Deidre Baartman
Deidre Baartman

Will Gauntlett be appointed to the Constitutional Court?

In the legal community you find mainly three types of lawyers. You get the good lawyers who you call up for the straightforward cases. You get the great lawyers for the complicated cases, generally those you want to get to the Constitutional Court. Then you get lawyers like Jeremy Gauntlett, the lawyer that presidents, ministry departments, judges and very important business call up when things aren’t just complicated, they’re beyond salvation. Simply put, Gauntlett is Harvey Spector.

The recent saga with Gauntlett has brought up two very crucial issues. Firstly, what exactly are the Judicial Service Commission’s (JSC) requirements for you to become a judge? And secondly, can the Harvey Spector of the legal community be a ground-breaking judge in a constitutional democracy?

JSC requirements: being humble?
Gauntlett has twice before been unsuccessful in becoming a Constitutional Court judge and recently was turned down for a seat on the Western Cape High Court bench for the reported reasoning that he is not “humble” and doesn’t have the right kind of “judicial temperament”. I started laughing when I read his CV. It emanated quite the opposite of what the JSC alleged of his personality. His CV is probably one of the most humble documents I’ve seen in a while. He doesn’t highlight any of his achievements. The judgments he gives and the cases he has defended are understated and the average person would probably think he is an average lawyer.

The JSC should whip out the criteria documents it used when assessing the acceptability of lawyers to become judges. The Constitution provides that to be a judge in South Africa — according to section 174 (1) — you must be qualified and a “fit and proper person”.

There are eight black judges (including Zak Yacoob) and three white judges on the Constitutional Court bench. There are nine males and two females. The bench is already very racially diverse and thus if Gauntlett had to be appointed it would not drastically change the racial composition of the bench. But the bench is not very gender diverse and this might count against him in the event that there are female applicants to the Constitutional Court vacancy. In the event that Gauntlett had to be appointed it would not change the gender composition of the bench. In terms of racial and gender composition it should have been much easier for Gauntlett to be appointed to the Western Cape High Court bench.

Being a lawyer vs being a judge
In a recent case Gauntlett was counsel for Freedom Under Law. The case dealt with the fact that President Jacob Zuma made a decision to request the chief justice of South Africa to continue performing active service as chief justice in terms of section 8 (a) of the Judges’ Remuneration and Conditions of Employment Act 47 of 2001. The court held unanimously that the president’s decision was “inconsistent with the Constitution and invalid and that the consequent extension of the term of office of the chief justice is of no force and effect”.

Gauntlett has been involved with high-profile cases and it seems as if he is being punished for being a brilliant lawyer. When you are asked to handle a case and you accept it, it is important that you do your best to win. That’s what lawyers do. That’s their mandate. The mandate of judges is very different. Their mandate is to take all the respective factors and evidence into account and make a judgment in accordance with the law and uphold the values of the Constitution.

He has shown through his previous judgments that he is very capable of being a judge and more specifically a judge of the Constitutional Court of South Africa. His application has also been strengthened through Sir Sydney Kentridge QC and Mamphela Ramphele’s nominations. So we ask ourselves, will Gauntlett become a Constitutional Court judge? Probably not. Should he become a Constitutional Court judge? Definitely.

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    • http://none Lyndall Beddy

      I really hope he gets the position. It would give me great pleasure to think that he can overturn Hlophe’s judgements, especially since, from what I have read, Hlophe has the highest record of overturned judgements in the country.

    • Dave Harris

      I read Gauntlett CV and nearly puked! Reminds me of why the American public soundly rejected Mitt Romney!
      How do you expect a guy born with a silver spoon, educated at institutions like Oxford and Harvard, EVER relate to matters of justice that affect the majority in our country? Not in a million years!!!

      Actually, his deep experience in contractual litigation and commercial law only shows that he will make a perfect corporate attorney.

    • Fatima Hassan

      Actually, Geoff Budlender SC – a veteran human rights advocate snubbed by the JSC – who tackled the Mbeki administration in TAC cases – should be appointed to the Constitutional Court. So should have John Dugard in the early days. Can someone explain the obsession with focusing on appointing Gauntlett ?

