Dan Mafora
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law, constitutionalism, rule of law, accountability, courts, politics, philosophy, literature, mental health
all about constitutions, their law & theory | teaching public law | ‘I want to be an honest man and a good writer’ — James Baldwin | lepidissimus disputator
Articles by Dan Mafora
Taming the Hydra state:: against implied powers and reasoning by implication in South African law
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Nondelegation in Braamfontein
my notes on the judgment — para [207] left me truly puzzled ‘Reading recent Constitutional Court judgments can be an unpleasant task. … Its disregard of elementary rationality, and its abandonment of fidelity to the legal sources, are hard to overstate. One’s impression is of a court that not only reasons badly, but no longer cares to reason well.’ — L Boonzaier ‘A decision to undo’ (2018) 135 South African Law Journal 642, 677.
Mandatory mediation raises concerns about the rule of law
Just before the long weekend, the Judge President Dunstan Mlambo of the Gauteng Division of the High Court, issued a draft directive on obligatory mediation together with a protocol for the directive’s implementation. The thrust of the directive is to make mediation mandatory for all parties seeking civil trial dates in the Gauteng division. It notes that the division is setting down civil trials as far ahead as 2031 and acknowledges that the situation is intolerable.
Expropriation Act: Van Staden misrepresents the Constitution and the law
Martin van Staden’s screed, The Expropriation Act is necessarily unconstitutional’ published in the opinion section on the Mail & Guardian’s website on 29 January, is wrong. He alleges that the concept of “nil compensation” is an instance of parliament acting in fraudem legis (in fraud of the law), seeking to subvert the Constitution by setting up “a legalistic and formalistic ‘simulation’ to obscure and hide the substance or reality” of what it is doing.
The Human Rights Commission’s misguided quest to have its directives made binding
GOVERNMENT REGIMES OP-ED The creation of institutions with binding powers that exist outside of the control of the executive, legislature and judiciary is inimical to the idea of good government. Instead, it creates multiple tyrants, free from immediate accountability, each acting according to their own desire.
Between two evils
Politics during apartheid had a certain straight-line simplicity. It was always pretty clear who the main enemy was. Things got scrambled with democratization. But a measure of simplicity was soon returned—at least for the outsider left. A neoliberal hegemonic bloc merged at the summit of power, binding old white business elites to an emergent “corporate black bourgeoisie” as Roger Southall put it. The battle lines were clear once again.
New chief justice faces Herculean task
19 May 2024 - 00:00 On Tuesday, the Judicial Service Commission (JSC) will interview deputy chief justice Mandisa Maya for the position of chief justice, which Raymond Zondo will vacate in August this year. Maya, President Cyril Ramaphosa’s sole nominee for the country’s top judicial office, was the favourite in February 2022 when four candidates were interviewed, an occasion that marked yet another low point for the JSC...
VOICES | 30 years of strengthening democracy, SA’s constitutional order
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Setting the record straight on IEC’s appeal
ROAD TO 2024 ELECTIONS OP-ED The IEC’s decision to appeal the Electoral Court’s order setting aside its own decision to uphold an objection against the candidacy of former president Zuma for the National Assembly has triggered an avalanche of commentary, most of it misleading and mistaken.
Learn to love presidential powers – a reply to Grootes and Manuel
THE POWERS THAT BE OP-ED Curtailing the president’s powers would be the constitutional equivalent of cutting off our collective nose to spite our national face. In his article, “An argument for redefining presidential powers in South Africa” (Daily Maverick 25 March 2024), Stephen Grootes makes the case for reducing the powers of the South African president, particularly the president’s powers of appointment.
‘What we have is bad Bantu government’ – Dan Mafora | Drum
‘Regarding good Negro government’ is the title of Ta-Nehisi Coates’s introduction to his collection of essays, We Were Eight Years In Power. The title is drawn from WEB Du Bois’s reflections on the constitutional convention of 1895 in South Carolina, which followed an eight-year period in which African Americans were allowed to vote and hold public office in the state of South Carolina, during the Reconstruction era following the abolition of slavery.
Don’t let dirty politics and high-stakes hysteria undermine the IEC
Don’t let dirty politics and high-stakes hysteria undermine the IEC It is time to stand with the electoral commission, not against it 17 March 2024 - 00:00 By LAWSON NAIDOO and Dan Mafora With a little over 10 weeks to election day, politicking inevitably gets dirtier and more desperate.
SA needs an anti-corruption framework that is fit for purpose
SA needs an anti-corruption framework that is fit for purpose There must be the political will to organise our state agencies so they can tackle graft effectively 17 December 2023 - 00:00 By LAWSON NAIDOO and Dan Mafora ..
