT: JUDGE ROBERT WOLSELEY NUGENT

1 The candidate's appropriate qualifications

1.1 The candidate has obtained the following degrees:

1.1.1 BComm (University of the Witwatersrand); and

1.1.2 LLB (University of the Witwatersrand).

1.2 The candidate is appropriately qualified.

2 Whether the candidate is a fit and proper person

2.1 There is nothing in the application or judgments that would suggest that the candidate is not a fit and proper person.

3 Whether the candidate's appointment would help to reflect the racial and gender composition of South Africa

3.1 The candidate is a white man.

3.2 The Constitutional Court presently comprises 10 members: 3 white men, 2 black women and 5 black men.

3.3 The appointment of another white man will not enhance the race and gender composition of the court. Clearly, there is a shortage of women of all races.

3.4 This must be considered together with the other possible contributions the candidate would make if appointed.

4 The candidate's knowledge of the law, including constitutional law

4.1 The candidate's knowledge of the law is outstanding.

4.2 The candidate estimates that he has written in excess of 250 judgments during the time that he has been on the Bench. Many of those have been seminal in shaping South Africa's constitutional jurisprudence.

4.3 It is not possible to do full justice to the candidate's impact on South Africa's jurisprudence in this limited space. We therefore highlight the following select cases which have been particularly influential.

4.4 In the field of administrative law, the judgments of Greys Marine Hout Bay (Ply) Ltd & Others v Minister of Public Works & Others [2005] 3 All SA 33 (SCA) and Oudekraal Estates (Ply) Ltd v City of Cape Town & Others [2004] 3 All SA 1 (SCA) were both of ground-breaking significance. The Greys Marine case gave content to the concept of administrative action. This definition is referred to and drawn upon in innumerable administrative law decisions, and has been repeatedly affirmed and applied by the courts. The Oudekraal case is equally significant. Oudekraal addressed the consequences of invalidity of an administrative act and established the principle that the court has a discretion whether to set aside administrative action following upon a finding of legal invalidity. This flexible remedial power is essential to courts in crafting just and equitable relief in the field of administrative law. It too has been referred to innumerable times by other courts, legal practitioners and academic writers on administrative law.

4.5 The candidate's judgment in Midi Television (Ply) Ltd 1/a e.tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA) was a vital contribution to the balance between the right of freedom of speech and the right to a fair trial. It is an important judgment in demonstrating that no right is absolute and that all rights must be balanced against competing rights.

4.6 In the matter of MEC, Department of Welfare Eastern Cape v Kate 2006 (4) SA 478 (SCA), the candidate wrote the unanimous judgment of the Supreme Court of Appeal dealing with the failure of the Eastern Cape provincial government to ensure that social grants were effectively and timeously paid out. The candidate found that the failure of the Eastern Cape Department of Welfare to pay the applicant's social grant was unconstitutional and a breach of the Department's constitutional obligations. Through denying fair process to the applicant, the Department had denied her constitutional right to social assistance. The candidate found that the award of constitutional damages was an appropriate remedy having regard to the nature and importance of the rights in issue. The judgment constitutes a defence of the poorest of the poor against arbitrary and unfair State conduct.

4.7 The candidate is also renowned for creative and rigorous extension of constitutional principles to the private law. In Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA), the candidate developed the legal convictions of the community test for holding a person liable in delict in the light of the norms and values of the Constitution. The candidate found that the State has a positive constitutional duty to act in protection of the rights enshrined in the Bill of Rights.

The candidate found that the failure of the State to remove two firearms from a man who was known by the police to consume alcohol excessively, become aggressive and threaten his family with firearms, rendered it liable in delict for the consequences. The man shot and killed his wife and daughter.

The police had been in possession of information regarding his instability but had failed to act upon it. The candidate found that they had been negligent in their conduct and allowed a claim in delict on the part of the son who survived the shooting. This judgment again indicates a balanced and reflective approach to constitutional law on the part of the candidate and a valuable development of the South African private law in accordance with the values of the Constitution.

4.8 In addition to his unwavering commitment to and knowledge of constitutional law, the judgments attached to the candidate's application indicate a singular legal intellect. The candidate has written seminal judgments in the fields of labour law, administrative law, competition law, private law, tax law, intellectual property law, criminal law and commercial law.

4.9 The candidate's judgments demonstrate a remarkable ability to compress complex legal reasoning and principles into lucid, logical and accessible judgments. The candidate's grasp of understanding across numerous legal fields is impressive, to say the least. The candidate has demonstrated a deep and thorough knowledge of the law, including constitutional law.

