Reply To Gauntlett's Response to My JSC Submission

Response to Mr. Gauntlett's Letter Responding to My Submission

Dear Mr. Chiloane and JSC Members:

 I am responding to the false statements in Advocate Gauntlett's letter to you apparently in response to my letter to the JSC opposing his selection for possible appointment as a judge.  It should be noted that Mr. Gauntlett has assiduously avoided copying me on the response he sent to Mr. Chiloane even though I sent him a courtesy copy of my initial submission.  But let me deal with the merits of his response.

First, Mr. Gauntlett claims to have received a letter from "a Mr Paul Ngobeni." While Mr. Gauntlett is correct that his nomination was advertised many weeks ago, I only became aware of it less than two weeks ago.  I agonized over whether I should maintain positive neutrality or actively oppose his candidacy.  I had to juggle researching and agonizing over the matter and this is itself evidence that I simply did not rush to have my fingers trotting on the computer simply because of what Mr. Gauntlett falsely implies is a personal vendetta against him.  The submission is admittedly on the eleventh hour but I erred on the side of caution - there was no stratagem to disadvantage anyone in regard to these weighty matters. That being said, Mr. Gauntlett's condescending attitude shines through when he refers to me as "a Mr. Paul Ngobeni" - it is telling that this comes from a man who claims to have served on the UCT council at a time when I was one of the few very senior African officials at the institution.

Second, Mr. Gauntlett states that "the first declared basis for Mr Ngobeni's opposition truly relate to what he argues is the lack of sufficient representativity on the Western Cape High Court Bench, he should, consistently with this, oppose the other white candidacies too."  To state Mr. Gauntlett's argument on this score is to refute it at the same time - I am not opposed to white candidates and I know that to do so would be immoral and out of kilter with our constitution.  As stated before, I have greatly agonized over the decision to oppose Mr. Gauntlett himself.  My argument is quite simple; the JSC cannot use race as the sole criterion when other factors militate strongly against that.  In this regard, all things being equal, the judicial philosophy, values and temperament of the candidate may very well tip the scale.  It is perfectly all right for the JSC to appoint a candidate of any race so long as it has conscientiously canvassed and considered the constitutional imperative of transformation and representativity along with competence.  As Mr. Gauntlett recognizes, I did not and will never blindly advocate wholesale opposition of white candidate simply because of transformation imperatives.  As stated earlier in my submission, my opposition to Mr. Gauntlett is based on his record and his philosophy which he makes no effort to defend. He was not targeted because he is white and I would condemn anyone who targets him or any other candidate for exclusion simply based on their race.

Third, Mr. Gauntlett has displayed clear lack of judicial temperament in his response by falsely distorting "reasons" I allegedly "failed to disclose."  Mr. Gauntlett correctly states that he 'served on the UCT Council which authorised an inquiry into Mr Ngobeni's appointment as Deputy Registrar of UCT. Charges included his failure to disclose his disbarment in the US and criminal convictions. Ultimately he agreed to leave."  This constitutes gross lack of candour with the JSC by Mr. Gauntlett. The UCT council appointed Professor Barney Jordaan who clearly found that I did not have a criminal conviction and rejected the allegations after finding that I was not disbarred as I was allowed to resign from the Connecticut Bar.  Jordaan found that my employment was proper notwithstanding these allegations against me. For a very long time, the UCT council withheld the findings from myself and members of the public who had been told about the investigation.  Mr. Gauntlett knows very well that the Vice Chancellor of the UCT ultimately issued a public apology for having withheld from the public the result of the same investigation.  The Vice Chancellor Prize stated: “The Council sought, and accepted, independent legal advice that was given at the time, viz. that these matters had no bearing on his employment at UCT and that he was not obliged to reveal them if we did not specifically ask him about them. I believe UCT erred in not making it public at the time that we had cleared Paul Ngobeni of any suggestion that he misled the university. There can be no question that we should have done so." The UCT inquiry cleared me and the subsequent public apology by the Vice-Chancellor subsequently restored my dignity - so why would that incident itself be my "reason" for singling out Mr. Gauntlett for opposition as he blithely suggests? There was a later disciplinary inquiry in 2009 which had to do with an Op-ed piece I wrote fort the Cape Times regarding the attacks on JP Hlophe by the Cape Bar.  I was cleared in that as well. See,Panel cleared deputy registrar of defamation.By Franny Rabkin;Business Day (South Africa);  June 27, 2009; http://www.accessmylibrary.com/article-1G1-202543221/panel-cleared-deputy-registrar.html.

