Awesome photo blog

I couldn't resist posting this amazing photo by Adrian Bischoff. The graffiti is from a derelict building very close to the various Chambers in Town and on the same street as the Cape High Court. So quite appropriately placed. Find the Adrian's photo blog with other great photos at photoapparat.org.

De Vos on what makes a good judge

Check out this interesting link for Prof De Vos' view of what a judge in South Africa should look like. I am not entirely sold but will put up a post later today with my own views.

Good op-ed on judicial selection

Check out this article by Geoffrey Stone on judicial selection in the United States. Stone is arguing in the context of the American Constitution but the general points are still applicable to the South African constitution and judiciary. The article gives a decent outline about why the type of judges we appoint matters. What the Constitution and the law requires is not only a matter of application. Judges also engage in extensive moral and political reasoning. So, the moral and political philosophies of our judges can be an important determinant of the outcome of cases (particularly the cases that reach the SCA and Con Court).

Judicial selection in South Africa

The Judicial Services Commission (JSC) is currently in the process of filling 30 vacancies around the country. In the USA a Supreme Court position has just fallen open with Justice John Paul Stevens retiring. It is quite damning that people reading South African newspapers will probably hear as much, if not more, about the US selection process than they will about the South African process. Granted, in the USA Obama will be appointing a Supreme Court judge while here there are no Constitutional Court judges being appointed. However, I would wager that the coverage we get on Stevens will still surpass the coverage we got on the appointment process last year of a number of seats on the Constitutional Court. In light of this I thought I would do a very short post on how judicial selection happens here in South Africa.

The Constitution sets out the basic framework by which judges are appointed in South Africa. The Constitution gives both procedural requirements and substantive considerations for the appointment of judges.

The procedure to follow when appointing judges varies according to what vacancy is being filled. If the posts of Chief Justice and Deputy Chief Justice (who head the Constitutional Court) are being filled then the President must consult with the JSC and leaders of the parties represented in the National Assembly. This procedure was brought into dispute last year when President Zuma intimated that he was going to appoint Justice Sandile Ngcobo without first consulting heads of the parties in the National Assembly.

If the posts of President and Deputy President of the Supreme Court of Appeal are being filled then the President need only consult with the JSC.

The other judges of the Constitutional Court are appointed by the President, as head of the national executive, after consulting the Chief Justice and the leaders of parties represented in the National Assembly, in accordance with the following procedure:

1. The JSC must prepare a list of nominees with three names more than the number of appointments to be made, and submit the list to the President. 
2. The President may make appointments from the list, and must advise the Judicial Service Commission, with reasons, if any of the nominees are unacceptable and any appointment remains to be made. 
3. The Judicial Service Commission must supplement the list with further nominees and the President must make the remaining appointments from the supplemented list.

The President must appoint the judges of all other courts on the advice of the Judicial Service Commission.

Some important points about this procedure: Although the President is making the appointments his discretion is very circumscribed by the obligation to consult with the JSC and use nominees made by the JSC. This is in contrast with the USA where the President often introduces a candidate and then has to convince the legislature to pass the nomination.

This then begs the question as to how the JSC reaches its own shortlist that it hands over to the President. I won’t go into detail here (since frankly I am not entirely sure) but suffice to say the following people are members of the JSC: the Chief Justice, President of the SCA, one Judge President of the various High Courts, the Minister of Justice, two practising advocates to represent the profession, two practising attorneys, one teacher of law, six persons from the National Assembly, four persons from the National Council of Provinces, four nominees of the President and when considering High Court matters, the Judge President of that High Court and the Premier of that province.

So, the JSC is composed of a high percentage of politicians (many of which will be pushing an agenda very similar to the President’s agenda). But it also has a number of members that will be semi-independent of that political influence like the members of the judiciary and the profession. I am told that the opposition politicians that sit on the JSC are often some of the most vocal (De Lille from the ID, Van der Merwe from the IFP and Schmidt from the DA) and active during the questioning which suggests that they may play a larger role than expected in the JSC’s final decision. How the JSC arrives at its final decision is still slightly murky.

As mentioned above, the JSC is currently interviewing people to fill 30 vacant positions at various courts around South Africa. It will then recommend names to the President who will then appoint those people.

What the procedure does not tell us is what sort of person should be appointed to the bench. Here the Constitution (correctly) gives very little guidance. It merely stipulates that such a person must be appropriately qualified and for Con Court positions be a South African citizen (s 174(1) of the Constitution). The JSC must also consider the need for the judiciary to reflect the racial and gender composition of South Africa (s 174(2) of the Constitution).

