The
threat by apartheid judge Louis Harms to bring a court application against the
Judicial Services Commission (JSC) to review its rejection of Jeremy Gauntlett’s
judicial candidacy can be characterized as the height of judicial
chutzpah. It is nothing more than
hot air bluffing with no prospect of success. Well, that is assuming, of course, that the application is
not assigned to a judge Chief Justice Mogoeng has described as fearful of “what vocal and well-resourced opposition
party leaders can do to you, what resources and forces the rich and powerful
can mobilize against you, and what ridicule, recycled criticism and
misinformation campaigns the media and others could subject you to.” See, Mogoeng To Critics: Hamba Kahle; Charl Du
Plessis; City Press 28 October 2012. http://www.citypress.co.za/SouthAfrica/News/Mogoeng-to-critics-Hamba-kahle-20121027.
Interestingly, the same
paper reports that Gauntlett was asked to apply for the vacant judge position
by “an emissary of Chief Justice Mogoeng” because the latter wants Gauntlett to
act as a “counter-point to influential Justice ..Cameron” who is “an
intellectual heavyweight who holds a lot of sway among colleagues on the
Bench”. Mogoeng “Wants Gauntlett”: Charl Du Plessis; City Press 28 October
2012, p.4. http://www.citypress.co.za/SouthAfrica/News/Mogoeng-wants-Gauntlett-20121027
It is alleged that Gauntlett
“could act as a counterpoint to dilute Cameron’s influence.” Id.
The
implications here are huge and the racist connotation in this message is not
that difficult to decipher.
Simply put, the reporter implies that we have a constitutional court
with lots of black judges who lack the intellectual resources and research
skills to match a single domineering white jurist. The solution allegedly conjured by the black Chief Justice,
who is also intellectually bereft, is to go out on a recruitment drive to find
another white jurist who can euphemistically serve as a “counterpoint.” Actually,
this is a nicer way of saying the Chief Justice wants another white judge to
think for all the black judges on the Concourt. What an unpardonable insult to those decent and intelligent
black jurists on that Court! The circulated rumours are emblematic of
a wider race problem in South Africa – whites’ contempt for black people has
become so commonplace and some whites have ceased to recognize that blacks have
the capacity to be offended by anything whites say about them. Those who denounce such clap-trap
are accused of being “nationalists’ and not being “progressive.” Obviously, the reporters have published
the rumours in a misguided attempt to assist Gauntlett’s cause but they did not
think for one second how the statements actually discredit the leadership of
the Chief Justice and have the potential to leave his black judicial colleagues
mortally affronted by the suggestion that they collectively need Gauntlett as
their messiah because they lack the intellectual prowess of a white man. The waters have now been poisoned and
the story will never die down because next time Gauntlet applies for a Concourt
position, many black people, including judges, will remember this scandalous
insult.
Anway,
I only wish to address why retired apartheid judge Harms’ application will fail
on the merits and why its failure will mean a permanent disqualification of
Gauntlett from any judicial appointment in South Africa. First, the newspapers reveal that Harms
who nominated Gaunlett submitted his papers more than 23 days late. Under normal circumstances that would have
been the end of the candidacy and no further questions asked. In this case, Gauntlett’s email accepting
the nomination was sent on August 21, that is more than 25 days past the
deadline. In an ironic twist,
Harms’ will have to concede in his court application that Gauntlett was a
beneficiary of reverse discrimination up to the point of being short-listed –
the JSC extended special favourable treatment for Gauntlett and accepted his
application under circumstances where whites would never have tolerated similar
bending of the rules for a black candidate. Had Gauntlett been black, the likes of Harms’ would be
fulminating about the ‘rule of law’ and principle of equality to argue that
singling out a candidate and accepting his papers many weeks after the deadline
is discriminatory and ‘irrational.’
