Central University of Technology. Free State

14 November 2012

Mr Sello Chiloane

• VICE-CHANCELLOR ANO PRINCIPAl

Secretary to the Judicial Service Commission JOHANNESBURG

E-mail: chiloane@concourt.org.za

Dear Mr Chiloane

NOMINATION OF ADV JEREMY GAUNTLETT SC AS JUDGE OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA

I have become aware of a vacancy in the ConstiMional Court of South Africa.

I. hereby. wish to nominate Adv Jeremy Gauntlett SC for appointment to the said vacant pos~ion of Judge of the Const~utional Court of South Africa.

I have confirmed ~h Adv Gauntiett that he is willing to accept this nomination. I hope you will let me know by return e-mail if you need any written confirmation of this.

I make the nomination for the reasons as stated below.

Not being a legal professional. I am not in the best position to share any legal wisdom on why Adv Jeremy Gauntlett is. to me. one of the best legal practitioners we have in this country. deserving of a position in the highest court of the land. I have had opportunity to engage with him very closely as he deftly prepared for the Bloemfontein High Court case no 2276/2011 : CUT Council vs Minister of Higher Education and Training in July/August 2012. As an academic well trained in logic. I marveled at the sharpness and crispness of his logic and resultant legal arguments.

It is the CUT case quoted above that spurred keen interest in me in cases he is involved in, and most recently, the SANRAL vs Opposition to Urban Tolling Alliance case and the Const~utional Court judgement on it. In both of them, Adv Gauntlett steered the teams to legal victory. So, my approach to the matter is about the outcomes of the work Adv Gauntiett does rather than what his personal and legal philosophies and values are. However, one could easily make inferences on these based on the work he does so well.

If. as ·an inSignificant university· - as someone once branded CUT - CUT could aChieve significant legal victory over a sitting minister. there is something significant to be said about Adv Gauntiett's legal skills. If. the same Adv Gauntiett - seen by some as an enemy of the state and the ANC -

Add Unit here ' Privale Bag X20539 • Bloemlontein • SOUTH AFRICA ' 9300 ' Tel: +2751·5070000 ' Fax: +2751 ·5070000 , E·mail: email@cut.ac.za · Website: www.cut.ac.za

could assure victory for government (of ANC stock) over the Opposition to Urban Tolling Alliance and all its associates, there is something significant to be said about his legal skills. He is undoubtedly an excellent, legally astute and balanced counsel. Naturally, there may well be other cases he lost in his life!

Thus, if both an insignificant (CUn and a significant (government) defendant could have equal access to the law and there are senior counsels who assist them to win, our legal system is intact. And, if Adv Gauntlett has - at least limited to these two cases - helped to buttress and demonstrate the integrity of our legal system, he should be allowed to help many others who wish the system to work for them, too.

Given his record. I wonder how many of us would not, quite frankly, want to be represented or have their cases presided over by a person of his calibre, reputation and excellent perlonnance had they been in a similarly dire situation as CUT's; and SANRAL's and government's, too.

About his legal and personal philosophy, and values, I can only sunnise that he has his heart and mind in the right place concerning our legal system. From what I have presented above, I have no doubt about his passion for equal access, for equitable representation and success in cases regardless of status in society. and dispassionate immersion in his work without fear or favour, reflects an enviable philosophical and value system.

Thus, besides being an excellent legal practitioner, the values he exudes stand him in good stead as a person and a legal professional ready for the Constitutional Court. Wrth him there, we would be assured that our constitutional values as a country would be protected and even enhanced.

I thank you very much for considering my nomination and my submission as above.

Yours sincerely

Professor Thandwa Mthembu Vice-Chancellor and Principal

Froa:PS OFF ICE OF THE PREMIER To: • 00866490944 14/11/2012 17:43 :224 P.001/011

Leeuwenhof

59 Hot Street

Gardens

CAPE TOWN

To: The Secretariat of the JSC

Per fax: 0866490944

And email: Chlloaoce@concourt.org.za

Attention: Mr Sella Chiloane

Dear Sirs

NOMINATION OF JEREMY GAUNTlETT TO CONSTITUIONAL COURT VACANCY

1. I refer to the Judicial Service Commission's published invitation calling for nominations to fill

the vacancy of a Judge of the Constitutional Court which will arise when Justice Zak Yacoob

retires from active service at the end ot January 2013 and wish to respond thereto by hereby

nominating Advocate Jeremy John GaunUett to 1111 the vacancy.

2. I have ascertained that Adv. Gauntlett Is amenable to accepting this nomination and that his

written consent hereto, along with the standard completed questionnaire and copies of at

least three written Judgments, will be submitted to you separately by him.

3. Advocate Gauntlett's Curriculum Vitae Is attached hereto.

4. With reference to Adv. Gauntlett's qualifications and general fitness for appointment, I refer

to the attached Curriculum Vitae, which provides proof and details of his Judicial experience,

both In South Africa and Lesotho, over the past 20 years, as well as his tenure as the

President of the Labour Appeals Panel and the Court of Appeal at the University of Cape

Town.

5. Advocate Gauntlett Is, and has been for many years, one of the foremost counsel In South

Africa, arguing and advising clients on matters traversing varied legal terrains from

Commercial to Admiralty law as well as Constitutional Law and Tax.

6. He has acted fearlessly for his clients, including both for and against the State, In matters of

perceived controversy and high media attention, for example the recent e·tolling Interdict

matter. He also has an almost unparalled level of experience at the bar with respect to the

diversity of legal expertise he has gained from his years of practise.

froo:PS OffiCE Of THE PREMIER To: '00866490944 14/11 /2012 17:43 1224 P.002/011

7. His experience In leadership positions within the legal fraternity, as well as his written

academic outputs - as set out in his attached curriculum vitae - clearly indicate a person

with a love and respect for the development of the law and the profession that practises it.

8. Much has recently been said In the media about the temperament of Adv. Gauntlet! and his

suitability for appointment to the bench. Whilst there is no doubt that Advocate Gauntlett is

clearly a fe lSty court litigator who has ruffled more than one set of feathers in his years in

court, his conduct, in lawfully and articulately promoting the Interests of his clients, has

been exemplary, often in litigation matters where the stakes have been high and the

pressure to perform Immense.

9. The Judges on our Constitutional Court are Similarly under tremendous pressure given the

case load of matters of critical importance for the development of our law under the

Constitution - which they are now tasked to deal with. Our Constitution Is making its

content felt In almost all lit igation matters of importance these days and a person who not

only has Interacted with the very real interests of diverse clients over many years, but also

on a wide range of law, is now almost a necessity for nomination to the bench of the

Constitutional Court.

10. In these circumstances, I am of the opinion that Adv. Gauntlett does indeed have the

experience and temperament for the position of a judge, having. as it does, very little of the

adversarial nature of litigation, but all of the Intellectual rigour.

11. Accordingly it Is my hope that you will now consider this nomination of Adv. Gauntlett in a

favourable light and proceed to interview him for the vacancy that will be left by Judge

Yacoob when he retires next year.

Yours sincerely

Helen ZlIIe

November 12, 2012

The Most Reverend Njongo Ndungane DD FKC GCOB Executive Director

HI TORIC CHOOL RE TORATIO PROJECT Toward ' Centres of Cultural and Educ,tlonal Excellonce

The Judicial Service Commission Mr. Sello Chiloane Private Bag Xl Constitutional Hill BRAAMFONTEIN 2017

Per Email: chiloane@concourt.org.za

Dear Mr. Chiloane

I wish to nominate Adv. Jeremy Gauntlett SC for appointment to the impending vacancy on the Constitutional Court of South Africa.

Mr. Gauntlett has confirmed to me his willingness to accept the nomination.

I make the nomination for these reasons:

I have known Advocate Jeremy Gauntlett SC in several capacities for over seventeen years. In 1996 I was called to lead the Anglican Church of Southern Africa as Archbishop of Cape Town. My term of office coincided with significant change on many fronts within South Africa. Much of the change was around the enabling legislation tabled by the National Government, legislation that would make our hard won Constitution a 'living document' that would benefit all South Africans. I was blessed in this time to have a man of Advocate Gauntletfs stature to call upon for advice and counsel, particularly when legislation did not seem to have the best interests of South Africa at heart.

During my tenure as Archbishop, I appointed Advocate Gauntlett as Chancellor of the Diocese of Cape Town. The role of the Chancellor is to guide the Church's legal advisory team to the Archbishop. He made a valuable contribution in the evolution of Canon Law in our Church. His astuteness on legal matters and his values in tenns of human dignity were integral in our excellent working relationship. At all times Advocate Gauntlett brought his very fine legal mind to bear and offered wise counsel. A much appreciated strength of Advocate Gauntlett was his integrity and even when his advice was not popular, his conviction that the advice was right, saw him refUSing to move his position. He is incredibly strong on civil rights and I valued his role within the Anglican Church of Southern Africa for the eleven years of my Archiepiscopacy.

