Advocate Dumisa Ntsebeza’s vitriolic criticism of retired Judge Ian Farlam and the Marikana commission brings not only the judiciary but the whole country into disrepute. In essence, Ntsebeza is saying judges have no honour. It is an insult not only to Farlam but to the whole bench and the judicial profession in general to suggest the judge’s impartiality and integrity are to be doubted.
The utterances by renowned advocate Dumisa Ntsebeza SC during the commemoration of the Marikana tragedy have shocked not only the legal fraternity, but also most fair and reasonable-minded people.
Speaking in his mother tongue, isiXhosa, Ntsebeza laid into retired Judge Ian Farlam and his report. Instead of playing the ball, he played the man.
The man who was one of the commissioners during the Truth and Reconciliation Commission, led by the Archbishop Desmond Tutu and Alex Boraine, seems to have been embedded instead of being impartial.
Ntsebeza opened his statement by rubbishing the credibility of the report and then went into specific details on what, in his opinion, should have been covered by the report. In addition, he poured scorn on the omission of the issues he deemed pertinent and on the manner in which certain events were interpreted. In essence, he said that the report was not worth the paper it was written on.
He further went on to attack the credibility of the judge by insinuating that:
It is my well-considered view that Ntsebeza has indeed not only put the judiciary but the whole country into disrepute.
Given the his stature in the legal profession and in the business world, surely it is incumbent upon him to be circumspect.
In essence, Ntsebeza is saying judges have no honour. It is indeed an insult not only to Farlam but to whole bench and judicial profession in general to suggest that the judge’s impartiality and integrity are to be doubted.
I join the Presidency in the shock and outrage as expressed in its statement, in which it correctly question the timing of Ntsebeza’s outburst long after the commission has not only completed its work but has submitted its report to the president. Indeed I concur with the Presidency that Ntsebeza has shown a lack of respect and callous disregard for the decorum we have come to expect from the members of the legal profession.
In addition, Ntsebeza has also undermined both the president and his office by insinuating that the appointment of Farlam was nothing more than the machinations of Zuma. He is actually saying the president is appointing cronies and puppets in such national cases. This cannot go unchallenged.
The current correct legal position is that:
One hopes Ntsebeza is embarrassed that it was necessary to point out what he ought to have known as articulated here.
It is not clear why such a senior person in the legal profession would commit such a blatant transgression. Could it be that Ntsebeza thought that by making the address in isiXhosa he was limiting his outbursts only to the vulnerable mine workers who were gathered on the open field?
Or could it be that Ntsebeza was trying very hard to save face for not delivering the outcome he might have promised his clients? Or could it be that he wanted to give hope to his clients so they keep him in their payroll? Indeed his motives need further investigation.
The fact that the Farlam commission has no record of Ntsebeza’s objection at any stage of the commission and the enormity of the potential impact on our justice system and the credibility of the office of the president should indeed lead to a probe of whether he is fit to hold his office.
Equally sad but not to be unexpected was a message of support for Ntsebeza’s vitriol from the Economic Freedom Fighters. which in its desperate attempt to increase its dwindling support base never misses an opportunity to be populist.
There is no doubt that an advocate of Ntsebeza’s seniority was aware of these legal principles. He represented his clients at the Marikana commission from the commencement to the end. There is no record of his clients having applied for Farlam to recuse himself.
In his statement, he does not say that he advised his clients to apply for Farlam’s recusal nor does he say why he did not do so. His conduct was improper and should be investigated by both the Johannesburg Bar and the Judicial Service Commission, of which he is a member. DM
Faith Muthambi is communications minister.
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Faith Muthambi is Minister of Public Service and Administration. She is an admitted attorney of the High Court of South Africa. Muthambi is also a member of the Black Lawyers Association and the South African Women Lawyers Association. She was also Whip of the Portfolio Committee on Communications and served in the Standing Committee on Public Accounts. Now serving South Africa as the Minister of Communications.
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