Should
the reviewing court have the gumption to reverse the JSC decision with
instructions for new interviews, another disqualifying issue will be lurking, namely,
Gauntlett’s dual British-South African citizenship. While this issue was not previously canvassed at length, it will
present itself squarely to the JSC at the next round. Our Constitution requires that a judge must be a South
African citizen but it does not address the issue of dual citizenship. However,
the ANC has raised the issue of dual citizenship for judges - it is serious
cause for concern because these judges will have access to sensitive matters
involving national security and requiring security clearance. The ANC in its
policy discussion document of March 2012 entitled
"Peace and Stabilitywww.anc.org.za/docs/discus/2012/peacev.pdf"
addressed the issue as follows: "The
recent amendment to the Immigration Act (August 2011) requires that dual
citizenship should only be allowed when both South Africa and the other country
involved recognise dual citizenship. Given South Africa’s history and situation
it is not feasible to end the recognition of dual citizenship in all cases. The
major issue is that divided loyalties
can create security risks if the person with dual citizenship occupies
positions in the state that impact on sovereignty and security. This is
particularly so in relation to judges, MPs, members of the Executive and civil
servants." Should
the ANC adopt the policy document in Mangaung, ANC members of the JSC would be required to conscientiously take
these concerns into account when dealing with Gauntlett as a judge. It is common cause that Gauntlett has even
allowed foreign judges from repressive regimes such as Swaziland to attack the
JSC and our Chief Justice while championing his case. Other democratic countries have paid close attention to
these matters. In the US, the
“Foreign Preference” criterion (Guideline C) of the
December 2005 “Adjudicative Guidelines for Determining Eligibility for Access
to Classified Information” makes the “exercise of any right, privilege or
obligation of foreign citizenship after becoming a U.S. citizen” a potentially
disqualifying condition for a security clearance. Guideline C also states:
"When an individual acts in such a way as to indicate a preference for a
foreign country over the United States, then he or she may be prone to provide
information or make decisions that are harmful to the interests of the United
States." See, http://www.clearancejobs.com/cleared-news/91/dual-citizenship-and-security-clearances.
I am by no means suggesting that this is automatic disqualification. The State Department warns:
"Dual citizenship can present a security issue whether to permit access to
classified information which affects recruitment, employment, and
assignments." See,Dual Citizenship- Security
Clearance - US State Department ...careers.state.gov/index/download-center4/dualcitizenship.pdf .
The third issue likely to torpedo Gauntlett’s candidacy is his recently discovered lack of candour with the JSC on the matter of his relationship with Judge President Hlophe. When asked about the matter during his latest interview, Gauntlett asserted that his relationship with the Judge President was fine or “excellent” but he failed to disclose that he has recently circulated an email amongst members of the Cape Bar urging them to call for the suspension of Judge President Hlophe while the JSC investigates misconduct allegations against him. In addition, in 2011, Kriegler, chairperson of a political lobby outfit, Freedom Under Law, whose board of directors includes Jeremy Gauntlett SC, lodged a second complaint of gross misconduct against Judge President Hlophe. Kriegler and FUL wanted Hlophe JP suspended and removed from the panel interviewing judges for vacancy in the Western Cape court. Kriegler said: "I will be consulting with the whole board ... We will obtain legal advice as well." See, Chief justice under fire over Hlophe; Buyekezwa Makwabe, Bienne Huisman and Andre Jurgens, 20 November, 2011 http://www.timeslive.co.za/politics/2011/11/20/chief-justice-under-fire-over-hlophe . He said the next step might be to go to court or the public protector. The papers reported that: “Gauntlett did not rule out the option of legal action either.” All these from a man who continues to claim that he has a good relationship with Hlophe JP. The JSC missed a golden opportunity to rigorously interrogate Gauntlett’s statements in which he falsely asserts the existence of a good relationship with the Judge President when his public utterances and writings show the exact opposite. The problem is that some whites believe that the exacting standards they demand of others apply only to black people. Truth be told, no black candidate would have managed to get away with similar statements. In fact he would have been told that he would be crazy to bring a review application under these circumstances.
