THE JUDICIAL SERVICE
COMMISSION via email
Dear
Honourable Members of the JSC
RE: LETTER OF VEHEMENT OPPOSITION FOR THE
APPOINTMENT OF JEREMY GAUNTLETT, SC AS A JUDGE OF ANY COURT.
The
purpose of this letter is to register my strongest opposition to the permanent
appointment of Mr Jeremy Gauntlett, SC on the High Court of the Cape of Good
Hope or any bench in the Republic of South Africa during the current selection
process. It is my understanding
that you have embarked on the process for the selection of short-listed
candidates for appointment as judges of the High Court in terms of section 174
(6) of the Constitution.
Section 174 of the Constitution provides for the 'appointment of
judicial officers in the following terms:
‘(1)
Any appropriately qualified woman or man who is a fit and proper person may be
appointed as a judicial officer. Any person to be appointed to the
Constitutional Court must also be a South African citizen.
(2)
The need for the judiciary to reflect broadly the racial and gender composition
of South Africa must be considered when judicial officers are appointed.
I suggest that Gauntlett does not meet
any of the foregoing requirements as he has advocated racially discriminatory
criteria for acting judicial appointments in the past. Further his dual British –South African
citizenship has been used by his judicial friends from other countries to
launch unwarranted attacks on the JSC itself. Appointing Gauntlett to the Western Cape bench would be a
momentous anti-transformation event and would solidify in the minds of the
public that transformation and racial justice are deemed irrelevant by the JSC.
The JSC serves a unique and crucial
function in the South African judicial system and it can be said to have sole
responsibility for deciding who should be appointed as judges to the various
High Courts. It serves more than
just a gate-keeping function - the obligation of the President in terms of
section 174(6) is that he ‘must’ appoint on the advice of the JSC, as opposed
to his role in the appointment of the Chief Justice and Judges of the
Constitutional Court. The
performance of this crucial function of voting on the candidates and offering
advice to the President can only be successful if all facts relating to
candidates, favourable or unfavourable, are subject to fair scrutiny.
I
submit that the scope and nature of the requisite scrutiny has been heightened
by the recent Constitutional Court ruling in Democratic Alliance v President
of South Africa and Others (CCT 122/11) [2012] ZACC 24 (5 October
2012). There, the court dealt with
the provision in the NPA Act requiring the appointment of “a fit and proper
person, with due regard to his or her experience, conscientiousness and
integrity” as NDPP. It ruled
that in undertaking the appointment task, there is an objective standard which
requires that the decision-maker not ignore adverse comments about the putative
candidate. It ruled that in regard
to Simelane, the Ginwala Enquiry’s report which criticized Simelane
“…represented brightly flashing red lights warning of impending danger to any
person involved in the process of Mr Simelane’s appointment to the position of
National Director. Any failure to take into account these comments, or any
decision to ignore them and to proceed with Mr Simelane’s appointment without
more, would not be rationally related to the purpose of the power, that is, to
appoint a person with sufficient conscientiousness and credibility.” Likewise, in the appointment of judges
here the JSC may not ignore relevant evidence which casts the short-listed
candidates in a negative light and undermine their claim that they are “fit and
proper” for judicial appointment.
I also submit that the recent court decision in Cape Bar Council v Judicial
Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4)
BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011) makes it
imperative that the JSC consider carefully and articulate very clearly its
reasons for selecting or rejecting any of the short-listed candidates. The decision alters in a fundamental
way the traditional common law rule that principles of natural justice in the
United Kingdom and certain other jurisdictions do not include a general rule
that reasons should be given for decisions. See, R. v. Northumberland Compensation
Appeal Tribunal, ex parte Shaw (1951),[104] where Denning L.J. stated:
"I think the record must contain at least the document which initiates the
proceedings; the pleadings, if any; and the adjudication; but not the evidence,
nor the reasons, unless the tribunal chooses to incorporate them. If the
tribunal does state its reasons, and those reasons are wrong in law, certiorari
lies to quash the decision."
The Cape Bar Council v Judicial Service Commission and Others court
seems to endorse the view of some scholars that historically, uncontrolled
public decisions which lack the regularity and transparency that distinguish
them from the mere say-so of public authorities are inimical to a democracy.
Procedural participation by people affected by a decision is said to promote
the rule of law by making it more difficult for the public authority to act
arbitrarily. Accordingly, requiring the giving of reasons helps ensure that
decisions are carefully thought through, which in turn aids in the control of
administrative discretion.
Further, accountability makes it necessary for the public authority to
face up to the people affected by a decision. When a public authority acts on
all the relevant considerations, this increases the probability of better
decision outcomes and, as such, is beneficial to public interests. Another
important benefit is that respect for decision-makers is fostered, which
increases their integrity in the public's eyes. That is even more compelling where the task at hand is the
appointment of judges.
I
propose to deal with reasons why Mr. Gauntlett must not be appointed as
follows:
A.
The Western Cape Province As
A Whole Has Made Insufficient Progress In Promoting African (Men and Women) on
the Judiciary.
The
JSC must take into consideration the most recent Commissioner for employment
equity report showing that the Western Cape is the worst in the country in
terms of employment equity in both the private and the public sector. There is a direct correlation between
attitude of the DA and the Premier Zille and their policies of denialism which
have given the officials the justification to disregard the employment equity
provisions of the law. A
2009 study commissioned by the Employment Equity Programme and conducted by
Sabie Surtee and Martin Hall, revealed that transformation in the Cape was
"at best stalled, and perhaps in reverse". Cape Town is “seen
to be hostile to black people, while white people are still being appointed and
promoted at rates suggesting "positive discrimination" in
their favour, this damning new study has found. Id. The JSC has a duty to alleviate
this dismal performance by a DA administration which is hell-bent on defending
the generational advantages of whites in the Western Cape, while paying lip
service to employment equity and transformation. It is a truism that the private sector takes its cue from
the Provincial Government in respect of disregarding the employment equity
obligations. They have been imbued with the sense from the DA that this
Province has no obligation to comply with employment equity obligations. In South Africa, black people
constitute 79.9% of the total population, excluding the 11.5% of the country
who identify as so-called “coloured” and Indian population. Women constitute
52% of the population. And yet, women and particularly black African women and
women of colour are under-represented in South African courts. The JSC must not be seen to be
perpetuating such travesty in the Western Cape.
