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SA judiciary under attack – from outside and within

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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.

Can we continue to be complacent about the legitimacy of the judiciary, in particular, and the legal system in general? A number of unrelated incidents over the past few weeks provide real cause for concern.

Let us start with Jacob Zuma and his continuing efforts to evade any accountability for State Capture. Despite more than 30 witnesses testifying before the Zondo Commission about his involvement, Zuma shows no intention of providing his version of events.

His Stalingrad legal strategy is alive and well. It now focuses on the integrity of the chair of the commission, Deputy Chief Justice Raymond Zondo. This is the same judge about whom Zuma, as president, lodged no objection when the Chief Justice appointed Justice Zondo to chair the commission and is the same judge that Zuma elevated to the position of Deputy Chief Justice. Suddenly, the same Zuma casts aspersions on the character of Justice Zondo as soon as the judge seeks to hold him accountable to the very commission that he appointed, admittedly most reluctantly.

We must always remember that the nefarious rent-seeking and widespread corruption that dominated a decade cost South Africa billions that should have been employed to transform the lives of millions who continue to live on the margins rather than be used to fill offshore bank accounts and purchase properties and fancy cars.

That the man who presided over the country during this perversity refuses to provide his version of events and instead directs ad hominem attacks against the industrious second-most senior judge in the country is bad enough. That it is aided and abetted by others who advise him and is given oxygen in the media compounds the disgrace.

But the Deputy Chief Justice is not the only target. In a lengthy interview given, admittedly, to a little-known media outlet, the Judge President of the Western Cape High Court, John Hlophe, accuses Chief Justice Mogoeng Mogoeng of rank dishonest conduct by ensuring that judges Patricia Goliath and Mushtaq Parker’s complaint would be lodged against the Judge President before the Judicial Service Commission.

The essence of the Hlophe accusation is this – the Chief Justice ensures that Judge Goliath brings a complaint against the Judge President on the basis of a fictitious assault by the latter on Judge Parker, whom Judge Hlophe now states has recanted. That a senior judge can accuse the Chief Justice of orchestrating a fake complaint is astounding, but it appears that not even so egregious an accusation against the most senior judge in the country is visited by any reaction. 

All in a day’s work!

And that leads to the depressing lack of accountability that exists generally within the legal system. Last week, that most commendable of publications, GroundUp, reported about attorney Lesley Ramulifho who is alleged to have stolen millions of rand from lottery grants that were intended for development. 

On the basis of the evidence presented by GroundUp to the Legal Practice Council, there was, at the very least, a powerful prima facie case against Ramulifho which required a proper inquiry by the council. But the response was that there was no misconduct. One wonders whether the council can let us know: if this case is not worthy of a disciplinary inquiry, then what would trigger an inquiry? The summary refusal to hold an inquiry in this case is a disgrace and confirms that, if this is the policy of the council, then accountability is almost non-existent in the profession.

Lawyers’ body lets lottery crook off the hook

Talking of GroundUp, it reported recently on the tardy performance of Judge Nathan Erasmus of the Western Cape High Court in connection with an excessively delayed delivery of a judgment. The ink was scarcely dry on the report when the Supreme Court of Appeal (SCA) rebuked the judge for yet another similar act of judicial negligence. When Judge Erasmus granted an order on 29 April 2019, reasons were requested by one of the parties. The rest of the saga is set out by Judge Ashton Schippers on behalf of a unanimous Bench of the SCA: 

The reasons for the order were given orally by Erasmus J — more than three months later, on 20 August 2019. The reason given for this delay was simply that for ‘some or other reason there were crossed lines’. The judge granted the parties permission to record the reasons given in court. This recording was transcribed and given to the judge to assist him in providing the reasons in written form, in accordance with rule 49 of the Uniform Rules of Court. However, the judge’s registrar enquired of the attorney representing the Pepkor entities whether the unedited transcript of the reasons could be circulated, to which they consented. Erasmus J did not furnish written reasons and the unedited transcript of the oral reasons, utilised in the application for leave to appeal, constitutes the reasons for the order issued on 26 April 2019 (the transcript).”

Yet again it is highly doubtful whether any action will be taken against conduct that reflects very poorly on the performance of the judiciary; indeed it calls into question the reliability of the statistics produced annually by the Office of the Chief Justice showing the extent of judicial efficiency. But you can take a safe bet — as with the other cases documented in this column, accountability will not be enforced.

Sadly, the principle of accountability and hence concomitant disciplinary action and concern for the preservation of legitimacy of the profession are distant cousins who rarely if ever meet. DM

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Comments - Please in order to comment.

  • Michael Matthews says:

    Please stop acting surprised by judicial incompetence. It is rife.

  • Dennis Bailey says:

    Do you think we didn’t know this, Prof? Question is, what now? Now that would be worth reading …

  • Louis Potgieter says:

    Zuma’s Stalingrad defence has probably ensured his liberty after all these years. That has cost the country no less than its future. (Let that sink in a minute.) Yet seemingly from a judicial perspective there is nothing to be done about that?

  • Gregor Liddell says:

    If you want to see international judicial gerrymandering, go and check out the Julian Assange case, biggest miscarriage of justice in the last century. And nobody knows a thing about it because the press, who were more than happy to publish his work, have now turned their backs on him.

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