The third issue likely to torpedo Gauntlett’s candidacy is his recently discovered lack of candour with the JSC on the matter of his relationship with Judge President Hlophe. When asked about the matter during his latest interview, Gauntlett asserted that his relationship with the Judge President was fine or “excellent” but he failed to disclose that he has recently circulated an email amongst members of the Cape Bar urging them to call for the suspension of Judge President Hlophe while the JSC investigates misconduct allegations against him. In addition, in 2011, Kriegler, chairperson of a political lobby outfit, Freedom Under Law, whose board of directors includes Jeremy Gauntlett SC, lodged a second complaint of gross misconduct against Judge President Hlophe. Kriegler and FUL wanted Hlophe JP suspended and removed from the panel interviewing judges for vacancy in the Western Cape court. Kriegler said: "I will be consulting with the whole board ... We will obtain legal advice as well." See, Chief justice under fire over Hlophe; Buyekezwa Makwabe, Bienne Huisman and Andre Jurgens, 20 November, 2011 http://www.timeslive.co.za/politics/2011/11/20/chief-justice-under-fire-over-hlophe . He said the next step might be to go to court or the public protector. The papers reported that: “Gauntlett did not rule out the option of legal action either.” All these from a man who continues to claim that he has a good relationship with Hlophe JP. The JSC missed a golden opportunity to rigorously interrogate Gauntlett’s statements in which he falsely asserts the existence of a good relationship with the Judge President when his public utterances and writings show the exact opposite. The problem is that some whites believe that the exacting standards they demand of others apply only to black people. Truth be told, no black candidate would have managed to get away with similar statements. In fact he would have been told that he would be crazy to bring a review application under these circumstances.
Another
issue that would be deserving of full discussion is Harms’ relationship with
Gauntlett and Hlophe JP. Harms,
the former Deputy President of the SCA, has the most despicable record of loyal
service to apartheid and of launching personal attacks on other High Court
judges whose judgments he disagrees with.
Lest we forget, Harms was appointed by the apartheid government to
investigate dozens of murders of anti-apartheid activists in the 1980s. Against all evidence, Harms “farcical
inquiry” concluded that the police had never operated such death squads and that
testimony by self- confessed members of such units was not reliable. See,
Unfinished Business: South Africa, Apartheid, and Truth; By Terry Bell, Dumisa Buhle Ntsebeza. Harms’ sponsorship of Gauntlett
is also not a mere coincidence.
The two collaborated together in attacking Hlophe JP on the New
Clicks Pharmaceutical case.
This case stemmed from a racially charged background[1],
and ended up before the Cape High Court where Judge President Hlophe, sitting
with Judge Yekiso and Judge Traverso, heard the case. The two black judges -
Hlophe and Yekiso - ruled in favour of the government while the sole white
judge, Traverso, in a minority judgement, backed the Pharmaceutical Society.
The applicants, who were represented by Gauntlet, applied for leave to appeal.
After filing the notice of application, Gauntlett indicated that he had
contacted the President of the Supreme Court of Appeal regarding the allocation
of a date for the hearing of the matter, should leave to appeal be granted.
