Current Affairs
Justice
Criticism of the judiciary.
In its December 2008 issue “Without Prejudice” carried a health risk warning for those who may be inclined to criticize the judiciary. (Criticism of the Judiciary pg 5) This has been followed by a public appeal from the Chief Justice that critics should not impugn the integrity of the Bench. This is a salutary general rule and fits the constitutional admonition that: "No person or organ of state may interfere with the functioning of the courts." S 165(3).RE: THE SOUTH AFRICAN POLICE SERVICES AMENDMENT ACT
("the SAPSA Act") and THE NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT ("the NPAA Act").
- Click to download >Microsoft Word Document
Of Winnie, Allan and Tony’s Criminal Records
A lot of misinformation has been generated in recent days around the eligibility of Winnie Madikizela Mandela, Allan Boesak, and, to a lesser extent, Tony Yengeni to stand for public office. It is perhaps time to inject a little rational analysis of the facts and the law into the debate raging in the media and wherever politically aware people meet.International Affairs, Corruption and a culture of Human Rights
Transparency International (TI) defines corruption as "the abuse of entrusted power for private gain". It is the captains of commerce and industry to whom economic power is entrusted by corporate entities and shareholders in them, and it is political leaders and public administrators to whom society entrusts political power. In practice bribery and corruption are complex transactions that involve those offering a benefit of some kind and those who accept it. Usually a variety of intermediaries are at hand to facilitate the transactions involved.Guardian of the Constitution
The authority, dignity and independence of the Constitutional Court are dependent on the Constitution. If the Constitution is weak or is not respected by the institutions of state and the government, the Constitutional Court will be the immediate victim. South Africa has a strong Constitution that has weathered many political storms, even those of the dominant alliance with a more than 70% majority in parliament, a majority that could have easily allowed that alliance to amend the Constitution in a drastic manner.- download >
Debating the Transformation of the Judiciary
It is clear that the ANC is pursuing an agenda intended to "transform" the judiciary.
Why the resolution to promote the "transformation of the judiciary" taken at Polokwane? This is best answered by examining the language of the resolution itself. The "transformation" is apparently aimed at making the judiciary "more responsive to the aspirations of the people".
Responsiveness to either "the masses" or to "the people" is clearly at odds with the Constitution, which requires simply that the judiciary be subject to the law and the Constitution. The judiciary is not a pro-active entity, it exists to manage conflict between state and subject and between the people themselves.
Constitutionally compliant transformation of the Judiciary
In South Africa, we now have a system in which the Constitution is the supreme law. Ours is a non-racist, non-sexist democracy under the rule of law. Our judges are the final arbiters of what is allowed and not allowed under the Constitution; they are subject only to the law and the Constitution.
Recognizing that the legitimacy of the Bench is best served by a diverse judiciary, the Constitution also stipulates that "the need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."
When the JSC met in October 2007, one of the candidates for appointment as a judge of appeal, Judge Cachalia, who now graces the Supreme Court of Appeal bench, warned the JSC that its affirmative action chickens were coming home to roost. By this he meant that too many inadequately qualified and insufficiently experienced judges had been appointed in the interests of transforming the demographics of the judiciary, at the expense of quality in the work done by some appointees.
The regular meeting of the JSC in June 2009 was postponed, after a majority vote, at the request of the new Minister of Justice, who with eight parliamentarians, were all newly appointed and may not have had sufficient time to acquaint themselves with the task at hand. The postponement has drawn criticism from certain quarters where suspicion of the transformation agenda of the ANC dwells.
Transformation of the Judiciary – WHAT THE CONSTITUTION DEMANDS
There can be no rational South African of any political persuasion who does not regard it appropriate to have a court system which is accessible, efficient and legitimate.