However, besides these constraints the Constitution doesn’t say whether the people should be executive minded, liberal, conservative, a positivist, a Dworkinian etc. There is an unfortunate lack of discourse in South Africa around what type of people should be appointed as judges. The Democratic Governance and Rights Unit has released a good paper outlining their vision of what judges should look likethat you can find at this link (pdf). But besides this and the very occasional op-ed in a paper it doesn’t get discussed. I will put up my own thoughts in the future on what a good judge in South Africa would look like and try and harass friends into doing guests posts on it. Till then I would appreciate hearing your thoughts.



Dumisa Ntsebeza is a Presidential appointee but also an advocate. He was in the papers today because of his (entirely correct) questioning about the appropriateness of appointing white males to the bench in the Eastern Cape.

Legal reasoning 3: Rules versus principles

My fellow bloggers and I have been bogged down with marking and tutoring so we haven’t posted anything interesting in a few weeks (I happily acknowledge that legal reasoning is far from interesting for most people) but I have promises from some of them that we should get some new content up in the next few days.

Tim posed an interesting challenge to the possibility that courts create new law when they distinguish cases (see the comments to last weeks post on distinguishing). In thinking of my response I realized that a very useful legal reasoning post would be on the difference between rules and principles. Once again, this post is aimed at people interested in thinking about legal reasoning.

Rules and principles are both legal norms that tell us how a particular decision should be decided. Take the following example:

Rule: If a person stays on someone else’s land for an uninterrupted period of 30 years without force, stealth or permission but with the intention to be owner then that person becomes the owner of the land.

Principle: Property law should protect legal certainty.

Imagine that a decision arises in which a court is faced with a situation where someone has camped on land for 30 years believing that they were the owner without the real owner’s permission. Both the rule and the principle point towards the same outcome: the camper should be made the owner of the property. The rule requires that outcome since the camper has camped uninterrupted for 30 years without force, stealth or permission believing herself to be the owner. The principle also suggests the outcome since making the camper the owner would promote certainty since people would have already thought that she was the owner and by recognizing this the law generates more certainty.

So what then makes rules and principles different? Here I am just going to quote extensively from the legal philosopher Ronald Dworkin:

“The difference between legal principles and legal rules is a logical distinction. Both sets of standards point to a particular decision about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.”

On the other hand, principles operate in a different way. Principles don’t operate in the all-or-nothing fashion that rules apply in. Principles are reasons for or against certain outcomes in a case but principles don’t necessitate an outcome.

If we return to the example I gave above. Although one of the principles of property law is to promote certainty there are many situations in which property law would enforce an outcome that doesn’t promote certainty. For instance, if I take your bike the court will still make me return that bike to you. This undermines legal certainty (everyone who saw me riding the bike would have thought the bike was mine). However, the principle of certainty was outweighed by other considerations. So, the principle of legal certainty is a reason for an outcome but that reason can be overcome by other reasons.

A famous example of the application of principles in legal reasoning is the case of Riggs v Palmer (made famous by Ronald Dworkin). In that case a New York court had to decide whether an heir named in his grandfather’s will could inherit under the will even though he killed his grandfather. The court admitted that the rules that applied to the case clearly established that the murderer could inherit. However, the court continued on to say ‘all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong… or to acquire property by his own crime.’ The principle is that “none shall profit from their own wrong.” On the basis of that principle the court decided that the murderer could not inherit from their grandfather.

This principle is not a rule. The principle in the example was a reason for the outcome that the court reached but it did not act as an all-or-nothing reason. In law there are countless examples of where we let people profit from their own wrongs. For example, if you are speeding to make some very profitable deal that will close soon and you knock a pedestrian on the way we will still let you keep the profits from the deal (although you may have to compensate the pedestrian). This is not because all of those instances where we do let people profit from their wrongs are exceptions to the general rule. Rather, courts have weighed various principles against each other and decided that the principle that ‘none should profit from their own wrong’ was outweighed by other principles.

Our law is composed of both rules and principles. Knowing the difference between them will help you make better arguments in court. If there is a rule that operates in your favour then you will tell the court that the rule applies and so the court shouldn’t even consider other principles. However, if you don’t want the rule to apply you may argue that the court should have regard to a host of principles that support overruling the rule. The court would then have to decide whether to apply the rule or overrule it in favour of some legal principles.

Dworkin: Nerdy but awesome.

Happy Birthday dear Codex

Forgive me blogosphere for I have sinned, it has been three weeks since my last blog, no, wait, my last independent thought.

Today marks the anniversary of the publication of the Codex Justinianus (7 April 529), Justinian's first project in the compilation of the Corpus Iuris Civilis*. Simply put, the Codex was a compilation of the constitutiones (the pronouncements of the Emperors, similar to statutes).

