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Legal system nearing meltdown: Time for action is NOW


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

The incoherence of South African economic policy, tepid growth and the inability to develop a plausible strategy to ensure a reliable electricity supply notwithstanding, it is arguably the state of key institutions that pose the greater threat to the generation of investment that can finally power the economy into a mechanism to deliver a dignified life for all who live in this country.

The Office of the Public Protector was designed by our constitutional parents as a critical institution to ensure efficient and corruption-free public services. The main defenders of the present incumbent are a motley group, all linked by allegations which, under a previous public protector would have been the subject matter of investigations.

As the possibility of a carefully calibrated investigation through Parliament takes place, the public protector is promising litigation, or a new Stalingrad chapter in the saga of endless abuse of the country’s legal system. The resolution of this problem will take a long time, thereby leaving this key office under a continuing cloud.

The one defence the public protector has articulated constantly is that she holds the equivalent of a judicial position and thus when her decisions are overturned, it is similar to a judgment being reversed on appeal. This argument is truly legal nonsense. For starters, decisions of judges are not subject to review, but only to an appeal. Second, were a judge to be found to have acted in gross bad faith, that judge would be liable to an inquiry initiated through the Judicial Service Commission (JSC).

Talking of the JSC, it too has a number of vital mandates, including holding judges accountable. Its record in this regard has hardly been impressive. According to a 2019 report by the JSC, at the time of this report, some 20 complaints against judges were outstanding. That the public has not had access to any further reports is truly a transgression against the principle of accountability.

Apart from the complaint against Judge President Hlophe that was generated in 2008, there is also the high-profile case of Judge Makhubele which according to reports has not been resolved. Unquestionably the complaint lodged by Deputy Judge President Goliath against Judge President Hlophe demands urgent attention. The complaint and the counter-complaint of the Judge President mean that the leaders of one of the largest courts in the country are at public loggerheads and thus in a dispute that has already drawn into the fray at least two other judges of the court.

The least that can be expected from the JSC is expedition. In practical terms that means the Chair of the Judicial Conduct Committee, who is Deputy Chief Justice Raymond Zondo, must determine whether he has received a complaint which, if valid, is likely to lead to a finding by the committee of gross misconduct. If so, he must refer the matter to the committee for it to consider whether it should be referred on to the JSC for investigation. It is then that the JSC will consider whether the matter must go to the Judicial Conduct Tribunal for a hearing and further whether a recommendation should be made to the president concerning the suspension of the judge who is the subject of the complaint, pending the outcome of the hearing.

This is the architecture set out in the JSC Act. The least that the country can expect if the JSC is to show true fidelity to the principle of judicial accountability, is that a timetable be complied with; the chair of the committee should give both parties 10 days to respond to the complaint and counter-complaint and then set down a date for a meeting of the committee within a week thereof. At the moment we, the public of South Africa, have heard nothing; small wonder then, the cynicism that the legal profession will do anything to bring this case to a speedy resolution.

And that brings this column to the third crucial institution, the National Prosecuting Authority (NPA). It is now a year since advocate Shamila Batohi took office as head of the NPA. It was obviously a huge assignment and one can only sympathise about the magnitude of turning so rotten and degraded an institution around. Equally, it is important to emphasise that to rush to prosecution only to bungle a high-profile case would be a disaster for the project of restoring the NPA to a coherent and credible institution.

But a year has gone by and frankly, save for many speeches by both Batohi and advocate Hermione Cronje about the degraded institution they inherited and a couple of prosecutions of mid-level Eskom employees, there is little indication that the NPA will institute decisive prosecutions in the immediate future. And time is not on the side of the constitutionalists; the State Capture brigade is clearly emboldened by their seeming impunity and if their project succeeds, the political context would probably mean that we would return to the sheep-like qualities of the old NPA.

Thus, it is critical that we hear less from the NPA of their problems and much more about the solutions. For example, if there is a clear lack of expertise to prosecute complex fraud cases, let the large law and accounting firms second experts, free of charge, and let the NPA brief some of the top-flight criminal law advocates at the Bar. The country cannot afford another year of speeches, however eloquent.

Simply put, all these institutions must now step up to the plate or we must change their personnel. It is that late in the day. DM


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