JUDICIARY IN CRISIS ANALYSIS
When Indecency & Hatred came to town: It was Judicial Service Commission that brought politics, not the judges
Members of the Judicial Service Commission have sometimes used the judge selection process to fight their own battles in the past. But in the Constitutional Court interviews which happened this week, the process felt shockingly politicised — most notably in the grilling of Judge Dhaya Pillay by Julius Malema and worrying conduct by Chief Justice Mogoeng Mogoeng.
The bumper session of judge interviews being undertaken by the Judicial Service Commission (JSC) at the moment is playing out against a fraught backdrop.
They are taking place in the context of the circulation of a recording of ANC Deputy Secretary-General Jessie Duarte complaining that when ANC matters are brought before Gauteng Judge President Dunstan Mlambo, the party always loses — and it has to go to Judge John Hlophe’s court in Cape Town to win.
The JSC interviews are taking place in the context of the ongoing controversy surrounding Judge Hlophe, who has been found guilty of gross misconduct by the Judicial Conduct Committee, and who recently dismissed the corruption case against ANC MP Bongani Bongo in a highly questionable manner.
They are taking place in the context of former minister Sydney Mufamadi’s testimony to the Zondo Commission that during the Zuma era, the State Security Agency set aside millions to buy off judges hearing matters involving former president Jacob Zuma.
And they are taking place in the context of an imbroglio revolving around Chief Justice Mogoeng Mogoeng’s public criticism of South Africa’s relationship with Israel: comments for which he has been ordered to apologise by the Judicial Conduct Committee and thus far refuses to comply.
Little wonder, then, that there appeared to be tension in the air at the interviews to fill two vacancies on the Constitutional Court this week, with questions heavy with subtext.
“Is it your view that judges should only speak through their judgments?” Justice Minister Ronald Lamola asked Judge Fayeeza Kathree-Setiloane, in what was hard to read as anything other than a reference to the Mogoeng matter.
The Chief Justice himself, addressing Judge Rammaka Mathopo, solicited the candidate’s views on why “some of us have things written [in the media] about us as judges almost all the time, even lies”, while others are undisturbed by media scrutiny.
Perhaps most cryptic was commissioner Julius Malema’s question to Judge Kathree-Setiloane: “Can the Constitutional Court take away a fundamental right of an individual, such as the right to remain silent?”
“No,” replied Judge Kathree-Setiloane, clearly bemused by the question.
She added, with a slight laugh: “I don’t believe the Constitutional Court would do that.”
Malema did not elaborate, and the question hung in the air in a gnomic fashion. Until, that is, one read Zuma’s letter to the Constitutional Court this week regarding his refusal to appear before it — and realised that the right to remain silent was precisely the argument marshalled by Zuma to justify his non-appearance.
In the letter, Zuma’s lawyers criticised the apex court for violating the former president’s right to remain silent under Section 35(3)(h) of the Constitution.
In other words, Malema was using the JSC interviews to air Zuma’s defence.
And he wasn’t the only JSC commissioner engaged in this particular political project. ANC MP China Dodovu put it to Judge Dhaya Pillay that South Africa risked falling to a “judicial dictatorship” — another word-for-word crib from Zuma’s letter.
Zuma wrote: “I am disappointed to witness the degradation of our collective commitment to remain vigilant against any form of dictatorship, including judicial dictatorship”.
It was in the bruising interview of Judge Pillay that politics came to the fore in the most startling manner. Judge Pillay was required early on in her grilling to explain that she had presided over two Zuma-related matters: the defamation case brought against Zuma by former Minister Derek Hanekom, and a hearing for his corruption trial in February 2020 at which Zuma was a no-show.
On the latter occasion, Judge Pillay famously issued a warrant of arrest for Zuma as a result of irregularities in the sick note he presented.
She explained to the JSC: “The normal thing a judge does when a litigant fails to appear is to issue a warrant, and a judge has discretion whether to stay the warrant. And that’s exactly what I did.”
ANC MP Archibold Nyambi promptly accused Judge Pillay of a lack of “empathy” in how she handled Zuma’s purported medical issues, causing the judge to explain that the sick note had to be questioned because of “alterations” in it.