According to Nicoholas (An Introduction to Roman Law, 44) 'Justinian's importance lies in his having succeeded, at a moment when the ancient world was dissolving, in collecting together, in a form which could survive, the literature of the Roman law.'

To this day the Corpus Iuris Civilis is a direct source of South African law.

I realised today why Justinian was so prolific when it came to his codification endeavours. He was a crap soldier.

*The Corpus Iuris Civilis later included the Digesta, the Institutiones and the Novellae.

Legal reasoning 2: Distinguishing

This post is the second in a series on legal reasoning aimed (mostly) at first year law students. I would advise you read last week’s post on precedent before reading this if you’re interested. Sorry its not Wednesday as promised. I wrote this yesterday, looked at it and realized that the example that I had written up was completely wrong so I needed to find a different example. Fail.

It is often said that the common law is a flexible system of law that adjusts to the requirements of justice over time. This is confusing. If we follow a system of precedent, cases may arise where courts must follow an earlier precedent despite that it creates an injustice when applied to the new case. This seems neither flexible nor just. So, why do judges still believe the common law is flexible and leads to justice?

The truth is that judges find ways to ensure justice between parties. There are a few mechanisms a court can use to achieve this. The most common practice judges use to ensure justice in a particular case is through the use of distinguishing. So, when a court is confronted with a precedent that creates injustice in the case before it, the court may be able to distinguish it so the court needn’t apply the precedent. In what follows I want to give an account of distinguishing that draws very heavily on a legal philosopher called Joseph Raz.

It is important at the outset to highlight the difference between distinguishing in the strong sense and distinguishing in the weak sense. Distinguishing in the weak sense is when a court determines that the ratio of the prior case does not apply to the instant case. Let us look at this on an abstract level. Assume that the ratio of a case says that the rule applies if the operative facts a, b & c are present. So, if the instant case has facts a, b, c then the rule will apply. However, if the instant case has facts a, b, NOT-c then the rule does not apply. This is the weak form of distinguishing because all that the judges are determining is that, on the facts, the rule does not apply in the instant case. Last week’s post highlighted this with the example around the death penalty and treason. There is nothing special about this type of distinguishing but it is still quite a complicated process.

Distinguishing in the strong sense is different. This strong sense of distinguishing (which I will just call distinguishing from here) means changing a rule that does apply to the instant case so that the newly formulated rule no longer applies to the instant case. Going back to the example above, imagine the instant case had facts a, b, c. So, the precedent rule would clearly apply. But, the court can say, we’re changing the rule so that it requires a, b, c, and e. The instant case has facts a, b, c, NOT-e and so the newly formulate rule does not apply to the instant case. Clearly, what we have here is not distinguishing on the facts but instead changing what the rule actually is. Courts often do this but they aren’t very honest about the fact that they are creating a new rule.

This is all very abstract. Some examples should make this clearer. Imagine a case like this. Person P1 builds a house on a farm that he did not own but believed he owned. The true owner O1 then claims possession of his property. The court looks at the situation and makes the rule that says “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor”. On the facts, P1 improved the property of O1 therefore (applying the rule) O1 may get the farm back only if he pays P1 for the improvements. This case is the precedent case.

Imagine a new case (the instant case). P2 knows that he is not the owner of a farm but he builds a house on it. O2 then wants to reclaim the property. So, he sues P2 for return of possession. P2 responds by saying, “I will only give you possession if you pay me compensation for the house I built.” A court looks at this situation. The rule from the precedent case states that “an owner can reclaim his land provided that he compensates the possessor for improvements made by the possessor.” But the instant court realizes that this would be an inequitable outcome – why should P2 get any compensation when he knew that he was not the owner of the farm? To overcome this injustice, the instant court reformulates the precedent rule as follows “an owner can reclaim his land provided that he compensates the good faith possessor for improvements.” So, the new rule now requires that the possessor made the improvements believing that they were entitled to so do. The instant court now applies the newly formulated rule to the facts of the case. Clearly P2 knew he wasn’t owner. So, O2 could reclaim possession of the farm without compensating P2 for possession.

The important things to extract from this example are as follows. A precedent creates a rule. The instant court is then faced with a rule that creates an unfavourable outcome. So the instant court reformulates the rule by adding a new condition that changes the old rule by limiting its application. In the above example this was done by adding the condition that the possessor had to be in good faith (genuinely but mistakenly believe they were entitled to possession).

The second important thing to extract from the above example is that when the instant court reformulates the precedent into a new rule, the modified rule must still justify the outcome in the precedent case. In other words, if the court were to apply the new rule to the facts of the old precedent case it must reach the same outcome that the precedent case reached. This is the case in the above example. If you apply the newly formulated rule to the facts of the old precedent case O1 would still have had to compensate P2.