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On retiring as Archbishop of Cape Town I accepted appointment as Chair of Council at the University of Cape Town and have been privileged to have Advocate Gauntlett as a member of the Council. I am witness to Advocate Gauntlett's exemplary dedication and commitment to the good governance of the University. He has a deep understanding and knowledge of the law and he is a hardworking and diligent member of Coundl. We have grappled with many issues at the University of Cape Town over the last six years, some of them dealing with transformation. At all times Advocate Gauntlett has brought his keen intellect to bear on the issues before Coundl and has been a consistent and very valuable member of the Council. His ability to look pragmatically at issues and not compromise his integrity has made the Council a strong, functional body.

Jeremy Gauntlett is a man of integrity and character. He continues to contribute immensely to the development of jurisprudence in the country and, in particular to the philosophy of the recognition of dignity for all people in South Africa.

With every good wish and blesSings

Grace and Peace

~--J:-~ Archbishop Njongo Ndungane FORMER ARCHBISHOP OF CAPE TOWN & EXECUTIVE DIRECTOR OF HISTORIC SCHOOLS RESTORATION PROJECT

CITIZENS MOVEMENT FOR SOCIAL CHANGE

Scllo Chiloanc

The Secretariat of the Judicial Services Commission

Private Bag X I

Constitutional Hill

Johannesburg 2017

Dear Mr Chiloane,

Add~. Ground Floor Ebden House Belmont Office Park 19 Bclmont Road Rondebosch 7799

Tel : 021 685 9927 I 9356 I 9361 Fax: 021 685 9931 e ... 11: hello@sub1ect2cit1zens.co.za

Re: omination of Advocate Jeremv Gauntlet to the Constitutional Court

It gives me great pleasure to nominate Adv. Jeremy Gauntlet SC to the Constitutional Court . As a citizen of our beloved country I take pride in the standing of the Constitutional Court at the national . continental and internationallevcls and believe that Adv. Gauntlet has the qualities that will uphold its high standing.

Adv. Gauntlet has distinguished himselfas a lawyer. senior advocate and actingjudge in nationsl and regional courts. lie is a trusted and highly sought afler legal brain by the government. the private sector and civil society groups. His meticulous atlention to detail. his professionalism and hi s innovative approach to complex legal matlers has earned him the respect of his peers. He inspires confidence in his colleagues and those appearing before him that he will diseharge his responsibilities with integrity and wisdom.

South Africa has demonstrated its ability to atlract and nurture talented jurists with a diversity of backgrounds. skills. philosophical oricntations and temperamcnts to make our Constitutional Court the envy oft!1e world . Adv. Gauntlet will no doubt bring a richness of talcllts and viewpoints that would serve to sustain the unity in diversity that is the pride of our nation and that of our judicial system.

In Adv. Gauntlet we have a true patriot who has served. and continues to serve his country with dcdication and enthusiasm. lie is not only active in leadership positions in professional lega l bodies. but has devoted significant time over the ycars serving on boards of public in titutions such as University of Cape Town Council which are vcry demanding. He also dedicates himself to civil society groups such as Freedom Under the Law which serve to protect and promote our Constitution as an active citizen.

Please do not hesitate to contact me for any further inforn1ation you might need to process this nomination.

Trustees: Ot Mamphela Ramphelo (Foundet). Ptot NJabulo N<lebelo. Mt Thando Gobe.

Trust Rcg Nr. tT352912011

CITIZENS MOVEMENT FOR SOCIAL CHANGE

-Yours Sincerely

Dr Mamphela Ramphclc

AddresS; Ground Floor Ebden House Belmont Off ice Park 19 Belmont Road Rondebosch 7700

Tel: 821 685 9927 I 9356 I 9361 Fax: 821 685 9931 Enoall: hello@sub1ect2cit1zens.co.za

Trustees: Or Mamphela Ramphele (Founcler). Pror NJabulo NClebele. Mr Thanclo Gobe.

Tnnt Rcg Ne 1T352912011

Vuyo 0 KIIhla

22 November 2012

Mr Sello Chiloane Secretary of the Judicial Service Commission Private Sag Xl Constitutional Hili BRAAMFONTEIN Johannesburg 2017

By e·mail: chlloane@concourt.org.za

Dear Sir

NOMINATION OFADV JEREMY J GAUNTL£TT SC FOR CONSIDERATION FOR APPOINTMENT TO THE CONSTITUTIONAL COURT OF THE REPUBUC OF SOUTH AFRICA

1. I hereby nominate Adv Jeremy John Gauntlett SC for consideration by the Judicial Service Commission for appointment to the Constitutional Court of the Republic of South Africa. Adv Gauntlett SC has confirmed his willingness to accept my nomination.

2. While I serve as: the Group Executive: Advisory & Assurance and Company Secretary of Sa sol Limited; Chairman of the Council of St John's College, Houghton; Member of the Council of the University of South Africa and Chairman of its Audit and Enterprise Risk Management Committee; Member of the Audit Committee of the South African Revenue Service; and Member of the Board of Governors of Rhodes University, I WOUld, at the outset, emphasise that this nomination is made exclusively in my personal capacity.

3. I have known Adv Gauntlett se for about 16 years, going back to when I served as Assistant Legal Advisor to President Nelson R. Mandela in the mid· to late 90's and Adv Gauntlett se was frequently briefed to act for, or provide advice for the benefit of, President Mandela and the Office of the President (as it then was) on numerous matters relating to the exercise of the executive acts of the President and, generally, the exercise of the President's powers as Head of State and Head of the National Executive under the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993) ("the Interim Constitution") and later the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) nhe Constitution").

4. For the reasons I have set out below, I was privileged to continue my professional association with Adv Gauntlett se when I served in, amongst others, the following capacities: as Chief Legal Advisor to Minister Trevor A. Manuel, MP, then Minister of Finance, and the National Treasury of the Republic of South Africa ("the National Treasury"); and as Transnet SOC Limited's Group Executive: Legal and Risk and later its Group Executive: Office of the Group Chief Executive.

S. Adv Gauntlett se has had a most distinguished career as a people's lawyer, whose excellent forensic legal mind, skill and experience have been greatly celebrated by many who sought to exercise their fundamental rights in oppressive and repressive circumstances, especially during South Africa's darkest hour of the State of Emergency restrictions.

6. Adv Gauntlett SC has equally excelled as a lawyer's lawyer whose creative legal mind, razor sharp Intellect and ability to retrieve the rarest legal solutions even out of the reservoir of sheer commonsense have ensured that he has not only been responSive to the needs and

1

expectations of his clients, but also able to contribute to the development of the law in South Africa and other countries. To Illustrate Adv Gauntlett Se's le8endary ability to connect skill and commonsense, I take the liberty to relate below an instance when this ability on his part contributed to efforts to secure peace in South Africa.

7. In 1996 teams of aides of President Mandela, the late Minister Joe Modise, MP, then Minister of Defence, and Generals and other officers of the South African National Defence Force("SANDF"), had to di8 very deep to find a solution to secure an uneasy peace in KwaZulu­Natal. To support the South African Police Service's ("SAPS") efforts to secure the safety and security of KwaZulu Natal residents affected by political violence, the late Minister Modise, MP sou8ht and obtained President Mandela's authority for the employment of the SANDF In a law and order function in support of the SAPS.

8. However, while the objectives of that employment of the SANDF were noble, it later transpired that it had not complied with one of the applicable provisions of the Interim Constitution (owin8 to havin8 been authorised In emer8ency circumstances, and without consultation with the President's le8al advisors) requirin8 that, as soon as the President has employed the SANDF in a law and order function or in fulfilment of international obli8ations, he or she must report to Parliament on such employment and provide certain details stipulated in the Interim Constitution on such employment.

9. Adv Gauntlett SC was consulted to help find an appropriate remedy to this difficulty, and, havin8 correctly advised that such employment had been at risk of bein8 found to be inconsistent with the Interim Constitution and therefore invalid, found a solution that would be 8rounded on constitutionality while not adversely affectin8 the delicate peace then in existence.

10. Throu8h Adv Gauntlett Se's advice, the constitutionally "awed employment was withdrawn a minute or so before mldni8ht of a certain day by way of an executive act of the President set out in a Proclamation published in the Gazette and a few minutes after that midni8ht, a fresh employment of the SANDF in a law and order function was brou8ht into effect by the President by Proclamation In the Gazette. Parliament was thereafter promptly informed in accordance with the requirements of the Interim Constitution. Throu8h Adv Gauntlett's infusion of the excellence of his forensic le8al skills and commonsense, President Mandela mana8ed to both comply with his constitutional obll8ations and to secure peace in KwaZulu-Natal, as Adv Gauntlett SC carved out a solution that ensured that the SANDF was effectively not withdrawn from the areas it was deployed in.

11. Adv Gauntlett Se's abilities to carve out the most strate8ic and sensible le8al solutions in the most complex circumstances are le8endary and were used most effectively by the National Treasury in the early period of the Introduction, by the Constitution, of the equitable sharln8 of nationally raised revenue amon8 the three spheres of Government.

