Re: Complaint Against Advocate Jeremy Gauntlett SC for Professional
Misconduct
Dear
Advocate Jamie:
I
am writing to lodge a professional misconduct complaint against Jeremy
Gauntlett SC for his false and scandalous accusations against the JSC and
particularly its chairperson Chief Justice Mogoeng. In addition, there is prima facie evidence that Gauntlett
gave misleading and/or less than candid answers to the JSC when asked about his
relationship with Judge President Hlophe during his recent interview with the
JSC. I wish to remind you that in terms of Section 1.6 of the GCB
Uniform Rules of Ethics, if “counsel has reasonable grounds for believing
that another counsel has been guilty of unprofessional conduct, it is his duty
to report the matter to his own Bar Council, unless the information is
privileged and such privilege is not waived.” Accordingly, the failure by any Cape Bar Council
members to report known misconduct is also sanctionable. In the interest of candour and
disclosure, please be informed that I recently opposed Mr. Gauntlett’s
candidacy for judicial appointment.
A.
Background.
As
you all know, the JSC did not appoint Advocate Jeremy Gauntlett as a judge of
the Western Cape High court for, amongst other reasons, his lack of requisite
humility and judicial temperament.
In Gauntlett’s case, the JSC honoured former judge Harms’ request by
articulating reasons for not appointing Gauntlett which included amongst
others, that “he has a ‘short thread’ and that he can be acerbic at times”.
While some Commissioners accepted his assurance that as a judge, one is removed
from the immediate combative situation that counsels usually find themselves
in, others expressed “strong reservations” whether, as part of his attributes, “he
has the humility and the appropriate temperament that a Judicial
Officer should display.”
Subsequently,
judge Harms fired off a letter to the JSC in which he questioned “where
it was agreed that humility was a required judicial attribute.” Not to be outdone, Pierre De Vos, a UCT
law professor and self-styled constitutional expert, has raised similar
questions and also claimed that “some JSC members decided not to appoint him
because they did not like his guts.”[1] De Vos raises a rhetorical question:
Has anyone ever heard a more ridiculous reason for not
appointing a lawyer to the judiciary? Let’s face it, advocates seldom
become successful because they are humble servants of the court and lack a
sharp tongue. If the JSC is now going to refuse to appoint any senior advocate
to the bench because he or she is not
dripping with humility and is too combative, then it is going to be
hard-pressed to find any half decent lawyer to appoint to the bench.
As
if to vindicate the JSC’s statements about his lack of “humility,” Mr. Gauntlet
has also parroted the statements by Harms and De Vos but has done so in a
manner suggesting dishonesty and lack of candour and under circumstances
evincing deliberate misrepresentation of facts and legal authority. It is common cause that after the
JSC announced its decision on his candidacy, Mr. Gauntlett gave an interview to
the Sunday
Times on November 11, 2012 in which he stated, amongst other things,
the following:
(a) Gauntlett accused the JSC of taking so long to provide him
with reasons for his non-selection because the “reasons didn’t exist.”
When asked if he thinks the reasons were “created after the event,” Gauntlett replied, “I know so.” Cumulatively,
these statements suggest that he believes he was a victim of legal fraud.
(b)Gauntlett essentially
accuses the Chief Justice Mogoeng of lying and the JSC of conducting a farcical
hearing for judicial candidates, particularly himself. The journalist asked: ”So the JSC lied on at least two fronts?” Gauntlett merely replied: “It’s your word” but he made no attempt
to condemn the accusation that the JSC “lied” and he made no effort to distance
himself from the statement. Rather, he went further and claimed that the JSC knew who it
would recommend before the hearings began. He stated: “I think
they had a slate in mind, yes.”
He confirmed that he thought the JSC made “the hearings a charade” and
added that they “certainly do not serve the function that they are intended
to.”
(c) When asked for his opinion on the reasons given by the JSC
for not selecting him Gauntlett stated the following: “Interesting. Firstly, they’ve introduced a new quality for judicial appointments: humility.
The JSC itself has gone to great trouble to list required attributes for
judges. This is not one of them
and has not been applied to any other candidate. Unlike other candidates, I have not thought that God has
called me to be a judge.”
As
demonstrated below, Gauntlett’s statement that the JSC “introduced a new
quality for judicial appointments: humility” constitutes a false statement of
fact and law. The statement was
made to further Gauntlett’s own ambition of being appointed to the Constitutional
Court and to increase pressure on the JSC to accede to his demands. The damage done to the judiciary is
incalculable – the public is misled into thinking that the JSC was so biased
against Gauntlett that it conducted a farcical interview with biased and
prejudiced minds, that the Chief Justice lied and manufactured reasons for not
appointing Gauntlett.
In
addition, Gauntlett’s answer to Commissioner Ntsebeza’s question with specific
regard to a “toxic relationship” with Hlophe JP is a classic, textbook case of
lack of candour with a tribunal.
Gauntlett assiduously avoided mentioning that he had urged members of
the Cape Bar (including you and Advocate Muller) to urgently call for Hlophe
JP’s suspension. What renders the transgression here devastatingly serious is
that it was perpetrated during interviews for judicial appointment and under
circumstances where the JSC is entitled to rely on the absolute and unreserved
candour of the candidates.
Mr. Gauntlett has failed the judiciary and the judicial system and has
demonstrated through his fecklessly false utterances, misrepresentations and
non-disclosures that he is unfit to be an advocate and officer of the
Court. I now systematically
discuss the transgressions as follows:
B.
Mr. Gauntlett’s Accusations
Against the JSC Are False and Constitute Professional Misconduct
Based
on clear case law and precedent canvassed below, it cannot be gainsaid that
Gauntlett’s statement that the JSC “introduced
a new quality for judicial appointments: humility” constitutes a false
statement of fact and law. The question to be explored here is whether Gauntlett was
plainly on notice that his conduct in this case, involving public dissemination
of a specific accusation of improper judicial conduct under the circumstances
described, could be held to reflect adversely on his fitness to practice
law. Gauntlett’s impugned act was
not generalized criticism but rather release to the media of a false allegation
of specific wrongdoing, made without any support, aimed at the JSC and the
Chief Justice who had presided over the interviews. Gauntlett knew or should have known that such attacks are
unwarranted and unprofessional, serve to bring the bench and bar into
disrepute, and tend to undermine public confidence in the judicial system.
