Kriegler’s
Freedom Under Law (FUL), a reactionary political outfit masquerading as an
angel of constitutional light, has launched another unwarranted attack on Judge
President Hlophe. In his press release of 22 August,
2012, Kriegler expressed surprise that Radebe, the Minister of Justice “has
reportedly made known that, irrespective of the outcome, the State - i.e. the
South African taxpayer - is to stand good for the legal costs incurred by Judge
President MJ Hlophe in the proceedings arising from the complaint against him
by the justices of the Constitutional Court (CC) and, presumably, from the
associated complaint by FUL.” Further, Kriegler asserted that the Minister has
committed the “public purse to paying
Judge Hlophe's costs even if he is found guilty of the grave charges
still outstanding against him” Without any creditable citation to legal
authority, Kriegler simply labels the decision of the Minister as “legally and
ethically indefensible.” He
asseverates that “there has never been a suggestion that the judge president of
the Cape court was acting in the course of his duties when on his own admission
he raised with two justices in their offices in Braamfontein the politically
sensitive Zuma/Thint cases they were considering at the time.” This is misleading demagoguery of the worst kind - the processing and investigation of judicial misconduct complaints follow similar route irrespective of whether the alleged misconduct occurred on or off the bench.
In a blatant
display of intellectual dishonesty, Kriegler alleges that the “minister's
alleged reliance on the constitutional importance of the complaints is equally
unsound. No constitutional issue has ever been raised in the two complaints
against the judge. The first turns on his credibility, the second on the
impropriety of the scandalous allegations about his colleagues to which he
resorted in his defence. The constitutionality of the JSC's (mis)conduct was
never in issue in the complaints against the judge and has in any event long
since been determined. The fundamental issue has at all times been Judge
Hlophe's fitness for judicial office.”That is pure hogwash - a judicial misconduct investigation and possible impeachment all raise constitutional issues.
Unfortunately Kriegler has
long revealed himself as a person who has cast aside any pretence of
objectivity and is blinded by his obsessive pursuit of a political agenda
against Judge President Hlophe.
One must contrast Kriegler’s solicitous stance towards the rights of
white apartheid politicians with his latter day flagrant disregard of the
rights of black public servants.
Consider the case of S v Mulder (1980 1 SA 113 (T) 121F-121G) where a due process violation arose under the
Commissions Act 8 of 1947 in the so-called Erasmus Inquiry conducted in the
late 1970s. The previous apartheid Minister, Dr Connie Mulder, had been
summoned to appear before the one man commission. It was revealed that Mulder,
along with Prime Minister Vorster, had planned to use defence force funds to
stage an apartheid propaganda campaign. This plan included offering bribes to
international news agencies and purchasing a Washington newspaper. Vorster also
misappropriated funds by financing The Citizen, the only English newspaper
supportive of the NP and their apartheid policy. On advice of his counsel, one Johann Kriegler SC, Mulder declined to testify. He was charged with
declining to testify in terms of the Commissions Act. The Supreme Court quashed
the conviction of Mulder on the
ground that the mandate of the Commission was so widely and vaguely defined
that he was legally justified in declining to testify. In effect, the summons to testify was
held to have been invalid in the light of the mandate given to the Commission. Most important, the court also agreed
that the due process rights of citizens deserved to be safeguarded during
commissions of inquiry and that the recommendations of a commission of inquiry
may in “ ʼn los sin“ (“in a loose sense”) have an adverse effect on citizens.
See also; Bongoza v Minister of Correctional
Services 2002(6) SA 330(THC).
It is revealing
that former apartheid Judge Kriegler who, as an apartheid advocate used his
legal talents to assist fellow whites during apartheid was amongst those who
argued that Simelane should not be entitled to the same procedural due process
rights recognized for corrupt apartheid functionaries. His organization FUL, which is aided
and abetted by senior white advocates and few black puppets has been in the
forefront of those opposing Simelane’s appointment on the basis of adverse remarks from
the Ginwala Enquiry whose terms of reference did not include the investigation of
Simelane. It is equally revealing
that during the Truth and Reconciliation Commission (TRC) hearings, most whites
followed Kriegler’s strategy and stonewalled the Commission on various
procedural grounds including violation of the rules of natural justice. See, Truth and Reconciliation Commission v. Du Preez and Another, 1996
(3) SA 997 (1996) (CPD) overruled in Du
Preez and Another v. Truth and Reconciliation Commission, 1997 (3) SA 204
(Appellate Division), which came to conflicting interpretations regarding the
meaning of “fairness” in regard to persons identified by victims as
perpetrators of gross human rights violations against them.