    • ntozakhona

      Perhaps it is the agenda propagated by the likes of Lyndall that makes him not fit and proper

    • Tofolux

      @Dierdre, I hope he doesnt get this position. I also think that it is quite amusing that all and sundry is actually overtly and covertly, campaigning for him. There are many reasons why he is wrong for our Judiciary. What underpins this view is our developmental agenda. In order to create a judiciary that reflects the needs of its citizens, we firstly must ensure that justice is equitable and accessible. We must also accept that there is a lot of ovrhauling that needs to be done to reflect our democratic SA. Jeremy does not represent this progressiveness and he certainly has no stomach for any revolutionary agenda. He is wrong for our judiciary because he will balk at any constitutional amendments even if it is the right thing to do, our structures in the judiciary and certainly judicial governance. He is the right person for the right wing becos not only does he represent their interests, he will seek the status quo. But one must be reminded that NO person in our society should automatically assume that they should and must get certain positions in our society. I mean where are these notions coming from? It certainly smacks of a gross insult and insolence to any due process. But again, this is the arrogance of the person and his supporters. Lastly, I am deeply disappointed that once again we find a classic eg of woman who do NOT support women. If gender parity is our fight where is the solidarity? Once again, the interest of women is sacrificed for an arrogant male.

    • LittleBobPete

      Fair comment Deidre

      but you forgot the fourth type of lawyer…….those that are more interested in billing for hours, those that have no interest in right or wrong, just what they can manipulate the system to pretend to be the truth……………and sadly, they are in the majority…..the billable hours type…….I have seen more lawyers tell clients that they have great cases when in fact they have no chance in hell……..just to get billable hours…’re a student…..decide what you want to be………..

      Oh, and on Jeremy Gauntlett………….shame on South Africe if we don’t use his offered skills to the maximum…….after all………….there is a massive skills shortage in this country. The JSC didnt appoint him because they are intimidated by him……they have small egos

    • Attorney

      Will Gauntlett be appointed? Unlikely for two reasons. First, excellence is a quality much feared in the communist state that SA is becoming – and in some ways has already become. Mediocre people owe their positions to The Party and are thus easy to intimidate, ensuring that the only law is the jungle law of thuggish party bosses. Secondly, the communist state is all about control – hence the most likely appointees are Roland Freisler type peoples’ court judges, who can be relied on to protect the elite from the people.

    • http://none Lyndall Beddy


      The best judges never get their judgements overturned on appeal – because they know the law and interprete it correctly. The judges who get overturned are those who make up the law – which is supposed to be made by parliament and the legislature not by judges.

    • Thomas

      What I hate about this debate is that it is about elites fighting about having too strong a voice in our society and therefore the spoils of our fruits. Why is the elite so determined to control everything. Once a judge is lobbied into a position, what should we expect: A judge that makes decisions that will suit those that lobbied for them?

    • just a thought

      @ Dave Harris

      Most of the ANC politicians(including family members) are wildly busy in the corporate world with tenderpreneurship so I personally think his skills in these areas are a blessing for the honest law abiding section of civil societ . Secondly our legislation is strongly based in common law, which is has strong british ties. So again, he ticks all the right boxes.

      And I wouldnt equate america disbatching a two bit politician with the process of electing a judge, thats just ridiculous.

      Oh and @ Tofolux, justice has no race, colour or creed. So if judgements are handed down fairly and honestly, what does it matter if that person is white, black, female or disabled. Your assumption that only a judiciary that mimics South Africas racial demographic profiles exactly can hand down fair judgements is the most half-baked moronic paragraph that has ever been written on thoughtleader.

    • Jack Sparrow

      Shame on people who shy away from excellence in favour of mediocrity and would rather have flexibility than clarity. The Nats (and ZANU PF) were (and are) the same; appointing pliable judges to interpret the laws in their favour.

      My view is that the law should be followed with a minimal of flexibility in interpretation, and not used as a guide. That way, clarity is obtained and appeals are limited. Everyone is equal before the law where there is no, or very limited, flexibility.

      This does not suit the present government (or the last one) as they would like judges who can be directed as to which way to rule. Gauntlett isn’t at all likely to do this and so is not suitable in the eys of the ANC government and very unlikely to be appointed anywhere.

    • Tofolux

      @Just a thought, so when a person who drags a lifeless body of a human being behind his bakkie, when a person who shoots and kills a human being and declares in court that he thought what he saw was an animal and when a person who throws human beings into a lions cage, when all of these get off with light sentences then where is the justice in this when all of these perpetrators and others are from a certain section of society only and to crown it all gets off on a laughable light sentence? Because and lets be honest, you DO NOT see people who are from the majority grouping in this country dragging people on the towbars of their cars, or shooting them down like animals or throwing anybody in a lions cage or mistreating any human being in this very public and barbaric way. In fact, these perpetrators had spectators which adds further to prove the point of barbarism in our society. Our judiciary needs to be reformed on ALL fronts. A progressive judiciary cannot be reformed with unprogressive right wing ideologies. We cannot be inclusive to our own detriment and that only to please a minority view. This country’s developmental agenda cannot be sidetracked by divisive individuals.

