A legal advisor and trainer for the Baptist Church, one of Judge Ashton Schippers’ high court judgments has been used to preach a pro-Jacob Zuma gospel by myopic supporters of the former president of South Africa.
In 2014, the Democratic Alliance opposition party sought an urgent interdict in the Western Cape high court in Cape Town to compel the South African Broadcasting Corporation (SABC) board to suspend the corporation’s chief operational officer, Hlaudi Motsoeneng. Their application was based on the findings and proposed remedial action of then public protector, Thuli Madonsela. Schippers found that the findings and recommended action proposed by the public protector were “not binding on persons and organs of state”.
This judgment was used by the Zuma-ites to argue that the former president did not have to pay back portions of the approximately R240-million of public money spent on his private residence in rural Nkandla, as Madonsela had recommended in another report, Secure in Comfort.
Schippers interpretation of Section 182 of the Constitution, which dealt with the role and powers of the public protector, was based on the view that if the public protector’s findings and proposed remedial actions were binding, “the Constitution would have said so”, explicitly.
In his ruling Schippers underlined the caveat that despite the remedial action not being binding, these were not mere recommendations to be ignored. Government would have to provide rational reasons for ignoring the recommendations, Schippers wrote. In the matter at hand, he decided that former communications minister Faith Muthambi and the SABC board did not provide any grounds, “let alone rational grounds” to reject Madonsela’s findings and remedial action that Motsoeneng be suspended.
The Supreme Court of Appeal confirmed Schippers ruling that Motsoeneng be suspended until an internal disciplinary hearing was concluded, but found that a public protector’s report and proposed remedial action were binding on persons or organs of state. A reading of the Constitution that Zuma finally acknowledged, in a late climbdown, and after spending millions of rands of public funds arguing otherwise in courts and in parliament, in the Constitutional Court in 2016.
While mindful of the separation of powers, Schippers is of the view that the doctrine and related “judicial deference” must also be understood “in the light of the powers invested in the courts by the Constitution”.
To this end he set aside the department of home affairs 2012 decision to close down the Cape Town Refugee Reception Office in Cape Toewn when the matter of Scalabrini Centre, Cape Town and Others v Minister of Home Affairs came before the Supreme Court in September 2017. The rest of his colleagues on a full Bench concurred.
Apparently an avid cyclist, Schippers has, since 2013, completed three long distance endurance cyclosportives through the Alps and Pyrenees.
He was nominated by senior counsel Vincent Maleka, who noted the “special attributes” that made Schippers “pre-eminently suitable” for elevation to the appellate court were “his industry and pursuit of justice”.
Schippers completed his B.Proc and LLB at the University of South Africa. He went on to complete masters in law at the University of Cape Town (company law and international law) and at Harvard University (Constitutional law, human rights law, international law, and negotiation and conflict management).
He completed his articles in 1986 and worked briefly as a prosecutor and magistrate before joining the attorney’s profession in 1989.
Schippers joined the Bar in 1993 and successfully interviewed for a position on the Western Cape high court Bench in October 2012. Speaking during that interview about untransformed briefing patterns skewed towards white male lawyers, Schippers told the commission how, despite being one of the most high-profile and well-regarded black silks at the Cape Bar, he was almost entirely dependent on briefs from the state attorney because private firms inevitably turned to white counsel.
April 2018 Interview Synopsis:
Sometimes questions at the Judicial Service Commission (JSC) meant to encourage candidates to delve into their background and the challenges they surmounted to get to the Bench, are handled with little subtlety.
So there was a surprise when Supreme Court of Appeal (SCA) president Mandisa Maya, who is usually elegant in her lines of questioning, noted that Western Cape High Court judge Ashton Schippers came from the Cape Flats and wondered aloud how he hadn’t ended up in a gang.
Schippers appeared unperturbed by the crass clichés and regaled the commission with stories about how he grew up on the tough streets of Bridgetown in a two-room home overcrowded by several siblings and, in addition, cousins who had nowhere else to live.
He told the commission he would have ended up in a life of violence, unlawfulness and prison-time before an early death, like his friend “John”, a talented gymnast and football player. But did not because of his family and religion.
Schippers attributed his rise, which also included several bursaries, to the steadying influence of his parents and the “grace of God”. He told the commission that his mother had taught him three things: to recognise God’s power, to pray and that “your character and not your circumstances define you”.
KwaZulu-Natal Judge President Achmat Jappie asked Schippers whether he would take his background with him to the appellate court if appointed. And if so, where his adjudicating would sit on the scale running from the “black letter” of the law approach of the SCA and the more “equity” focused approach of the Constitutional Court.
Schippers said judges were duty-bound to uphold the Constitution and if he did err, “ I err on the side of the Constitution… [because it] colours, shapes and infuses your judgments… If your lodestar is the Constitution then I don’t think you can go wrong,” said Schippers.
Schippers said that while he found acting at the appellate court a “very hard job” where the pressure was immense and demanded one “got it right”, he had enjoyed his time there.
According to Schippers the one essential attribute for an SCA judge was, that they remained “teachable”: “The day you have the attitude that ‘I have arrived’, you must hang up your robes,” he said.
He said it was important for judges to “fiercely” maintain their independence, to “apply the Constitution” and to “treat litigants and practitioners civilly” while retaining their “humility and teachability”.
Quizzed about a ruling that the public protector’s findings and recommendations were not binding — overturned by the SCA — Schippers reiterated that his starting point was that the public protector’s office had been modelled on that of the ombudsman and that he had provided the caveat in his judgment that rational reasons were still required as to why the public protector’s recommendations were not to be followed.
He said he accepted the appeal court’s judgment which showed that “the system works”.
On transformation Schippers said his “policy was to always empower black women” during his eleven years as a senior counsel. He told the commission that, aside from one instance when a white female junior was “foisted” upon him he had always practised with black male and female juniors.
Advocate Thabani Masuku commended Schippers for his mentoring and development work, saying that they had worked together and “as a black junior in Cape Town I found a brother in you.”
Schippers was successfully appointed to the SCA.