12. His strategic le8al mind is also credited for the overrides accorded to the Minister of Finance in the Competition Act. Followin8 the Supreme Court of Appeal's ("SCA") unanimous jud8ement (in a matter Involving, amon8st others, the Competition Commission and two major banks involved in a hostile takeover process, in which he led the Minister of Finance's team) to the effect that, amon8st others, the Competition Act, as it then existed, did not 8rant the Competition Commission powers concurrent to those 8ranted to the Minister of Finance, throu8h the Banks Act, for the approval of mer8ers and acquisitions in respect of banks, the Competition Commission SOU8ht an amendment to the Competition Act that would extend to it the powers the SCA had found the Competition Act, in the form it then existed, had not provided to it. For many reasons I will not 80 throu8h in this letter, Adv Gauntlett SC ri8htly characterised some of those amendments as "crude sur8ery". His advice was so compellin8

2

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that the initially proposed amendment was withdrawn from Cabinet. Adv Gauntlet SC's legal advice was the genesis to the current provisions (which arc similar to those in the Canadian Competition Act) which grant the Competition Commission jurisdiction to deal with bank mergers and acquisitions, subject to the Minister of Finance's power to Issue a cert ificate excluding the Competition Commission if, in the public interest, he deemed that such a transaction in respect of banks be excluded from determinations of the Competition authorit ies. This provision was crafted to allow the Minister of Finance appropriate flexibility if, for example, he or she considered a particular bank acquisition or merger vital to safeguarding the deposits of the Investing public. This stroke of a genius from Adv Gauntlett SC was to find effective utilisation during the banking crisis that affected South Africa's second tier banks following the placing of Saambou Bank under curatorship.

13. As indicated above, there are countless examples where Adv Gauntlett Se's legal prowess has contributed to, amongst others, effective governance within the scheme of South Africa's post· apartheid constitutional dispensation; the advancing of the law, both in terms of case law and statutory enactments; and the advancement of fundamental rights and freedoms. He is undoubtedly amongst the very few who have helped shape the application of the constitutional scheme of South Africa.

14. Adv Gauntlett SC has also contributed to the transformation of the legal profession and the judiciary. In the 16 years or so he acted for functionaries, entities and organs of state I worked for, he considered it his responsibility to empower Black Junior Advocates who were briefed to act with him in countless complex matters, Including providing legal services on: derivate financial instruments; the legal principles underpinning the accounting treatment of an instrument that was a novel monetary policy tool utilised by the South African Reserve Bank for mopping off excess liquidity In the market, known as the Special Money Market Swap; advice on legislation required to deal with the defrayal of losses in the Gold and Foreign Exchange Contingency Reserve Account; and foreign exchange and competition law litigation. Many of those individuals progressed to Senior Counsel status and others have become Judges.

15. I've always known Adv Jeremy Gauntlett SC to be uncompromising in his quest for excellence and not ashamed to deal toughly with performance sufficiently degraded from his expectations. I've equally observed his firmness in advancing the interests of his cl ients, sometimes before functionaries who would prefer to be handled with kid gloves to the prejudice of the best interests of his clients.

16. Adv Gauntlen SC has been most generous in the support of many noble causes. This much is reflected in his contribution to the Church of the Province of Southern Africa ("CPSA") as Chancellor to the Most Rev Or Thabo Magoba (and previously to the Most Rev Njongonkulu Ndungane), the Archbishop of Cape Town and Metropolitan of the CPSA. The excellence he most certainly brings to, amongst others, the interpretation and application of the Anglican Communion's Cannon Law is critical to the effective governance of the Anglican Church in Southern Africa. Having been a member of a Parish Council, I have every appreciation for the demands of his Office.

17. That Adv Gauntiett SC has been elected by the Convocation of the University of Cape Town, an elite Institution that is highly rated internationally, for six successive terms as a member of the Council of this prestigious university, speaks to the honour and respect with which he is regarded.

18. I understand, however, that the JSC has recently failed to recommend him for appointment to judicial office, on, amongst others, the ground that he lacks "humility". I accept that I'm unaware of the facts that have given rise to this conclusion on the part of the honourable members of the JSc. It is not clear to me, however, whether this conclusion on the part of the

3

JSC, whatever its merits, if any, is Intended to discourage a lawyer of undisputed excellence and independence from availing himself for nomination for judicial office when such attributes are critical for the advancement of the law and the safeguarding of judicial Independence.

19. As I hope I w1l1 show below, the measure of "humility" emphasised by the JSC when it failed to recommend his appointment Is perhaps the most complex one to be utilised to determine a candidate's suitability for the honour of judicial appointment. I make this point in circumstances where I personally consider "humility" a value that everyone should aspire to live by. The trouble I have with its use to exclude an Individual, who, as a lawyer and judge (in other jurisdictions) has been considered head and shoulders above many of his peers, however, Is that different people have varying expectations of what conduct exemplifies or detracts from "humility". This makes its value, like that of beauty, subject to the dictates of the eye of the beholder. It is such subjective and qual itat ive factors that, in my view, make it an almost impossible measure to reach homogeneity on.

20. To illustrate this point: I watched an interview by the JSC of a candidate for judicial office who considered himself better qualified for appointment than, for example, Chief Justice Chaskalson and Chief Justice John Robcrts were, when, respectively, they were appointed President (later referred to as Chief Justice) of the Constitutiona l Court of the Republic of South Afr ica and Chief Justice of the Supreme Court of the United States of America . That candidate came to that view because, unlike Chief Justice Chaskalson and Chief Justice Roberts, he had served as a Head of Court prior to avall ing himself for the judicial office he was being interviewed for.

21. That neither Chief Justice Chaskalson nor Chief Justice Roberts had held the office of Head of Court prior to their appointment to offices of Chief Justice could not be disputed. Whether that, without more, justified a view that, relative to the candidate then interviewed by the JSC, these celebrated jurists were lesser qualified, is debatable. There can be no doubt, however, that others would say the expression of that very view by the candidate then before the JSC reflected the high water mark of arrogance, especially when regard Is had to the fact that Chief Justice Chaskalson had elected to not avail himself for judicial office in apartheid South Africa and his appointment to the Constitutiona l Court had been preceded by a most illustrious legal career. This legal career included the advancement of the human rights of many South Africans, among whom were the Rivonia Treason tr lalists he represented; and helping to inform post apartheid South Africa's constitutional dispensation. Equa lly, It may well be possible that none of the JSC members considered that a sign of lack of humility, but simply the affected candidate's robust assertion of his genuinely held views about himself and the experience, sk1l1, ability and qualifications of the individuals he elected to compare himself to. I would almost be certain that "humility" could never have been a factor in the assessment of that candidate, if one has regard to the unseemly tone with which the candidate concerned addressed the Chairman of the interviewing JSC panel he appeared before.

22. In circumstances where the JSC has previously recommended for senior judicial office a candidate who conceded in his interview that, in a judgment of the apex court on constitutional matters on which he had been a lone dissenter, he erred In his judgment, due to not having properly applied himself to the import of his fellow justices' judgments, I trust that it will not place excessive weight to Its view (which is not universally shared) that Adv Gauntlett SC lacks humility.

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The Judicial Service Commission Private Bag X 1 Constitutional Hill BRAAMFONTEIN 2017

Per Email: chiloane@concourt.org.za;dube@concourt.org .za

Dear Sirs

In our personal capacities as legal academics, we are well acquainted with the professional career of advocate Jeremy Gauntlett SC.

We hold advocate Gauntlett in the highest esteem as a jurist of exceptional ability. His gifts of intellect, legal acumen and judgement and the vast practical experience gained as an advocate and in a judicial capacity in various fora since his admission to the Cape Bar in 1976 undoubtedly make him a person appropriately qualified for appointment to the highest judicial office in this country. He has throughout his professional career conducted himself with integrity and dignity and demonstrated a profound commitment to the achievement of justice and the deepening of our constitutional democracy. He is in our view accordingly also a fit and proper person for appointment to the highest court of this country.

We trust that this communication in support of advocate Gauntlett's nomination for appointment to the Constitutional Court will be brought to the attention of the Judicial Service Commission.