Lets
we forget, there is a constitutional imperative that transformation must occur
within the judiciary. Section
174(2) of the Constitution provides that the judiciary needs to “reflect
broadly the racial and gender composition of South Africa must be considered
when judicial officers are appointed. ‟ International
instruments such as the United Nations Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) and Article 15 of the African
Charter on Human and People’s Rights similarly support
this constitutional imperative.
The state must affirmatively take steps to advance the interests of
disadvantaged groups or categories of persons, which include among them African
men and women when it comes to the Western Cape. The JSC is obligated to ensure compliance with the
crystal clear legal and moral duty to appointment more African men and women to
the judiciary of the Western Cape so that the bench is representative of our
diverse society in terms of gender and race. The appointment of a white male candidate, Jeremy
Gauntlett, would not advance the goal of attaining the transforming the
judiciary in the Western Cape or effecting meaningful and equitable
transformation in areas which have been dominated by white males so far. The appointment of an African black
male or female at this juncture would go a long way in helping our society to
attain fairness and justice and would assist to dissipate the dark clouds of
racial and gender prejudice prevalent in the Western Cape. It is very difficult to require
the private sector to respect the constitution and to promote
non-discriminatory practices when our judiciary lags behind in these matters. The JSC now has the unique opportunity
to set the right tone.
B.
Advocate Gautlett Has
Advocated Racially discriminatory Judicial Selection Criteria with Disparate
Impact on Africans.
To
speak of a judicial appointment is to speak of selecting a leader in one of the
most important branches of government. Leadership is a quality on which we all
must focus. The most important
attributes of leadership in the judiciary are restraint, modesty and tenacity
and Gauntlett has none of these attributes. He has through his words and deeds showed that he has keen
intelligence and extraordinary communications skills but lacks the rudimentary
passion for racial inclusiveness. Mr. Gauntlett demonstrated his insouciance
towards the constitution’s imperative for transformation in a very public and
mean-spirited way.
In
2005, a City Press article
reported that Gauntlett had urged the Bar
“to take 'principled position' that would see no African acting judge in
Western Cape.” The paper reported
“Judge President John Hlophe and top lawyer Jeremy Gauntlett (SC) are engaged
in an acrimonious battle over the appointment of acting judges, some
of whom Gauntlett believes are not fit for the positions.” Gauntlett was “proposing
the appointment of only senior counsel which, if agreed, could put an end to
the appointment of African advocates.” At that time the paper reported, “none of the five Africans in the
Cape are senior advocates. There are about 44 senior white advocates and six
senior blacks (coloured/Indian).”
Reportedly Gauntlett was “urging his colleagues to take a
"principled position" against the current system, being implemented
by Hlophe to appoint junior counsel, who are in the main Africans, as acting
judges, without allegedly "vetting" them.” At the centre of the row was “the issue of whether
attempts to deal with backlogs in the courts should be strictly implemented as
such, or whether they should be used to advance the cause of transformation by
bringing more blacks and particularly Africans into the courts as judges.
Should the positions be reserved for senior counsel alone, as Gauntlett argues,
no
African would act in that court because there are no African senior counsel. It
would effectively mean that except for the six coloured and Indian senior
counsel, all the other appointees would be white.”
The proposal could rekindle tensions
between Hlophe, who had a tiff with the Cape Bar after his racism report
earlier this year.
The shocking unvarnished truth is that Gauntlett
was effectively advocating a racially discriminatory selection criterion or
what would be characterized in the United States as disparate impact theory of
discrimination. The US Supreme
Court first described the disparate impact theory in 1971, in Griggs
v. Duke Power Co., 401 U.S. 424, 431-2 (1971) where it held that
anti-discrimination law, Title VII "proscribes not only overt discrimination but
also practices that are fair in form, but discriminatory in operation. The
touchstone is business necessity. . . . [G]ood intent or absence of
discriminatory intent does not redeem employment procedures or testing
mechanisms that operate as 'built-in headwinds' for minority groups and are
unrelated to measuring job capability." The doctrine of disparate
impact holds that employment practices may be considered discriminatory and
illegal if they have a disproportionate "adverse impact" on members
of a group suffering discrimination. The doctrine entails that a facially neutral employment
practice is one that does not appear to be discriminatory on its face; rather
it is one that is discriminatory in its application or effect. Where a
disparate impact is shown, the plaintiff can prevail without the necessity of
showing intentional discrimination unless the defendant employer demonstrates
that the practice or policy in question has a demonstrable relationship to the
requirements of the job in question.
At issue in Griggs was the requirement that employees hired into service
jobs at the power company's facilities had to possess a high-school diploma and
achieve a minimum score on an IQ test. The plaintiffs argued that these rules
disqualified too many black job applicants, thereby violating Title VII of the
Civil Rights Act of 1964, which prohibits employment discrimination based on
race, color, religion, sex, or national origin.
