Analysis

When Expedience Trumps the Rule of Law

By Adv Vuyani Ngalwana SC via www.anchoredinlaw.net

This is a critical analysis of a judgment of the Constitutional Court. The analysis criticises Constitutional Court Justices for being judge in their own cause in flagrant breach of a well-worn principle of law that is universally recognised, namely, nemo iudex in sua causa debet (no one should be judge in his or her own cause). In brief, Justices of the Constitutional Court had in May 2008 lodged a complaint of gross misconduct against a Judge President of the Western Cape High Court that has its seat in Cape Town. Like Dickensian Jarndyce and Jarndyce, the complaint is still not resolved despite the Judicial Service Commission finding that the conduct complained of did not deserve the ultimate censure of impeachment. Ultimately, issues arising from that complaint ended up before the Constitutional Court for determination. A number of the complainant Justices recused themselves but others did not and sat in judgment of the Judge President’s application for leave to appeal against a judgment of the Supreme Court of Appeal, dismissing it. That paved a way for the Justices’ complaint to be investigated again by the Judicial Service Commission with the possibility that the Judge President may, at the conclusion of the process, be impeached.

The author expresses the view that the Justices should have automatically disqualified themselves from hearing the Judge President’s application for leave to appeal, so that it could be heard by Acting Judges. It is not uncommon for the Constitutional Court bench to comprise more Acting Judges than permanent Justices of that court.”

Read Full Analysis and Review here

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