Last week the Judicial Service Commission actually said to South Africa, yes, we feel Judge Hlophe unfit to continue as a judge, but anyway, let him run a busy high court as long as he is able to use Stalingrad trial tactics .
In real life, Professor Balthazar is one of the leading legal minds in South Africa. He decides to remain anonymous so that his daily duties are not affected.
The column I wrote last week generated a rainbow of reactions. Some said it painted too dystopian a picture of South Africa and the health of its legal system. And of course this view is justified. After all, the majority of the Constitutional Court, albeit currently rather impoverished, reached two important decisions. It upheld the law of overturning judgments by showing Jacob Zuma and his legal battering ram the legal door.
This was followed by a clear rejection of the legally untenable attempt by the electoral commission to postpone the local elections.
The ruling that rejected Unisa’s language policy also led to a correct result, even if it raised questions about the target group for a ruling by the Constitutional Court. However, this is a subject for another occasion, and it would be gross not to recognize the court’s claim about diversity.
But, as is so often the case in the Ramaphosa era, it is a step forward and then a step back. In this case, the Judicial Service Commission (JSC) must have contributed to the dissonance. Somehow – his decision to indict the President of the Western Cape Judge John Hlophe despite gross misconduct – it made up and perverted to keep the same judge in the office of Judge President of the Western Cape.
It will not recommend a suspension until Hlophe’s motion to overturn the JSC’s impeachment decision has been heard. Even with an accelerated trial, this result can take a few months, and then there is the certainty of appealing if Judge Hlophe loses his motion. The compelling criticism of one editorial in Daily outsider on the 25th of September needs broad support, as the malfunction of the JSC is a failure of a vital constitutional guardrail, which arguably only civil society can effectively hold accountable.
So what follows is another attempt to 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 court to investigate a case of judicial misconduct, Section 19 (4) of the Act provides: therefore:
If the Commission requests the appointment of a court within the meaning of paragraph 1, the Commission will must immediately in writing: (a) notify the President that he has requested this; and (b) advise the President on: (i) the desirability of suspending the defendant under Section 177 (3) of the Constitution; and (ii) any conditions that should apply in relation to any such suspension, if any.
Note that the JSC must do this.
On the most questionable legal basis, the JSC has somehow come to the conclusion that Section 19 (4) only applies if the application for legal proceedings is filed – that is, before gross misconduct is found. However, due to the fact that the JSC was not acting at the time of the referral to a tribunal, it is not empowered to recommend the president’s suspension, although both the tribunal and the JSC themselves have decided to refer the impeachment decision to parliament. In this regard, the JSC is mandated to consider suspension once there is a prima facie case of gross misconduct, but if it has not, there is no compelling obligation to consider a suspension recommendation once it has determined that the Judges committed gross misconduct.
Apart from the fact that Judge Hlophe does not yet have to have a court ascertain any further charges of wrongdoing that should itself have triggered a decision to suspend; the fact that the JSC believes it must await a decision on the petition for review before making a recommendation to the President means that it believes that an impeachment determination is less serious than a referral decision had been asked.
The argument that the entire decision to send Judge Hlophe to Parliament can be overturned for review must be answered in the same way as any eviction or dismissal case: the person exercising the dismissal will be placed in the Gardening leave and thus paid full wages until the final decision on dismissal.
In contrast, the disadvantage to the organization, in this case the judiciary, of leaving a judge found guilty of gross judicial misconduct in charge of a high court should be evident to even a remotely sane person – his Effects are to the great detriment of the legitimacy of the judiciary. Indeed, the JSC has said to South Africa, yes, we feel Judge Hlophe unfit to continue as a judge, but anyway, let him run a busy high court while he is able to use Stalingrad trial tactics.
The take-home point is this: there is one rule for John Hlophe and another for the rest of the judiciary.
Judge Mushtak Parker’s case supports this conclusion as the JSC wasted no time in recommending the suspension of his office once a decision was made to refer his case to a tribunal.
Perhaps this result from Hlophe is not surprising. The JSC has made a number of questionable decisions recently. It has not adopted and applied comprehensible criteria for the appointment of judges, and in its hesitation over the Hlophe case it has failed to justify the integrity of the judiciary. Nonetheless, the JSC is a critical institution and plays a vital role in addressing the weakness of the current judicial system.
In addition to the treatment of Judge Hlophe as a platinum class customer, proof of his failure to rank is the inability to attract enough candidates for vacancies for the constitutional court. If you take both the interrupted interview, which has to be repeated, and the two other advertised positions together, the JSC only has seven applicants. Since he is required to give the President a list of seven positions for the four positions, he must name all seven applicants. Nobody else applied, and one cannot blame a diverse group of judges, who are essentially far superior to the existing list, for failing to apply. An interview based on invective political scoring and the lack of critical questions about a legal vision for a changed legal system, as well as the expertise and temperament of being a member of a top court, is unlikely to attract applications for office.
The JSC will also be brought into service in the process that will culminate in the appointment of a new Chief Justice. In order to provide essential advice, the JSC needs to consider three key questions.
First and foremost is the question of the intellectual vision of the new Chief Justice. In contrast to the anti-intellectualism of the past 12 years, the three former Chief Justices – Arthur Chaskalson, Pius Langa and Sandile Ngcobo – were each one of their own outstanding personalities, and each promoted transformative jurisdiction so that our Constitutional Court was viewed everywhere Legal world as a pioneer in constitutional law. When responding that Chief Justice Mogoeng Mogoeng drafted the Nkandla judgment that testifies to his heroic ability, it is all too easy to forget that this was not a difficult case after Zuma’s attorney admitted the core issue of the dispute. Therefore, to ensure that the careful constitutional engagement of the court’s first 14 years returns, the JSC needs to examine the jurisprudential perspective of the candidates it interviewed.
There is also a growing administrative challenge. Including the vacant post of Chief Justice, there are now five posts in the Constitutional Court. For some time now, the court has been sitting with a number of acting dates, which is hardly ideal for a top dish. The JSC urgently needs a chairman in the form of the Chief Justice who can restore this institution to its dignity and ensure its constitutional conformity. Furthermore, most, if not all, of the courts outside the Constitutional Court are shockingly under-resourced, as evidenced by the public admission of the poor internet and email service the judiciary is facing.
Finally, the JSC should consider candidates’ temperaments to test who is best at instilling public trust and legal collegiality.
Unfortunately, in its current form and composition, the JSC is unlikely to meet this challenge. Hopefully the advisory board set up by the president will make the necessary contribution. The lack of trust in the JSC should spark a deliberate debate about its future composition, to ensure that substantive interviews take place rather than portrayals of populist politics, and that the JSC fulfills its role as a protector and promoter of democratic rule of law. DM