The
US Supreme Court agreed, ruling that job criteria with an adverse or
exclusionary effect on minorities — even if those criteria were "neutral
on their face, and even neutral in terms of intent" — could
violate the Title VII ban on race discrimination in hiring. The Court further
stipulated that employers could escape liability for "disparate
impact" only if they demonstrated that their adverse selection practices
had "a manifest relationship to the employment in question" or that
they were justified by "business necessity." In examining the
criteria for positions at the Duke Power Company, the Court found insufficient
evidence to satisfy the job-relatedness defense, and so ruled against the
utility. According to the Griggs
Court, the purpose of the newly established disparate-impact rule was to "achieve equality of employment opportunities"
by removing "built-in headwinds"
and "barriers that had operated in
the past" to impede minorities' workplace advancement. “Under disparate impact analysis . . .
a prima facie case is established by showing that the challenged practice of
the defendant actually or predictably results in racial discrimination; in
other words that it has a discriminatory effect.” Huntington Branch, NAACP v. Town
of Huntington, 844 F.2d 926, 934 (2d Cir.) (internal quotation marks
omitted), judgment aff’d, 488 U.S. 15 (1988); see Tsombanidis v. W. Haven Fire
Dep’t, 352 F.3d 565, 575 (2d Cir. 2003) (under FHA, “[a] plaintiff need
not show the defendant’s action was based on any discriminatory intent.”);
Mr.
Gauntlett demonstrated his insensitivity and lack of fealty to the Constitution
especially in matters of transformation in the Western Cape. As a lawyer, he knew that even the
Constitutional Court has commented on the effect of the “Coloured Labour
preference policy” on social policy and the transformational process in general
and exclusion of Africans in particular. The Concourt has noted the adverse
effect of such past policies against Africans in particular. It did so in the Government of the Republic of
South Africa and Others v Grootboom and Others (CCT11/00) [2000] ZACC
19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000) case where Justice
Yacoob stated:
[6] The
cause of the acute housing shortage lies in apartheid. A central feature of
that policy was a system of influx control that sought to limit African occupation
of urban areas. Influx control was rigorously enforced in the Western Cape,
where government policy favoured the exclusion of African people in order to
accord preference to the coloured community: a policy adopted in 1954 and
referred to as the “coloured labour preference policy.” In consequence, the
provision of family housing for African people in the Cape Peninsula was frozen
in 1962. This freeze was extended to other urban areas in the Western Cape in
1968. Despite the harsh application of influx control in the Western Cape,
African people continued to move to the area in search of jobs. Colonial
dispossession and a rigidly enforced racial distribution of land in the rural
areas had dislocated the rural economy and rendered sustainable and independent
African farming increasingly precarious. Given the absence of formal housing,
large numbers of people moved into informal settlements throughout the Cape
peninsula. The cycle of the apartheid era, therefore, was one of untenable
restrictions on the movement of African people into urban areas, the inexorable
tide of the rural poor to the cities, inadequate housing, resultant
overcrowding, mushrooming squatter settlements, constant harassment by
officials and intermittent forced removals. The legacy of influx control in the
Western Cape is the acute housing shortage that exists there now.
That
Concourt also discussed the background to this policy fully in the majority
judgment of that court, Ex Parte Western Cape Provincial Government
and Others: In Re DVB Behuising (Pty) Ltd v North West Provincial Government
and Another 2000 (4) BCLR 347 (CC) paras 41-47. It recently did so in Residents of Joe Slovo Community, Western
Cape v Thubelisha Homes and Others (CCT 22/08) [2009] ZACC 16; 2009 (9)
BCLR 847 (CC) ; 2010 (3) SA 454 (CC) (10 June 2009) paras 192-197. It is the highest form of irresponsibility and
manifestation of racially discriminatory attitude for a lawyer to advocate the
continued use of selection criteria which perpetuate the legacy of apartheid
under the guise of maintaining “principled” opposition to “lowering of
standards.” That lawyer
would certainly not qualify to be appointed a judge in the Western Cape
Province where the need to undo the vestiges of apartheid and all its
manifestations in the form of “coloured labour preference” urgent. It would defeat the
very purpose of the constitutional transformational imperative if the JSC
appoints a lawyer who remains completely oblivious to the unique nature of
racial discrimination in the Western Cape despite having received his college
education in the area and despite maintaining his law practice here. Gauntlett states that his
position was “principled” and therefore the JSC cannot brush it aside as mere
differences of opinions between Gauntlett and Judge President Hlophe- it is a
calculated anti –transformation agenda bristling with extreme arrogance. Gauntlet has a right to maintain his
“principled position” but he has no constitutional right to be appointed a
judge when he holds such retrogressive views and is oblivious to
transformation.
C.
Gauntlett’s Previous Attacks
on JSC Decisions And Undermining of the JSC Process.
Gauntlett
has engaged in a pattern and practice of attacking the JSC and President Hlophe
when he is confronted with decisions he does not like. In the aftermath of the
2007 JSC ruling not to recommend the impeachment of Judge President Hlophe in
connection with the Oasis complaint, Gauntlett and several of his cohorts
penned a letter highly critical of the JHSC and Judge President Hlophe.
The letter read in part:
We are all
senior counsel in practice at the Cape Bar. Some of us are
former chairs
of the Bar, and of the General Council of the Bar of
South Africa
and from time to time have served, too, as acting High
Court judges.
For a period
of nearly two years we have viewed with deep
concern the
lodging with the Judicial Services Commission (JSC) of a
series of
complaints against the conduct of Cape Judge President JM
Hlophe. We
have thought it only right that the JSC should have the
fullest
opportunity to deal with these matters, and Judge President
Hlophe to
exonerate himself...
The JSC has
now determined that its process is at an end. By majority, it has decided not
to proceed further with its inquiry. That would have entailed summoning the
Judge President to be orally examined on such responses as he has chosen to
give to the JSC’s investigation. Unanimously, however, it has found Judge
Hlophe’s explanations for receiving money from Oasis Management Group
‘unsatisfactory in certain respects’. It also considered his failure to
disclose his relationship with Oasis at the time he gave it permission to sue
another Cape judge ‘inappropriate’. And it has (again unanimously) directed its
chair, the Chief Justice, together with the President of the SCA and the Judge
President of Gauteng to meet him to convey the JSC’s concerns and its
expectations regarding his future conduct.