VOICES | SA needs a comprehensive approach to corruption | City Press
The recommendations by the Zondo commission, which was chaired by Chief Justice Raymond Zondo, have not been fully implemented. VOICES Anti-corruption Week on 3-9 December, offered an opportunity for us to reflect on the progress made towards improving South Africa’s anti-corruption machinery. South Africans need to be in the know if we want to create a prosperous future. News24 has kept the country informed for 25 years, and we're about to enter a new chapter of fearless journalism.
Dan Mafora | The dangers of ‘lawfare’ against our judiciary
The cover of 'Capture In the Court: In Defence of Judges and the Constitution' by Dan Mafora. South Africans need to be in the know if we want to create a prosperous future. News24 has kept the country informed for 25 years, and we're about to enter a new chapter of fearless journalism. Join our free subscription trial to unlock this story and a world of news aimed to inform, empower, and inspire.
BOOK EXTRACT | Capture in the Court by Dan Mafora
‘Regarding good Negro government’ is the title of Ta-Nehisi Coates’s introduction to his collection of essays, We Were Eight Years In Power. The title is drawn from WEB Du Bois’s reflections on the constitutional convention of 1895 in South Carolina, which followed an eight-year period in which African Americans were allowed to vote and hold public office in the state of South Carolina, during the Reconstruction era following the abolition of slavery.
How populism has come to see the constitution as an obstacle to freedom
No surprises, then, that after a bruising elective conference in Polokwane, Mbeki was forced to resign. Kgalema Motlanthe was elected to replace him and be Zuma’s place holder until after the 2009 elections. One of the first things Motlanthe did was to disband the Scorpions. Theunis Roux identifies the leadership battle of 2007 as the first of at least two populist waves in contemporary South African politics.
The myth of the apolitical commission
On September 13, Panyaza Lesufi, the Premier of the Gauteng Province in South Africa, announced the terms of reference for a commission of inquiry to probe the mortal fire in the Usindiso building in Marshalltown, Johannesburg, that killed 77 people, and left others injured and homeless on August 31. Once a central “pass office” under Apartheid, it was used to regulate the movement of black people from the designated self-governing Bantustans (“Homelands”) into white South Africa.
LAWSON NAIDOO AND DAN MAFORA: Top court vacancy shows JSC must reform to attract officials
As the Judicial Service Commission (JSC) convenes its first biannual session of interviews of candidates for appointment to the superior courts on Monday, it will not interview any candidates for a vacancy in the Constitutional Court created by the departure of justice Sisi Khampepe in late 2021. In April 2022 the JSC interviewed five candidates for two vacancies, but only recommended four candidates.
On the discipline of rules and the ill discipline of Braamfontein
When, writing in the South African Law Journal in 2018, then Mr (now Dr) Leo Boonzaier wrote that certain judgments of the Constitutional Court gave the impression ‘of a court that not only reasons badly, but no longer cares to reason well,’ many of us said he was being overly harsh and uncharitable about the state of the Court then. I doubt that many of us would hold the same view today.
For dishonest gain: bias, the President and the Public Protector
If Lenin was correct in his observation that there were decades where nothing happens and weeks where decades happen, this past week stands as the foremost contender for the latter. From the election of a new head of government in Westminster and the subsequent (but not necessarily consequent) Demise of the Crown at Balmoral Castle, to the setting aside of the Public Protector’s suspension by the Western Cape Division of the High Court, the week ending 09 September 2022 had it all.
Parliament needs to take control of impeachment inquiry
It is in terms of those rules that DA MP Natasha Mazzone first tabled a motion in the house, and the independent panel that found that a preliminary case for Mkhwebane’s removal was present was appointed. Once the National Assembly had resolved to establish the committee, she became the subject of removal proceedings, and the president was empowered to suspend her.
To BEE or not to BEE?
Sometime last year I woke up and wrote a thread on Twitter about how media reporting on a recent judgment was not only mistaken but had the potential to actively misinform the public about what the case was really about: The case in question was Minerals Council of South Africa v Minister of Mineral Resources and Energy (Minerals Council)in which the High Court, Pretoria, reviewed and set aside several provisions of the Broad-Based Socio-economic Empowerment Charter for the Mining and...
A requiem for the Judicial Service Commission
Almost all the commentary on the interviews for the next chief justice has been focused on the appalling conduct of several members of the Judicial Service Commission (JSC). The consensus, it would appear, is that the process was unfair and that this has tainted the JSC’s ultimate decision to “recommend” judge Mandisa Maya for appointment. The debate is becoming increasingly vitriolic.