Last year, during the parliamentary debate concerning the demise of the Scorpions, the then Deputy Minister of Justice, Johnny de Lange, conceded that the criminal justice system in South Africa is "dysfunctional":
- Awaiting trial prisoners are detained for up to ten years
- Prosecutions fail for want of proper investigation
- Police dockets or court files disappear with monotonous regularity
- Valuable court time is lost because prisoners are not brought to court on time
- Interpreters are not available
- Counsel are not properly prepared to proceed for want of instructions from prisoners to whom they have had inadequate access
Postponements occasioned by circumstances such as these are wasteful of time and resources in the criminal justice system.
The Department of Justice is in the process of preparing a policy document on what it calls "the transformation of the judiciary"
The Judicial Service Commission must be reformed
There is a need for those in authority to take a close look at the functioning of the Judicial Service Commission (JSC) in order to determine whether it is capable, as constituted at present, of properly and accountably fulfilling its constitutional mandate.
It has long been known and understood that there is an ANC lobby within the JSC, consisting of its politicians and others. This lobby seems willing to do whatever is politically correct. The election of Jacob Zuma, who has the power to appoint four members and did so in his capacity as President, tipped the balance of power in the JSC away from those willing to get on with properly ventilating the claims involving Hlophe.
The country needs a legitimate judiciary. It obviously can not remain "pale and male", nor has it. However, if cosmetic changes are wrought to it without due regard to the ability, fitness for office and experience of candidates simply for the sake of demographic "transformation" above all else - by appointing black and female judges who are not in possession of appropriate skills, and are therefore not proper candidates - then the legitimacy of the judiciary is undermined rather than served.
The 10 person JSC disciplinary committee, by a majority (whose size and composition are inexplicably not disclosed despite the requirements of openness, transparency and accountability which ought to inform the JSC’s public activities) has once again found a way to keep Hlophe safe from cross-examination.
Protecting the Dignity of the Courts.
An onerous responsibility of the organs of state in post 1994 South Africa is to “assist and protect” the dignity and effectiveness as well as the impartiality and independence of the Courts. The Courts themselves, and judicial officers, are expressly excluded from the definition of the term "organ of state". Clearly though, departments of state, such as the Department of Justice and Constitutional Development and its political head, Minister Enver Surtee, have the obligation to protect the Courts. The relevant provision in the Constitution, section 165(4), goes further by requiring that measures be taken to assist the Courts.Ministers don’t order Judges around.
The new developments in the perennial saga of Cape Judge President John Hlophe ought not to be over-dramatized. When newspaper headlines scream “Hlophe told to stay home” and “Minister orders judge to go back on leave” and the reportage is to the same effect with an opening paragraph that reads: “…Hlophe has been ordered by Justice Minister Enver Surty to remain on leave – just days after Hlophe returned to work” then it is necessary to explain accurately the import of developments.Agenda item for next JSC meeting.
Letter addressed to Ms MasangwanaCape judge president has a duty to stay away while under cloud.
The Cape judge president is in the news again. On January 26, after an absence of many months on specially arranged leave while a charge of gross misconduct was pending against him, he simply appeared in his office and instructed his deputy to step aside.Cape judge president has a duty to stay away while under cloud
Article in Business Report 10th February 2009- Click to download >Microsoft Word Document
Effective service delivery requires radical change
We cannot expect loyalty, work ethic or extra miles from departments as long as the people in charge are despised for their incompetence, which is often associated with unbearable arrogance. Watch any newspaper and count the number of officials at all levels who are suspiciously on special leave, or who've been found guilty of fraud, or (occasionally) been dismissed, or (read between the lines) "redeployed". Article in Business Report 16th February 2009- Click to download >Microsoft Word Document
Defending the Indefencible
The brouhaha around the appointment of Menzi Simelane - Director of Public Prosecutions, is unlikely to die down any time soon.
The office of National Director of Public Prosecutions (NDPP) is a powerful one.
Menzi Simelane has never actually practised in any of the courts in the Republic. His experience, until this year, has not been in the National Prosecuting Authority at all. After stints on tourism boards he was made Competition Board Commissioner. In that capacity he did not cover himself in glory, coming into conflict for some strange human resource management practices, including the employment of a foreigner with no work permit.