“It’s what I would do with any litigant,” the judge said.
Attorney Mvuso Notyesi turned to another matter, one straight from the ledger of Twitter conspiracy theories: was Judge Pillay a “prepaid judge”, one “whose name is on the CR documents?” (a reference to fake news about payments made by the Cyril Ramaphosa election campaign).
Judge Pillay replied that the only way to put such rumours to bed would be to set up a forum, institute some kind of inquiry, and “put up the evidence”.
All this, however, was merely the curtain-raiser for the real bout, which was Malema vs Pillay.
From the outset of his questioning, Malema appeared animated by righteous fury towards the judge, and he was allowed by Chief Justice Mogoeng to continue hammering her for far longer than should have been permissible — given both the time constraints of the commission and basic decency.
Malema’s first avenue was regarding the fact that Judge Pillay holds some shares in South African banks, yet has ruled on various bank-related matters.
“The banks have become a big problem in this country,” growled Malema, staring daggers at the judge.
“Banks win cases against us and judges have shares in the banks.”
Judge Pillay directed Malema to the register of judges’ assets, which she said would show that “many judges have investments in many institutions”, and informed him in any case that she had a reputation for “lambasting” the banks in court.
Malema’s next attempt: Judge Pillay’s relationship with Minister Pravin Gordhan. The judge had previously explained that they had a long-standing friendship, dating back to their days as political activists in Durban.
“The fact that [Gordhan] has been in government has never interfered with my work. He and I recognise boundaries,” she said.
Malema was not mollified. Seemingly thrumming with fury, he charged: “You are a friend of a politician called Pravin Gordhan who is alleged to have captured the judiciary!”
Judge Pillay remained unruffled, calling the claims against Gordhan merely untested allegations.
“I’ve made judgments against Treasury, against SARS… it’s never been a problem,” she said.
Malema would go on, bewilderingly, to accuse Judge Pillay of also having too close a relationship with President Zuma to rule fairly on his cases. He also hit out at the judge for having quoted former ANC president Oliver Tambo in the Hanekom v Zuma judgment — a decision Pillay had already explained.
She had told the JSC that she quoted Tambo due to her recognition that the source of the conflict between Hanekom and Zuma was a “problem that I was never going to be able to reach”.
Said Pillay: “I thought that if these protagonists won’t appreciate my judgment, then at least they must appreciate the utterances of their own leader. It’s something I do when I sense parties could benefit from some other input.”
Malema’s response: “I am going to argue in a closed session that you are nothing but a political activist. You are no judge, and you deserve no high office.”
Rather than censure Malema for this grotesque disrespect towards a serving judge, Chief Justice Mogoeng would shortly jump in afterwards with his own grilling regarding Judge Pillay’s relationship with Minister Gordhan — a relationship she had by this time discussed ad nauseam and, notably, at the expense of most other relevant topics, such as her jurisprudential philosophy.
Mogoeng, as has been well publicised, then delivered his own anecdote about Gordhan allegedly leaning on him in 2016 with regards to Dhaya’s judicial prospects — a claim Gordhan has strenuously disputed.
As many have noted, it is odd that Mogoeng has waited five years to air an event that ostensibly disturbed him so greatly. But the timing was superb for the EFF — which promptly announced its intentions to lay charges against Gordhan in the party’s ongoing feud with the minister.
And, to nobody’s surprise, Judge Pillay would fail to make the Constitutional Court shortlist announced after JSC deliberations the following day.
It would not be surprising if the interview sent shivers down the spines of other members of the judiciary who will be called on, in future, to preside over matters involving current politicians. Under these circumstances, who would want to be the judge who finally sends Zuma to jail, or who rules against Malema and the EFF in some significant matter?
That is likely the whole point.
Early in her interview, before it had descended into a spectacle of political intimidation, Judge Pillay had addressed the question of why relatively few women make themselves available to the JSC to be interviewed.
“The risk of being accused of things that don’t matter”, the judge explained; the safety concerns for family.
Said Judge Pillay: “There are trouble-makers, detractors from our democracy, and we should stand firm if the judiciary is to remain a bulwark against a constitutional crisis.” DM