In an
important public statement on the issue, Johann Kriegler, former Johannesburg
High Court, Supreme Court of Appeal and Constitutional Court judge, has
observed that while judges are fallible, what the public are entitled to demand
is at least honesty and impartiality. He has pointed to improbabilities,
inconsistencies and vagaries in Judge Hlophe’s account to the JSC. Judge Kriegler writes: ‘[t]he ugly fact
remains that on his own showing Judge Hlophe was guilty of grossly improper
conduct….no judge dare receive any surreptitious payment of money from any
financial institution carrying on business within that judge’s area of
jurisdiction. It is inherently improper’.
Pointing to
Judge Hlophe’s position as head of the Cape judiciary, controlling its rolls,
allocating judges to cases and setting the whole ethical tone for the division,
he concludes: ‘Judge Hlophe is not a fit
and proper person to be a judge. His retention of office constitutes a threat
to the dignity and public acceptance of the integrity of the courts.’
We find ourselves bound to support Justice
Kriegler’s analysis and conclusions. We do so with
heavy hearts. As Justice Kriegler himself notes, this state of affairs is
indeed tragic, ‘for this highly talented man carried the hopes of all who are
passionate about transformation of the judiciary’. Our Bar supported his nomination
as a judge, when - recruited from the University of Transkei - in 1994 he became (at the age of 35) one of the youngest
judges in South Africa since Union. And we supported him again in due course as
a Bar for the judge presidency of the Cape. We record these things, lest by
reflex we be accused of personal antipathy or racism. We believe that there
cannot be public confidence in the continuation in office now of Judge Hlophe.
Even the conduct he has admitted, and the JSC’s characterisation of it, oblige
this conclusion.
In all the circumstances, we believe the right thing
for Judge Hlophe to do is to resign as judge president and as a judge.
As regards the
JSC, we find it puzzling that despite its (unanimous) characterisation of Judge
Hlophe’s responses as ‘unsatisfactory’, it (by majority vote) decided to desist
from requiring him to be examined in relation to these answers. Public confidence in the JSC as a
principled upholder of judicial independence and integrity may not have been
served by these events.
The
jeremiad by these senior advocates was grossly misleading in that the JSC
decision was based on a correct reading Section 177 of the Constitution – this
states that a judge may be removed from office only upon a finding by the JSC
that the judge is grossly incompetent or is guilty of gross misconduct. Acts of
“gross” misconduct are typically intentional, wanton, wilful, deliberate,
reckless, or in deliberate indifference to whether some wrongdoing occurs. The JSC finding of “inappropriate”
conflict of interest in Hlophe’s case can hardly be equated with “gross
misconduct” as a matter of law. It
was patently unfair and disingenuous for the lawyers to continue misleading the
public on this subject. There was
no quid pro quo implied in the payments Judge Hlophe allegedly received from
Oasis. He would have been compelled by the provisions of section 34 of the
Constitution to grant the requested permission in any event. There was never an argument made that
the payments from Oasis influenced the decision to grant the permission to sue
in any manner whatsoever. The rules about permission for judges to do outside
consulting or other work such as teaching or lecturing for remuneration have
only recently been clarified. In
the views of these senior advocates, the rules could be applied selectively and
opportunistically to disadvantage Hlophe, notwithstanding the JSC ruling. Even
assuming the litigants in the Oasis matter were aggrieved by Judge President
Hlophe’s actions, they could have raise proper objections through a proper
motion seeking recusal because of the relationship between Hlophe and
Oasis. The rule of automatic
disqualification would have been beneficial to them. The House of Lords in Regina v. Bow Street MetropolitanStipendiary
Magistrate, Ex parte Pinochet Ugarte (No: 2), (2000) 1A.C. 119,
revisited the rule of automatic disqualification. In that case, the House of
Lords dealt with a situation in which Lord Hoffmann had participated in a
decision where Amnesty International was an intervener, while sitting as a
director and chairperson of a charity closely allied with Amnesty International
and sharing its objects. In that context, it was found that the rule of
“automatic disqualification” extended to a limited class of non-financial
interests, where Lord Hoffman has such a relevant interest in the subject
matter of the case that he is effectively in the position of a party to the
cause. Consequently, Lord Hoffman was disqualified, and the entire decision of
the House of Lords was set aside. Lord Browne–Wilkinson, writing a separate
judgment for the House of Lords, said at pages 132 to 133 of the report:
“As I have said,
Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The
contention is that there was a real danger or reasonable apprehension or
suspicion that Lord Hoffmann might have been biased, that is to say, it is
alleged that there is an appearance of bias not actual bias. The fundamental
principle is that a man may not be a judge in his own cause. This principle, as
developed by the courts, has two very similar but not identical implications.
First it may be applied literally: if a judge is in fact a party to the
litigation or has a financial or proprietary interest in its outcome then he is
indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action
or has a financial or proprietary interest in its outcome is sufficient to
cause his automatic disqualification. The second application of the principle
is where a judge is not a party to the suit and does not have a financial
interest in its outcome, but in some other way his conduct or behavior may give
rise to a suspicion that he is not impartial, for example because of his
friendship with a party. This second type of case is not strictly speaking an
application of the principle that a man must not be judge in his own cause,
since the judge will not normally be himself benefiting, but providing a
benefit for another by failing to be impartial. In my judgment, this case falls within the first category of
case, viz. where the judge is disqualified because he is a judge in his own
cause. In such a case, once it is shown that the judge is himself a party to
the cause, or has a relevant interest in its subject matter, he is disqualified
without any investigation into whether there was a likelihood or suspicion of
bias. The mere fact of his interest is sufficient to disqualify him unless he
has made sufficient disclosure: see Shetreet, Judges on Trial (1976), p.303; De
Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5thed.