I submit to the JSC that Mr. Gauntlett's inability to acknowledge even for a nanosecond that persons like myself could have been genuinely upset by his positions  resoundingly suggests that he lacks what it takes to be a judge.  He impugns my motives and resorts to far-flung conspiracy theories and falsehoods instead of a sober reflection on how his actions were and still are being perceived.  Instead of an honest reflection on the basis of our criticism, Mr. Gauntlett makes a flurry of false statement easily refuted by the record.   He claims that in "In dealing moreover with the events concerning Judge Hlophe, he should have disclosed that he was a legal adviser to him in relation to those same events. Neither relevant consideration is disclosed." That is demonstrably false.  I wrote my Cape Times article in October 2007 when I had only been in the country for four months after a 25 years absence.  I articulated the same argument about the unfairness of the attacks on the JSC and Hlophe and strenuously opposed calls for Hlophe JP to resign.  Mr. Gauntlett and his colleagues also wrote their document in 2007.  I did not know Hlophe JP at that time and had never met him or spoken to him at that time.  The first time I met Hlophe JP was almost a year later in 2008.  For the record I have never been Hlophe JP's legal adviser - I have publicly spoken out when I believed his rights were being violated and I publicly advocated that he should be elevated to the Constitutional court in 2010.  An inquiry which resulted in clearing my name and a position of "legal adviser to [Hlophe]" that is falsely attributed to me cannot be a "reason" for opposing Gauntlett now. A perscrutation of his record is legitimate and I would never be dissuaded by his unfair attacks on my "reasons' or alleged ulterior motives for opposing him. This method of denigrating and casting aspersion on the motives of a perceived opponent may be suitable for adversarial proceedings where forensic skills may win the day. It is particularly inappropriate for a judicial candidate to resort to falsehoods and half-truths on those who oppose him - the question that squarely presents itself to the JSC is whether the country can afford the risk by appointing as a judge a person with Gauntlett's attitude and demeanour?

 Third, Mr. Gauntlett shows a gross misunderstanding of the pivotal argument around his "view on acting appointments" which he claims my statements are misleading. Even if the point Mr. Gauntlett made was that " insufficiently experienced colleagues (of all races and both sexes) were taking up acting appointments" his solution of restricting acting appointments to 'Silks" shows his disregard for how such restrictive measures may impact black Africans who were historically not welcome in the Cape and were never promoted as "Silks." Even if the attributed position on "silks" was a journalist extrapolation, Mr. Gauntlett does not deny that restricting appointments to "silks" and disregarding other relevant "experience" does not ensure that we have a competent judiciary.  It is not what he did by "by design" as he erroneously suggests but his display of poor judgment.  If he was genuinely interested in transformation which JP Hlophe's acting appointments were designed to accomplish why did he resort to "acrimonious" public spat with the Judge President instead of engaging the Judge President constructively to resolve any misunderstanding?  As a leader of the Bar and officer of the court, it was incumbent upon him to seek a constructive dialogue instead of engaging in actions which sparked racial divisions and brought the administration of justice into disrepute.  After all, Gauntlett was fully aware in 2005 that persons such as Justices Mokgoro, Sachs, and O'Regan who were never "silks" had, when given the chance, turned out to be outstanding justices.  He disregarded all empirical evidence or failed to conduct any studies before concluding that all "insufficiently experience colleagues (of all races and both sexes) were taking up appointments."  Hlophe JP was the supervisor of these acting judges and he was accountable for their performance.  It is condescending, presumptuous and very arrogant for Gauntlett to presume that he knew better than Judge President Hlophe, who was a supervisor and mentor for these acting judges, about the qualities required of judges in such positions.  After all, there are many judges now serving in the highest courts who cut their judicial teeth under Hlophe JP's mentorship.  Denying this reality and launching acrimonious battles on this very issue shows poor judgment by Gauntlett - it unfairly cast aspersions on the abilities of these acting judges and undermined public confidence in the judiciary at that time.  I have cited caselaw showing that Gauntlett would have been disbarred if he had tried such stunts in countries such as the US.