The more things change, the more they stay the same
Advocate Mokotedi Mpshe is certainly a controversial character. When he was acting head of the National Prosecuting Authority he perplexingly decided to drop all charges against Jacob Zuma, thus opening the way for the Zuma presidency.Mpshe no longer leads the NPA, but, until Thursday, remained as deputy national director of public prosecutions — an office that is an important cog in the criminal justice system. He is now serving, controversially so, as an acting judge, having been appointed until July 2010 as, what judges whisper, is a reward for his role in promoting Zuma.
Repent Radebe
The Minister of Justice, Jeff Radebe, not one to disappoint his friends, proceeded to canvass for a place on the Benches favoured by Molokoti Mpshe with a view to securing him an acting appointment.Reaction from the legal professions was swift and sharp. Invoking the doctrine of the separation of powers, the independence of the judiciary and its legitimacy, they called for a rethink. Radebe called a press conference to round on his critics, accusing them of politically motivated chicanery.
Radebe mechanistically invokes what he calls his "prerogative" to appoint acting judges.
Radebe is constitutionally obliged to assist and protect the courts to ensure that these vital characteristics are preserved. He shows, with stark clarity, that he does not have the slightest intention of so doing. This is conduct inconsistent with the Constitution and is invalid; his words in a recent press release are clear evidence of Radebe’s intention not to fulfil his obligations towards the protection of the independence and impartiality of the courts.
The legacy of Lategan
In the dark days of Apartheid there was no supreme Constitution and no Judicial Service Commission to recommend the appointment of judges. The task fell to the Minister of Justice alone and nakedly political appointments to the Bench occurred with monotonous regularity.The appointment of the then Attorney General of the Cape, Braam Lategan, as a judge in the Cape Provincial Division of the Supreme Court of South Africa was a reward for his role in the Erasmus Commission of Inquiry which, via its final report, effectively ended the career of BJ Vorster and brought PW Botha to the fore as his successor as State President.
The 1979 Cape Times editorial quotes the attitude of the General Council of the Bar back then:
"A person appointed from the public service who has of necessity throughout his career approached matters from the point of view of the state, will not at the outset have, and is unlikely to acquire, the necessary degree of independence and will inevitably be suspected not to be impartial."
The law reports and court records are littered with judgments overturning decisions of Judge Lategan on appeal, suggesting that the dire predictions of the Bar's leadership back then were accurate.
The appointment of Mokotedi Mpshe, the former Deputy National Director of Public Prosecutions, by the Minister of Justice, currently Jeff Radebe, as an acting judge in the North West High Court is under question.
It is inappropriate that a public servant, especially one who has devoted his professional life to the task of prosecuting suspected criminals, should become a judge. This is because the independence and impartiality of such a person is questionable. The public servant is answerable to the structures of the public administration while all judges are accountable only to the law and the Constitution. Any public servant who is also an acting judge is in effect wearing two hats at the same time. The one, firmly based in the public administration which is a part of the executive branch of government, and the other in the High Court, which is a part of the judiciary. This makes complete nonsense of the separation of powers and undermines the all important legitimacy of the Bench by populating it with personnel of questionable independence and impartiality.
The Wages of Quiet Diplomacy
The long running campaign by Free State farmer, Crawford von Abo, to obtain redress following the illegal seizure of his farms in Zimbabwe by the Mugabe regime, raises interesting points.Von Abo approached the South African authorities for diplomatic assistance to help him assert his property rights in Zimbabwe. His entreaties fell on deaf ears. The High Court, in an earlier judgment ruled in his favour, declaring that he is entitled to the diplomatic assistance he seeks and ordering the Government to report back to it within 60 days on assistance rendered.
It is not clear whether the government chose not to understand the import of the order granted against it or genuinely misconstrued it. Von Abo remains without any meaningful diplomatic assistance, without his seized properties and without any compensation for the lot that has befallen him by reason of his ill fated investments in Zimbabwe coupled with the disappearance of the rule of law in that unfortunate country.
