Justice Christopher Nyaole “Chris” Jafta
“In terms of the importance of one’s role as a judge, I think the Constitutional Court rates higher than the other courts. Which brings with it much responsibility and pressure, because whatever you do in terms of deciding cases, you know that you are the last stop. If you make mistakes nobody’s going to correct those mistakes.”
Justice Christopher Jafta started his illustrious career as a court interpreter, then a lawyer, then a judge on the Supreme Court of Appeal and is now a sitting judge of the Constitutional Court of South Africa.
Early Life and Career
Christopher Nyaole Jafta was born in 1959 in Matatiele in the Eastern Cape where he did both his primary and secondary schooling. He earned a BProc and later an LLB degree from the University of Transkei (now Walter Sisulu University) in 1983 and 1987 respectively.
[During my schooling year] there were people who were sort of linked to the ANC (African National Congress) underground, who’d give us awareness lectures of what was happening in the country then, and there had been stories about the death of Steve Biko, and thereafter there was an inquest, which had to determine who was responsible for the death of Steve Biko. And I was attracted to seeing how the lawyers were reported to have stood up against the government, against authority, in pursuit of determining what actually happened to Steve Biko.
Christopher Jafta
Justice of the Constitutional Court
Jafta started his career as a court interpreter in 1983. He was appointed as a prosecutor of the District Court at the beginning of 1984, and was there until December 1985 when his authority to prosecute was withdrawn by the Attorney-General at the insistence of the then Security Police. He was demoted to the position of Administrative Clerk.
In July 1986, he was appointed a magistrate, and in February 1988 he resigned and joined Mbuqe and Mbuqe, a firm of attorneys, as a candidate attorney. In August 1988 joined the University of Transkei as a lecturer where he taught Commercial Law and Constitutional Law. In 1992 he did his pupillage at the Johannesburg Bar and subsequently commenced practice in Mthatha in January 1993. His practice focused mainly on labour and constitutional matters.
I went to Mqanduli, where I became a clerk. (laughs) You can imagine from being a prosecutor and to being a clerk, and filling up forms. But they didn’t know that one could use that to the advantage of those who were denied access to documents, because they used to issue what they called travel documents, which were recognised in Lesotho, Swaziland and Botswana, and those were the countries through which those who wanted to join the ANC in exile would go through. So we had a number of applications coming in and I was the one who would approve them, and people would get their documents and leave the country. So I took solace in that because I was being helpful to those who required documents to leave the country
Christopher Jafta
Justice of the Constitutional Court
In 1997, Jafta was appointed Acting Judge of the High Court (Transkei Division) for four months. In January 1999 he became Acting Judge of the same division and was in this position until November when he was appointed permanently. In June 2001, Jafta became the Acting Judge President of the Transkei Division, and in June 2003 he was appointed Acting Judge of Appeal at the Labour Appeal Court. He served in this position until June 2004. From June to October 2004, he was Acting Judge of Appeal at the Supreme Court of Appeal in Bloemfontein. In November 2004, he was permanently appointed Judge of Appeal at the same court.
Appointment to the Constitutional Court
In December 2007, Jafta was appointed Acting Justice on the Constitutional Court, and served in this position until May 2008. He was permanently appointed in 2009 by then President Jacob Zuma.
Well, basically I think from the beginning I didn’t think that I was ready for being a judge in the first place. I thought I needed to gain more experience before I could consider making myself available. But one got pushed because of the circumstances … Did it come as a surprise? Yes … When the opening came from the Constitutional Court, I jumped for it. That’s the only court where I was willing (laughs) to come to.
So you get to a situation where you build relations, which might be stronger than even your private individual family relations because these are the people with whom you spend more time. These are the people with whom you discuss difficult matters affecting the country. So it is quite rewarding in that sense because you know that you are in the company of people who genuinely give you advice or a suggestion on an issue, with which you would be comfortable.