I
must add that candidates whose oversized egos do not allow them to accept the
rejection of their candidacy cannot use freedom of speech as a cover for
unwarranted attacks upon the JSC. Unlike defamation cases, professional misconduct,
although it may directly affect an individual, is not punished for the benefit
of the affected person; the wrong is against society as a whole, the
preservation of a fair, impartial judicial system, and the system of justice as
it has evolved for generations. It follows that the issue raised when an advocate
makes public a false accusation of wrongdoing by a judge is not whether the
target of the false attack has been harmed in reputation; the issue is whether
that criticism adversely affects the administration of justice and adversely
reflects on the attorney's judgment and, consequentially, his ability to
practice law.
It
must also be recognized that adjudicatory officials such as JSC members, not
being wholly free to defend themselves, are entitled to receive the support of
the Bar against unjust criticism. While a lawyer as a citizen has a right to
criticize such officials publicly, he should be certain of the merit of his
complaint, use appropriate language, and avoid petty criticisms, for unrestrained
and intemperate statements tend to lessen public confidence in our legal
system. Criticisms motivated by reasons other than a desire to improve the
legal system are not justified. The JSC is entitled to rely for support on the
organized legal profession and your members are duty-bound to take the
Complaint seriously.
1.
The JSC, the Constitutional
Court And Members of the Judiciary Have Consistently Held that Judicial
Humility Is among the Required Attributes for Judges.
Contrary
to some cynical demagogues, the requirements of humility and judicial
temperament are not some recent artificial criteria invented by the JSC simply
to disqualify certain candidates or Gauntlett. In fact, the personal characteristics requirements for
judicial office are as old as the Bible
itself. Independent of the methods
of selection and appointment, these have not changed much over the centuries.
According to the Bible in Exodus
18:21-22, Jethro advises his son-in- law Moses, to “search for able men
among all the people who revere God and are honest, men who despise unfair
profit“. For self-evident
reasons, Jethro counseled Moses to seek men of ability, men of godliness (such
as fear God), men of truth and men hating covetousness or unfair profit.
Along
similar lines, the great Jewish thinker, Moses ben Maimon, known to English
speaking audiences as Maimonides (1138-1204), who was author of the most
important Code of Jewish law, wrote over 860 years ago that a judge should have
“wisdom, humility, fear of God, disdain
of money, love of truth, love of his fellowmen, and a good reputation“. In fact, humility appears to be sine
qua non for good leadership according to the Bible. A revealing insight in this regard is
found in Numbers 12:3 (New International Version) where it is stated: “Now Moses
was a very humble man, more humble than anyone else on the face of the earth.” Not surprisingly, these Judeo-Christian
precepts influenced the development of our laws and were accepted by whites
until Gauntlett was rejected by the JSC.
I am confident that similar admonitions about humility can be found in
the Holy Koran.
As
we all know, the JSC’s articulated position with specific regard to humility
and judicial temperament was discussed in the recent judgment, 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). There the JSC
explicitly stated in Court that a candidate who is qualified in terms of
technical skills and knowledge, “may be
found to be wanting in other important and relevant qualities and criteria,
such as for example judicial
temperament, patience and humility, which may render a particular candidate not suitable for appointment.” This refutes Gauntlett’s false
statement that the JSC introduced a “new” quality for “judicial appointment:
humility.” As the JSC’s revealed
and discussed in open court its position in 2011, a full year before Gauntlett
was considered a judicial candidate,
Gauntlett’s statement that the JSC introduced “a new quality” is a
blatantly false accusation against the JSC and is deliberate.
Even
worse, Gauntlett is a leading member of the Cape Bar Council which was the
applicant in the case - he knew or should have known that the JSC named
judicial temperament and “humility” as relevant qualities long before it even
considered Gauntlett’s candidacy.
Ironically Gauntlett has, through his reckless accusation, made it
impossible for the JSC to consider him a fit and proper person for further
judicial appointment. After all,
how can the JSC which determined Gauntlett to be lacking in “humility” and
judicial temperament miraculously somersault and retreat from that position
simply because Gauntlett’s celebrity friends want to see him on the Concourt?
But that is beside the point – what matters in this misconduct complaint is
whether Gauntlett’s statement that the JSC singled him out for disparate
treatment and applied a “new quality” (humility), which was not one of the
selection criteria, is honest and factually true. The Cape Bar Council v Judicial Service
Commission case provides a definitive answer – it clearly shows that
Gauntlett is guilty of making false accusations against the JSC and the Chief
Justice on this score.
I
must also add, Advocate Jamie, that you and members of the Cape Bar Council are
under a duty to (a) correct the false impression created by Gauntlett in light
of the Cape Bar Council case which
flatly contradicts Gauntlett’s position; (b) report Gauntlett to the Cape Bar
Council in terms of Section 1.6 of the GCB Uniform Rules of Ethics, which
mandates such action if “counsel has reasonable grounds for believing
that another counsel has been guilty of unprofessional conduct, it is his duty
to report the matter to his own Bar Council, unless the information is
privileged and such privilege is not waived.” That none of you has
taken the initiative to do so is particularly disturbing and suggests that
consideration must be given to investigating more than just Gauntlett in this
regard.