5 The candidate's commitment to the values of the Constitution

5.1 The candidate's judgments clearly demonstrate the extent of his commitment to the values of the Constitution.

5.2 In addition, the candidate was a member of Lawyers for Human Rights prior to his elevation to the Bench.

5.3 The candidate has also written numerous scholarly articles and made addresses on issues related to the rule of law and constitutional law. These articles and addresses demonstrate that the candidate's interest in constitutional matters is a deep and sincere one and extends throughout his intellectual life. The articles include articles on judicial independence, the rights of accused, the rule of law, international law and private law.

6 Whether any judgments have beeti overturned on appeal

6.1 The candidate lists six judgments that were overturned by the Constitutional Court from the Supreme Court of Appeal.

6.2 In Bannatyne v Bannatyne 2003 (2) SA 359 (SCA), the candidate found that it was not competent for the High Court to commit a maintenance defaulter to prison for contempt of a court order. This finding was overturned on appeal on the ground that the High Court had an inherent jurisdiction to make such an order.

6.3 In President of the Republic of South Africa & Others v M&G Media Ltd 2011 (2) SA (SCA) the candidate granted an order that a newspaper be provided with a report in the possession of the President compiled by two senior judges after a visit to Zimbabwe shortly before the 2002 elections. The candidate found that no evidential basis had been laid for refusing access to the document and that in the light of the Constitution and the right of access to information, access should have been granted. This decision was overturned on appeal by the Constitutional Court but, significantly, the appeal turned on the procedure to be adopted when dealing with access to information rather than the nature of the right itself.

6.4 In Minister of Defence v South African National Defence Union & Another 2007 (1) SA 422 (SCA), the candidate dealt with a constitutional challenge by to various regulations governing employment rights in the Defence Force. He held that all but one of the regulations was valid and therefore largely upheld the appeal of the Minister of Defence. The Constitutional Court held that a number of these regulations were invalid.

6.5 In Tao Ying Metal Industiy v Pooe NO & Others (2007) 26 lU 1949 (SCA), the candidate reviewed and set aside the decision of a CCMA arbitrator concerning an exemption from a Bargaining Council agreement. The Constitutional Court held that the decision ought not to have been reviewed and set aside the judgment. The Constitutional Court was itself split (8:1) on the decision.

6.6 In Minister of Safely and Security v F [20111 ZASCA 3 (22 February 2011), the candidate held that the State was not vicariously liable for the rape of a minor by an off duty police officer. The Constitutional Court held that the State was vicariously liable. The Constitutional Court was itself split (8:2) on the decision.

6.7 The candidate has listed AAA Investments (Pty) Ltd v Micro Finance Regulatory council & Another 2007 (1) SA 343 (CC) as a judgment in which his judgment was overturned on appeal. Technically speaking that is not correct - the Constitutional Court ultimately dismissed the appeal against the candidate's judgment. However, it is correct that in doing so it disagreed with some of the candidate's conclusions of law regarding the extent to which rules made and administered by the Micro Finance Regulatory Council operated purely in the private sphere (as a result of a contractual relationship between the first respondent and micro lenders) and that they were therefore not governed by the Constitution.

7 The extent and breadth of the candidate's professional experience

7.1 The candidate was an advocate at the Johannesburg Bar from 1977. He was appointed senior counsel in 1991.

7.2 The candidate left practice to join the Bench of the Johannesburg High Court in 1993. The candidate was appointed to the Supreme Court of Appeal in 2002.

7.3 The candidate practised as an advocate for 14 years. He took silk in 1991. He served as a permanent judge of the Johannesburg High Court for nine years. He has been a permanent member of the Bench of the Supreme Court of Appeal for almost 12 years.

7.4 He has been enormously productive during his career, a fact reflected in the number of reported judgments and in particular the number of seminal judgments in a number of fields of law which the candidate has written. The candidate's professional experience is extensive.

8 The candidate's linguistic and communication skills

8.1 From a reading of his judgments, the candidate demonstrates a high level of linguistic and communication skills. His judgments are models of legal reasoning and yet, easily understood.

9 The candidate's ability to produce judgments promptly

9.1 The candidate indicated that as at the date of his application, he had no judgments outstanding.

9.2 No adverse comments were received in this regard.

10 The candidate's fairness and impartiality

10.1 The candidate's judgments and reputation indicate a well- balanced, fair and impartial approach to the issues and the parties before him. The candidate has a reputation for engaging in robust and rigorous debate with counsel who appear before him, but this is a quality to be desired in a judge in the Constitutional Court.

