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Language and law – Is Public Protector Mkhwebane’s complaint against Judge Jafta fair law or lawfare?

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Public Protector Busisiwe Mkhwebane has lodged a complaint of misconduct against retired Constitutional Court Justice Chris Jafta with the Judicial Service Commission related to the 2021 ConCourt ruling on President Cyril Ramaphosa’s 2017 ANC presidential campaign.

I would like to focus on the use of harsh language by judges against litigants. Comments, appeals or reviews against cases decided by our judiciary have mostly concentrated on the legal and factual analysis made by the courts within their legal frameworks. Less attention or no attention at all has been on the language used by the courts in coming to their decisions.

The use of harsh language by the courts has not received much attention and challenges except in a number of cases involving the Public Protector, Advocate Busisiwe Mkhwebane. It is reported that Mkhwebane has lodged a complaint of misconduct against retired Constitutional Court Justice Chris Jafta with the Judicial Service Commission (JSC). The complaint is related to her harsh defeat in the 2021 Constitutional Court case regarding President Cyril Ramaphosa’s 2017 ANC presidential campaign.

Jafta delivered the majority judgment, which noted that there was no evidence that Ramaphosa had personally benefited from donations made to his CR17 campaign and also that Mkhwebane lacked the jurisdiction to investigate the campaign since it was not part of the complaints she was investigating.

Not only does Mkhwebane accuse Jafta of a lack of impartiality, but she also reckons that the language used by Jafta was harsh, discourteous and contrary to the dictates of court decorum. In her view, Jafta breached the Code of Judicial Conduct for being biased in his findings.

“It is my strong and humble submission that the complaint is justified on the basis that the majority court, particularly Jafta J, intentionally sought to prejudice me, was patently impartial and, in his erroneous judgment, used harsh language, a ground which breaches the code of conduct of the judges,” argued Mkhwebane in her affidavit filed with the JSC. 

In the background of all these headlines and the complaint by Mkhwebane against Jafta about the use of harsh language should be the question of an issue that the Public Protector is taking head-on: “Is there really anything in the field of legal decision-making where a judge or member of other tribunals are considered to have grossly misconducted themselves for using harsh language against litigants?” Has the court, in ruling against the Public Protector, been emboldened by personal spite and dislike of her as the incumbent of the Office of the Public Protector? What does the code prescribe as required conduct of the judges concerning language usage?

Before I specifically turn to the questions posed above, I need to point out here that Mkhwebane is essentially asking the JSC to order Jafta to apologise to her.

“Without imposing and prescribing the desired outcome, it is my considered view that the judge should be ordered to retract and render a formal apology to me. This is with due respect to the independent powers and functions of the JSC,” wrote Mkhwebane.

Interestingly, she is approaching a body that has previously on several discursive levels had commissioners not sensitive to decorum or refraining from harsh language. Yes, the important thing to remember is that two wrongs do not make a right. The JSC is constituted of representatives of the executive who cannot be expected to be legal in their discussions without resorting to political histrionics. After all, politicians can be drama kings and queens who follow a different language construction to make their conversational practices appealing to the public or supporters and to sound legitimate in political-speak.

In the defence of having recourse to the JSC, the JSC remains a key body that is or should be neutral, nonpartisan and credible, with the obligation to instil and maintain confidence in the judiciary.

Dealing with the issue of a fair trial, the Code of Judicial Conduct, which was adopted in terms of section 12 of the Judicial Service Commission Act 9 of 1994, article 9(b) stipulates that in conducting judicial proceedings, judges must:

  • Maintain order;
  • Act in accordance with commonly accepted decorum; and
  • Remain patient and courteous to legal practitioners, parties and the public, and require them to act likewise.

To recap, Mkhwebane argues that the alleged misconduct by Jafta is “an extreme violation of the judge’s primary duty to act manifestly impartially, as prescribed by the code”. The complaint also implied that Jafta lacked an acceptable sense of decency towards the core values prescribing “a standard that judges must uphold when executing their duties”.

Jafta had commented that Mkhwebane’s reasoning in one of the issues under discussion in the case was “not only devoid of a legal foundation but also reveals ignorance as to how information furnished to Parliament is gathered”. He also accused her of fiddling with the wording of the code by adding “deliberate and inadvertent misleading of the legislature”, finding that her alleged conduct “exceeded the parameters of interpretation”.

In layperson’s language, Jafta accused Mkhwebane of being disingenuous and approaching the matter with “predetermined outcomes” and being          “‘unduly suspicious’ of the person she was investigating”.

“The Public Protector’s report reveals that, on the facts placed before her, she accepted that the President did not wilfully mislead Parliament. This meant that he could not have violated the Code. The Public Protector then changed the wording of the Code to include ‘deliberate and inadvertent misleading’ so as to match with the facts … It is unacceptable that the Public Protector did what no law had authorised her to do,” said Jafta. It was also stated by the court that her findings against Ramaphosa were fatally defective.

Perhaps more eyebrow-raising was when Jafta questioned the competence of the Public Protector, particularly referring to what he called the nature and number of errors in her CR17 report.

“The nature and number of errors committed by the Public Protector here call into question her capacity to appreciate what the law requires of her when she investigates complaints, arising from the violation of the Code. This is surprising because the Public Protector is, by definition, a highly qualified and experienced lawyer. As required by law, she has no less than 10 years’ experience in the relevant field of law,” wrote Jafta.

Many judges who have ruled against the Public Protector will at some point have to face the JSC should Mkhwebane be successful. Mkhwebane has previously been said to have acted “unreasonably, arbitrarily and in bad faith”; to have acted “improperly in flagrant disobedience of the Constitution”; and her conduct was labelled as “inexcusable” and “reckless” in the case that involved the South African Revenue Service. These were the words and statements in the judgment penned by Judge Peter Mabuse of the Pretoria High Court in one of the Mkhwebane defeats. These descriptive words have become synonymous with several rulings against Mkhwebane.