It is therefore not
surprising that Kriegler’s
vituperative propaganda against Judge President Hlophe has left him on
the verge of political madness – he is undermining the constitution by
fulminating about the evils of the state providing cover for the legal expenses
of accused judges even though the Constitution makes the provisions of said
funding mandatory. I would
go further and suggest that Kriegler has been an unprincipled and obsequious
apologist for white hegemony and power while at the same time misinterpreting
the Constitution to serve his political agenda when it comes to the rights of
blacks. I now address the
merits of his rambling press release to expose the intellectual claptrap he
espouses in his message.
Kriegler claims
that the “minister's alleged reliance on the constitutional importance of the
complaints is equally unsound. No constitutional issue has ever been raised in
the two complaints against the judge.”
In his myopic view, a constitutional issue must be raised within the
four corners of the misconduct complaint or else it is to be discounted. That is an absurdity – a judicial
misconduct complaint is at all times a constitutional issue and it is governed
directly by the Constitution. Under our constitutional scheme, specifically
Section 177 of the Constitution, which governs the impeachment of judges, a
judge may be removed only when two conditions have been satisfied. Fist, the
JSC must, after investigation, pronounce that the judge is guilty either of
gross incompetence or gross misconduct or is suffering from incapacity. Second, at least two-thirds of the
National Assembly resolves to remove that judge. Once these two processes have
taken place, the President of South Africa is obliged to remove the judge.
R Recently, the SCA in Judicial Service Commission v Premier,
Western Cape (537/10)
[2011] Z ASCA 53 (31 March 2011) stated the following regarding removal
proceedings for our judges:
[17] It would have been possible for the drafters of
the Constitution to have adopted a model where only judges could remove judges.
In Israel, for example, the Basic Law on the Judiciary provides that judges may
be removed upon the decision of the Court of Discipline which comprises only
judges and judges retired on pension appointed by the President of the Supreme
Court. Or a model could have been adopted where only the elected
representatives of the people could do so. In the United States of America, a
country very much aware of the proper separation of powers, the House of
Representatives has the 'sole power' to impeach federal judges and the Senate
has the 'sole power' to try all impeachments. The model ultimately chosen for
our country was one somewhere between the two. The first stage is a decision
taken predominantly by judges and lawyers. The second is a decision by the
National Assembly by a two-thirds majority. (Emphasis added).
Kriegler falsely
states that it “should also be noted that the judge president's costs over more
than four years were incurred while he, retaining his office and its benefits,
vigorously - and thus far successfully - fought to put off the final
determination of the truth of his conversation with the two justices. In the
circumstances it is unconscionable that such costs are to be borne by the
citizenry.” To the chagrin of the likes
of Kriegler, members of the judiciary, even those facing misconduct complaints,
must look beyond their personal feelings and stand up for the courts as an
institution. There rests upon every judge affected a sacred duty to withstand
any attempt, directly or indirectly in contravention of the Constitution, to
diminish this compensation, not for his private benefit-but in the interest of
preserving unimpaired an essential safeguard adopted as a continuing guaranty
of an independent judicial administration for the benefit of the whole people. Nothing in the Constitution suggests
that the JSC investigation and ultimate impeachment process must come cheap or
that the taxpayers must be shielded from the costs at the expense of judges
facing judicial misconduct investigations. Nothing in the Constitution suggests that the JSC investigation
process (first stage) may be used to impose penalties (financial or otherwise)
or in any manner to exert undue pressure on a judge to facilitate his
resignation.
To the contrary,
the Constitution’s drafters deliberately sought to design a cumbersome or
almost unwieldy system that protected judges from politically inspired threats
of removal. Cost effectiveness and
efficiency was not a primary goal of the Constitution's judicial removal
mechanism. A speedy, inexpensive
and efficient removal mechanism might not have protected judicial independence
nearly as well as the awkward and expensive procedures now in place. Kriegler’s assertion that it “should
also be noted that the judge president's costs over more than four years were
incurred while he, retaining his office and its benefits, vigorously - and thus
far successfully - fought to put off the final determination of the truth of
his conversation with the two justices’ is false and malicious. The most recent
appeals by Zille and FUL involved challenges to the JSC conduct of its
proceedings and that had nothing to do with a fight by JP Hlophe. Equally absurd is FUL’s statement
implying that in the “the circumstances it is unconscionable that such costs
are to be borne by the citizenry.”
Truth be told, there is no provision for payments of costs by the
accused judge either in the JSC or in the National Assembly should the matter
get that far. Kriegler’s statement
is clearly cheap political grandstanding and finds no support in the
Constitution.
Kriegler dodges
a pivotal question to be answered by all conscientious scholars and
civic-minded citizens, that is, whether the State is legally obligated to pay
judges’ legal costs during JSC or impeachment proceedings. The answer is
surprisingly in the affirmative.
Given that a judge enjoys protection under Section 176(3) of the
Constitution which provides that the 'salaries, allowances and benefits of judges
may not be reduced' would a requirement that a judge pay for his legal
costs during JSC or impeachment proceedings directly or indirectly violate this
provision of the Constitution?