11 The candidate's independent mindedness

11.1 The candidate has a reputation for independent mindedness. This is demonstrated by a number of dissenting judgments by the candidate.

12 The candidate's ability to conduct court proceedings

12.1 The candidate is able to conduct court proceedings efficiently and with judicious fairness and balance.

12.2 His debates, with counsel, while often robust, are still fair and engaging and never hostile.

13 The candidate's administrative ability

13.1 The fact that the candidate has served for so long on both the Johannesburg High Court and the Supreme Court of Appeal indicates that he has sufficient administrative ability to serve effectively on the Constitutional Court.

13.2 No adverse comments were received in this regard.

14 The candidate's reputation for integrity and ethical behaviour

14.1 The candidate has a reputation for the highest degree of integrity and ethical behaviour. This also emerges from the letter nominating the candidate by Vincent Maleka SC, a senior and well-respected member of the Johannesburg Bar.

15 The candidate's judicial temperament

15.1 There is nothing in the application or judgments to suggest that there is cause for concern regarding the candidate's judicial temperament.

15.2 However, we draw attention to the fact that, in a recent decision, the Constitutional Court raised certain concerns regarding comments possibly made by the candidate while presiding in the SCA.

15.2.1 The case was Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC). In that matter the applicant, having lost in the SCA, had sought to complain that it was biased against him on various grounds. One of these was the conduct of the candidate as the presiding judge in the SCA.

15.2.2 The Constitutional Court concluded that while the remarks may have been unfortunate, they amounted at most to impatience and irritation - not bias. It held as follows:

"The one remark that was drawn to our attention is the following, which was said to have been made by the presiding judge: ‘Well Mr Ne!, you have a choice, you can either keep on sweating, like you are doing now, or we can switch on the air conditioners but then I can ‘1 hear you anyway ...‘. He also complained of ‘various occasions' in which the presiding judge interrupted his attorney when the attorney was hying to answer questions posed by the court. He complained that the presiding judge would interrupt the attorney ‘in a rude manner', and often did not allow the attorney to finish answering questions. The disrespectful remark made by the presiding judge concerning the trial judge is the allegation that the presiding judge said ‘he was sick and tired of ill considered judgments that landed up in his Court'.

It must be kept in mind that the judge concerned has not had the opportunity to deal with any of the allegations made concerning him. ... If these remarks concerning the trial court judgment were indeed made, they were regrettable. Judicial officers must be presumed to take their work seriously, and that they will not give ‘ill considered judgments'. An appellate court may disagree with the reasoning of the lower court, but that does not mean that the judgment of the lower court is ill-considered. It simply means that it took a different view of the matter. Even in those rare instances where the conduct of the lower court is inappropriate, and censure by the appellate court is required, this should be done in a manner befitting the judicial office. The appellate court, it must be added, has an educational role to play towards the lower court. Its role is to guide the lower court by pointing out where it made an error, and how this error should be corrected. And this, too, must be done in a manner befitting the judicial office.

That said, however while some of the remarks may have been unfortunate, particularly those directed at the applicant ‘s attorney and the trial judge, or the manner in which the trial judge approached the case, they amount to no more than irritation or impatience. As pointed out earlier an appellate court ‘s benefit of the fill record, issues as crystallised and written argument on those issues, will inevitably lead the court to form a provisional impression favourable to one side. Judicial officers will put questions to counsel or their legal representatives, based on those impressions, and thereby provide litigants with the opportunity to rebut any incorrect impression formed. This does not give rise to a reasonable apprehension of bias.

Indeed, robust debate may facilitate open- mindedness and bring clarity to the difficult issues that appellate courts often have to decide."

16 The candidate's commitment to human rights, and experience with regard to the values and needs of the community

16.1 The judgments written by the candidate, his practice and the publications and presentations made by the candidate demonstrate the highest level of commitment to human rights and the South African constitutional project.

17 The candidate's potential

17.1 It is inappropriate to refer to potential in a candidate of this degree of achievement. This candidate has fully demonstrated his ability and is one of South Africa's leading jurists.

17.2 His potential contribution to constitutional jurisprudence, should he be appointed, would be immense.

18 The message that the candidate's appointment would send to the community at large

18.1 The candidate's appointment would demonstrate that the Constitutional Court deserves to be served by the best. It would also demonstrate that quality of candidates is an important factor in judicial appointments.