Yours sincerely,

Gerhard Lubbe, Professor, Stellenbosch University (gfl1@sun.ac.za) (Contact Person)

Jonathan Campbell , Associate Professor and Dean, Rhodes University (J. Campbell@ru.ac.za) Sonia Human, Professor and Dean, Stellenbosch University (shum@sun.ac.za) Vivienne Lawack-Davids, Professor and Dean, NMMU Nivienne.Lawack@nmmu.ac.za)

Thomas Bennett, Professor, University of Cape Town (thomas.bennett@uct.ac.za) Jobst Bodenstein , Associate Professor, Rhodes University (j .bodenstein@ru.ac.za) Joanna Botha, Ms, NMMU (Joanna.Botha@nmmu.ac.za) Victoria Bronstein , Professor, University of the Witwatersrand, N ictoria.Bronstein@wits.ac.za) Jonathan Burchell , Professor, University of Cape Town (jonathan.burchell@uct.ac.za)

Karin Calitz, Or, Stelienbosch University (kbc@sun.ac.za) Ray de Villiers, Ms, Stelienbosch University (raydev@sun.ac.za) Wouter de Vos , Professor, University of Cape Town (wouter.devos@uct.ac.za) Marius de Waal, Professor, Stelienbosch University (mjdw@sun.ac.za) Jacques du Plessis, Professor, Stelienbosch University (jedp@sun.ac.za) Francois du Toit, Professor, University of the Western Cape (fdutoit@uwc.ac.za) Deon Erasmus, Associate Professor, NMMU (ronelideon@mweb.co.za) Tomas Floyd, Professor, UNISA (Floydtb@unisa.ac.za) Christoph Garbers, Professor, Stelienbosch University (cgarbers@sun.ac.za) Luanda Hawthorne, Professor, UNISA (maiito:hawthl@unisa.ac.za) Jacqueline Heaton, Professor, UNISA (Heatoj@unisa.ac.za) Juanita Jamneck, Professor, UNISA (Jamnej@unisa.ac.za) Ebrezia Johnson, Ms, Stelienbosch University (ebrezia@sun.ac.za) Aimite Jorge, Or, University of the Western Cape (ajorge@uwc.ac.za) Cobus Jooste, Mr, Stelienbosch University (cobusj@sun.ac.za) Evance Kalula , Professor, University of Cape Town (evance.kalula@uct.ac.za) Sadulla Karjiker, Mr, Stelienbosch University (skarjiker@sun.ac.za) Duard Kleyn , Professor, University of Pretoria (Duard.Kleyn@up.ac.za) Elmarie Knoetze, Professor, NMMU (Elmarie.Knoetze@nmmu.ac.za) Anton Kok, Professor and Deputy Dean, University of Pretoria (Anton.Kok@up.ac.za) Andre Mukheibir, Professor, NMMU (Andre.Mukheibir@nmmu.ac.za) Caroline Nicholson, Professor, University of Pretoria (Caroline. Nicholson@up.ac.za) Willie Olivier, Adv, NMMU (Wiliie.Olivier@nmmu.ac.za) Pieter Oosthuizen, Mr, Stelienbosch University (pgo@sun.ac.za) Johan Potgieter, Professor, UNISA (Potgijm@unisa.ac.za) Jopie Pretorius, Professor, UNISA (Pretojt@unisa.ac.za) Geo Quinot, Professor, Stelienbosch University (gguinot@sun.ac.za) Craig Renaud Mr, Rhodes University (C.Renaud@ru.ac.za) Oliver Ruppel , Professor, Stelienbosch University (ruppel@sun.ac.za) Susan Scott, Professor, UNISA (Scottsj@unisa.ac.za) Johan Scott, Professor, University of Pretoria (Johan.Scott@up.ac.za) Jan-Louis Serfontein, Mr, University of the Witswatersrand (Jan­Louis.Serfontein@wits.ac.za) Philip Sutherland, Professor Stelienbosch University (pjsu@sun.ac.za) Andreas Van Wyk, Professor Extraordinary and former Rector and dean of Law, University of Stelienbosch (ahvw@sun.ac.za) Jeannie van Wyk, Professor, UNISA Nwykama@unisa.ac.za) Francois Venter, Professor and former dean, NWU (Francois.Venter@nwu.ac.za) Patrick Vrancken, Professor, NMMU (Patrick.Vrancken@nmmu.ac.za) Bernard Wessels, Mr, Stelienbosch University (abwessels@sun.ac.za)

We the undersigned in a personal capacity wish to support strongly the nomination for the Constitutional Court of Advocate Jeremy Gauntlett Se. We share the high opinion of him as a jurist and we believe that he is personally and temperamentally very well Qualified to sit on the bench of the highest court on the land. In our view he fully meets all the Qualifications spelled out in article s174 (i) and(ii) of the Constitution.

Prof Andreas van Wyk. Past Dean of the University ofStellcnbosch Law Faculty and retired Rector and Vice chancellor of the University ofStellcnbosch Prof Stuart Saunders, retired Vice Chancellor of the University of Cape Town Michael Savage, Emeritus Professor of Sociology, University of Cape Tow Jacquez Charl de Villiers Emeritus Professor of Neurosurgery, University of Cape Town

David Welsh, Emeritus Professor of Political Studies, University of Cape Town Ton Vosloo Rhoda Kadalic i-Icmlann Giliomcc RW Johnson

The Judicial Service

Commission

Braamfontein

E-mail: chiloane@concourt.org.za

MrMJ Husain

c/o Know/es Husain Lindsay /nc

Attorneys 41h Floor, The Forum

2 Maude Street

Sandton

Tel:

011 669-6000

Facsimile:

011 -669-6299

E-Mail:

m]h@khl.co.za

13 November 2012

CO·NOMINATION OF ADVOCATE JEREMY GAUNTLETI SC

Dear SirslMesdames

Advocate Jeremy Gauntlett SC is in the course of being nominated for the vacancy that will arise in

the Consmulional Court following on the retiremenl of Justice Zak Yacoob. This nomination is

being proposed inter alia by Ms Mamphela Ramphele. Advocate Gauntlett SC has accepted the

nomination. I hereby join Ms Ramphele and others in the nomination of Advocate Gauntlett SC for

the above vacancy.

Since Ms Ramphele's letter of nomination, Advocate Gauntlett SC's acceptance thereof, his

Curriculum Vitae and other relevant documents will be lodged with the Judicial Service

Commission, I do not consider it necessary to attach such documents to this letter.

Advocate Gauntlett SC's legal talents and his contribution to the Bench and the Bar, both here and

abroad, are matters of public record as is his commitmenl to the values enshrined in our

Constitution.

I have taken note of the reasons why the Judicial Service Commission felt it could not recommend

Advocate Gauntlett SC's appointment to the Bench of the Cape Provincial Division. Wrth respect . I

do not agree that these reasons are cogent, not the least because they do not appear to have

been used as criteria , to the best of my knowledge, by the Judicial Service Commission at any

stage. I am also unaware of any complaints from Judges or counsel that Advocate Gauntlet! SC's

behaviour in court whilst acting as a Judge was in any way objectionable.

The jurisprudence of our Constitutional Court is held in the highest regard throughout the world .

have no doubt that Advocate Gauntlet! SC will contribute greatly to this jurisprudence and that all

South Africans will be proud to have a Judge of his calibre on the Constitutional Court Bench.

I at!ach my Curriculum Vitae.

Y::,l;lfUIlY

, \

MOH~~

ABRIDGED CURRICULUM VITAE

MOHAMED JUNAID HUSAIN

Bom on 22 December 1960 in Johannesburg.

1978 to 1990's - Involved in various anti-apartheid organisations including the Natal

Indian Congress, Azanian Students Organisation, Transvaal Indian Congress. Actstop,

Release Mandela Committee, Detainees' Parents Support Committee and the UDF.

1982

Graduated from the University of Durban - Westville.

Awarded the Abe Bailey Scholarship.

1983 to 1985

Served Articles of Clerkship at Edward Nathan & Friedland Incorporated.

1985 to 1999

Edward Nathan & Friedland : Director of the fiml from 1990 to 1999.

1990

Invited by Swedish Govemmentto study Constitutional Affairs in Sweden.

1994

Deputy Provincial Electoral Officer for South Africa's first democratic elections. in charge

of elections for Greater Johannesburg Region, appointed by Multi-Party Transitional

Executive Council, upon recommendation by ANC.

1995

Appointed by the ANC to be part of a team of expert legal advisers to the Constitutional

Assembly for the drafting of South Africa's final constitution.

1996 to 1997

Part of a team negotiating transformation of various Law Society structures and the

composition of the Judicial Services Commission; part of drafting team of constitution of

newly-formed Law Society of South Africa.

1991 to 2001

Vice-President of National Association of Democratic Lawyers (NADEL). Acting

President of Nadel in 1994.

Served as member of National Executive Committee of the NADEL during the period

1990 to 2007. Currently, member of Johannesburg Branch.

2

1998

First South African lawyer to serve as Councillor of the Commonwealth Lawyers

Association, based in London.

Part of team representing NADEL in making submissions to Truth and Reconciliation

Commission.

1999 to 2001 and 2004 to Noy 2006

Vice·President: Law Society of the Northern Provinces.

2000 to 2003

Member of Law Faculty Board : University of Witwatersrand.

1999 to date

Council member: Law Society of South Africa.

1999 to 2004

Director of Legal i (Section 21 company, providing free legal services to the indigent).

2001 to 2010

Director of Attorneys Insurance Indemnity Fund (Section 21 company, providing legal

indemnity insurance for all attorneys in South Africa). Chairman of this Fund in 2009

and 2010.

1999

Appointed by the Minister of Justice as Acting Judge of the High Court (then known as

the Supreme Court).