    • Dave Harris

      @just a thought
      “Your assumption that only a judiciary that mimics South Africas racial demographic profiles exactly can hand down fair judgements is the most half-baked moronic paragraph that has ever been written on thoughtleader.”
      So if racial demographics don’t matter, then why do judiciary systems in democracies all over the world, including the prime example of the US Supreme Court, go through great lengths to ensure gender, ethnic and racial parity to reflect the demographics of the country.
      Seems like your ideas are still wallowing in the stench of the apartheid ideology, but then again, the generations of indoctrination is hard to overcome isn’t it?

    • Thomas

      @Mr Sparrow:

      Shame on people who shy away from excellence in favour of mediocrity and would rather have flexibility than clarity.

      Can you name the judges that have been selected on mediocrity.

      By the way there are two sides trying to do the same thing here, the pro governement side trying to push its agenda through the appointment of juidges and the Anti ANC side trying to push its agenda through forced appointment of juidges. In the mean time poor people and the ordinary person like me are losers. Whether Gauntlett is appointed or not, poor people will still receive poor service from the judiciary and judgements that favour the elite. It would be nice if all this energy would be spent making sure that citizens receive proper jsustice.

    • Paddy

      @ Thomas

      How about our Chief Justice Mogoeng Mogoeng – he said he had been selected by God to become Chief Justice.

    • Skumbuzo

      In your selective choice of crimes posted you’re forgetting the barbaric slipping a tyre over a human being and setting it alight. You’re also forgetting the rape of 18 month old babies, the rape of 95 year old grannies, the bludgeoning of innocent guards at Marikana in front of thousands of witnesses………
      18 000 murders a year bud……..don’t just select your best three that suit your cause….lest you couldbe called discriminatory or racist

    • Ian

      It’s odd that those like Tofolux who are desperate to have a black judiciary are always quick to quote the old lion case. Like its incontrovertible proof that justice is skewed in favor of whites. Simple facts of that case are that the actual murderer is still in jail. The accessory after the fact served his time as dictated by the law.
      Now Tofolux, tell me how your ideal reformed judiciary would differ on their handling of the recent case of the 6 teenagers who killed 3 kids ( after the obligatory raping) by means of stoning, versus the current unreformed judiciary ? Ignore the ‘grouping’ these killers are from……..

    • http://none Lyndall Beddy

      Should we also employ Witchdoctors to sniff out the Guilty like the tribal chiefs often do? It would certainly save us a fortune in the costs of Police, NPA, Magistrates and Judges.

    • just a thought

      @ Tofolux. Our judiciary will be reformed in time. This is because it takes at least 5 years to get a masters at law degree. You then start practicing and eventually you gain the experience and respect as a judge who upholds the law and is tempered enough to look at cases in front of you impartially and deliver judgements that are fair to society, fair to the claimant and fair to the accused. That is why most judges are middle-aged to old.

      Perhaps the cry for representation in the western system will deminish when we place emphasis on the tribal courts. because we all know how fair a chief will be. What, a woman wearing pants….stone her. What you take a differing position to me…stone him.

      But lets be honest, the ANC is only calling for transformation away from those devisive counter revolutionaries who punish them for being corrupt. Government want to get rid of the people who are brave enough to stand up against the people enriching themselves illegally. If JZ is brazen enough to stand up in parliament and lie to our faces about having a bonded property, when it is in actual fact part of Ngonyama trust , its pretty logical to assume that an honest judge (or any person for that matter) is not welcomed with open arms in the new dispensation.

      Vusi Pikoli is a black judge and got booted from the NPA. why would a government needing representation do that? because he held a different point of view to the ANC.

    • Tofolux

      @Just a thought, since when has this become a black-white argument? Transformation has got nothing to do with colour and maybe I should point you in the direction of George Bizos and others. To add insult to injury, noting that you are so belligerent in your criticsm, how is it that there is an absolute lack of respect for the processes that are underway? Does your candidate show the same lack of respect for processes and procedures that are constitutionally delegated to those who are tasked with this matter?

    • LittleBobPete


      it became a black white thing when you managed to select only white on black crimes in your examples.
      Transformation in South Africa has everything to do about colour, in fact, its only about colour, thanks to our rulers who have made it so. Perhaps you need to wake up to the real South Africa around you. Trabsformation in Sport is about colour and quota’s, transformation in business is about getting ownership into the hands of blacks, transformation about agriculture is about getting farms into black hands…….need we go on.
      There is 2 things transformation can’t get around, excellence and experience and Advocate Gauntlett has both in abundance.