18.2 As stated above, the appointment of another white man will not enhance the race and gender composition of the court. This is a factor to weighed with other factors referred to above.

ANNEXURE: LIST OF JUDGMENTS CONSIDERED

Reported decisions

High Court

Godbeer v Godbeer 2000 (3) SA 976 (W)

Sv Van derMeyden 1999 (2) SA 79(W); 1999 (1) SACR 447 (W)

Labour Appeal Court

Mondi Paper Co Ltd v Paper Printing Wood & Allied Workers Union & Another (1994) 15 lU 778 (LAC)

Supreme Court of Appeal

The Public Protector v Mail & Guardian Ltd & Others 2001(4) SA 420 (SCA)

The President of the Republic of South Africa & Others v M&G Media Ltd 2011(2) SA 1 (SCA); (2011)3 All SA 56 (SCA)

ABSA Bank Ltd v Bern en 2011 (3) SA 74 (SCA)

National Director of Public Prosecutions & Another v Tshavhungwa &

Another, Tshavhungwa v National Director of Pu blic Prosecutions &

Another [2010] 1 All SA 488 (SCA); 2011(1) SA 141 (SCA); 2010 (2) SA

321 (SCA); [2010] 1 All SA 435 (SCA)

Makhanya v University of Zululand 2010 (1) SA 62 (SCA); [2009] 4 All SA 146 (SCA)

South African Post Office v De Lacy & Another 2009 (5) SA 255 (SCA); [20009] 3 All SA 437 (SCA)

Tsedu & Others v Lekota & Another [2009] 3 All SA 46 (SCA); [2009] JOL 23301 (SCA)

Zuina & Others v National Director of Public Prosecutions 2008 (1) SACR 298 (SCA); [2008] 1 All SA 234 (SCA)

Thint (Ply) Ltd v National Director of Public Prosecutions & Others [2008] 1 All SA 229 (SCA)

National Director of Public Prosecutions & Others v Zuma & Another

2008 (1) SACR 258 (SCA)

Minister of Defence & Others v South African National Defence Union &

Another 2007 (1) SA 422 (SCA); (1007)28 lU 828 (SCA); [20072 All SA

Midi Television (Ply) Ltd t/a e. tv v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA); [2007] 3 All SA 318 (SCA)

Micro Finance Regulatory Council & Another v AAA Investment (Ply) Ltd & Another 2006 (1) SA 27 (SCA); [2006] 3 All SA 256 (SCA)

Standard Bank of South Africa Ltd v Saunderson & Others 2006 (2) SA 264 (SCA); [2006] 2 All SA 382 (SCA)

American Natural Soda Ash Corporation & Another v Competition Commission of SA & Others [2005] All SA 1 (SCA)

Greys Marine Hout Bay (Ply) Ltd & Others v Minister of Public Works & Others [2005] 3 All SA 33 (SCA)

Oudekraal Estates (Ply) Ltd v City of Cape Town & Others [2004] 3 All SA 1 (SCA)

Minister of 1-Joine Affairs & Others v Watchenuka & Another 2004 (4) SA 326 (SCA)

Bannatyne v Bannalyne 2003 (2) SA 359 (SCA)

Minister of Safety & Security v Van Duivenboden [2002] All SA 741 (SCA)

National Director of Public Prosecutions v Basson [2002] 2 All SA 255 (A); 2002 (1) SA 419 (SCA)

S v Lubaxa [2002] All SA 107 (A)

MEC', Department of Welfare, Eastern rape v Kate 2006 (4) SA 478 (SCA)

Makambi v MEC for Education, Eastern Cape 2008 (5) SA 449 (SCA)

Judgments upheld on appeal

Too numerous to mention.

Judgments overturned on appeal

Bannatyne v Bannatyne 2003 (2) SA 359 (SCA)

President of the Republic of South Africa & Others v M&G Media Ltd 2011 (2) SA (SCA)

AJ4A Investments (Pty,) Ltd v Micro Finance Regulatoiy Council & Another 2007 (1) SA 343 (CC)

The Minister of Defence v South African National Defence Union &

Another 2007 (1) SA 422 (SCA); 28 lU 828 (SCA); [2007] All SA 127 (SCA)

Tao Ying Metal Industry v Pooe NO & Others (2007) 26 lU 1949 (SCA); [2007] 3 All SA 329 (SCA)

Minister of Law & Order v F 2011(3) SA 487 (SCA)

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