Contrary
to Gauntlett’s startling assertion, the Concourt itself has stated that our judges
exercise certain tasks with requisite humility as an essential and routine part
of judicial decision-making. In S v
Shinga (Society of Advocates (Pietermaritzburg)) as Amicus Curiae) , S v
O'Connell and Others (CCT56/06, CCT80/06) [2007] ZACC 3; 2007 (5) BCLR
474 (CC); 2007 (2) SACR 28 (CC) (8 March 2007) (Langa CJ, Moseneke DCJ, Kondile
AJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J, Sachs J, van der Westhuizen J,
van Heerden AJ concurred in the
judgment of Yacoob J) the Concourt stated that in determining whether to grant
leave to appeal, the magistrate is called upon to consider carefully whether
another court may reach a different conclusion. This requires a careful
analysis of both the facts and the law that have underpinned the conviction,
and a consideration of the possibility that another court may differ either in
relation to the facts or the law or both. The Concourt observed:
“This is a task that has been carried out by High
Court judges for many years, … It is a judicial task of some delicacy and
expertise. It should be approached on the footing of intellectual humility and
integrity, neither over-zealously endorsing the ineluctable correctness of
the decision that has been reached, nor over-anxiously referring decisions that
are indubitably correct to an appellate court.. without possessing humility, a judge will be unable to
perform such task.”
It
is therefore asinine for Gauntlett who is dubbed the “best legal mind” to
attack the JSC for simply requiring him to have qualities demonstrated by our
judges and even magistrates “for many years.” He seeks exemption from being assessed on ability to perform
judicial task routinely demanded of judges or magistrates whenever leave for
appeal is sought. Contrary to Gauntlett and his retinue of celebrity
supporters, there is nothing novel in the idea that humility is an essential
attribute of a judge. A judge
lacking in humility will be unable to decide such simple matters as application
for leave which is a ‘judicial task of some delicacy and expertise.” In short, courts have discussed
judicial humility in the context of leave to appeal, and statements emanating from
our judiciary make it clear that the JSC knows what it is talking about. See, also, Stephanus and Another v Firstrand Bank Ltd t/a First National Bank
(21862/10) [2010] ZAGPJHC 156 (11 October 2010) where Willis J stated:
[4] I am also mindful of that fact that the SCA, in a famous
case, which shall not be mentioned here today, said that when it comes to novel
points of law, judicial humility is especially appropriate when considering
applications for leave to appeal. Mindful of the appropriate humility
that is appropriate for this court and mindful, too, of the variety of
different opinions when it comes to interpretations of the National Credit Act
it seems to me that there is indeed a reasonable aspect that another court
would come to a different conclusion from my own in this matter.”
I
submit that Gauntlett’s statements could not be the result of a genuine error –
it is part of a tactical maneuver to portray the JSC as infested with a bunch
of incompetent and less intelligent persons who lack the brains to appreciate
Gauntlett’s prodigious talents and sagacity. It is noteworthy that the late
Chief Justice Ismail Mahomed, the
first black Chief Justice of a democratic South Africa, eloquently elaborated
on these evaluation criteria, humility and judicial temperament within two(2)
years of our constitutional democracy.
He stated as follows:
Society is . . . entitled to
demand from judges fidelity to those qualities in the judicial temper which
legitimize the exercise of judicial power. Many and subtle are the qualities
which define that temper. Conspicuous amongst them are scholarship, experience,
dignity, rationality, courage, forensic skill, capacity for articulation,
diligence, intellectual integrity and energy. More difficult to articulate, but
arguably even more crucial to that temper, is that quality called wisdom, enriched as it
must be by a substantial measure of humility, and by an instinctive
moral ability to distinguish right from wrong and sometimes the more agonising
ability to weigh two rights or two wrongs against each other which comes from
the consciousness of our own imperfection.
Ismail
Mahomed: Chief Justice of South Africa: ‘The
independence of the judiciary’ 1998 (115) SALJ 658 at 666.
I
respectfully submit that it is impossible that Gauntlett would have been
unaware of this admonition which was published in a scholarly law journal. He did not raise a timely objection to
Mahomed’s statement perhaps because he anticipated that he and Harms would one
day lead a posse of rejectionists against such simple legal concept.
Another
black Chief Justice Sandile Ngcobo, dealt squarely with the issue of humility
from the very first day he ascended to the position of Chief Justice until the
very last day in office. Upon
being appointed as Chief Justice in 2009, Ngcobo succinctly spelt out his vision and goals for the bench. See,
My judicial philosophy - Sandile Ngcobo; 15 November 2009. http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=151018&sn=Detail&pid=72308
In this
memorable speech, Ngcobo CJ stated:
Mr Speaker, one of the fundamental
principles that underlie my judicial philosophy is respect for other branches
of government, which means you must never intrude into the domain of other
branches of government.
The recognition of the
contribution of others to my appointment reinforces my view, however, that the
judiciary's role must always be characterised by a certain humility.
Judges, after all, are servants of the law, and not the other way round.
The Office of the Chief Justice is
a great honour, but it carries with it a huge responsibility. Judicial
humility is particularly important in South Africa. We are still very
much a nation in transition. Our Constitution is the bridge that carries us
from the injustices of the past to the society based on democratic values and
fundamental human rights that is our future and, increasingly, our present.
Our judiciary has been given wide
powers to uphold our constitutional democracy and bring the law into line with
our new Constitution. In exercising these powers, our courts must appreciate
the role of other branches of government in our constitutional democracy. They
must also recognise the difficulties inherent in governing a country with a
history such as ours, stained by injustice, where resources are limited and the
demands are huge.
Judges must ensure that other
branches of government play by the rules, but they, too, must observe the vital
limits on their power. They are bound by the Constitution and the principle of
the separation of powers. Above all, judges must remain vigilant to the fact
that the breadth of judicial power must always be matched by the real depth of
judicial responsibility.