Previously, in 2019, the Constitutional Court used words such as “bad faith”, “dishonest”, “biased” and “reprehensible behaviour” to describe her actions (in a majority judgment written by justices Sisi Khampepe and Leona Theron with a dissenting view by Chief Justice Mogoeng Mogoeng and acting Judge Patricia Goliath).

It is going to be interesting to see how the JSC addresses the argument that Jafta breached article 9(b) of the code. Notable also will be the value that the JSC puts on the interpretation and the judicial importance of the notes or commentary to article 9(b). These notes make the essential pillar of Mkhwebane’s substantiation before the JSC. Like commentaries, the notes are useful resources for providing an understanding of the code.

The question is whether they have the standing of authoritative sources in respect to understanding the meaning and purport of the provisions of the code. Note 9(iv) acknowledges: “A judge may have occasion to express critical views about people during the course of argument or in judgments, eg by using unflattering adjectives in regard to a recalcitrant or overzealous party, an uncooperative lawyer, a foot-dragging witness and the like.”

But it warned against the use of harsh language, particularly when “under the guise of performing judicial functions, make defamatory or derogatory statements actuated by personal spite, ill will, or improper, unlawful or ulterior motive”. Thus, a case will have to be made that Jafta crossed the acceptable lines of expressing critical views against the Public Protector and that his motives were bad, going against commonly accepted decorum in judicial circles.

I could not help but notice note 9(v), which states that “since judges are fallible and can err in relation to fact or law, such errors are to be dealt with through the normal appeal and review procedures. Such errors, even if made by courts of final instance, cannot give rise to valid complaints.”

Further, “complaints against judges that are related to the merits of a decision or procedural ruling are to be dismissed at the outset. Disenchantment about a judicial decision does not justify disciplinary proceedings.” 

Four issues need some attention herein. First, the opinion does not in any way dismiss the importance of judicial independence and the need for judges to not involve themselves in judicial misconduct that will eventually impinge upon their propensity for independence and impartiality.

In the words of David J Sachar, the executive director of the Judicial Discipline and Disability Commission in Arkansas, US, and an advisory board member of the National Center for State Courts, “Judicial misconduct breaks down the very fibre of what is necessary for a functional judiciary – citizens who believe their judges are fair and impartial. The judiciary cannot exist without the trust and confidence of the people. Judges must, therefore, be accountable to legal and ethical standards. In holding them accountable for their behaviour, a judicial conduct review must be performed without invading the independence of judicial decision-making. This task can be daunting.”

Second, like every person in South Africa, the Public Protector or the Office of the Public Protector is entitled to access justice. That being the case, one cannot ignore possible concerns of serial litigation by the Public Protector – a serial litigant has been described in one academic writing as “a person who sees every loss as the initiation point of numerous new proceedings and who fosters a sense of being the victim of the judicial system”. 

The complaint before the JSC is like the extension of the argument by the Public Protector, previously discussed in Daily Maverick, that she should be accorded the same status and treatment as judges who are not impeached or attacked with harsh language rulings when their decisions are considered wrongful or errors in law. Obviously, as the head of an invaluable Chapter 9 institution, Mkhwebane deserves the decorum that the code requires the judges to display towards litigants and other bodies.

Third, if judges in our courts deliberately reach unlawful judgments and descend into the partisan or political arena, then the issue of accountability is a discussion worth having. Admittedly, the judicial accountability that the review and appellate tiers extend within the judicial system may be inadequate for judges who deliberately reach wrongful judgments. Other than a review, appeal and judicial standards bodies’ approaches to the responsibility of judges in other jurisdictions impose criminal liability against judges for patently unlawful judgments.

For example, article 446 of the Criminal Code of Spain: Title 20 (Crimes against the Administration of Justice) imposes criminal liability on a judge who knowingly dictates an unjust sentence or resolution. Article 447 goes further, permitting criminal liability of a judge who due to serious imprudence or inexcusable ignorance dictates a manifestly unjust sentence or resolution. The provision reads: “The Judge or Magistrate who, due to serious imprudence or inexcusable ignorance, dictates a manifestly unjust sentence or resolution, will incur the penalty of special disqualification for employment or public office for a period of two to six years.”

That said, one is of the view that we have not reached the level of the Spanish approach in South Africa. We must first ensure that serial litigation is discouraged from flourishing at the expense of much-needed resources.

Fourth and last, if the courts did not purely and simply “apply the law”, then why not hold the majority of the court accountable instead of Jafta, who delivered the majority judgment? He delivered the judgment with Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring. Only Mogoeng Mogoeng CJ dissented. 

In conventional court language, the judgment is of the court and not Jafta, although the ruling was delivered by him. It remains a point of concern, as in this case, that judges who make comments and rulings in court – not extrajudicially – may feel targeted when suddenly they are singled out and dragged in their robes to answer complaints to the JSC. Also, there is a risk of a flurry of baseless complaints that invade judicial independence.

Simply put, there is always a risk that in carrying out their duty to follow the Constitution and the law, judges are vulnerable to unreasonable and extraordinary attacks. I am not myopic about the reality that some judicial officers may be deserving of harsh, yet constructive, criticism because of their judgments. DM

 

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  • The problem is that lawyers use words that most people do not understand. Judge Jafta’s judgement is in language wrapped in layers of complicated legalise. I am not sure if the PB understands that he is trying in a way only lawyers can understand, to tell her politely that she is incomprehensively incompetent, and should at best be a paralegal in a small law practice in downtown Johannesburg.

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