I have just read Frank Chikane’s book Eight Days in September: The Removal of Thabo Mbeki.  Frank was head of the President’s Office at the time of Thabo Mbeki’s removal and, once one gets past his rather tedious self-justification for writing the book, it tells a very interesting story in a rather critical moment of South Africa’s politics.  Much more important in a way than the politics at that time are the constitutional issues which it raised.  The other constitutionally relevant issue to which I wish to refer relates to the appointment of judges, with Advocate Jeremy Gauntlett, to whose credentials I will return presently, challenging the South African Judicial Service Commission.

Chikane was obviously at the centre of what was an extraordinarily emotional time both for himself personally and for everybody around President Thabo Mbeki.  The facts are quite simple.  The ANC conference at Polokwane had taken a decision that – certainly the majority – did not want President Mbeki to continue as president.  It is fair to put it as bluntly as that.  But the way they deposed him raised serious constitutional issues.

Whether Mbeki was advised or not of his legal position is unclear.  What is clear is that he accepted the decision without public demur and immediately prepared to stand down.  However, from a constitutional point of view it was not for the ANC – a political party – to “recall” a sitting president even if he was their nominee.  The president in terms of the Constitution is elected by Parliament, and if in fact the ANC wanted his resignation then it ought to have been through Parliament.

None of this was thought of at the time – not even, surprisingly, by the Democratic Alliance or the media.  Chikane describes a whole series of events around Mbeki at this time, with those in the ANC who wanted him out as soon as possible setting the date for his letter of resignation, demanding to see his letter of resignation before he sent it off, determining the time of the public announcement of his resignation, and even the date at which he would cease being president – all decisions which were totally contrary to the Constitution.

Chikane makes the point that looking back it is interesting that except for the Azanian Peoples’ Organisation (AZAPO), no other party in parliament raised constitutional issues related to Mbeki's displacement.  AZAPO believed that the ANC's decision undermined the office of the President and the legitimacy of the President, he having been elected by parliament.  Moeletsi Mbeki, the president's brother who often differed from him politically, was more vocal.  His view was that the ANC did not follow the Constitution in dealing with the removal of the president, and expressed a serious concern that “if the ANC continued to follow the path of not following the Constitution then they are going to lead this country to a civil war.”

A comment which I would like to make is that from in effect the unconstitutional firing of Mbeki, the ANC has frequently been guilty of playing constitutional brinkmanship and in the process demonstrating a very shallow constitutional culture, not only to the country's disadvantage but ironically also to itself.  In fact, the destructive factionalism which characterises the ANC as it goes into its election conference next month in Mangaung can be traced back to this shallow populist culture.

The other event that has occupied a lot of media space, and no doubt generated much interest and concern in more intelligent circles in South Africa, is the Judicial Service Commission’s recent decision not to appoint Advocate Jeremy Gauntlett to the Western Cape Provincial Division of the Supreme Court, for which he had applied.

At this point I should declare my interest in the matter.  I joined the Cape Bar from academics within a year of Gauntlett being admitted, and we were on the same floor.  Aside from being enormously impressed by his competence and hard work, I remember little things like the delight with which he pointed to the furniture in his room which had been installed over the week-end and which included magnet locks on the doors:  “Just look at this, Denis, magnet locks!”  I left the Bar to go into politics, and Gauntlett went on to a truly magnificent legal career – something which could have been predicted.

Turning from the particular to the universal, the issue of judicial appointments all over the world is a subject of very considerable discussion.  The obvious reason is that in any democracy and in particular in a constitutional democracy, the judiciary plays a critical balancing role between the three branches of government.  It is the independent player often between the legislature and the executive and of course its role is fundamental in protecting the rights and interests of citizens.  For this reason, how judges become judges – whether elected or appointed – is an important and much-debated issue.  As most people know, in the US – the oldest constitutional democracy – most judges at lower levels are elected – and there are many who question the advantages of this procedure.  But at the level of the US Supreme Court – an organ that plays a major role in the interpretation of policy and the running of the United States – judges are appointed by the president and appointed for life.  Even here there is an element of controversy.  Remember Franklin Delano Roosevelt trying to pack the Supreme Court – unsuccessfully – by appointing judges who would block the then majority who opposed his New Deal Legislation?

Looking at the seniority of the nine present Supreme Court judges – some of whom are in their 80s – the inevitable appointments which President Obama will have to make could be used to change the complexion and the thrust of the Supreme Court from being more conservative to being more liberal, just as Presidents Ronald Reagan and Bill Clinton used that opportunity.  And therefore even at that level there is always an element of controversy.

South Africa, with its modern constitution, has well-developed provisions relating to the appointment, functions and independent role of judges.  And although there will be arguments about how the system works in practice – because it is under strain much of the time by considerations of race and affirmative action – the fact is that it has fundamentally worked and our system of justice has maintained high standards.

This brings me to Jeremy Gauntlett.  Jeremy I have no doubt is one of the most brilliant lawyers in South Africa and comparable to those lawyers who went to the United Kingdom at a certain point in the country’s history because of apartheid.  In fact, I know this to be true of Lord Johan Van Zyl.  As a practising advocate, he was horrified by an instance where the police murdered a witness and therefore chose to go to the UK and became over the years not just a brilliant practitioner but eventually one of the top lawyers in the UK as a Law Lord.  Another was Leonard Hoffmann, similarly ending up as a House of Lords judge. But these two individuals who emerged out of the 60s and the 70s from South African universities and from apartheid South Africa and reached the top of the legal profession in the United Kingdom are not alone.  There have been many others.  I have never doubted that had Jeremy Gauntlett, who practices not just in southern Africa but also in London, would have followed the same stellar career had he chosen the overseas course.

He has been nominated by Sydney Kentridge, presently one of South Africa’s most brilliant advocates who made his mark here and then went to Britain, and Mamphela Ramphele for appointment to the Constitutional Court.  He could not have more impressive testimonials.  One can only wish him well.