Gauntlett indicated that the matter should be disposed of in Chambers and leave
granted due to the existence of a minority judgment. This drew a sharp response from Hlophe JP who stated: “Mr
Gauntlett's submission that the matter should be easily disposed of in Chambers
was clearly absurd in the light of his contention … that the
Pharmaceutical/Clicks matter is one of great public importance. Furthermore,
this contention is also absurd given the fact that our Constitution is founded
on the principles of openness and transparency. … Mr Gauntlett's contention is
therefore contradictory to the preamble and provisions of the Constitution.” (Hlophe JP, New Clicks Pharmaceutical; page
234). Hlophe JP also
observed:
“Furthermore, the applicants had no answer to the
constitutional point. Section 27 of the Constitution deals with 'Health care,
food, water and social security'. … As Yekiso J found in the majority judgment
there is no doubt in my view that the Pharmaceutical case not only raises
issues relating to the transformation of the pharmaceutical industry in general
but, above all, … involves serious constitutional issues relating to provision
of health care which in terms of s 27 the State is obliged to take reasonable
legislative and other measures within its available resources to achieve and
realise that goal. There is another constitutional issue, namely s 33 of the
Constitution. … There was with respect no cogent answer whatsoever to the
argument advanced by Mr Moerane SC, namely that this is a case of great
constitutional importance and that the applicants should clearly have proceeded
to the Constitutional Court, particularly in the light of the attitude that the
matter was of great public importance which needed to be finalised sooner
rather than later.” (Id. at page 236)
On
appeal, application for leave having been filed with the SCA while the High
Court judgement on leave to appeal was pending, the SCA (Harms) found that it
had jurisdiction and granted leave to appeal. 2005 (3) SA 238 (SCA). As if to underscore his contempt
for black judges, Harms delivered a judgment which was verdant with hyperbole
and bristling with insult directed solely at Judge President Hlophe. He devoted
13 pages of his 28 page judgment to lambasting Hlophe - he accused him of
undermining the rule of law through his alleged unreasonable delay in issuing
judgment. He wrote that there was
“deliberate
obstructionism on the part of a court of first instance or sheer laxity or
unjustifiable or inexplicable inaction, or some ulterior motive.” The matter did not end there because an
appeal to the Concourt was lodged and Hlophe was vindicated. The Concourt
eventually heard the appeal in March 2005 but took until 30 September 2005 to
deliver a very long 446 pages judgment which vindicated Hlophe’s meticulous
approach. When it came to the
merits, Harms had little to say about the relationship between
constitutionalism and the rule of law and chose to bypass altogether a question
which had occupied the Cape High Court, and was to occupy the Concourt -
whether the Promotion of Administrative Justice Act 2 of 2000 (PAJA) governed
the regulations made by the Pricing Committee. The Concourt steered clear of Harms’ unwarranted attacks on
Hlophe and chose not to endorse his savage attacks on Hlophe. Harms’ attacks on Hlophe are still
being used by the likes of Hugh Corder, the former Dean of Law at UCT to attack
Judge President Hlophe’s jurisprudential record.[2] It is just mind-boggling irony that the same gentlemen Harms
and Gauntlet, who displayed a holier-than-thou attitude when it came to Hlophe
JP’s alleged delays, conspired to miss a judicial nomination deadline by almost
a month. Incredibly, they have
offered no credible explanation for this dilatory approach and have embarked on
a public campaign to scandalize the JSC amidst insinuations that Gauntlett was
“snubbed” because of racism. This
is sheer judicial chutzpah to say the least.
As
I pointed out recently, the scope and nature of the requisite scrutiny that
must be brought to these cases have 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 Concourt 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 submitted 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 danger to the affected
candidate is that the reasons divulged for non-selection may be so damaging
that they sound a definitive death knell to the judicial career of the
candidate. But Gauntlett has
asked for the JSC reasons and the JSC must oblige him by giving him cogent and
review-proof reasons that would make Harms’ apartheid head spin.
This
is a case in which I am actually praying that Harms act on his crazy impulses
and takes the JSC to court. For
one thing, it would give Mogoeng CJ an opportunity to show that he did not sell
out his Concourt colleagues as suggested by newspapers. For another thing, it
would signal to reactionary whites that the era of black judges with an
“approval addiction” is over. As
Mogoeng CJ said of the judiciary: “No analyst, no pressure group, no
organization, no politician and no media group should labour under the
impression that we are capable of being pressurized or intimidated into
appointing their preferred candidates.”
A true test of that may be how the JSC deals with the proposed legal
challenges by former apartheid operatives and other self-anointed apostles of
judicial independence.
[1] The DA
describes the case in this manner. See, “THE DA’S JUDICIAL REVIEW: THREATS TO JUDICIAL
INDEPENDENCE IN SOUTH AFRICA” http://www.da.org.za/docs/621/judicial%20review_document.pdf.
[2] See, A
nomination in print PAUL NGOBENI: COMMENT
Jun 17 2009 http://mg.co.za/article/2009-06-17-a-nomination-in-print
See, also A lowering of the bar: HUGH CORDER: COMMENT
- Jun 21 2009 http://mg.co.za/printformat/single/2009-06-21-a-lowering-of-the-bar/
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