A requiem for the Judicial Service Commission
Almost all the commentary on the interviews for the next chief justice has been focused on the appalling conduct of several members of the Judicial Service Commission (JSC). The consensus, it would appear, is that the process was unfair and this has tainted the JSC’s ultimate decision to “recommend” judge Mandisa Maya for appointment. The debate is becoming increasingly vitriolic.
Who appoints the Chief Justice?
02 Feb. 2022 Yesterday was the first of five days set aside by the Judicial Service Commission (JSC) for its interviews of candidates nominated by the President for the position of Chief Justice left vacant by the retirement of Justice Mogoeng Mogoeng in October 2021. I write this in the early hours of the morning, troubled by something that kept being said during yesterday’s interview of Justice Mbuyiseli R. Madlanga.
ANC’s plan to neuter party funding law raises red flags
In part one of the state capture commission report, acting chief justice Raymond Zondo highlights the need to strengthen legislation relating to corruption in political party financing. The report states: “It is a matter of extreme concern that the evidence given at the commission establishes a link between the corrupt grant of tenders and political party financing. Such a link can represent an existential threat to our democracy.
The Impossibility of the Acting Chief Justice
Way back when, in one of the Public Protector's crusades against public enterprises minister Pravin Gordhan, she had ordered President to discipline him. Gordhan sought an interdict against the implementation of the remedial action, with the President joining the effort, presumably to buy himself some time to figure out the how to get out of the political bind he was in. In court, the President advanced an interesting argument.
A Republic We Should Keep — African Law Matters
In the 25 years since the South African Constitution was signed into law, what progress have we made — and what will it take to attain the constitutional vision of a free, equal and dignified life for all?
Stagnant remuneration threatens judicial independence
One of the ways in which the independence of the judiciary is guaranteed by the constitution is the security of tenure enjoyed by judges. Once appointed they can only be removed on limited grounds and following an onerous and robust process culminating in a vote in the National Assembly. This serves to insulate judges from external pressures and influences by removing both the prospect of financial enticement and the threat of removal from office.
God’s appointed president
President Mogoeng is here; delivered by the Lord himself. The chief justice hath become his true self. Photo: Leanne Stander VOICES At the time, Mogoeng had only been a judge of South Africa’s highest court for two years. Before that he had been an ordinary judge, the head of the Mahikeng High Court, in a small town in the northern part of the country. He had no constitutional law experience, had not appeared as an advocate before the appellate courts and had not published any academic papers.
Appointing the next Chief Justice: A matter of grave importance
The office of the Chief Justice of South Africa is the most coveted judicial office in the country. Felix Dlangamandla VOICES Despite the enormous contribution that Chaskalson made to human rights jurisprudence and the liberation struggle, the colour of his skin would have negated all that, at least in their minds. The Constitution provides that appropriately qualified, fit and proper persons may be appointed as judges.
Lawson Naidoo and Dan Mafora | New chief justice has to guide the ConCourt through a myriad of challenges
26 Aug Lawson Naidoo and Dan Mafora Share Share your Subscriber Article You have 5 articles to share every month. Send this story to a friend! Enter recipient email address 0:00 Subscribers can listen to this article The Constitutional Court.
Mpofu-Walsh’s book ‘The New Apartheid’ misses the point on common and contract law
A number of scholars have argued that while the formal laws and structures that underpinned apartheid were dismantled with the advent of the democratic order, the legacy of apartheid persists in post-apartheid South Africa with wealth, power and education still largely divided along racial lines. The claim is that racism, white supremacy and white privilege have essentially been reproduced in other forms under the constitutional dispensation.
Lawson Naidoo and Dan Mafora | Moving SSA to the Presidency: It is oversight that matters
1h ago Lawson Naidoo and Dan Mafora Share Share your Subscriber Article You have 5 articles to share every month. Send this story to a friend! Enter recipient email address 0:00 Subscribers can listen to this article Dr Sydney Mufamadi was appointed as the President's National Security Advisor last week.
A terrifying vision of South Africa’s future
Predicting a major political shockwave has been standard fare among South African pundits for some time. The sheer depth of the socio-economic crisis in the country, best encapsulated in a broad unemployment rate of 42%, made it something of a safe bet. Recently that shockwave arrived, but in a form that was perhaps less expected. It’s trigger was not the increasing prices of necessities or the failing provision of basic services.