(1995),p.525. I will call this ‘automatic disqualification ”
The
JSC had properly concluded that JP Hlophe’s ethical lapses did not warrant
further investigation or formal hearing. The JSC did not shirk its responsibility in its
investigation of JP Hlophe. It was
a difficult and most unpalatable job of judges sitting in judgment over a
valued colleague. The JSC jurists obviously performed their job too well and
much to the chagrin of those who were baying for JP Hlophe’s blood at all
costs. His critics knew all
too well that Judge Hlophe could not enter the fray of political or any other
debates if judicial integrity is to be protected. These publicity-hungry critics have ignored the very
statutes and constitution setting forth the standard for removal of judges in
their rush to recklessly attack JP Hlophe and to mislead the public through
half-baked theories. In the name
of protecting our democracy they unabashedly and deliberately nourish a culture
of sound bites and interest group politics that threatens to erode public
perceptions and understanding of the judiciary.
Irresponsible
criticism which seeks to bring about the removal of black judges from office or
influence their decisions based on intimidation is the very antithesis of
judicial independence and the rule of law. It is irresponsible to attack a
judge for the purpose of bullying him into resigning even after the JSC has
reached a decision that did not call for such drastic step. Those who criticize irresponsibly often
focus on the results of a single decision without considering the underlying
facts and legal principles which governed the JSC’s decision in the case. It is remarkable that Gauntlett who was
admitted to the Bar in the 1970s never attacked fellow white judges with such
venom during the apartheid years.
The
JSC must take into account that courts in other countries have recognized that
legitimate restrictions may be placed on attorney speech or conduct that degrades
the integrity of the court and that unjust attorney criticism of judicial
officers may be prohibited. Rules that restrict attorney criticism of the
judiciary are neither intended nor desired to protect judges from offensive or
unsettling criticism, but intended to preserve public faith and confidence in
the fairness and impartiality of the judicial system.' See, e.g., In re Terry, 394 N.E.2d
94, 95-96 (Ind. 1979) (disbarring lawyer for making false accusations against
judge to members of jury and public officials); In re Frerichs, 238
N.W.2d 764, 768-69 (Iowa 1976) (admonishing attorney for criticism of court's
decision and explaining that lawyers have fewer free speech rights than private
citizens); Kentucky Bar Ass'n v. Heleringer, 602 S.W.2d 165, 168-69 (Ky.
1980) (disciplining attorney for public statements about sitting judge); In re
Raggio, 487 P.2d 499, 500-01 (Nev. 1971) (reprimanding attorney for
criticism of court's holding); Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 355 (1871) (recognizing that valid purpose behind sanctioning
attorneys is need to limit offensive conduct and insulting language about
integrity of judiciary). Courts repeatedly have endorsed ethical rules
regulating attorney criticism of the judiciary based on the rationale that
allowing such criticism to flourish would severely diminish the public's
confidence in the judiciary and thus hinder the efficient administration of
justice.' See, e.g., In re
Evans, 801 F.2d 703, 706-08 (4th Cir. 1986) (stating that attorney's
letter to judge questioning judge's competence and impartiality, written during
pendency of appeal, amounted to attempt to prejudice administration of
justice); In re Shimek, 284 So. 2d 686, 689 (Fla. 1973) (finding that
attorney's statement that judge was avoiding performance of his sworn duty was
"calculated to cast a cloud of suspicion upon the entire judiciary");
Terry,
394 N.E.2d at 96 ("Unwarranted public suggestion by an attorney that a
judicial officer is motivated by criminal purposes and considerations does
nothing but weaken and erode the public's confidence in an impartial
adjudicatory process."); Committee on Prof 1 Ethics & Conduct v.
Horak, 292 N.W.2d 129, 130 (Iowa 1980) ("To permit unfettered
criticism regardless of the motive would tend to intimidate judges in the
performance of their duties and would foster unwarranted criticism of our
courts."); Heleringer, 602 S.W.2d at 168 (declaring that attorney's press
conference statements that judge's behavior was unethical and grossly unfair
tended to "bring the bench and bar into disrepute and to undermine public
confidence in the integrity of the judicial process").
Additionally,
courts have stated that attorneys are officers of the court who have
voluntarily relinquished certain rights as members of a regulated profession.
See, e.g., In re Snyder, 472 U.S. 634, 644-45 (1985) (reasoning that
"license
granted
by the court requires members of the bar to conduct themselves in a manner
compatible with the role of courts in the administration of justice"); In re
Sawyer, 360 U.S. 622, 646-47 (1959) (Stewart, J., concurring) (stating
that "[o]bedience to ethical precepts may require abstention from what in
other circumstances might be constitutionally protected speech"); In re
Frerichs, 238 N.W.2d 764, 769 (Iowa 1976) (recognizing that
"lawyer, acting in professional capacity, may have some fewer rights of
free speech than would a private citizen");
In
re Johnson, 729 P.2d 1175, 1179 (Kan. 1986) (finding that one purpose
of disciplinary action is to enforce "honorable conduct on the part of the
court's own officers"); State ex rel. Neb. State Bar Ass'n v.
Michaelis, 316 N.W.2d 46, 53 (Neb. 1982) (proclaiming that "[a]
lawyer belongs to a profession with inherited standards of propriety and honor,
which experience has shown necessary in a calling dedicated to the
accomplishment of justice").
Gauntlett’s
attitude toward the JSC and Judge President Hlophe stands in sharp contrast to
his attitude towards his controversial friends who are serving as judges in the
neighboring countries and who have been condemned for their anti-democratic
actions. Immediately upon learning
through leaked JSC documents that Gauntlett was not appointed as a judge in
2010, a group of judges serving in Lesotho and Swaziland “expressed their outrage and dismay that
Jeremy Gauntlett has been overlooked for one of three vacant seats on the
Western Cape High Court, as reported in leaks to the media.” The unprecedented letter, penned by
Swaziland Chief Justice Mathealira Ramodebedi, Justice DG Scott, Justice LS
Melunsky, and retired justices Johan Steyn, Craig Howie and John Smalberger,
expressed their "surprise and dismay"
at the exclusion of Gauntlett from the bench. The letter states in relevant part the following:
Several of us have served as judges on the courts of
South Africa. Three of us have recently retired as members of the Supreme Court
of Appeal. In our capacities as such, advocate Gauntlett frequently appeared
before us…We testify that he is an outstanding lawyer and one of the leading
senior advocates in South Africa. He is principled and conscientious. He also
has great forensic skills… He is, in short, a most able lawyer and highly
qualified in all respects for judicial appointment in South Africa.
