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:

• Judge Farlam was biased in favour of the government led by President Jacob Zuma;
• Judge Farlam was appointed to head the Marikana commission because he “sided with President Jacob Zuma” in the Supreme Court of Appeal case referred to in the statement;

• Judge Farlam “sided with President Jacob Zuma” and did not base his dissenting judgment on the facts before the Supreme Court of Appeal;

• Judge Farlam acted improperly when he “sided with President Jacob Zuma” and that the four judges acted correctly when they did not “side with President Jacob Zuma”;

• Judge Farlam acted improperly when he presided over the Marikana Commission because he should not have presided over it due to fact that there was a reasonable apprehension that he might be biased.

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:

• A practitioner who has come to believe that a presiding officer is or might biased is obliged to advise his or her client to apply for the presiding officer’s recusal. The Supreme Court of Appeal judgment referred to by Ntsebeza was published long befor Farlam was appointed. Ntsebeza must have been aware of the fact that Farlam dissented in that case. Ntsebeza should have advised his clients to apply for Farlam to recuse himself for having “sided with President Jacob Zuma” in that case if he honestly and professionally believed Farlam would be biased as suggested in his statement.

• A judicial officer who sits on a case in which he or she should not be sitting, because seen objectively the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution of the Republic of South Africa.
• The apprehension of bias may arise either from the association or interest the judicial officer has in one of the litigants before the court or from the interest the officer has in the outcome of the case. It may also arise from the conduct or utterance of a judicial officer prior to or during proceedings.
• The test for the recusal of a presiding officer is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all relevant facts that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court. Ntsebeza’s statement suggests there was a factual basis upon which this test could have been passed if a recusal was sought – otherwise he would not have made the statement.

• It is improper for any person to wait for an adverse judgment before complaining about the fact that the presiding officer might have been biased. It is even more improper and may even amount to gross misconduct on the part of a senior legal practitioner to accuse a presiding officer of bias outside the formal structures in which the relevant presiding officer does not have an opportunity to reply.
• It is not in the interests of justice for any person, in particular, a senior legal representative, who had knowledge of all the facts upon which a recusal may have been sought, to allege bias and improper conduct on the part of a presiding officer simply because the presiding officer has delivered an adverse finding.

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.