2000 to date

Director legal firm Knowles Husain Lindsay Incorporated (formerly Knowles Husain

Incorporated).

2004

Chairperson: Governing Body Foundation (Gauteng).

200612007

President : Law Society of the Northern Provinces (formerly Law Society of the

Transvaal).

Represented Law Society of South Africa in connection with drafting of Legal Services

Charter. Drafted various proposed amendments to Legal Practice Bill.

200712008

Appointed as Vice·President of the Commonwealth Lawyers Association, London.

3

June 2008

Participated in drafting of add~ions to Latimer House Guidelines on Separation of

Powers and introduced same at Commonwealth Law Ministers Meeting, Edinburgh,

Scotland.

November 2008 to date

Non-executive director of ABSA Bank Lim~ed and ABSA Group Limited.

April 2009 to February 2011

Appointed President of the Commonwealth Lawyers Association.

Additional current positions

Member of ABSA's Group Audit and Compliance Committee and of its Directors' Affairs

Committee and Board Finance Committee.

Chairman: ABSA Group's Social and Ethics Committee.

Member : Finance Committee of Law Society of South Africa.

Chairman: Andulela Investment Holdings Limited, a company listed on the JSE.

Professional Listings

Has been listed in the 2008, 2009, 2010 and 2011 South African editions of "Best

Lawyers' , a publication produced in the United States of America, which lists lawyers in

all parts of the world in various categories as "best lawyers" in such categories. The

listing follows surveys amongst South African lawyers as to who they recommend

should be listed in the publication.

Is also listed in "PLC Which Lawyer" for the last 2 years.

Served on various school governing bodies over the last 9 years.

Has presented papers at legal conferences in London, Australia, Kuala Lumpur, Kenya,

Namibia, Mozambique, Hong Kong, Zambia, Nigeria, India and South Africa.

Has been interviewed in both foreign and overseas television, print and news media on

a range of legal issues.

Main practice areas: Commercial and Corporate litigation

Administrative and Constitutional Law

"Democracy "/Mm freedom t() choose"

INlZATHA Inkatha Freedom Party

IQembu le katha Ycnkululcko

The use of this lenemead cannot constitute 8 Purchasing Order

Tel + 2721 4032529 Fax + 2721461 1442 Enquiries: U Wailer

13 November 2012

Mr Sello Chiloane

OFFICE OF THE PRESIDENT

The Secretariat of the Judicial Service Commission Private Bag X1 Constitution Hill Braamfontein JOHANNESBURG 2017

via email chiloane@concourt.org.za

Dear Mr Chiloane.

PO Box 15 Cope Town

8000

Ref. C1sc-121113

NOMINATION OF ADV. JEREMY GAUNTLETT. SC FOR APPOINTMENT AS ;JUSTICE TO THE CONSTITUTIONAL COURT

It gives me great pleasure to nominate Advocate Jeremy Gauntlet!, SC for appointment to the impending vacant position of Justice to the Constitutional Court.

In past rounds of interviews, the Judicial Service Commission determined that Adv. Gauntlet! meets the requirement of being "fit and proper". Both domestically and intemationally. it has become almost axiomatic to refer to Adv. Gauntlet! as one of the best legal minds In South African history. His contribution on the highest bench of the land will provide luster to our judiciary and impetus to positive jurisprudential developments.

Adv. Gauntlett's patriotism is beyond doubt. I have known him for 40 years and can personally vouch for it.

During his judicial and adjudicative experience both on the bench and as an arbitrator, there has not been a single report on intemperance or anything that departs from his constant gentlemanly demeanour and conduct.

DURB N OffiCE: 2 DurI>f.n Oub

PRE IDENT The 1100. Pnncc 101_"'" 0 Butb<1e7l

Ut-UNDlorne!:: B S2 pru.ce.. Mbba)'l

Stroet ULUNDI

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His exemplary conduct in court, having served a multitude of appointments with an unblemished disciplinary record for over 35 years, compels me to motivate strongly for his appointment as Justice to the Constitutional Court. His professional track record places him in a category comprising our best lawyers and judges ever.

Adv. Gauntlett has served as Judge of Appeal of the Kingdom of Lesotho (March 1997 to December 2010), as President of the Court of Appeal of the University of Cape Town (1993 to 2007), as Appellate Commissioner in the SpeCial Income Tax Tribunal (1994 to 1997), as Member of the Commercial Appeals Panel of the Association of Arbitrators of South Africa (1997 to date), as President of the Labour Appeals Panel of tl1e Association of Arbitrators of South Africa (1998 to date), with Adv. Lewis Skweyiya SC as Co-Chairman of the Board of Inquiry into the appointment and conduct of the Deputy Vice-Chancellor of the University of the Witwatersrand (1996), as Arbitrator of the national health workers strike dispute (NEHAWU v Transvaal Provincial Administration) (1993), and as Arbitrator in commercial and administrative law disputes. He was appointed in 2007 as international arbitrator for the Intematlonal Aviation Trade Association in Geneva, and for the International Commercial Court in London in 2010, and held acting appointments on the Cape High Court in 1991 , 1993, 1995, 2004 and 2008. He was Chairman of the South African Law Commission Project and a Member of the Commission from 1999 to 2006.

In terms of his South African Bar leadership, besides conducting extensive human rights, educational and pro bono initiatives for transformation, he was elected to two successive terms of office as Chairman of the Cape Bar Council and President of the Cape Bar (1997 to 1999), served on the National Executive of the GCB, was elected to three successive terms of office as Chairman of the GCB (1999 to 2002), participated in the negotiating and research process (1999 to date), prepared the draft proposed GCB Bill through six drafts (2000 to 2001), and thereafter served as a Member of the Task Team appointed by the then Minister of Justice, and was involved in the preparation through four drafts of its proposed Bill.

Adv. Gauntlett's extensive international Bar leadership includes, but is not limited to, serving as Member of the Council of the International Bar Association (1999 to 2001); Convenor of the Human Rights Working Group of the Forum for Barristers and Advocates (2002); Chairman of the Organising Committee for the Second World Bar Conference in Cape Town (2004); Co-Chair of the IBA's Forum for Barristers and Advocates (2005 to 2007): Bencher of the Middle Temple, London and Fellow of the International Academy of Trial Lawyers, New York (2011).

In terms of his professional practice, Adv. Gauntlett was admitted as an Advocate of the High Court of South Africa in October 1974, commenced practice at the Cape Bar on 3 January 1977, and has been in continuous practice since then.

2

He was appointed Senior Counsel with effect from 20 February 1989; was admitted to practice in Botswana, Lesotho, Namibia, Zimbabwe, England and Wales; and became a Member of the Middle Temple Inn of Court, London, and of the Bar of England and Wales. He is also a Member of the Johannesburg Bar, with chambers at Group 621, Rex Welsh House, Sandown. His fields of interest span from administrative law, human rights and constitutional law to competition law, labour law, maritime (admiralty) law, the law of trusts, tax law, media and telecommunications law.

His contribution in South Africa, Namibia and Lesotho is highlighted in a schedule of some 400 reported judgments as an advocate and acting judge. As far as is known, this is the highest total achieved by a South African advocate. The list of his involvement in constitutional and public law matters is endless.

Adv. Gauntlett's academic appointments include and are not limited to Lecturer and External Examiner at the University of Cape Town; Visiting Fellow of New College, Oxford (1991); Honorary Professor in the Faculty of Law at the University of Stellenbosch (1996 to 1999); Visiting Lecturer at the University of Paris (2003); University College, London (2004); participation in the International Wor1<shop on Administrative Justice at Leeds Castle (June 1999) chaired by Professor Jeffrey Jowell QC; and delivering (with Sir Sydney Kentridge QC) the 161h Kapila lecture of the Inns of Court School of Law and the Race Relations Committee of the General Council of the Bar of England and Wales.

His academic papers include lead papers at the South African Association of Labour Lawyers National Conference (2004, 2006 and 2010); SADC International Arbitration Symposium at Le Victoria, Mauritius (2007) ; and at the 2007 Conference of the Administrative Law Bar Association of England and Wales. He delivered the main address at ALBA-liberty-Freedom Under Law Seminar, Clifford Chance, London (March 2009). His was awarded the Butterworths' Prize for Legal Writing in 1991, and his publications include contributing three titles to Joubert (ed) Law of South Africa. He assisted in the preparation of the Second Edition of Honore Law of Trusts; wrote the Second and Third Editions of Quantum of Damages: Principles (Vol I) (series edited by the Hon. M.M. Corbett); was appointed Consulting Editor of Employment Law (1998 to date), Chairman (and thereafter Member) of the Editorial Board of Advocate (1999 to 2003), Member of the Editorial Board of the South African Law Journal (2003); and has published contributions in SALJ, THR-HR and Advocate.

Beyond his legal qualifications and experience, Adv. Gauntlet! has something immensely valuable: integrity and independence of judgement. These are essential characteristics of a fair, impartial and devoted judge.