We express our surprise and dismay at the decision
of the JSC not to recommend his appointment as a judge. Southern Africa, and
South Africa in particular, have been denied the opportunity to benefit from
the great contribution he would have made to the development of the law…"
In
a typical response, Paul Hoffman, director of the Institute for Accountability,
said Gauntlett's omission was proof that neither merit nor transformation had
been considered by the JSC. "It seems that the JSC gave greater weight to its
consideration of the need for the judiciary to reflect broadly racial and,
particularly in this instance, gender demographics than to appropriate
qualification. If merit had been accorded its proper place he would have been
successful; none of the other candidates have as much 'heavy duty'
experience of litigation both at the Bar and on the Bench," said Hoffman. Id.
Swaziland
Chief Justice Mathealira Ramodebedi, also nicknamed “Makhulubaas” is a
controversial figure who has allegedly wreaked havoc in the judiciary of
Swaziland. Ramodibedi, from the nearby kingdom of Lesotho, was brought in June
2011 by Mswati to become chief justice. One of his first official acts was an
order preventing anyone from “directly or indirectly” suing the
king. He subsequently sparked controversy
by suspending judge Thomas Masuku for “insulting” King Mswati III.
Last
year, the Botswana Law Society condemned Ramodibedi and described his action as
“an assault on the judiciary and rule of law in Swaziland” The newspapers summarized the statement
of the Botswana Law Society as follows:
The Law Society of Botswana also fears that Justice
Ramodibedi’s way of doing things and his ‘warped’ sense of justice may find its
way into Botswana, although they vowed to guard against that.
Justice Ramodibedi is also a sitting judge of the Court of Appeal of Botswana,
while Justice Masuku was until recently a Judge at the High Court of Botswana
in Francistown.
The charges were described by Batswana lawyers as
‘patently spurious’ and Judge Masuku seen as ‘a victim of abuse’ in this whole
scenario.
“The Law Society of Botswana would think that the honourable Ramodibedi as a
member of our Court of Appeal should inspire confidence
in all of us who believe in judicial independence, the rule of law and democratic
governance,” Botswana Law Society Executive Secretary Tebogo Moipolai said in a
statement, further observing that “the world has shrunk
to a very small global village of which the BOLESWA countries are only a tiny
ward”.
The statement also reads: “Our fear is that honourable Ramodibedi’s way of
doing things and the way he understands democracy (in the eyes of the beholder)
is inimical to the development of a progressive
judicial system that we would love to see for Botswana and indeed within and
outside the BOLESWA region”.
Other organisations that condemned Justice Ramodibedi’s
actions include the SADC Lawyers Association, Southern African Association of
Jurists, Civic Organisations and other international bodies.
Justice Masuku was slapped with 12 counts of misconduct which include insulting
the King and being intimately involved with a fellow judge.
The Law Society of Botswana assures its Swazi counterparts and the citizens of its support as they fight to protect and
enhance the rule of law in Swaziland.
In
July 2011, the Law Society of Swaziland lawyers filed a sexual harassment
complaint with the Judicial Service Commission (JSC) in which it accused
Ramodibedi of sexual harassment, based on complaints from five female court
workers. The complaint stated: “Justice
Ramodibedi has conducted himself in an inappropriate manner towards female
employees of the High Court of Swaziland.” It also stated: “There is prima
facie evidence that the chief justice is guilty of charges of sexual
harassment.” Swazi lawyers went on strike to
protest against Chief Justice Michael Ramodibedi’s decision to suspend judge
Thomas Masuku over 12 misdemeanour offences, including a reference to Mswati as
“forked-tongued” in a 2010 ruling and a sexual affair with a female judge. Masuku is also accused of
“actively associating with those who want to bring about unlawful change to the
regime”.
At
the 12th SADC Lawyers Association Annual General Meeting and Conference held in
Maputo, Mozambique from the 4th-6th of August 2011 under the theme “towards
democratic elections and the peaceful transfer of power in the SADC Region”,
attended by bar leaders, judges, lawyers and civil society representatives from
the SADC region and beyond, the following resolution was adopted regarding the
administration of Justice in Swaziland and Ramodibedi:
i.
That the Association is deeply concerned by the serious breakdown of
the administration of justice in Swaziland and in particular the role
reportedly played by the Chief Justice of that country, Justice M.M. Ramodebedi
in undermining the independence of the judiciary
ii. That the SADC Lawyers Association expects
any Chief Justice in the SADC region to lead by example and ensure that all
processes concerning the administration of justice fully comply with the law
iii.
That the Association is seriously concerned by the fact that the
Chief Justice is undermining the independence of the very judiciary that he leads and calls upon
the Judicial Services Commission of Swaziland to expeditiously ensure that the
Chief Justice does not become the judge and the jury in his own cause in
relation to the charges that are being preferred against Justice Thomas Masuku
iv. The SADC Lawyers Association fully supports the
call made by the Law Society of Swaziland for the Chief Justice to answer to
the complaints that have been made against him by the law society and that in
the meantime he must be suspended pending the outcome of his hearing
v.
That the SADC Lawyers Association
further supports the demand made by the Law Society of Swaziland that
the hearing for Justice Thomas Masuku set for the 11th of August 2011 must be
carried out in public.