The
foregoing was a recurrent theme and a guiding principle throughout Ngcobo’s
term. During his farewell speech at the Constitutional Court, Chief Justice
Ngcobo said judicial powers should be exercised with humility and respect. He stated: “The powers we exercise are
far reaching but we must operate with
humility, ensuring that other branches of government play by the rules
while at the same time offering them adequate space to perform their
duties.” See, Ngcobo 'showed no fear, favour or prejudice' 11 Aug 2011 http://mg.co.za/article/2011-08-11-ngcobo-showed-no-fear-favour-or-prejudice. He was also a living embodiment of the
principles he preached and this was recognized even by political parties. In a special joint sitting of the
National Assembly and National Council of Provinces called to bid farewell to
former chief justice Sandile Ngcobo and welcome Chief Justice Mogoeng Mogoeng,
the DA’s Mazibuko paid tribute to Ngcobo for "his quiet humility and love
of the law; for his steadfastness in defending and upholding the Constitution
of this land." It is ironic
how the same DA which recognized “quiet humility” as a positive attribute in
Ngcobo is now lambasting the JSC for merely demanding that Gauntlett display
similar qualities. The unfortunate
impression created by Gauntlett and his retinue of loudmouth supporters is that
Gauntlett is so superior to the members of the JSC that he should not deign to
answer such trifling questions regarding his “humility.”
Similar
qualities of humility were also observed in former Chief Justice Arthur
Chaskalson. On July 27, 2002, the
Johannesburg Bar gave the biggest dinner party in its history to celebrate its
centenary. In attendance was former Chief Justice Chaskalson on whom honorary
membership of the Bar was conferred. Judge Dikgang Moseneke (as he then was),
introducing the guest of honour, spoke on Justice Chaskalson's international
recognition as a leading lawyer. He considered his three outstanding
characteristics to be: “wisdom, a formidable intellect, and humility.” http://www.sabar.co.za/law-journals/2002/august/2002-august-vol015-no2-pp25-27.pdf. Similar observations were
made about Chief Justice Chaskalson when he celebrated his 77th
birthday. His Legal Resource Center
colleagues stated: “The former Chief Justice of South Africa and one of the
leading jurists of this country, …
Thirty years ago, Arthur helped to found the LRC and he still serves as
a Trustee member. Arthur's humility,
modesty and his commitment to human rights are an inspiration to us all.” http://www.lrc.org.za/component/acajoom/?act=mailing&task=view&listid=2&mailingid=27
Another
former Chief Justice, Langa, wrote eloquently about “humility in the
court.” In an article entitled “The
Constitutional Court and Supreme Court of Appeal after 1994” which he
co-authored with Edwin Cameron, Justice of the Constitutional Court, the
following is stated:
This
educative role does not arise from a misguided sense of
paternalism
or condescension on the part of the court. Instead, it is a
necessary
function of a Constitution that seeks to establish ‘an objec-
tive,
normative value system’ , one that places values of freedom,
equality and
human dignity above ephemeral public opinion. The
rationale
for this is powerfully expressed in the judgment of Sachs J
in
Fourie:
‘Majoritarian opinion can often be
harsh to minorities that
exist outside the mainstream. It
is precisely the function of the Constitution and the law to step in and
counteract rather than reinforce [majoritarianism]. The test, whether
majoritarian or minoritarian positions are involved, must always be whether the
measure under scrutiny promotes or retards the achievement of human dignity,
equality and freedom.’ This
illuminates the court’s commitment to ensuring that the law and the
Constitution should not exist in a vacuum, hermetically sealed from the
often-grim realities South Africans must confront in their lives. Violence,
deprivation and corruption are the lived realities of many South Africans. This
fosters a sense of humility in the court,
which appreciates that much more needs be to be done to promote a deep-going
constitutional culture. www.sabar.co.za/law-journals/.../2010-april-vol023-no1-pp25-33.pdf.
This
was not the first time former Chief Justice Langa touched on the subject. In his 2008 address at an
international conference for the Commonwealth Magistrates' and Judges'
Association, Langa made the following poignant observations:
"Our tools of trade are our
integrity, our impartiality and our independence. Without these we should not
be part of the judiciary at all.
We do wield great power, which we
should exercise with vigilance and humility."
Chief justice warns on intimidated judiciary; October 7 2008;
By Deon de Lange http://www.thepost.co.za/chief-justice-warns-on-intimidated-judiciary-1.419150#.UKYggoXSSUc
It
is elementary common sense to require as Langa CJ did, that judges who wield
enormous power in our society must exercise such power with “vigilance and
humility.”
2.
International Jurisprudence
Consistently Support the View that Judicial Humility Is among the Required
Attributes for Judges.
International
jurisprudence shows that there is nothing “ridiculous” about the JSC’s
inclusion of “humility” and “judicial temperament” as relevant criteria during
an appointment process for our judges.
The ‘Bangalore Principles of Judicial Conduct’
were endorsed in 2003 and set out a code of judicial conduct. They are intended
to complement the United Nation’s Basic
Principles on the Independence of the Judiciary and the role of lawyers.
The Judicial Integrity Group, at its Meeting held in Lusaka, Zambia on 21 and
22 January 2010, adopted “Measures For
the Effective Implementation of The Bangalore Principles of Judicial Conduct”
(The Implementation Measures). See, www.summitofhighcourts.com/docs/standarts/UN2.pdf
. These state in relevant part as
follows:
11.2 The assessment of a candidate for
judicial office should involve
consideration not only of his or her
legal expertise and general
professional abilities, but also of his
or her social awareness and
sensitivity, and other personal
qualities (including a sense of ethics,
patience, courtesy, honesty, commonsense,
tact, humility and
punctuality) and communication
skills.
We
have no reason to believe that the listing of personal qualities such as “commonsense, tact, humility “ was
deliberately introduced by these international jurists to disqualify judicial candidates
in Gauntlett’s position. On the
contrary, these are universally regarded as valid and important criteria in the
evaluation of applicants for judicial office.
In
the United States, the American Bar
Association's Guidelines for Reviewing Qualifications of Applicants for State
Judicial Office, which is used in almost all states as guidance for
determining fitness for office, affirmatively includes “humility” and judicial
temperament amongst the key criteria for evaluating applicants. The ABA states this in the following
emphatic terms:
e. Judicial Temperament. An applicant
should possess a judicial temperament, which includes common sense, compassion,
decisiveness, firmness, humility,
open-mindedness, patience, tact and understanding.