Christopher Jafta
Justice of the Constitutional Court
Judgments of Interest
Makate v Vodacom (Pty) Ltd (2016)
Kenneth Nkosana Makate was employed by Vodacom (Pty) Ltd as a trainee accountant. In November 2000 he conceived of the ‘Please Call Me’ idea which allowed a cell phone user who had no airtime to send a request to a cell phone user who had airtime to call them.
Vodacom and Makate entered into an agreement that, should the idea become commercially successful, Makate would be entitled to 15% of the revenue generated by the product. ‘Please Call Me’ became a huge success for Vodacom, generating billions of rands in revenue since its launch in 2001.
Vodacom did not compensate Makate as per their agreement. The dispute made its way to the Constitutional Court. In a judgment written by Justice Jafta, the Court found that the contract between Makate and Vodacom was valid. Vodacom was ordered to commence negotiations in good faith with Makate for determining the reasonable compensation that should be paid to him in terms of the agreement. The parties were ordered to start negotiations within 30 days of the judgment.
The stance taken by Vodacom in this litigation is unfortunate … The service had become so popular and profitable that revenue in huge sums of money was generated for Vodacom to smile all the way to the bank. Yet it did not compensate the applicant even with a penny for his idea. No smile was brought to his face for his innovation.
Justice Christopher Jafta
the Makate judgment, 26 April 2016
Economic Freedom Fighters and Others v Speaker of the National Assembly and Another (2017)
This matter was connected to the Nkandla judgment. This time around, the applicants, which included the Economic Freedom Fighters, sought an order declaring that the National Assembly failed to put mechanisms and processes in place to hold the President accountable for failing to implement the Public Protector’s remedial action regarding the Nkandla project. They also sought an order that the National Assembly had failed to hold the President accountable for the same conduct since the Constitutional Court handed down judgment in the Nkandla matter. In addition they sought to compel the National Assembly to convene a committee to investigate whether the President was guilty of any impeachable conduct under section 89 of the Constitution.
The Constitutional Court’s judgment written by Justice Jafta relied on the principle of separation of powers and checks and balances. He noted the serious consequences of impeachment proceedings, which empower the National Assembly alone, by a vote of two-thirds of its members, to remove the President from office. A prerequisite for such removal was contingent on a factual enquiry into whether one of the three listed grounds in section 89(1) were present, i.e. a serious violation of the Constitution or the law, serious misconduct, and an inability to perform the functions of office.
Justice Jafta held that the National Assembly would, except in certain exceptional circumstances, be required to determine, as a preliminary enquiry before impeachment proceedings were being launched, whether one of the listed grounds for impeachment existed. The failure by the National Assembly to properly determine whether the President had breached section 89(1) of the Constitution was a violation of its constitutional duty in terms of section 42(3) of the Constitution, to scrutinise and oversee the actions of the executive.
To prevent one arm or sphere from exercising powers which belong to other arms, the Constitution adopted the principle of separation of powers. In order to prevent the abuse of power by those who hold office in the three arms, checks and balances were put in place. With regard to the President and the National Executive, these checks and balances are contained in Chapter 5 of the Constitution … Here it is just and equitable to direct the Assembly to perform its constitutional obligations
Justice Christopher Jafta
the Economic Freedom Fighters judgment, 29 December 2017
Family and Personal Life
Jafta is married to Nomviwo, and they have two children: a daughter, Kgomotso, and a son, Tshepiso.
In the Words of Others
Justice Jafta is a legal intellect though modest in his approach. His humility and respect for other people regardless of their age stand out for anyone who has been blessed enough to cross paths with him.
I learnt a lot from him. From his work ethic to his way of analysing legal matters and interpreting legal prescripts that has seen him write some of the difficult decisions the Court had to make. Whether writing the main judgment or dissenting he did so without fear, favor or prejudice and this principle I still carry with me.
Portia Motseki
former law clerk to Justice Jafta