    • Tofolux

      @LittleBobPete, actually you and et al have made this a ”white-black” issue. In fact. these people who campaigning for this candidate has made it a ”white-black” issue. Instead of accusing those who fought for non-racism in this country by exposing yourselves in narrow little arguments, do the right thing and argue on principle, argue for morals and argue for values and argue for RESPECT of our constitutionality. You cannot make any sense when the crux of the matter is shadowed and premised on narrow views and agendas. Lastly, when you are talking about these “2 things” that you throw, remember George Bizos in particular and tell us where he lacks in this “abundance”?

    • Skumbuzo

      Actually, those who declined his nomination with extremely poor reasons madesure it bacame about race, because theyhad no VALID and REASONABLE reason. You just added fuel to the the fire by using the narrow white on black crimes that supported your argument.
      George Bizos is not under debate here. He too would in my opinion qualify but sadly, in case you hadntnoticed, he too is white.
      You need to get your head out the clouds and debate on reason rather than pushing a populist agenda for the sake of it, lest we all end up, as you seem to wish, in a sea of mediocrity!

    • Ian

      No Tofolux , who can’t answer questions… People were campaigning for the best person for the job. You and your narrow minded ilk made it a black/ white thing. The only narrow view and agenda being exposed here is your own.
      Just to demonstrate the absolute absurdity of your responses, please answer me this very simple question: where exactly does littlebobpete accuse those who fought for non racism in this country??

    • Tofolux

      @Ian, if you are that blind, then clearly you can engage with your friend in a frivolous ping-pong game. I am not interested.
      @Skum, you, the writer and et al, have absolutely no idea what the criteria, terms of reference etc is, of this particular post. You are campaigning with a narrow mindset and have chosen this candidate on bias and right wing ideology. In fact, you have not recognised the merits of any other candidate for this job. To take your bias a little further, you have been dismissive of everyone else and posed this person as the only living person in this country, who warrants this job. In fact in your biased views, there is NO other candidate. In all fairness, or even objectively, how can that be? Furthermore, George Bizos is used in this context as an EXAMPLE of TRANSFORMATION ie in ideology and in practise. ie an example in motion. Show me how this gauntlett speaks to transformation in thought or action? Show me this notion of community-based empathy (I am not sure if any of you will get these points cos I understand the level at which you ”fly”‘).

    • Ian

      Avoiding the question again – point out the exact accusation.
      Whilst you’re avoiding that one- explain how Bizos is an example of transformation? Because he is clear ANC sympathizer or supporter?
      And you accuse others of having a narrow mindset? Judiciary is about the law, not some wishy washy community based empathy… Is that what kangaroo courts practice ?

    • LittleBobPete

      @toffylux sorry, I didn’t see any right wing bias from Skumbuzo, all I saw was him saying that Gauntlett is a qualified candidate. Its because you are so far left that you perceive others who may be middle of the road as right wingers. No one has said that those that were appointed as Judges are not deserving, all they have said is that the reason for declining Gauntlett was a bunch of bollucks…..he is probably the most qualified mind in this Country on legal matters, isn’t that what a judge is supposed to be?
      @Ian I used to think that Toffylux was a fool, with every post he confirms my original thoughts. maybe what he wants are Kangaroo Courts……that way he can aid in the destruction of the rule of law!

    • Tofolux

      @Ian, the emotive language you attempt fails you because if one looks at addressing your obvious lack, then it follows that anything substantive will be totally lost on you. But I guess the years of indoctrination has clearly taken its toll. You in particular have not made one counter-argument supporting this candidate. In fact, you,Skum or this writer have failed to provide any substantial information as to why this person MUST be appointed.

    • Skumbuzo

      @toffeelux……….read the comments……..its you who is the emotional one….many reports have generaly accepted that Advocate Gauntlett is generally accepted as the finest legal mind in the country…..its what you and the Zuma appointees fear……..

      All you do is insult and generalise……,the populist trend

    • Ian

      Huh? Emotive language? I’ve asked some very simple questions in a very simple way, which you have failed to answer. No, I have not made one counter argument supporting this candidate – that was the remit of the author of the original piece…. What I have done is drawn out your bias and hopeless skills of debate. Transformation to you is making sure everything is smothered with ANC bias.
      Like your bit about indoctrination… Hahaha, it’s so very obvious you have avoided it so well ( irony, go look up the word one day).

    • ian

      whats more laughable tofolux, is that you obviously know nothing about the candidate. here’s another question you will no doubt avoid at all costs – how can you lable gauntlett as right wing when his experience clearly shows he has acted for the govt on many occasions, including ol showerhead. Would this not place him in the same mold as Bizos?