Judicial temperament
is universally regarded as a valid and important criterion in the evaluation of
an applicant. There are several indicia of judicial temperament which, while
premised upon subjective judgment, are sufficiently understood by lawyers and
non-lawyers alike to afford workable guidelines for the evaluator.
Among the
qualities which comprise judicial temperament are patience, open-mindedness,
courtesy, tact, firmness, understanding, compassion and humility. Because the judicial function is essentially one of
facilitating conflict resolution, judicial temperament requires an ability to
deal with counsel, jurors, witnesses and parties calmly and courteously, and
the willingness to hear and consider the views of all sides. It requires the
ability to be even-tempered, yet firm; open-minded, yet willing and able to
reach a decision; confident, yet not egocentric. Because of the range of topics
and issues with which a judge may be required to deal, judicial temperament
requires a willingness and ability to assimilate data outside the judge's own
experience. It requires, moreover, an even disposition, buttressed by a keen
sense of justice which creates an intellectual serenity in the approach to
complex decisions, and forbearance under provocation. Judicial temperament also
implies a mature sense of proportion; reverence for the law, but appreciation
that the role of law is not static and unchanging; understanding of the judge's
important role in the judicial process, yet recognition that the administration
of justice and the rights of the parties transcend the judge's personal
desires. Judicial temperament is typified by recognition that there must be
compassion as the judge deals with matters put before him or her.
Factors which
indicate a lack of judicial temperament are also identifiable and
understandable. Judicial temperament thus implies
an absence of arrogance, impatience,
pomposity, loquacity, irascibility, arbitrariness or tyranny. Judicial temperament is a quality which is
not easily identifiable, but which does not wholly evade discovery. Its absence
can usually be fairly ascertained.
The concept of
humility for judges was eloquently stated in the “Statement of Circuit Judge
Randall R. Rader United States Court of Appeals for the Federal Circuit
Representing The Federal Judges Association Before the United States House of
Representatives Judiciary Committee's Subcommittee on Courts and Intellectual
Property” on May 15, 1997.
Judge Rader explained the concept of
humility to the Committee in the following terms:
With some trepidation, I would pass on the
counsel I used to hear often from Chairman Strom Thurmond. When serving as the Senate
Judiciary Committee Chairman, Strom Thurmond would often ask of candidates for
a judicial office, "Can you, young man, be humble? Do you understand how
important it is for judges to be humble?" Indeed his implicit
counsel seems equally valid for all our branches of Government. We
need to practice an active humility.
For me this active humility means the following:
Each branch first needs to recognize its constitutional limits and constantly
seek to adhere to those legal strictures. Next, each branch needs to realize
that it has, on occasion, ignored or exceeded constitutional limits - usually
not intentionally, usually for the best of motives - but exceeded
constitutional limits nonetheless. The legislative branch has ignored or
exceeded constitutional limits; the executive branch has ignored or exceeded
constitutional limits; and the judicial branch has ignored or exceeded
constitutional limits. For the most part, each branch, perhaps on occasion
spurred by the other branches, has corrected itself in those rare times of
divergence from the aspirations of the Constitution.
Judge Rader further
explained the importance of humility in the court’s exercise of
self-correction. He stated: “The
Judiciary too has ignored or exceeded constitutional limits. The most chilling reminders
of judicial excess are Dred Scott v. Sanford, 60 U.S. 393 (1856) and
Plessy v. Ferguson. 163 U.S. 537 (1896).” The Dred Scott Decision, was
a landmark decision by the U.S. Supreme Court that people of African descent
brought into the United States and held as slaves (or their descendants,
(whether or not they were slaves) were not protected by the Constitution and
were not U.S. citizens. Plessy v. Ferguson is a disgraceful
US Supreme Court decision
upholding the constitutionality of state laws requiring racial segregation in
public facilities under the doctrine of "separate but equal.” Judge Rader
pointed out the benefits of a humble judiciary in the following terms:
The
genius of the constitutional system, however, is that it facilitates self-correction.
The legislative branch can and does often change course and correct policies
that have not achieved their objectives. Through the appeal process, federal
courts of appeal often correct federal district courts and the Supreme Court
corrects the entire branch. More important, by one count the Supreme
Court had overturned its own decisions 196 times by 1990 - a clear indication
of a body very concerned about humble self-correction and monitoring its own
compliance with constitutional limits. Killian, J., ed., The
Constitution of the United States, Analysis and Interpretation (Congressional
Research Service) 1990.
Based on the “active
humility” and ‘humble self-correction” concepts discussed by Judge Rader, the
JSC was entitled to evaluate a judicial candidate’s ability to set aside his
own arrogant know-it- all attitude, to examine his ability to set aside
attitudes and beliefs assimilated during the apartheid era and to judge whether
an advocate who had fierce running battles with a Judge President (Hlophe) and
who is unwilling to admit that he was wrong in his position that aspirant
acting judges must be selected only from the ranks of senior counsel (“silks”)
can nevertheless be promoted to the Bench. It is a call the JSC was entitled to make under our
Constitution without being savagely attacked by former apartheid judges and Mr.
Gauntlett.
In Canada, the
concept of humility in judicial appointments has been widely endorsed. Jeremy
Webber’s “THE ADJUDICATION OF CONTESTED SOCIAL VALUES: IMPLICATIONS OF
ATTITUDINAL BIAS FOR THE APPOINTMENT OF JUDGES” is featured in the
Ontario Law Reform Commission’s "Appointing judges : philosophy, politics and
practice"; Papers Prepared for the Ontario Law Reform
Commission,1991.
Webber eloquently states the active
humility concept as follows:
It is therefore critical to effective
adjudication that judges adopt an
active humility. Judges must be willing to
place their own conceptions of justice at risk, realizing that those
conceptions are based on a limited experience of the world, shaped in large
measure by their gender, cultural background or social class. This does not mean that they should try to
approach each case with no opinions whatever. On the contrary, the description
of the process of constructing theories of justice given above — one of
comparing how competing theories order experience — requires some pre-existing
conception of right. That conception gives direction to the enquiry, furnishing
preliminary criteria of evaluation. What is more, the effort required to
overcome barriers to understanding may well require passionate commitment to
the pursuit of justice. The possession of preconceptions is not the problem,
then; it is the use one makes of them. Judges' commitment should be to the idea
of justice, not a particular theory. They should welcome challenge as an opportunity
for growth.