I have witnessed these characteristics myself when, forty years ago, the then young Jeremy Gauntlett invited me to speak at Stellenbosch University. He was then the Chairman of the Students' Representative Council. The Chancellor of

3

the University was Mr John Vorster, who directed the young Gauntlett not to allow a rebellious black man like me the benefit of such a prestigious venue. On the strength of his convictions, the then young Jeremy Gauntlett had the courage and stamina to defy the man who made the whole of Africa tremble. I cannot think of any better shOwing of character in respect of that which is required of a good judge.

I am confident that the interests of the Republic will be best served by having Adv Gauntlett serve in our highest court.

Yours sincerely,

A~ \\~~ PRlNCE-MANGOSUTHU BUTHELEZI MP PRESIDENT: INKATHA FREEDOM PARTY

4

Sibongile Dube

From: Sent: To: Cc: Subject :

Importance:

Sir I Madam

Barbara Sankovic (info@provisionsecurity.co.za) 12 November 2012 08:28 AM Sello Chiloane Sibongile Oube; Simon Masisi; cbc@law.co.za RE: Nomination of ConCourt Justices

High

I am a South African citizen. resident in the Westem Cape and currently unemployed with a passionate interest in law. especially constitutional and employment law. As a citizcn of this country but ccrtainly not likcly to be entertained as you would 'stmggle st.1 Iwart· Dr Mampbcla Rsmpbelc or vcteran lawyer Sir Syd ncy Kcnlridgc QC but wilh equal dignity and status ie section 9( I) "Everyone is equal before the law ... ,. accorded by the Constitution. 1996. I wish to add my voice to the clarion call for the nomination of Advocate Jcrcmy Gaunllet( C to be nominated as ajustice of the Constitulional Court. He ha in my humble opinion the requisite skills. qualifications and experience to substantially add value to thc bench and as a developing constitutional democracy I believe Advocate Gaunllett's status and compelence as a lawyer makes him imminently suiled for Ihe position and in fact his nomination and appointment ought to be afail accompli. Ilis is undoubtedly onc of the finest legal brains this country has produced and his contribution 10 the development of constitutional jurispmdcncc will only serve to enhance outh Africa 's standing in the international community. Ilhank you.

Kind regards. Vinccnt SILaurant Phillips Studcnt: Faculty of Law Studcnt o. 3608-801-3 Unisa

Tclcphone: Mobile:

021 761 3804 0716839160

BRICK COURT

CHAMBERS

BARRISTERS

Mr Sello Chiloane Secretary The Judicial Service Commission South Africa

By em ail: chiloane@concourt.org.za

12 November 2012

Dear Mr. Chlloane,

Re: Vacancy on the Constitutional Court

7·)( ~"('x Sue('( . l.ondon. WC2R JLO

Tn' 0207179 lSIO· f" 020 7179 lISH·1 DE 101

~'.l" .. bd.lnrw C\1.vl

I have much pleasure in nominating Mr. Jeremy Gauntlett S, C. for the position of a Justice of the Constitulional Court of Soulh Africa. I have been in touch with Mr. Gaunllell, and he has confirmed to me that he accepts this nomination.

You will be aware of his outstanding record as an advocate in South Africa for over 35 years. In particular, he has had an experience of constitutional and public law cases which is probably unrivalled and which in my respectful opinion, would be of the greatest value in South Africa 's highest court. Mr. Gauntlen himself will no doubt have given you details of his previous judicial and quasi-judicial work.

When I still practised as an advocate in South Africa we worked together on a number of cases against the apartheid government, and I can testify not only to his great ability, but to his commitment to the causes we represented. I recommend him wholeheartedly for this appointment.

I should add that I practised as an advocate at the Johannesburg Bar from 1949 to 1987 and that during 1995 and 1996 I had the honour of sitting as an acting Justice of the Constitutional Court.

If there is any further information that the Commission requires I shall do my best to supply it.

Yours sincerely,

Sir Sydney Kentridge S.C. (South Africa) a.c. (England and Wales)

Sibongile Dube

From: Jeremy Gauntlett (gauntlett@mweb.co.za) Sent: 13 November 2012 03: 10 PM

I also confirm receipt, and my acceptance of the nomination, with thanks.

Regards

Jeremy Gauntlett SC

1114 Huguenot Chambers

40 Queen Victoria Street

Cape Town

Tel: +27214249340 Fax: +27214245666 Mobile: +27 82 413 9093

21/11 2012 10 : 43 rA X 021 4245688 AOYOCATES 11t h FLOOR

,j. ,j. GAUNTLETT, S.C.

W wt:L5H HC u .C , . Of: SiOT" CC'T

Q,NNC.tilUAQ 200 1

, 0" ' 2630000 o 1 1·203 9090

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20 November 20 12

Mr S Chiloane Secretary Judicial Servioe Commission

DcarSir

ACCEPTA.1IiCE OF NOMINATIONS

I bereby accept the nomination ofDr Mamphela Rampbele and Sir Sydney Ken1ridge QC

(as well as subsequent nominations submitted).

y,~~ J.J. GAUNTLETI' se

Andrew J Massyn In as:so..~.on ""th DEBItA Sf.GROTT

Attorneys and Administrators of Estates

1A Grotto Mews Grotto Road Rondebosch 7700

P.O. Box 685, Rondebosch 7701 Docex 6, Rondebosch Telephone :+27 (021) 689 219415 Ttl.r .. :+27 (021) 6897455 E-mail: ajmassyn@amail.com http://www.andrewmassyn.co.za/

To The Secretary to the Judicial Services Commission

By email: Chlloane@coocollrt.Qra.za

23 November 2012

Dear Sir

SUPPORT FOR THE NOMINATION OF ADV GAUNTLETT TO THE CONSTITUTIONAL COURT BENCH

I wish to support the nomination of Advocate Gauntlett as a judge to the Constitutional Court.

I believe: 1. That he is appropriately qualified 2. That he is a fit and proper person 3. That he is person of integrity 4. That he has energy and motivation 5. That he is technically competent and has the ability to give expression to the

values of the Constitution . 6. That he is both technically experienced and is experienced in the needs and

values of the community. 7. That he has the potential to be a judge at the highest level.

I am of the view that:

His appointment would assist in dispelling a view that the JSC is not impartial. and that the JSC promotes mediocrity over competence.

Yours Sincerely

.fi ;'/~Cr Andrew Massyn

16 .....l • .....l. GAUNTLETT, S.C.

RI.x \·/t:L.g~~ HOU'll

MAUOI STPt IT

.JOHANNI UUUPC. 2001

TI L 01 1'263 9000

f"AX' 01 1'263 9090

Mr S Chiloanc Secretary Judicial Service Commission

Dear Sir

4·!. G"AY".f INN SQUAPL

LONOON

weiR ~AY

Tt L: 0207-404 524:2

F"AX: 0207-242 7803

ACCEI)TA!'ICE OF NOMINATIONS

HUGULNOT CHAMIlt:P!}

40 Qut LN VICTORIA STFU.1 T

CAPE TOWN aoo 1

Tn.: 021 424 9340 rAX 021 -424 5666 E.MAIL: g{)Ur~On ,'.cb:o Id

20 Novcmber 20 12

I hereby accept the nomination of Dr Mamphcla Ramphelc and Sir Sydncy Kcntridgc QC

(as well as subsequent nominations submitted).

I \

CAPE BAR COUNCIL GROUND FLOOR HUGUENOT CHAMBERS 40 QUEEN VICTORIA STREET CAPE TOWN 8001

19 November 2012

Tol: 0214242777 Fox: 021 423 2692

o-mall: cbc@faw.co.za Wobsl to: ....... vw eaoobi!r.co la

TO WHOM IT MAY CONCERN

This is to certify that, according to our records, Adv Jeremy Gauntlett SC:

1. Is a member of the Cape Bar.

2. Was admitted as an advocate of the High Court of South Africa on 9 October 1974; has been a practising member of the Cape Bar since 29 December 1976; and took silk on 20 February 1989.

3. Is a former chairman of the Cape Bar Council and of the General Council of the Bar of South Africa.

4. Is a member in good standing at the Cape Bar and there are no disciplinary or other proceedings pending against him.

5. There are no proceedings pending or contemplated to have him suspended from practice or to have him struck off the Roll of Advocates of the High Court of South Africa, nor has he applied to have his name removed from the Roll.

•

Chairperso Cape Bar Council

(

(

JlIDICIAL SERVICE COMMISSJOl

Priyote O.g X 1 Constitution llill Bmamrol1tcin JohMnesburg 2017

Tcl: (01 1)8)8201519 F:u: 086 M9 0944 E'lMil: dubo@soocoun OIl.m

chjl93oS@WOCOOn.OJ.2-11)

QUF,sTIO NAJRE FOR CM DIDATF,s liOR JUDICIAL APPOfNTME T

SECTION 1: PERSONAL

1. What arc your full names and sumame

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2. What is your address?