In contrast to his stance on the Judge
President Hlophe matter, Gauntlett and his group of senior members of the Cape
Bar have maintained a deafening silence and not spoken out against
“Makhulubaas” probably because of the support he gave to Gauntlett. It should also be noted that one of the
judges who expressed outraged at the JSC’s alleged snubbing of Gauntlett was
Justice Melunsky who is notorious for commiserating with a white serial killer
who killed 39 blacks while working as a security guard in East London. Prosecutors had “demanded the death
penalty or a long jail term, and the time van Schoor will serve is short
compared with other mass killers sentenced recently in South Africa.” Judge
Lionel Melunsky chastised police for their failure to arrest Louis van Schoor
sooner, saying Van Schoor ''should have have been stopped in his
tracks'' years ago. Melunsky said he showed ''callous disregard'' for
human life but added he believed van Schoor, who had no prior arrests and once
worked as a police officer, could be rehabilitated. The judge “saved his
harshest words for police, whom he accused of ineptitude. If they had done
their jobs, van Schoor ''could have and should have been stopped in his tracks
in 1987'' after several shootings, and other lives would have been spared,
Melunsky said.” Melunsky also “blamed
society in general, saying South Africa's violent environment could
have affected van Schoor's actions.”
It
was unethical and a damnable practice for the Chief Justice and other judges to
comment on a pending before the JSC and on the basis of leaked documents. Gauntlett should have condemned the
said actions but he displayed poor judgment by maintaining silence simply
because the said unethical actions benefited him. The JSC cannot countenance a
situation where a Chief Justice of a repressive regime is allowed to interfere
in the internal affairs of our judiciary especially relying on stolen
information. This state of affairs
must give the JSC even more reason to scrutinize the matter of Gauntlett’s
citizenship – the Constitution stipulates that the selected judge must be a
South African citizen for a reason.
Where the person being considered is a dual British –South African
citizen and there is evidence to suggest that foreign judges from the British
Commonwealth countries are willing to attack our JSC on his behalf we must all
be alarmed by that.
D.
The JSC Must Resist the AWB
Syndrome During Its Evaluation of Gauntlett’s Candidacy.
There
is a phenomenon I call the “Angry White Boy(AWB)” syndrome which repeatedly
rears its ugly head every time a white male candidates favoured by the DA or
some white interest groups fail in their bid to be recommended for appointment
as judges by the JSC. This
syndrome manifests itself in the following manner: The non-selection of the white male candidate preferred by these lobbyist groups is invariably
blamed on affirmative action and reverse discrimination against whites. The reaction typically involves
demonizing the JSC itself for alleged incompetence and political partisanship
or even outright anti-white agenda.
In some cases, it has involved unfair attacks on the qualifications of
the selected female or black judge in an effort to buttress the argument that
the “overlooked” or “snubbed’ white male candidate was more qualified and the
JSC would have selected him if only it had intelligent people in its
ranks. In another instance
involving Gauntlett, the “snubbing” was alleged to have provoked shock and
outrage in some quarters, with one senior Cape Town lawyer saying it was
"disgusting".
Lest
we forget, the DA successfully challenged in court the appointment of Menzi
Simelane by claiming, in part, that Simelane was unfit because he had been
criticized by the Ginwala Commission and courts in a manner suggesting his lack
of integrity. In contrast to its
position on Simelane, the DA has vigorously campaigned for Advocate Budlender
to be appointed as a judge notwithstanding the fact that Budlender has also
been the object of judicial criticism which called his fitness and integrity
into question. Some time ago, the
DA published a document entitled “THE DA’S JUDICIAL REVIEW: THREATS TO
JUDICIAL INDEPENDENCE IN SOUTH AFRICA” http://www.da.org.za/docs/621/judicial%20review_document.pdf. In the document, the DA complains about discrimination
against whites, specifically Budlender, in the following terms:
For example,
in 2004, the JSC refused to appoint a white advocate, Geoff Budlender, to a
permanent position at the Cape High Court. This was the third consecutive time
that the JSC had rejected him. He was passed over in favour of a black
candidate who is competent, but whose record is far less impressive than
Budlender’s. Budlender was a co-founder of the Legal Resources Centre, and had
been involved in several of the most important cases in post-apartheid legal
history, including the first case heard by the Constitutional Court on the
validity of the death penalty, the Treatment Action Campaign’s successful
challenge for anti-retrovirals to be made available to HIV-positive pregnant women
and the Grootboom case, which produceda landmark judgment on the rights of
squatters. Budlender’s rejection prompted a senior colleague at the Bar to
comment: “There is no white lawyer in South Africa who can match his
credentials. If Budlender is unacceptable to the commission, then no other
white male lawyer can make it”. .. Disenchanted with Budlender’s rejection,
respected legal commentator Carmel Rickard called on the Judicial Service Commission to “be frank with the legal profession and
say that white male lawyers should no longer apply for positions on the Bench”.”
The
DA’s comments about Budlender highlight the dishonest misuse of the judicial
system by racist parties such as the DA as well as members of the media
masquerading as journalists. Advocate Budlender, SC represented the plaintiffs in Thubelisha Homes and Others v Various
Occupants and Others (13189/07) [2008] ZAWCHC 14 (10 March 2008). The court described Budlender’s
conduct in a manner that suggested his lack of candour with the court. It stated:
[76] To conclude this aspect of the judgment, Mr.
Budlender’s argument also loses sight of what was authoritatively laid down by
the Supreme Court of Appeal in City of Johannesburg v Rand Properties (Pty) Ltd
and Others 2007 (6) SA 417
referred to in paragraph [53] supra, where the court held “…the Constitution does not give a person a
right to housing at State expense at a locality of that person’s choice…”. Ironically Mr. Budlender was one of the
counsel involved in the Rand Properties-case, yet he made no reference to the
case at all. It is my judgment that the residents of Joe Slovo had no
legitimate expectation nor any right to remain at Joe Slovo. The right is the
right of access to adequate housing. It is not the right to remain at the
locality of their choice, namely Joe Slovo.