The simple willingness to question one's
own assumptions is insufficient, however. Judges must also adopt a sympathetic
stance to those appearing before them. Their obligation is to search for some
synthesis that might unite different visions of right (consistent, that is,
with constitutional or legislatively-declared norms). They must therefore treat
the parties' submissions as presenting alternative conceptions of justice
having integrity — an integrity not only for the parties themselves, but also
for the judge. The conceptions of justice contained in the submissions are, it
is true, partial, but no more partial than the opinion of the judge himself.
The visions proposed by the parties are themselves rooted in an experience
derived from this society, even if that experience is remote from that of the
judge; in any attempt to hammer out norms to govern society as a whole, they
deserve to be heard.
I submit that when
viewed against South Africa’s background of apartheid oppression and gross
human rights abuses, the concept of humility for our judges is even more
critical. To paraphrase Webber, we need judges who are willing to subject their
own conception of justice to rigorous scrutiny, realizing that those
conceptions are based on a limited experience of the world, shaped in large
measure by their gender, cultural background or social class in apartheid South
Africa. In British Columbia,
Canada, where Provincial Court Judges are appointed on the recommendation of
the Judicial Council, the latter
assesses each applicant using the following criteria:
- Typically 10 years in the active practice of law. Those with less legal practice are considered if they have a range of related experience.
- Legal reputation, including
- reference from the Canadian Bar Association and Judges before whom the applicant has appeared; and
- review of candidate's professional record from the Law Society of British Columbia.
- General knowledge of and experience in the law and Provincial Court procedure, preferably with recent practice in criminal, family, and /or civil litigation.
- Experience in mediation or alternative dispute resolution.
- Willingness to learn and a demonstrated commitment to continuing professional education.
- Knowledge of and sensitivity to current issues facing the courts, the judiciary and the justice system.
- Ability to listen and communicate effectively.
- Personal characteristics such as decisiveness, evenness of temperament, fairness, open-mindedness, and common sense.
- Compassion for those coming before the Court and an understanding of their circumstances.
- Respect in the community.
- Good health.
- Passion and enthusiasm.
- Balanced relationships with peers and subordinates.
- Adaptability and flexibility with respect to job changes.
- Humility.
- Appreciation of and experience with diversity.
- Demonstrated dedication to public service.
- Ability to cooperate and work with others.
- Understanding of the role of the Court in society, and respective roles of the judiciary and other participants in the justice system.
- Willingness to travel and to adjudicate in all subject areas.
Once again,
it is unclear why gauntlet and harms believe there is something untoward in the
JSC’s inclusion of “humility” as among the personal characteristics required of
judges. According to the Office of
the Commissioner for Federal Judicial Affairs, Canada, professional competence
and overall merit are the primary qualifications for judicial office. Committee members are provided with
Assessment Criteria for evaluating fitness for the bench. These criteria include “personal characteristics such as a sense of
ethics, patience, courtesy, honesty, common sense, tact, integrity, humility, fairness, reliability,
tolerance, a sense of responsibility, and consideration for others.” See, http://www.parl.gc.ca/Content/HOC/Committee/391/JUST/Reports/RP2970953/391_JUST_Rpt14/391_JUST_Rpt14_Pg01-e.html
Chief Justice
McLachlin of the Supreme Court of Canada has considered the role of judges in
that society and the importance of “active humility” in judging modern
society. She observed:
The
nature of the questions they decide, and the public expectation that they will
decide them fairly and well, place new demands on judges. It no longer suffices
to be a competent legal scholar and a fair arbiter. To perform their modern
role well, judges must be sensitive to a broad range of social concerns. They
must possess a keen appreciation of the importance of individual and group
interests and rights. And they must be in touch with the society in which they
work, understanding its values and its tensions. The ivory tower no longer
suffices as the residence of choice for judges. The new role of judges in
social policy also demands new efforts of objectivity. Often the judge will
have strong personal views on questions which a judge is asked to decide:
questions like abortion, capital punishment or euthanasia. But the task of
judging is not accomplished simply by plugging one's personal views into the
legal equation. The judge must strive for
objectivity. This requires an act of imagination. And it requires an attitude of "active humility", which
enables the judge to set aside preconceptions and prejudices and look at the
issue afresh in the light of the evidence and submissions. The judge must seek
to see and appreciate the point of view of each of the protagonists. She must
struggle to enunciate the values at issue. Then she must attempt to strike the
balance between the conflicting values which most closely conforms to justice
as society, taken as a whole, sees it. It is impossible to eliminate
the judge's personal views. But by a conscious act of considering the other
side of the matter, the judge can attain a level of detachment which enables
him or her to make decisions which are in the broader interests of society. In
the end, the judge can know no other master than the law, in its most objective
sense.
McLachlin, B. “The
Role of Judges in Modern Society” The Fourth Worldwide Common Law
Judiciary Conference, Vancouver, British Columbia, Canada, May 5, 2001. http://www.scc-csc.gc.ca/court-cour/ju/spe-dis/bm01-05-05-eng.asp
.
It
is grossly unfair for individuals who are driven by their own agendas to
distort well-known judicial selection principles for the sake of vilifying the
JSC and discrediting that body in the eyes of the public. But at a fundamental level this raises
questions about whether individuals who unleash a tirade against the JSC based
on false statement of the facts and law are fit and proper to be advocates and
must be allowed to continue as officers of the court. It has become increasingly obvious that some former
judges, academics and advocates have no qualms about deliberately distorting
well-established legal principles simply to score cheap propaganda points
against the JSC, a body that has proven too independent and too competent for
their liking. But a fundamental
question is whether it is unethical and professional misconduct for Gauntlett
to make such transparently false accusations against the JSC under the
circumstances.