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4.2 Particulars of children

Number and ages of children

... 5."~~' ;""""~"~""I"'~!-:'I""'?-:'~"": " """ ' " ... .. ......... .

5. Please funtish particulars of your tertiary educalion.

6.

5.1 Quali~ations () ........ ~~.fL~ ... ~(tV~.:S~~.; ... 0.~ .. !!! ...... ~.~ .. C!!~.i 5~ eLL ........................ ... .............. .... . ) .. ..... ... ...... ...... .. ............... .. .

5.2 Namc of inslitulion(s) /.

..... . ~.~.( .. ~.~!i-:! .... ... ~ .. f ...... ~ .. ~~~.1.~0 .......... .... . .

.... .... '0:.r:!..~~.®. l:\:1 ..... .. ~( ..... ~~.f~2. .... ........................ .

5.3 Dales acquircd \ '11 \ 1tW!/ I '1 74-

: :::::::::::::::::::i:~::7.~:::::::::: :::: ::: :::: : ::::: ::: ::::::::::::::::::::::::::::

Pleasc funtish chronological particulars of employmcnt since Icaving school or

university

Period

....... I.:.'.: .. 1..l:r: .~ .. !.: .. '.~ .. le., •••• 1 •• ~.? . ~.<.1r. ..... ... . . .. ~ .~ .r~ .. ::-: .... ~ .4:-...... .

2

3, 7. Please furnish chronological particulars of your mcmbcrship of Icgal

organi7.ations - Past and Prescnt.

Name of orgall/~"(lllolI POSilioll held Period

CfiP{······~AiC········· ··M;tM~···············1.,~·:··ii>ih······t;···J/r1£

((o·til>;~······~ii···4tt[.··········~··················· I 4··~· ·it····· ·:.:r~ ······lJlI1~ fI ./ ... ... ..... ~.t. . .. ....... .... ... .......................... ... ......................... ... .. (' IJ~{L o.~ .... l{~.0.!.!~ ... ~ .~.w. ........ ~. .... .. .. .1 .• :.~ .. ? ...... 1.~ ....... I./t1~

8. Please fumish particulars of your membership of any political organization - past

and prescnt

Name of orgallisalioll Posilioll held Period

·········('{ ·iC··:··· ······· ···

9. Please furnish particulars of community and othcr orgalli~.ations of which you arc

or have been a mcmber in thc past ten years .

.... J) ...... .. .................................................................................... . «PtI<..Ja? IN CV . ....... .... ..... ... ........... ........ ...... .... .... ...... ..... ... ... ....... ..... .. .. .......... ....

3

.

10. Are you now 01' have you ever been a member of a s~'Cret organization?

(Indicate with an "X")

If so, please identify the organization and the dates of membership.

11. Is there anything about the state of your health which should be disclosed to the

commission? [YESJ~ (Indicate with an "X'')

If so, please state.

······Ti.{' ·········· ··· ·· ··· ····· · .. ····· ·········· ····· ......... ... ..... ....... .. ....... ....... . . \ L.- .

4

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SECTIO 2: LEGAL BACKGROUND

I. Please outline your entire career in the law giving an indication of your principle

arens of legal interest and involvement.

....... ·t\S········ (lik'''' ·tJ':··· ... : ........... ....................................... .

2. If you have any publications in the field of law please list them and identif), those

which YOII regard as most significant and state shortly why you regard them as

significant.

········A·~······· ··P{((;·· ····'CJ·· .. ·············· · .. ···· ............................. . .

3. III regard to major publications indicate by whom they have been reviewed .

...... N ·0/.········ ([;;J~~.:;j ............................ .................... .. ......... .

4. If any of your writings have been cited in judicial decisions please identify those

decisions and indicate whether the citing was with approval.

· .... ··No·'{·· .. · .... \C;.;·o·:;;;.;·L·o·l~···l';w .. ·1(~ .. ~rii(ir(t.dJ ........................................................... ...... .. ............................. . .....

5

... ~.? .. ~ ... .. 1.1. !.~~ . .!.: ....................... ... .... .. .. .. ..... .................. .

5. If you have any publications outside the lield of law please list thcm.

NI£.... .

5.1 In regard to thesc publicat ions plcasc indieatc by whom they have been

reviewed.

::::::::::~?c::~~~«~~<::::::::::::::::::::::::::::: : : :: : ::: :::: ::

6. Court expericncc

6.1 Do you appear III

(lJldicate with an "X")

Please give details.

court [2,cn'ly I Occasiolk111y I Not at all I

: ::::::::~:::::::::P.l!'::::::::(v..::;:::::::::::: : :::::: : :::::: : ::: : : : :: : :::::::

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6.2 What proportion of your litigation work has been in the field of:

6.2.1 Criminal law Cv· 6.2.2 Administrative law

6.2.3 Conslilutionallaw

6.2.4 Labour law

6.2.5 Other areas of civil law (spccify the general ar(.'lIS involved e.g.

personal injury, tax, shipping, intellectual property, divorce, ele.)

6.3 Which cases in which you have appeared (not morc than len) would you regard as

being the most significant and why?

7

7

.... , ... ... .. ...... ... .. ....... .. ...... .. ................................................ .. ....... .

6.4. List all the reported cases in which you appeared as instructing attorney. - ---:: :h~~f::::~:~:::::f.~~:~~;~:::::IYt.:::::~::::fjf.1.~F.yi{~t::

6.5. In rcgard to any of the said reported cases, which do you regard as having the

most significance and why? (Deal with not morc than tell cases)

:: ::::::::::::::::::: :::~::I:f.1-::::::::: :::: : ::::: :::::: : ::::::::: : ::::::::::::::::::::: :: ::::::

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7. Apart from )'Our praclice as an advocale or allomey or )'Our employmenl in the academie

world, have )'Ou been involved in any aclivilies having a bearing on your legal experience

e.g. as an adviser 10 a eommunilY law centre or advice onice, silling as a commissioner in

Ihe small claims court, organising, or addressing legal conferences, ele?

(Indicale wilh 8n "X")

If so, give full delails including dales and Ihe nature and exlenl of )'Our involvemenl.

/.v\if&i···· ·· ·/· · · ·ft·~r~Al>···· · ~{V"···t[~·q·;T~··'Z;O·{ 0 ) ;.1 ...... ...... ... 9..1. ........... ... .... \ ..... .. .... ...................... ... .. ................. .

6O;,;:f:.:;5~·(·~·;;~· ..... Sf!··· ·W··u:f1jIfM···· ·UJIVtf+"'5si~ ;:;·· t rr r b -~Ob) .. .. ... ............. .... j ... ................... .............. .... .. ......... ............ .......... .

··~U;·(f~or;· · · ·····fM'I·· ····· ~,&t·i,:.····fl{t·~irmj(··· · · ··· i1'12. --.. ~~ ... ... PFM.~) .. ...... .......... .. ...................... .. .. .......... ...... ... L .... . .... ........ .... .. ............. .. .. ......................... . .................................. ... .

f\llft;I<Wt~~ · ··· 0 f· ···· i~·1t&· ;,:.;ti.i;Jm;··· ··· C(j /Vi NjidlJ.:i·/'iC-.... ........ ............... ...... ....... .. .... ... ................... ) ........ .................... . ..... ~~.~ ........ c..~ ... :1.q .......... ~1'1( .. : .............. .. .......... .

8. Havc you any relevant judicial or quasi-judicial experience c.g. as chairman or a

member of a cOlllmission of cnquiry, or any type of disciplinary board?

(Indicatc with an "X")

If so, please givc full dctails of such experience including datcs.

f~ii~, t} ;;;:~ .• :;F;;jf '! i 'iit .• 5(; )OJ(/o: ..... 1'1 ~S ·. W I 1'/

'!~:~:~0.r : : :::: :M:~:::: ;p~:$. :~;:!.~~:?:ij®: :::::::0.:~~:':!.!.~ .NJji<,\d(.;L ...... . ~ ....... li .9<atL .. ... ..... ai/(~o.t:.. ...... . .. .. . .... .. ... . . .... ... .. . ..... .. .... . ... .. ... . p. .... .... ... ... .. /'1 .. ..... .. ............. ....... .

9

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8.1 Have you aetcd as a magistrate? (indicate

with an "X")

8.1.2 Whenwcre you appointcd as sueh?

.... \iJ '1' ~r ~ij\k " .... ... ....... .. .. ............... ...... ...... .... .. .

8.1.3 In which district or regional division have you so acted?

8.1.4 Please give details of your main fllnctions and duties.

... .... ...... ... .... ..... .. -a .... ... ... ... ...... ....... / ................ ..

... .. >0."~.~ .. . .Q.r..r~~ ... ... ~.<:!~.~ .... .. ... ...... ... ..

(-'{f di:; .... '1'\' C;>i'S1!twC[" . ((Vj rJbrwI iI1 (1)" ... .

8.1.5 [f not already fllrnished above, please give full details of your

experience as a magistrate including datcs of postings .