Clearly, requiring a judge to dip into his own pocket to personally fund
the costs of legal defence each time a misconduct complaint is filed against
him results in a reduction of his salary or benefits directly. It goes without
saying that the argument that a judge must be shielded from financial burdens
of litigation applicable to other public servants is counterintuitive. It is
fundamental to our system of justice that no one is above the law and that
judges as citizens are not entitled to special treatment in the enforcement of
their rights. Yet these principles
are not absolute. For example, Section 176(3) recognizes as legitimate a
distinction between judges whose “benefits” may not be reduced and the ordinary
public servants who may suffer pay cuts or even job losses due to budgetary and
other reasons. This
constitutionalized special treatment for judges may offend our sense of
justice, but they are thought to serve a purpose higher than the exigencies of
a particular case. Many decades of constitutional adjudication and experiences
of other countries should have taught us that intuition is no substitute for
legal reasoning and results that at first appear counterintuitive, perhaps even
offensive, may nevertheless be compelled.
The independence
of judges must be guaranteed by ensuring that the conditions of their
appointment, compensation and dismissal are free from executive interference or
control. In those situations, where there is an allegation of misconduct on the
part of a judge, the procedure for removal or suspension must itself be
impartial and conform to the procedures of the court. Kriegler’s position that
Hlophe, or any judge facing allegations of judicial misconduct must bargain
with the Justice Minister Radebe for the right to obtain “cover” for legal
expenses and acceptance of “liability” routinely granted to state officials is
at odds with our constitution and international good practice. In Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, [1997] S.C.J. No. 75, [1997]
3 S.C.R. 3. (S.C.C.) [hereinafter “P.E.I. Reference”], the Canadian Supreme
Court noted that “under no circumstances is it permissible for the judiciary -- not only
collectively through representative organizations, but also as individuals --
to engage in negotiations over remuneration with the executive or
representatives of the legislature. Any such negotiations would be
fundamentally at odds with judicial independence.” Id., at para. 134. It is a truism that judges, although they must
ultimately be paid from public monies, are not civil servants. Civil servants
are part of the executive; judges, by definition, are independent of the executive.
The three core characteristics of judicial independence – security of tenure,
financial security, and administrative independence – are a reflection of that
fundamental distinction, because they provide a range of protections to members
of the judiciary to which civil servants are not constitutionally
entitled.
As a corollary,
given that the purpose of Section 176(3) is to maintain the separation of
powers and promote true judicial independence; given that the Clause ensures
judicial integrity both in perception and in action, and given that this clause
is to be construed, not as a private
grant, but as a limitation imposed in the public interest can an individual judge validly waive
the provisions of Section 176(3) through a reimbursement agreement with the
executive as both Kriegler and Radebe imply? There is a rich academic debate in South Africa and
other advanced democracies about the waiver of certain rights, including those
enshrined in the Constitution.
There are on the one hand, most fundamental rights, including equality,
which are conferred primarily for the benefit of individuals, and can,
therefore, be waived. The better
reasoned view with regard to Section 176(3) is that it is not to benefit the judges
but, like the clause in respect of tenure, to maintain the separation of powers
and promote true judicial independence. Because the Clause ensures judicial
integrity both in perception and in action, there are important public policy
considerations involved and as such the provisions of this clause cannot be
waived by an individual judge.
To say that
Kriegler is wrong does not mean I endorse Minister Radebe’s unconstitutional
application of the standard reimbursement agreement to judges. The agreement
itself raises even more disturbing questions – it requires a forfeiture of
cover based on the outcome of the case and allows the executive to require a
written agreement from JP Hlophe as a condition of providing “liability” cover
even before the outcome of the JSC and potential impeachment proceedings is
known? The agreement is itself
perverse in that it damages the credibility of the judge as a witness or even
as a litigant. He becomes
financially interested in a case as he potentially stands to lose millions if
the case goes against him. The
purported reimbursement agreement can forever be used as an in terrorem stick
by the executive to force the judge to tow the line. The state is the litigant in every criminal case and
potentially every criminal defendant can successfully launch a recusal
application against any judge who is subject to the type of reimbursement
agreement Radebe is relying on. The grounds for such recusal application would
be that the judge is not truly independent as the executive (the Minister)
exercises a power over the judge’s subsistence and this amounts to a power over
the judge’s will or independence.
The Minister’s insidious power of control over the public purse and availability of funds for individual judges is
damaging to both the actuality and appearance of judicial independence. Depending on how congenial the
judge may be, the Minister wields
the unbridled power to make a debt
worth millions evaporate. On the
other hand if the judge involved proves to be too obstreperous for the
minister’s liking, the latter can let that stubbornly independent judge drown
in his own massive debt as punishment. Even the threat of using the Minister’s power to
make the judge individually liable is enough to force any judge to cave in to
the executive’s demands.
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