South Africa’s gaping wounds
Social unrest”—though others may prefer “riots and looting,” “food riots,” or “insurrection”—have swept South Africa since Monday. It’s unsettled an already unsettled nation. And as with all South Africa’s heightened moments, our historic fault lines have been re-exposed. Racial and ethnic divisions, class antagonisms, xenophobia, questions of violence and its use. These are some of our wounds that have never been treated.
“My Sister is mistaken” and other responses to unreasonable dissent
IN WHAT may prove to be a first in our legal history, the Constitutional Court on 12 July 2021 heard an application for the rescission of an earlier judgment delivered on 29 June 2021. In that judgment, the court found Mr. Jacob Zuma, former President of this most Republic, guilty of contempt of court for his refusal to comply with an even earlier order compelling him to appear and give testimony before the State Capture Commission and sentenced him to imprisonment for 15 months.
Lawson Naidoo and Dan Mafora | ConCourt Zuma judgment a 'courageous act' of judicial independence
8h ago Lawson Naidoo and Dan Mafora Share Share your Subscriber Article You have 5 articles to share every month. Send this story to a friend! Enter recipient email address 0:00 Subscribers can listen to this article The Constitutional Court. Alon Skuy, Gallo Images, Sowetan The judgment underlies the importance of strong institutions in a constitutional democracy, writes Council for the Advancement of the South African Constitution's (CASAC) Lawson Naidoo and Dan Mafora.
Jacob Zuma is attempting an appeal via the back door
As far as desperate attempts go, former president Jacob Zuma’sapplication to rescind the Constitutional Court’s order finding him guilty of contempt and sentencing him to 15 months’ imprisonment is a classic. The application was filed on July 2 after the former president had refused to participate in the two court applications brought against him by the Zondo commission. The apex court moved swiftly to set the matter down for hearing on Monday, issuing directions last Saturday.
The Metaphysic of Oudekraal
[1] Justice Chris Jafta will retire from the Constitutional Court in October of this year. In the common law tradition of examining judges’ individual contributions to law and jurisprudence, I offer this brief comment on a subject his dissents have won me over: the so-called “Oudekraal principle” (in this article I will use ‘principle’ and ‘rule’ interchangeably, Dworkinians be damned). [2] Before we get into the juicy stuff, a note on the title of this piece.
ANALYSIS | Constitutional Court inefficiency affects access to justice
The Constitutional Court. Photo: Ashraf Hendricks Heavier caseloads, delayed judgments and budget cuts at the Constitutional Court impact the meting out of justice, writes Lawson Naidoo and Dan Mafora. When it was first established, the Constitutional Court was intended to be a specialist court, like many of its global counterparts. It was to deal only with constitutional matters, with the Supreme Court of Appeal being the apex court for non-constitutional matters.
The strongman’s vision of democracy
Jacob Zuma, South Africa’s beleaguered ex-president, has long had an authoritarian bent.
The case for the ConCourt’s nonintervention in the latest Zondo drama
Silent: Jacob Zuma has been accused of enabling state capture. He may have established the Zondo commission but has evaded answering questions and presenting his version of events. Photo: Thulani Mbele The late former chief justice Ismail Mahomed once described the power of courts in this country as “awesome”. There was, however, an inherent paradox about this power. “Unlike parliament or the executive, the court does not have the power of the purse, or the army or the police to execute its will.
An omnipresent jurisdiction
Bush v. Gore, the US Supreme Court case in which Florida’s presidential election was decided in favour of George W. Bush, “stands for the proposition that if Justices care enough about a case’s outcome, the law goes out the window.” This is the view of Professor Michael J. Klarman in his Foreword to a recent issue of the Harvard Law Review.
The Lord’s Chief Justice
Mogoeng Mogoeng, South Africa’s erstwhile chief justice, retired from the Constitutional Court on October 11. His appointment by former president Jacob Zuma in 2011 was highly controversial. It followed an unsuccessful attempt by Zuma to extend the term of office of Sandile Ngcobo, who was chief justice then. At the time, Mogoeng had only been a judge of South Africa’s highest court for two years.
A chief justice for such a time as this
In the Book of Esther we are told the story of Mordecai, an exiled Jew in Persia and cousin of Esther, who raised her as his own after his uncle died; and, who, when King Ahasuerus of Persia ordered that all of the virgins in the kingdom be brought to him for him to choose a new wife, ensured that Esther was among them. So enamoured was the king with Esther’s beauty that he chose her to be queen.
For Love of God
It is rare for a novel to make you laugh about religion. Foreign Gods, Inc. is an exception. A young Nigerian named Ike has graduated with honors from the prestigious Amherst College in Massachusetts, but is forced to drive a taxi in New York City.
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