Letter to JSC Opposing Gauntlett's Appointment As Judge

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"[1].   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[2] 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.[3] 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.”[4]  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”[5]  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.[6]

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.[7]  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”.[8]

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.[9]  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".[10]

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

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[1] Cape Town a racist city – study By Craig McKune October 22 2009  http://www.iol.co.za/news/politics/cape-town-a-racist-city-study-1.462324#.UHqcAhjSSUc

[2] Hlophe's appointments come under fire; City Press 2005-04-23; Mpumelelo Mkhabela; http://www.citypress.co.za/SouthAfrica/News/Hlophes-appointments-come-under-fire-20100614

[3] See, 'Judge Hlophe betrayed the nation with his greed' - General Council ...

www.sabar.co.za/law.../2007-december-vol020-no3-pp33-34.pdf

[4] Judges fume after Gauntlett snub April 19 2010  By Quinton Mtyala; http://www.iol.co.za/news/politics/judges-fume-after-gauntlett-snub-1.481028#.UHkyuRjSSUc

[5] Botswana Law Society condemns Makhulu Baas, Swazi Observer, 16 July, 2011 11:35:00 By Hlengiwe Ndlovu;  http://www.observer.org.sz/index.php?news=27446

[6] Id.

[7]      See, Lawyers accuse Swazi chief justice of sexual harassment 14 Jul 2011; http://mg.co.za/article/2011-07-14-lawyers-accuse-swazi-chief-justice-of-sexual-harassment

[8] Judge charged with insulting Swazi king's 'forked tongue' 30 Jun 2011; http://mg.co.za/article/2011-06-30-swazi-judge-faces-suspension-for-insulting-kings-forked-tongue

[9]  Security Guard Who Murdered Seven Blacks Gets 20 Years Tina Susman, AP News Archive  Jun. 16, 1992; http://www.apnewsarchive.com/1992/Security-Guard-Who-Murdered-Seven-Blacks-Gets-20-Years/id-773f35e577da4d133d081d5549f74f8e

[10] JSC's snub to 'combative' Gauntlett shocks lawyers by FRANNY RABKIN, April 16 2010, http://www.bdlive.co.za/articles/2010/04/16/jsc-s-snub-to-combative-gauntlett-shocks-lawyers.