In Incorporated
Law Society v Bevan 1908 TS 724 at 731-732 the Chief Justice spoke about
how practitioners, in the conduct of court cases, play a very important part in
the administration of justice. He opined that “any practitioner who deliberately
places before the Court, or relies upon, a contention or a statement which he
knows to be false, is in my opinion not fit to remain a member of the
profession. “ Admittedly,
this was in reference to statements made in court but the converse is also true
- a lawyer who attacks a tribunal and members of the judiciary and relies upon
a statement he knows to be false is not fit to remain a member of the
profession.
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").
C.
Prima Facie Evidence that
Gauntlett Was Not Candid In His Response to the JSC Regarding His Relationship
with Judge President Hlophe.
As
you, Advocate Jamie, are fully aware, Mr. Gauntlett wrote you an email on 7
September 2012 in which he urged the Cape Bar Council urgently to issue “a
statement calling for suspension” of Judge President Hlophe. In the same document, Gauntlett
likened Judge President Hlophe to Gen. Richard Mdluli and stated that on
“principle,” a public official – “a fortiori, one sitting in daily judgment on
others – facing charges which may lead to his removal from office should be
suspended.” You responded
to the email on the same day and pointed out that you considered “any call for
suspension now to be premature.”
You stated that you “intend waiting for the outcome of the JSC
deliberations, and will then recommend to Council.” Undeterred by your response Gauntlett responded that “a
judge considered by a preliminary investigative and deliberative body such as
the JCC prima facie properly to be impeached …cannot thereafter sit until
convicted or cleared.” He
added, the “issue is not just one of principle. The implications of not applying the principle now can be
severe. Just one example has been
the internationally-publicised phenomenon of the JP continuing to sit (inter
alia in relation to the Dewani matter).
The harm done to the administration of justice and the reputation of
the Western Cape judiciary is clear.” What is at issue here is not Mr. Gauntlett’s right to
express his opinions and to have robust discussions with his colleagues on
matters that are near and dear to his heart. Rather, it is his answers to JSC questions in relation to
his relationship with Hlophe JP, that shows he crossed the ethical line and
actively misled the JSC.
The
much-anticipated Judicial Service Commission (JSC) interview of Jeremy
Gauntlett SC proceeded on Wednesday, Ocotober 17, 2012 a mere 41 days after his
email exchanges with members of the Cape Bar Council involving planned
suspension of Hlophe JP. I must
mention that I was present for the interviews of all candidates except Judge
Mantame. At the JSC interview
Gauntlett adopted a chameleon-like change of position.
Commissioner
Dumisa Ntsebeza SC said he was concerned that, if Mr Gauntlett were to appointed,
that he would have a "toxic" relationship with Judge President Hlophe,
especially since Freedom Under Law, on whose board Mr Gauntlett sits, had
brought a complaint to the JSC about the judge president. Without revealing that he actively
campaigned amongst his colleagues for Hlophe JP’s suspension only a few weeks
before the interview, Mr Gauntlett said he did not believe there would be any
"toxicity". He said Judge Hlophe had previously said he would not see
working together as problem.
Gauntlett added: “I don’t see it as problem," and added that since
neither of them saw it as problem, "you’ve got to ask why is there a
problem." At no point did
Gauntlett reveal that he urged the Bar Council urgently to issue “a statement
calling for suspension” of Judge President Hlophe. At no point did Gauntlett reveal that considered it
inappropriate for Judge Hlophe who he deems “prima facie properly to be
impeached …[and]cannot thereafter sit until convicted or cleared.” At
no point did Gauntlett reveal that just over one month prior to his “I don’t
see it as a problem” statement to the JSC, he had stated in regard to Hlophe’s
conduct that: “The harm done to the administration of justice and the reputation of
the Western Cape judiciary is clear.”
It stretches
credulity and is improbable that Gauntlett sincerely meant that he could work
under a man he likened to Gen. Richard Mdluli (then a murder accused). After all, Gauntlett had stated his
belief that on “principle,” a public official – “a fortiori, one sitting in
daily judgment on others – facing charges which may lead to his removal
from office should be suspended.” Was he now, in a chameleon-like
fashion willing to turn his back on his principles? Was he willing to discard
these “principle” like a pair of dirty panties simply to secure his own
appointment as a judge? Was the
feigned congeniality towards Hlophe a genuine change of heart and an honest
statement to the JSC? This a
damnable misrepresentation and feigned congeniality conveniently packaged to
secure Gauntlett’s appointment as a judge.
In
fact, Gauntlett not only misrepresented his own position on the matter but he
misrepresented that of Judge President Hlophe as well. It is literally true that Hlophe JP had
“previously said he would not see working together as problem” but that
statement was some years ago and should have been supplemented with facts
exclusively in Gauntlett’s position and which cast different light on the
relationship. It is unfathomable
that Hlophe JP would have held such a sanguine view of his relationship with
Gauntlett if he had known about Gauntlett’s “principled” opposition to him
serving as a Judge President while under investigation by the JSC. It was unethical and active
misrepresentation for Gauntlett to imply that the Hlophe JP would have
maintained the same attitude and taken kindly to being likened with Gen.
Richard Mdluli’s case involving murder allegations.
As
you all know, within days of Gauntlett’s being denied appointment by the JSC, you
Advocate Jamie, as the Chairperson of the Cape bar and another person went to
Judge President Hlophe to ask him to voluntarily take leave of absence as you
were considering calling for his suspension – all in line with Gauntlett’s importuning.
Hlophe JP was deeply affronted and considered your visit to be unwarranted and as
a threat to judicial independence.