... ........ , ............... . ... ....................... .. ... .. .. .. ...... . , ....... .

9. [fyou have sat as an actingjlldge:

9.1 In which division were YOII appointed?

··· ··w· .. ·1~· ··· · ·· ··l(· ···· · · · · ·· · ········ ·· ·· · · ······ ...... . : .. ..... ... . ........... (!.; .. ............ ~ .. .... ........ ... .... .. ................ ...... ... .... .. .. .

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9.2 Please give Ihe dales of your ap!X1inlmcnl.

... ~.~ .. ~ .. \ ........ ~ . ~.~.? ....... ~?.~ ....... ~~~ .. ........ .............. .

9.3 Did YOll sil in bolh civil and criminal courts? [y?(] NO I (Jndicale wilh an "X") Please give delails.

··v~li;m · ··w~"l/j/ .. ·· ·;.:.· ·····Mo·0L\1·······opfis®··········

::::::M.:~i!:~~:r::::: : :::: ::::::::::::: ::: ::::::::::::: ::::::::::::::::::: : ::::::

9.4 Have any of your judgmenlS been laken on appeal? --L:....~'--'

(Indicale wilh an "X") Whal was Ihe rcsull of Ihe appeal'?

S;"'fiiL"'~"'i" "'~"""~'~"~~'C(;C~YP~":"" ......... .. .......... ..... .... .......... ..... . /- ... ........ .. ...... .. ........... ........ .

o~·r···dJ~MA~f····hPPiHC{i:o·NAitwir· ··· "\jf;L~t,f) .

9.5 Plcase lisl any reserved judgmenls slill oUlslanding and Ihe dalc(s) on

which judgmenl was reserved.

· · ·· · ·lv·~·;if····:· ···· ······························ ............................. .

10. Whal would you regard as your mosl significant conhibution to Ihe law and Ihe

~NUiI1J~1~oullt{'ft;~ I) ~~\ 0 rV CA of Wo(/~ i\~9· ·· ·,.~··· · Np~·~········;:/···(};rjj50·;;;iit···iVih·r·16;A· · ··5W'f}-1-1 wiJ ··~·~······W········f.· ·········· ········:······· ··· ··T .................. /......... 41 I

··············0$· ······ ·S· .. i\·············(\·Qk~;·;J·~····· afS········.·· · ······· · ···· ··· ················ ·· ··········1······ ·· ···· ···· ·· .. ....................... !$) ........... .. . .

I1

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1.

... ... ... .... . ... ... . ................ . ...... .. .... .. ... .... . ..... .... ... .......... .. ....... . .......

... .. ..... ....... ......... ..... .......... . .. ...... ........ . .... .. ............... ..... .. ............

SECTION 3: 1/11 ANCIAL AND PROPRIETARY

Pleasc list ·all directol"ships you hold and othcr intcrests in businesses which you

havc hcld in thc past tcn years.

::~):t;: : .:::: ::: :::f.0.f:?~~ :~::::0'!!~:: : :::F.~~:0.0.::::::i:i'!~~t.M0fi'J ......... O(l( .. ~~., .... ... ......... ........ ... ....................... .. .. .. ... ........ .. .... .

2. What steps do you propose to take in regard to your direetorships and plivatc

business interests if you are appointed to the beneh? .. .. ... ·l't·t .(f:!.:. .... ... ...... ........... .. ... ... ... .......... ... ...... ....... ... ........ .... .. . ....... ....... . f.~ ... ~ ............... ....... .. .. .......... ... ... .. .. ...... ..... ............... .. ..

.. .... ... .. ...... .......... ....... . ... ....... ... . . .. .... .. ..... ........ ..... . ................ .. ....

12

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SECflON 4: GENERAL

I. Arc there any circumstances, financial or otherwise, known to you which may

cause you embarrassment in undertaking the office of a I YES I~ judge? (!Jldieate with an "X")

If so, please furni sh particulars.

2. Have you ever been convicted of any offence involving dishonesty, violence, or

3.

allY other disreputable, dishonourable conduct?

(Indicate with an "X")

If so, please furnish full particulars and dates.

Has any legal professional body ever found you guilty of any unprofessional or

disgraceful I YES ~ conduct? (Indicate with an "X")

If so, please furnish particulars.

4. Is there any other relevanl maller which you should bring to the allcntion of thc

I YES IN 13

1'2 ,'-'

(

conmlission?

(indicate with an "X")

If~o. pi case fumish particulars.

:::::: : :::: :: :: :~ :rlt::~::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

..... .. .. .......... . .... . .. . .............. ....... . ... . ... .. .. .. . .. . .. . ...... ........... . ....... . ...

Ig-· 1\ ·11-DATE

14

I. 2. " .> .

4. 5. 6.

7.

8.

9.

10.

11.

12.

13.

NOMI ATION - JJ GA TLETT se

General

Completed questionnaire Certificate of Good tanding Letter accepting nomination Curriculum vitae Letter dated 28 January 2010 by fonner Judge President Friedman Letter accepting nomination dated29 January 2010

List of reported decisiops

List of reported decisions

Lcsolhoj examples

Law Reports of Commonwealth: ([2004) I LRC (Const) 550): reponed judgment in Sole v Cullinan

Law Reports of Commonwealth ([2004J 3 LRC (Const) 50 I: reported judgment in Sole v R

Minister of 1.<1bour v Ts"Euoa [2008] 3 All A 602 (Lcs CA)

MOlwau v R ([2005)) 3 All SA 90 (Lcs CA)

TSCpC v Independent E1ectorftl Commissioll and Others LAC (2005-6) 170

l3ajtSOk61j v Maseru Citv Council LAC (2005-6) 85

I - 14 15 16 17 - 34 35 - 36 37

38 - 67

68 -79

80 - 99

100 - 104

105 - 109

110-131

132 - 140

Western Cape: examples

14. Dclfalltc v Delta Elcctrical Industries Ltd 1992 (2) SA 221 (C)

15. Abrahams v RK Komputcr SDN /31 ID 2009 (4) A 192 Cl

16. RAM Intcmalional Transport (Ptv) Ltd v KLM Airlines

141 - 147

148 - 154

155 - 195

CURRICULUM VITAE

J EREMY JOHN GAUNTL ETT se

1 . Judicial and adjudicative experience

Judicial (or other relevant) experience comprises the following :

(a) Judge of Appeal of the Kingdom of Lesotho (March 1997 to December 2010). In this period a member of the Court of Appeal in the hearing (usually during the April and October court vacations in South Africa each year) of approximately 180 appeals, ranging from constitutional and administrative law to commercial, family, labour and criminal law matters. Wrote the judgments of the Court of Appeal in about 50 - 60 of these matters, reported in the Lesotho Appeal Cases (some also selected for reporting in the Law Reports of the Commonwealth).Three examples included.

(b) Acting appointments on the Cape High Court in 1991, 1993, 1995, 2004 and 2008 (giving rise to five reported judgments) . Two examples included.

(c) President of the Court of Appeal of the University of Cape Town (1993 to 2007).

(e) Appellate Commissioner in the Special Income Tax Tribunal (1994-1997) .

(f) Member of the Commercial Appeals Panel of the Association of Arbitrators of South Africa (1997 to date).

(g) President of the Labour Appeals Panel of the Association of

Arbitrators of South Africa (1 998 to date) .

(h) Appointed (with Lewis Skweyiya SC) to co-chair the board of inquiry into the appointment and conduct of the Deputy Vice­Chancellor of the University of Wit waters rand (1996).

(i) Arbitrator of the national health workers' strike dispute (NEHAWU v Transvaal Provincial Administration) (1993).

(j) Arbitrator from time to time in commercial and administrative law disputes, both at first instance and on appeal panels. One example of an award (in the KLM diamond and bullion heist matter) included . Appointed in 2007 as international arbitrator for lATA (International Aviation Trade Association) in Geneva and for the International Commercial Court in London in 2010.

2. South African Bar leadership

Served as a member of committees, disciplinary committees and the GCB's standing legal education, parliamentary and human rights committees between the mid-1980's and 1997.

Elected to two successive terms of office as chairman of the Cape Bar Council and President of the Cape Bar (1997-1999).

Served on the national executive of the GCB.

Elected to th ree successive terms of office as chairman of the GCB (1999-2002) . Participated in initiatives intended to address internal divisions and transformation needs. Co-author of GCB's three-volume submission to TRC. Raised funding for local and national Bar scholarships; placement opportunities for young practitioners at London, Paris and New York Bars; national colloquium with other professional bodies, judiciary and government; co-ordinated litigation involving challenges to the GCB by the Competition Commission and the Independent Association of Advocates; involved in pro bono, revised pupillage and revised professional rules initiatives.

Participated in the negotiating and research process (1999 to date) regarding contemplated new legislation for regulation of the legal profession . Attended numerous meetings with other professional organisations and other involved parties. Prepared draft proposed GCB Bill through six drafts (2000-2001), and thereafter served as a member of

I~