The
duty of candour to a tribunal is a cardinal principle which provides that a
lawyer may not knowingly fail to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing counsel. This rule is designed to ensure that
when lawyers are representing clients in court, they preserve the integrity of
the judicial system by not allowing the court to be misled by a false
understanding of the law or facts. In the Matter
Of: The Complaint of Mike's, Inc. and Mike's Marine, Inc., for Exoneration from
or Limitation of Liability, 337 F.3d 909 (2003), the US Court of Appeals,
Seventh Circuit condemned as “bad faith” the behavior similar to
the one attributed to Budlender.
The Court stated:
What concerns us more about appellants' conduct was
their specific failure to bring the Mers case to the Missouri district court's
attention. Not only was Mers decided contrary to appellants' position and in
the Eastern District of Missouri, but the firm representing appellants was also
counsel to the party bringing the limitation action in Mers. This is not a case
where the appellants can claim they were unaware of the contrary authority
through lax research or some other reason. Here appellants' counsel had actual
knowledge of the Mers decision (they acknowledged this much at oral arguments)
and were clearly in the best position of any party to bring this case to everyone's
attention.
The
court recognized the simple fact that vigorous advocacy is, necessarily,
truthful advocacy. This precludes
a lawyer whose desire to win leads him to muddy the headwaters of decision and
who distorts and obscures the true nature of a case by blatantly trespassing
the obligations of professional responsibility. A lawyer should not be able to proceed with impunity
in real or feigned ignorance of authorities which render his argument
meritless.
Of
course in the racist view of the DA, court rulings criticizing a person can
only be career-ending when the person criticized is black, like Simelane. The court’s criticism of Budlender has
never been used and will never be used by the DA and white commentators to
question Budlender’s integrity. In
Simelane’s case, the mainstay of the DA’s argument was that Simelane withheld a
legal opinion that was legally privileged – a ludicrous proposition that would
never be accepted in any civilized country. This proves my point that the DA will stop at nothing in its
attacks on black people – legal principles and the truth are easily discarded
in the process.
The
DA has, through a court challenge, effectively established the principle that a
court’s criticism of an individual especially in language suggesting mendacity
or lack of candour will automatically prevent such individual from appointment
to positions requiring a “fit and proper” person. I am quite sure that if the affected person is white, the DA
and the white legal fraternity will invent a plethora of excuses to argue that
the facts underlying the criticism must be understood in context. If the person involved is an African
like Simelane, even stray remarks by Commissions of Enquiry acting in excess of
their jurisdiction will be accepted and used to preclude employment in senior
executive positions. It is about
time that in the JSC’s appointment processes blacks must sufficiently raise the
bar to ensure that there is equality of treatment – whites who have been
subject to adverse comments by tribunals or courts must be treated in a manner
similar to Simelane. What's sauce
for the goose is sauce for the gander.
The
theme of white exclusion has been harped upon in Gauntlett’s numerous
unsuccessful applications for judicial appointment. Recently the argument of white exclusion was taken even
further by the Centre for Constitutional Rights, an outfit unit of the F W de
Klerk foundation, a registered charitable trust in Cape Bar Council v Judicial
Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4)
BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011). This outfit argued that the
unsuccessful white candidates’ rights to dignity have been infringed in that “the JSC is not permitted to extend an open
invitation to members of the legal fraternity to make themselves available for
nomination as a Judge, if some of its
members have adopted a policy in terms of which non-black members will not be
appointed.” Cape
Bar Council v Judicial Service Commission and Others at para.146. It is significant that the Court
ultimately rejected the submission by the De Klerk outfit that “a policy has
been adopted in terms of which non-black members would not be appointed” as “speculative
and without an evidential basis.” This underscores the fact that there
is an intimidation campaign to label as racists with an anti-white agenda some
members of the JSC who must evaluate the qualifications of certain white
judicial candidates preferred by the minority opposition parties and lobby groups. The JSC may either succumb to these
pressure tactics and blackmail or it can stand firm and advance the objectives
in section 174 (2) of the Constitution.
Predictably, no similar shock and outrage is expressed when eminently
qualified black candidates are not selected.
I
am by no means suggesting that the putative white candidates have been
responsible for the reaction of their erstwhile supporters. But the reaction is
relevant to the principle established by the JSC itself that a candidate can be
questioned and even asked to distance himself from his supporters. That was done to Judge President Hlophe
who was called upon to denounce the Justice for Hlophe Alliance by the likes of
former Chief Justice Chaskalson.
The JSC itself questioned Hlophe JP extensively about his
supporters. It now remains to be
seen whether the JSC will also take Gauntlett to task for his acquiescence in
“Makhulubaas” meddling in JSC processes and the latter blasting the JSC on the
basis of leaked documents and in intemperate language.
E.
Conclusion
I
have critically evaluated Gauntlett’s philosophy, including his endorsement of
racially discriminatory criterion for judicial appointment, his politics and
the fact that his candidacy received endorsement by foreign and other judges
with unsavoury reputations and have critically evaluated Gauntlett’s
unprincipled stance on matters of transformation and access to justice. I conclude that Gauntlett has failed in
his leadership of the Bar Council where he squandered many golden opportunities
to advance transformation within the legal profession and the judiciary. I also argue on the basis of his record
and political shenanigans that Gauntlett actively courts controversy to the
detriment of judicial independence.
Gauntlett’s political entanglements and unprincipled attacks on certain
black judges, including the Judge President of the Cape of Good Hope where he
seeks appointment, render him uniquely unfit for appointment at this stage.
Respectfully Submitted
Paul
M. Ngobeni
Paul M. Ngobeni
Submitted
Paul
M. Ngobeni
Paul M. Ngobeni