It is palpable lack of candour for Gauntlett to represent that Hlophe JP
would “not see working together as a problem” under circumstances where he knew
that the Cape Bar Council, at his encouragement and request, was poised to call
for Hlophe’s suspension within days of the JSC meeting. This is vital piece of
information that would have assisted the JSC in assessing the nature of the
toxicity of the Gauntlett-Hlophe relationship if any. But Gauntlett’s case is even more egregious. He answered the question about his
“toxic relationship” with Hlophe JP in beguilingly simplistic terms – failed
and refused to disclose adverse facts which would have exposed as a feckless
lie his claim that: “I don’t see it as a problem." It is unfathomable that a man who
harbours a “principled opposition” to his supervisor’s continued employment and
is actively campaigning for his suspension can claim, with a straight face,
that their relationship should not be seen “as a problem.” He knowingly
maintained a false pretence and could have been guilty of misleading the JSC.
Mr.
Gauntlett’s conduct is worse than the typical cases where advocates have been found
guilty of lack of candour with the court or a tribunal. 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 Gauntlett here. 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.
The
Bar Council’s own credibility is at stake in this matter and rests on the
manner in which this Complaint will be investigated. A lawyer has a duty to use tactics that are legal, honest
and respectful. This duty is often
referred to as the duty of candour.
Under this umbrella of a lawyer's duty to the court, lawyers are
primarily responsible for ensuring that they do not employ strategies that will
mislead the court or a tribunal; this includes misleading the court on
evidentiary and legal points as well as making use of tactical strategies that
are likely to affect a case.
Misleading
on Evidentiary Issues. A lawyer
cannot knowingly offer or rely on false evidence or misstate evidence. Misleading the court includes actions
such as knowingly misrepresenting or misstating the facts in argument, inducing
a witness to state misleading evidence and knowingly maintaining a false pretence.
Similar to blatantly offering
false evidence, knowingly maintaining false pretences is another way a lawyer can
mislead the court. Where
counsel knows that the court is operating under a mistaken assumption and
actively maintains the false pretence, the lawyer is guilty of misleading the
court. An example of such
unacceptable behaviour would be a circumstance in which a judge is referring to
a witness by an improper title (i.e. referring to a Certified General
Accountant as a Chartered Accountant or referring to a defendant as a Chief
Inspector when he had been demoted to the rank of station sergeant without
being corrected. See Meek
v. Fleming, [1961] 2 Q.B. 366. Failing to correct a false statement or maintaining a pretence
is a breach of a lawyer's duty of candour.
In Gauntlett’s
case, he created a false pretence of a good and non-toxic relationship with
Judge President Hlophe and failed to disclose that he had recently adopted a
position “on principle” contrary to the one he falsely maintained before the JSC. It was incumbent upon Gauntlett to inform Commissioner
Ntsebeza and the JSC that he did not expect to have a working relationship with
Hlophe JP for a considerable period of time because he expected that there
would be calls emanating from the Cape Bar Council for Hlophe to be
suspended. He acquired this
information directly from you Jamie, as Chairperson of Cape Bar Council and was
thus in a position to take the JSC into his confidence. Because of his “in principle”
opposition to working with a man he deemed “prima facie properly to be
impeached” and a man who “…cannot thereafter sit until
convicted or cleared”, Gauntlett should have disclosed that he could
not suffer continued service by Hlophe on the Bench. His failure to do so is particularly egregious in light of
his condemnation of Hlophe JP. He
feigned congeniality towards Hlophe and maintained stilted respect without
revealing that he had stated in regard to Hlophe’s conduct that: “The
harm done to the administration of justice and the reputation of the Western
Cape judiciary is clear.”
It stretches credulity and is improbable that Gauntlett sincerely meant
that he could work under a man he likened to Gen. Richard Mdluli (then a murder
accused). After all, Gauntlett had
stated his belief that on “principle,” a public official – “a
fortiori, one sitting in daily judgment on others – facing charges which may lead to
his removal from office should be suspended.” He fully anticipated that
Hlophe would be suspended by the JSC based on a campaign he initiated and based
on an undertaking from you as leaders of the Cape Bar Council that such
initiatives would come to fruition.
C.
Conclusion:
It
cannot be gainsaid that Gauntlett’s statement that the JSC “introduced a new
quality for judicial appointments: humility” constitutes a false statement of
fact and law. The statement was
made to further Gauntlett’s own ambition of being appointed to the
Constitutional Court and to increase pressure on the JSC to accede to his
demands. The damage done to the
judiciary is incalculable – the public is mislead into thinking that the JSC
was so biased against Gauntlett that it conducted a farcical interview with
biased and prejudiced minds, that the Chief Justice lied and manufactured
reasons for not appointing Gauntlett.
In
addition, Gauntlett’s answer to Commissioner Ntsebeza’s question with specific
regard to a “toxic relationship” with Hlophe JP is a classic, textbook case of
lack of candour with a tribunal.
What renders the transgression here devastatingly serious is that it was
perpetrated during interviews for judicial appointment and under circumstances
where the JSC is entitled to rely on the absolute and unreserved candour of the
candidates. Had the JSC not
been alert, it would have committed the grievous error of allowing Gauntlett’s
ascendancy to the Western Cape Bench only to have an eruption of a judicial
crisis of mammoth proportion within days of Gauntlett being appointed. Revelations about his active
campaigning about a man who would be his supervisor, his undisclosed and
express understanding with leaders of the Bar about impending suspension of his
supervisor suggest a potential Trojan-horse strategy which would have
permanently and irrevocably damaged our judiciary. Of course, it is not know whether Gauntlett would have
actively campaigned for Hlophe’s suspension once he was appointed as a
judge. But his “principled”
advocacy for Hlophe’s suspension suggests that the country would have faced a
real potential of a judge Gauntlett supported by members of the Bar and calling
for Hlophe’s suspension on the one hand and Hlophe JP, also supported by some
judges and some members of the Bar and attorneys strenuously resisting such
moves on the other hand. We
need not paint the lily - Mr. Gauntlett has failed the judiciary and the
judicial system and has demonstrated through his fecklessly false utterances,
misrepresentations and non-disclosures that he is unfit to be an advocate and
officer of the Court. I therefore
demand firm and decisive action and may be appropriate. Please feel free to contact me if you
need additional information in this regard.
Respectfully Submitted
Paul M. Ngobeni
