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Confidence? What confidence? Judicial Service Commission needs a massive repair job


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.

Last week the Judicial Service Commission in effect said to South Africa: Yes, we regard Judge Hlophe as unfit to continue as a judge, but no matter, let him run a busy high court for as long as he is able to employ Stalingrad litigation tactics.

The column I penned last week stimulated a rainbow of reactions. Some felt that it had painted an overly dystopian picture of South Africa and the health of its legal system. And, of course, there is justification for this view. After all, the majority of the Constitutional Court, albeit rather jurisprudentially impoverished at present, arrived at two important decisions. It confirmed the law of rescission of judgments in showing Jacob Zuma and his legal battering ram the legal door. 

Then it followed this up with a clear rejection of the Electoral Commission’s legally unsustainable attempt to postpone the local government elections.

In addition, the judgment that rejected Unisa’s language policy also came to the correct result, even as it raised questions as to the targeted audience for a judgment from the Constitutional Court. That, however, is a topic for another occasion and it would be churlish not to acknowledge the court’s assertion of diversity.

However, as with so much in the Ramaphosa era, it is a case of one step forward and then one step back. In this case, it had to be the Judicial Service Commission (JSC) that contributed to the dissonance. Somehow — its decision to find that Western Cape Judge President John Hlophe should be impeached on the ground of gross misconduct notwithstanding — it contrived and contorted to keep the very same judge in the office of Judge President of the Western Cape. 

It will not recommend suspension until the Hlophe application to set aside the JSC decision to impeach has been heard. Even if heard on an expedited basis, this outcome could take some months and then there is the certainty of appeals if Judge Hlophe loses his application. The compelling critique in an editorial in Daily Maverick on 25 September needs to obtain widespread support in that the malfunctioning of the JSC is a failure of a vital constitutional guardrail which, arguably, only civil society can hold effectively to account. 

So what follows is a further attempt to keep the focus on the JSC.

To illustrate the bizarre nature of the JSC decision, it is instructive to refer to the JSC Act of 1994. In the event that the JSC decides to convene a tribunal to determine a case of judicial misconduct, Section 19(4) of the act provides thus: 

Whenever the Commission requests the appointment of a Tribunal in terms of subsection (1), the Commission must forthwith in writing: (a) inform the President that it has so requested; and (b) advise the President as to: (i) the desirability of suspending the respondent in terms of Section 177 (3) of the Constitution; and (ii) if applicable, any conditions that should be applicable in respect of such suspension. 

Note that the JSC must so act. 

On the most spurious of legal grounds the JSC somehow has come to the view that Section 19(4) only applies at the same time that the request for a tribunal is generated — that is, before any finding of gross misconduct is made. However, on the basis that the JSC failed to act at the time of the referral to a tribunal, then it is not so mandated to recommend suspension to the president even though both the tribunal and the JSC itself have decided to refer the decision to impeach to Parliament. On this line, the JSC is mandated to consider suspension once there is a prima facie case of gross misconduct but, if it has not done so, there is no such mandatory requirement to consider a recommendation of suspension when it has decided that the judge has committed gross misconduct.

Leave aside that Judge Hlophe has yet to have a further charge of misconduct determined by a tribunal, which itself should have triggered a decision to suspend; the fact that the JSC considers that it must await a decision on the review application before doing no more than making a recommendation to the president means that a finding of impeachment is, in its view, met with less consequence than if a decision of a referral to a tribunal had been made. 

To the argument that the entire decision to send Judge Hlophe to Parliament may be set aside on review, the answer must be the same as with any case of suspension from employment or office: the suspending person is placed on garden leave and thus on full pay pending a final decision about a dismissal. 

By contrast, the prejudice to the organisation, in this case the judiciary, of leaving a judge who has been found guilty of gross judicial misconduct in charge of a high court should be obvious to a remotely reasonable person — its impact is to the great detriment of the legitimacy of the judiciary. In effect, the JSC has said to South Africa: Yes, we regard Judge Hlophe as unfit to continue as a judge, but no matter, let him run a busy high court for as long as he is able to employ Stalingrad litigation tactics.

The take-home point is the following: there is one rule for John Hlophe and another for the rest of the judiciary. 

The case of Judge Mushtak Parker bears testimony to this conclusion, as the JSC lost no time in recommending suspension from office once a decision had been taken to refer his case to a tribunal. 

Perhaps this Hlophe outcome is not surprising. Of late the JSC has made a series of questionable decisions. It has not adopted and applied understandable criteria for judicial appointments and in its dithering over the Hlophe case it has failed to vindicate the integrity of the judiciary. Yet the JSC is a critical institution and has a vital role if the weakness in the present judicial system is to be staunched. 

In evidence of its rank failure, in addition to its treating of Judge Hlophe as a platinum-class customer, is the inability to attract sufficient candidates for vacancies for the Constitutional Court. If both the abandoned interview that has to be rerun and the further two vacancies that have been advertised are taken together, the JSC will only have seven applicants to consider. As it is obliged to give the president a list of seven for the four vacancies, it will have to nominate all seven applicants. No one else has applied and one cannot blame a diverse group of judges who are, in the main far superior to the existing list, for not applying. An interview based on invective, political point-scoring and an absence of probing questions about a judicial vision for a transformed legal system, and the technical competence and temperament to be a member of an apex court is not likely to attract applications for office. 

The JSC will also be pressed into service in the process that will culminate in the appointment of a new Chief Justice. If it is to provide essential advice the JSC must consider three key issues. 

In the first place, there is the question of the intellectual vision of the new Chief Justice. Unlike the anti-intellectualism of the past 12 years, the three previous Chief Justices — Arthur Chaskalson, Pius Langa and Sandile Ngcobo were towering figures, each in his own way, and each promoted a transformative jurisprudence so that our Constitutional Court was regarded throughout the legal world as a leader in constitutional law. To the response that Chief Justice Mogoeng Mogoeng wrote the Nkandla judgment which showed his heroic credentials, it is all too easily forgotten that this was not a hard case once Zuma’s counsel had conceded the core legal issue in the dispute. Hence, to ensure that there is a return to the careful constitutional engagement of the first 14 years of the court, the JSC needs to probe the jurisprudential vision offered by the candidates whom it interviews. 

In addition, there is a mounting administrative challenge. Including the vacant post of Chief Justice, there are now five vacancies on the Constitutional Court. For some time now the court has sat with a number of acting appointments, which for an apex court is hardly ideal. The JSC is desperately in need of a chair in the form of the Chief Justice who can restore dignity to this institution and ensure that it is fit for constitutional purpose. To boot, most, if not all courts outside of the Constitutional Court are shockingly under-resourced as has been made clear by the public admission of the poor internet and email service with which the judiciary is confronted. 

Finally, the JSC should consider the temperament of the candidates to test who would best inspire public confidence and judicial collegiality.

Regrettably, it is unlikely, on its present form and composition, that the JSC will rise to this challenge. Hopefully, the advisory panel set up by the president will make the necessary contribution. That the JSC inspires so little confidence should trigger a considered debate about its future composition to ensure that substantive interviews take place as opposed to an exposition of populist politics and that the JSC performs its role as a protector and promoter of constitutional democracy. DM


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