Who should judge the judges?
The news that the Judicial Service Commission (JSC) is opposing the review brought by Freedom Under Law (FuL) in the High Court, in which its unfathomably incomprehensible decision to let beleaguered Cape Judge President John Hlophe off the hook is attacked, should come as no surprise to keen observers of the gyrations of the JSC. What is surprising is that the JSC insists in contending that it is not in the public interest that the matter be re-opened for full scrutiny in the manner claimed by FuL. This to find the truth behind the allegations of interference levelled against Hlophe by all of the then Justices of the Constitutional Court back in May 2008.The public interest is a very broad concept. It should not be forgotten that Hlophe narrowly escaped severe censure or possible impeachment in a previous hearing before the JSC. On that occasion there was uncontroverted evidence, out of Hlophe's own mouth, that he evaded his taxes, accepted payments from a frequent litigant in his court, whom he later gave permission to sue a fellow judge; part of these payments was, by his own admission, not sanctioned in any shape or form by then Minister of Justice Dullah Omar. To cap it, his explanation of his contemptuous and inappropriately timed utterances against another member of his Bench was so lacking in substance that it qualified for a flaccid slap on the wrist from senior judicial colleagues then serving on the JSC. His lucky escape on that occasion was soon eclipsed by the allegations against him that he attempted to influence the decision of the Constitutional Court in the search and seizure appeals involving a then up and coming politician, Jacob Zuma. There has been no real closure on these most serious allegations nor is it proper that all concerned simply move on with their lives while the debris of the fallout which the complaints and counter-complaint have generated is allowed to fester under the judicial carpet where the JSC has swept it. This does not serve the public interest in any way sanctioned by the rule of law.
The related case in which the Western Cape Premier, Helen Zille, has successfully challenged both the quorum and composition of the disciplinary committee of the JSC, which, so the High Court has ruled, incorrectly and unconstitutionally excluded her from its deliberations, is now being taken on appeal by the JSC following what it calls a "sufficient consensus" among its members to do so.
Both matters are bound to end up in the Supreme Court of Appeal for adjudication by judges of appeal who have not served on the JSC. The amount of energy expended and argument raised in these cases should give cause for pause. Who should judge the judges has always been a prickly question, one which is not easily answered in the various forms of government that exist in the modern world.
The South African experience in this regard is not exemplary. Paul Kruger fired his Chief Justice when the latter claimed the power to test the validity of ZAR legislation. The dispensations between union in 1910 and liberation in 1994 did not contemplate the disciplining of judges. Are we going to look back on the Hlophe sagas in time to come with a sad shake of the head, or will they produce the spark needed to improve the system?
The mere fact that such heavy weather is made of disciplinary matters in the functioning of the JSC suggests that reform is indicated. Part of the problem is that the disciplinary committee is unwieldy and populated by some political appointees and politicians. Who then should judge the judges in SA in 2010?
There is now a pool of suitably qualified talent that was not available at the time that the Constitution was negotiated and the JSC came into being. Back in the early 1990s the apartheid era judiciary was perceived by some as a blunt instrument of the executive, lacking in independence and legitimacy. Its judges were seen in certain political circles as the ultimate enforcers of the legal aspects of the ideology of apartheid and their role in the new dispensation then being crafted was questioned.
Mercifully the transition to a democratic order in which the rule of law is a foundational value and has substantive content has been a smooth one as far as the judiciary is concerned. The judges adapted well to the new order and have seamlessly managed to uphold the law and the constitution as they are obliged by their oaths of office to do.
Since 1994 many judges have retired; we have two living retired Chief Justices in Arthur Chaskalson and Pius Langa. Many other eminent jurists, having reached retirement age, have stepped down from the Bench. This pool of talent is a national treasure. It comprises the most experienced if not best qualified group to judge the sitting judges who become involved in disciplinary scrapes or are challenged with motions for their impeachment. The training and life's work of the retired judges' best equips them to judge matters of discipline and of possible impeachment.
The doctrine of the separation of powers, which is part of our law, also suggests that it is inappropriate for members of the executive, such as Premier Zille and the Minister of Justice, to be involved in adjudicating the propriety of the actions and omissions of those in another branch of government which is required to be kept independent and aloof from the hurly burly of the political activities in the executive and legislative branches of government. It can also cogently be argued that it is not best practice to require politicians, who are not necessarily trained lawyers and experienced judges of fact and law, to adjudicate highly charged matters involving the propriety of the conduct of judges. This is especially so in a country in which the majority of the litigation that occurs involves the state in one way or another. It is surely far better then that those who judge our judges come from a group which is not susceptible of criticism for potential conflict of interests.
A lean and mean panel of retired judges would surely not have allowed the Hlophe matters to drag on as interminably as they have done. If the JSC disciplinary committee is to be composed of say three or five retired judges or at least be slimmed down to contain members drawn from the ranks of retired judges, it will be necessary to effect an amendment of the constitution to do so. Parliament will soon be debating some amendments regarding the transformation of the judiciary as announced by the Minister of Justice recently; this topic could be added to the matters under discussion in the debate. At the same time the overly political composition of the JSC, sitting as what has degenerated into an electoral college instead of a deliberative body when new judges are selected for appointment, could be reviewed. Also, the suggestion of Deputy President Motlanthe that the JSC be given the additional task of recommending the candidates for appointment as national director of public prosecutions should be given serious thought in the debates on the transformation of the judiciary that our politicians in both houses of parliament will be conducting in the near future.
Paul Hoffman SC
12 May 2010.