Fifth, Mr. Gauntlett falsely asserts that "Mr Ngobeni appears to hold me responsible for the statements made by senior ('foreign and other') judges following my last interview."   This means that my point has effectively been made - former Chief Justice Chaskalson criticised a group of citizens, Justice for Hlophe Alliance, for suggesting that Judge President Holphe must become chief justice in 2010.  He questioned whether Hlophe JP "approved" of what was being done on his behalf.  Subsequently, the JSC took up the same theme and rigorously examined Hlophe JP about the Alliance.  Neither Mr. Gauntlett nor any of his supporters questioned whether a judicial candidate can ever have questions raised about his supporters.  Why is it now improper to question serving justices of another country, including a chief justice, who made unsolicited and unwarranted forays into a pending judicial selection process on Gauntlett's behalf.  Once again, Mr. Gauntlett seems oblivious of how perceptions about his actions and those of his foreign judges friends are relevant to important issues of comity amongst nations and neighbours.  Just as an example, the ruling party the ANC has expelled the president of its youth league, Julius Malema, because of his interference in the internal politics of Botswana and his condemnation of its government.  In Gauntlett's case, we have a very serious matter where a Chief Justice of Swaziland publicly condemns our JSC and by definition our Chief Justice and yet Mr. Gauntlett sees nothing wrong in this violation of comity amongst nations and an event which could have sparked serious diplomatic row.  Mr. Gauntlett is not even distancing himself from these undeniably improper acts in which the justices relied on stolen JSC documents.  He praises them to the hilt and vouches for their honorableness - but that is beside the point.  He fails to acknowledge that they engaged in overreaching in a misguided attempt to benefit Gauntlett.  This again is ample proof that Mr. Gauntlett simply fails to get one thing - acknowledging some wrongdoing even if perceived may itself be a sign of leadership and judicial temperament.  The fact is that Gauntlett's name was used by persons who sought to manifest their support for him and just like in Hlophe JP's case, reasonable people can question whether he approves of the tactics as well as the messages used by his putative supporters.  Mr. Gauntlett's attitude is that he cannot be blamed for what his supporters do and he then goes further to state how great these individuals are.  How does the JSC maintain with any degree of integrity that it was all right to questions Hlophe JP about the actions of his supporters but it is improper to ask about Gauntlett's backers who engaged in naked interference with the JSC selection process and violated international comity?  Mr. Gauntlett's claim that some "initiatives have been fostered in conjunction with the Law Society of Swaziland to resolve matters" is completely irrelevant- he has side-stepped a question of whether he approves of what his allegedly illustrious supporters have done? Why does he find it so difficult to acknowledge that they were wrong to interfere in this JSC's process or  to denounce the JSC decision so publicly? How does it look to the public when Hlophe JP was implored to distance himself from lawful activities of South African citizens who "nominated" him for Chief Justice when outrageous naked interference by senior judges of foreign countries on Gauntlett's behalf is minimized and downplayed? This inconsistency, I humbly suggest will do great irreparable damage to the image and credibility of the JSC - it would suggest that there is one standard for white judicial candidates and another standard for blacks.

The remainder of Mr. Gauntlet's statements are not worth responding to as they are based on false rendition of facts, are irrelevant to the matter at hand. I acknowledge Mr. Gauntlett's superb technical, forensic and litigation skills but I know I have been vindicated by his response to my JSC submissions. Distortions of the events he claims to be the "reasons" for my intervention, his failure to appreciate other areas of legitimate criticism and his continued defence of the foreign justices' actions and his evasive answers about his failure to publicly denounce Mswati's Chief Justice as he has denounced Hlophe JP are all evidence of Gauntlett's suitability as a litigator in an adversarial system.  But these are blindingly obvious red flags when it comes to judicial appointments.  The JSC is forewarned.

Yours faithfully

Paul M. Ngobeni