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Judicial Service Commission hearings were a disturbing...

Defend Truth

Opinionista

Judicial Service Commission hearings were a disturbing show of intimidation, impropriety and indecency

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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.

A book could be written about all that was wrong with the conduct of last week’s proceedings. We ought to be alarmed.

One cheer for the Judicial Service Commission (JSC) following its recent hearings for the appointment of candidates to vacant positions on the Bench. The recommendations of justices Mahube Molemela and Fayeeza Kathree-Setiloane for the Constitutional Court and Judge Nolwazi Mabindla-Boqwana for the Supreme Court of Appeal are excellent decisions. These three will doubtless adjudicate on the highest courts with jurisprudential grace and legal acumen. The recommendations strike a massive blow for both demographic and intellectual transformation.

Sadly, that is where the reason for cheering ended. Both the conduct of the hearings and some of the appointments called into question the role of the JSC. A book could be written about all that was wrong with the conduct of these recent proceedings, but for the purposes of one column three issues must be highlighted.

The interview of Justice Dhaya Pillay was a disgrace

To be clear, Professor Balthazar agreed with the decision to leave Justice Dhaya Pillay off the list of five recommendations for appointment. But the EFF representative, Julius Malema, was allowed, without restraint, to pursue his hatred of Pravin Gordhan to a level where he cast completely unjustified aspirations on Justice Pillay’s ability to judge.

Remember, Judge Pillay is a judge of long standing, good enough to be successfully recommended for an acting stint on the Constitutional Court. She, as part of her judicial duties, is expected to adjudicate in the Constitutional Court and at the end of an acting stint in the high court.

How was it that Malema was allowed to attempt the total undermining of the legitimacy of a judge at a JSC hearing? Where was the recognition of the need to question candidates closely without defaming or egregiously undermined their continued credibility as sitting judges?

But instead of intervening, as previous chief justices at JSC hearings would, Chief Justice Mogoeng Mogoeng piled on the pressure by somehow, five years after the event, suddenly recalling a conversation with Gordhan from which the inference was drawn that Gordhan had sought to interfere in a judicial appointment. The minister has set out a detailed account of their meeting which gainsays any inference that is sought to be drawn concerning impropriety. The Chief Justice owes the public a similarly detailed account, as well as an explanation as to why, did he only after five years mention that Gordhan’s conduct was improper.

But the interview of Judge Pillay was not the only such instance.

Deputy Judge President Aubrey Ledwaba was subject to a similar excoriation because, for clear legal reasons, as he explained, he found in favour of President Cyril Ramaphosa and sealed the bank accounts of the CR17 election campaign. Joining in the prevailing discourse was the President of the Supreme Court of Appeal, Mandisa Maya, who asked Judge Ledwaba whether he was a corrupt judge. Now to be fair, Judge Maya may have been seeking to protect Judge Ledwaba by affording him an opportunity to respond to what obviously was a smear campaign against a fine, independent judge; but why ask the question in an atmosphere where it appeared, to this observer at any rate, that the JSC had been taken over by the EFF and the Zuma wing of the ANC so that unsubstantiated allegations against judges who found against them were being made ?

This leads to a further implication which is disturbing.

Given the treatment suffered by judges Pillay and Ledwaba, any judge who has ambitions of higher judicial office may ponder the consequence of delivering a judgment that the EEF/Zuma wing regard as antithetical to their interests, no matter the obvious legal justification for the finding. As a further illustration, although claiming reluctance to ask the question, Malema asked Judge Elias Matojane as to how he had awarded R500,000 in damages to Trevor Manuel in his case against the EFF. That the question by a litigant to a judge who heard the litigant’s case can be asked at a JSC hearing without being ruled out of order is truly mind-boggling.

A further problem was the continuation of the attack on the so-called top six (whoever they are) of the Supreme Court of Appeal. If there is a case of bullying of a junior judge of appeal, there are JSC processes to deal with such behaviour. But to continue to pursue in public what appears to be a vendetta against a court whose output compares more than favourably with that of the Constitutional Court, at hearings designed to determine suitability for appointment, serves no other purpose than to undermine the legitimacy of an important court in the eyes of the public.

The refrain that white candidates should not apply as there were more than competent black candidates

That demography is a critical factor in judicial appointments is clear. But so is a commitment to ensuring that the constitutional vision is converted into a reality for millions of South Africans living on the margins and for whom constitutional commitments have to date done very little. Hence, while race and gender must be considered by the JSC, that body should also ask the question: judging on the candidates’ record, legal philosophy and answers to relevant questions, which appointment will promote the betterment of millions who are in need of a jurisprudence that can help change the lives of these South Africans, the overwhelming number who are black?

That identity is not a guarantee for such results is clear from recent history, when the corruption of state money that should have been employed to better the lives of those most in need, knew no racial characteristics. That is, the rent-seeking cohort was composed of both white and black crooks. The simple point is that a sustained record that indicates the commitment to social and economic change is important such that identity alone cannot be the sole criterion for judicial appointment.

While some members of the JSC may hold to this view, section 174(2) of the Constitution dictates otherwise.

The hearings over the past week may well herald a real threat to the non-racial constitutional idea, the foundational principle of judicial independence, and the development of a jurisprudence that starts with concern for those most vulnerable. And on the latter point, in many cases concern for demography does meet that commitment, as is evident in the three distinguished women recommended for promotion. But that does not excuse the race essentialism that now dominates the JSC.

And, in a final note, South Africa must truly be blessed with huge pools of searing legal talent when it can afford to reject judges Owen Rogers and David Unterhalter, two jurists who would grace any apex court in the world! DM

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All Comments 14

  • The day has to come when malema will cry foul at a judgement & blame this on bias because of his poor show on the panel. I cannot wait to tell him the others on the team do not have corruption problems because they never around corruption. Glad about black judges. Now no race cards can be played.

  • Malema is a festering cancer on the SA body-politic. A racist, vacuous, corrupt and vile bully who should not be serving on such a commission. He is so compromised, so biased, so hypocritical, so full of hatred that it beggars belief! SA is on a slippery slope with evil characters such as him.

  • Nice article, I learnt a lot. It seems the Chief Justice is losing the plot? Gonna be good to see how he turns out. Regarding Mr. Malema, what is their to say? He remains a deeply hurt, sometimes brilliant, mostly appalling individual. He hangs around the edges of importance, craving recognition.

  • Boggles the mind that someone, who is himself, currently facing a number of charges is allowed or permitted to be involved in this JSC appointment process. He is a well known self serving opportunist, with no regard for anyone but his own survival. How did it happen? Is it EFF “pick a judge day”?

  • I understand that an experienced legal mind would not wish to say this — to my non-legal mind the worst disappointment of the JSC hearings is that South Africa’s Chief Justice is such a lightweight, in every way.

  • “Balthazar is one SA’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.”

    Poppycock!

    How can one evaluate an unsubstantiated claim of legal foremostness?

    How does it justify opinionated anonymity?

    Interfere? How?

    Out of the shadows, sir.

    • Why not engage with the subject matter, not compelling enough? I guess for some of us the credentials, thereby the name of the author serves to either validate or invalidate the argument. The author takes the risk, you’re the coward.

      • Others had engaged compellingly and comprehensively with the substance.
        Balthazar’s repeated “foremost legal mind” byline bio is also legitimate subject matter.
        Interfere? How?
        Foremost legal mind so anonymous? Why?

        PS I went anonymous to emphasize my point.

          • Interesting discussionincluding the preceding “Julius” one (answer: nope).
            No-one is addressing the substance.Why anonymity for a “foremost legal mind”?
            Precisely what “interference with daily duties”?

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