19
February 2013
Attention:
Sello Chiloane
The
Judicial Services Commission
E-mail:
Chiloane@concourt.org.za
Letter of Opposition to the
Appointment of Jeremy Gauntlett SC As a Judge of the Constitutional Court.
Dear
Commissioners:
I
have previously submitted my written opposition to the candidacy of Mr. Jeremy
Gauntlett as a judge of the Western Cape High Court. It is my understanding that you have embarked on the process
of interviewing short-listed candidates for appointment as judges of the Constitutional
Court in terms of section 174 (4) 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.
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
Courts. 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]. I propose to deal with reasons why Mr.
Gauntlett must not be appointed.
A.
Mr. Gauntlett Has Proven
That He Lacks Humility, Judicial Temperament And Is Unfit for Appointment to
the Bench.
I
am greatly perturbed by the relentless, false and vituperative attacks on the
JSC by persons such as Mr. Gauntlett, former judges, academics and politicians
who claim to be critiquing alleged performance errors by the JSC during its
evaluation of candidates for judicial office. While I respect the constitutional rights of citizens
to criticize any branch of our government, I believe and demonstrate here that
the ideologically driven attacks on the JSC have crossed the line and have
veered into flagrant total onslaught on the JSC and amount to acts of
intimidation. This is a
well-orchestrated strategy to force the JSC to appoint to the judiciary certain
persons selected by various politicians and interest groups and whose
ideological position is favoured by these persons.
I
recognize that you as Commissioners may be hamstrung by your position from
responding fully and robustly to some of the false accusations lobbed at
yourself and the JSC from afar. In
an ironic sense, the JSC is being mouse-trapped by these stratagems utilized by
some persons as follows: Certain
politicians and celebrities have nominated individuals such as Mr. Gauntlett
for appointment to the Constitutional court. These persons have pursued the twin agendas of attacking the
JSC and discrediting its selection processes while at the same time campaigning
for their preferred candidate by portraying him as a victims of alleged bias,
incompetence or even discriminatory treatment by the JSC. Should the JSC react firmly and
strongly to this propaganda onslaught, these same groups will inevitably
complain that there is inherent bias against their candidates. On the other hand, the JSC’s stony
silence in the face of the gross misrepresentation of its position has the
unfortunate effect of solidifying in the mind of the public that the JSC is
incompetent and does not understand the judicial selection criteria mandated by
the Constitution. However, we
believe that no group of citizens, no matter how powerful or super-intelligent
it considers itself to be, has a right to galvanize public opinion and to
promote its causes, including the candidacy of certain persons by flagrantly
lying and misrepresenting the position of the JSC and our Chief Justice in
public. The damage caused to the
judiciary by these unwarranted and ideologically driven attacks cry out for
public condemnation by the Chief Justice as a leader of the judiciary and the
JSC itself.
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 counsel 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”.
With characteristic arrogance, apartheid judge Harms has fired off a
letter to the JSC in which he questioned “where it was agreed that humility was a
required judicial attribute.”
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.
Mr.
Gauntlet has also parroted the statements by Harms and De Vos in order to score
cheap propaganda points against the JSC. After the JSC announced its decision, 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 that “I know so.”
Cumulatively, these statements suggest that 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.
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.”
The latter was in reference to the Chief Justice.
(d)When asked about the
transformation argument, Gauntlett replied: “The Constitution does not require
national or regional demographics, it requires the JSC to strive to be
representative.”
Commissioners,
it would be unreasonable to expect you to respond to every propagandist’s
criticism of the JSC. However,
even assuming the claim that the JSC engaged in post-hoc manufacture of reasons
for disqualifying Gauntlett, that the JSC conducted a “charade” or farcical
hearings where it had a “slate in mind” can be dismissed as puffery or mere
expression of opinion, the claim that the JSC “introduced a new quality for
judicial appointment: humility” is sufficiently serious to warrant a firm
rebuke since it impugns the integrity of the JSC, its processes and is being
used to buttress the nebulously stated claim of discrimination by
Gauntlett.
Contrary
to some cynical demagogues, the requirements of humility and judicial
temperament are not some recent artificially made up criteria invented by the
JSC simply to disqualify certain candidates. In fact, the personal characteristics requirements for
judicial office are as old as the Bible
- 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 covetuousness 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.
What
renders Gauntlett’s false claim particularly disturbing is the fact that the JSC’s
articulated position 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.”
As the JSC’s position was discussed long before Gauntlett was considered
a judicial candidate, Gauntlett’s
statement that the JSC introduced “a new quality” is a blatant false accusation
against the JSC and is deliberate.
Even worse, Gauntlett is a member of the Cape Bar and he knew or should
have known that the JSC named judicial temperament and “humilty” as relevant
qualities long before it even considered Gauntlett’s qualities. 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 besides the point – what matters 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
clearly shows that
Gauntlett is guilty of making false accusations against the JSC and the Chief
Justice on this score.
Contrary
to Gauntlett’s startling assertion, the Concourt itself has stated that judges
exercise certain tasks with requisite humility as an essential part of
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. “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 routinely demanded of judges
whenever leave for appeal is sought. Contratry 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 simple matters such
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 therefrom makes it clear that the JSC knows what it is talking about. See, 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.
Suffice it to say that the late Chief Justice Ismail Mahomed, the first black Chief Justice of a democratic South
Africa, eloquently elaborated on these evaluation criteria 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.
Former
Chief Justice Sandile Ngcobo, dealt squarely with the issue of humility from
the very first day he ascended to the position until the very last day in
office. When he was first
appointed, Chief Justice 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
a 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.
During
his farewell speech at the Constitutional Court, Chief Justice Ngcobo said
judicial powers should be exercised with humility and respect and 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.
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."
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 LRC 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.
Former
Chief Justice Langa, in his 2008 address at an international conference for the
Commonwealth Magistrates' and Judges' Association 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
International
Jurisprudence Consistently Support the View that Judicial Humility Is among the
Required Attributes for 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 Gaunlett’s position.
In fact, 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 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.
Still in the US, the
Lawyers' Committee for Civil Rights Under Law, a nonpartisan, nonprofit
organization, which was formed in 1963 at the request of President John F.
Kennedy to involve the private bar in providing legal services to address
racial discrimination also endorses the view that an ideal judicial candidate
must display an “ability to navigate opinions and suggestions with
grace and humility.”
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 the
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.
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 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 .
Commissioners,
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 must be allowed to continue
unabated. It has become increasingly
obvious that some former judges, academics and advocates have no qualms about deliberately
distort 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. It would be a
grave error for the JSC which recognized Gauntlett’s lack of humility and
judicial temperament a few months ago to somersault now and reward him with an
appointment on the nation’s highest court. In a real sense, Gauntlett’s own propaganda statements
against the JSC vindicate those JSC members who correctly detected his lack of
humility. In reaction to the JSC
decision not to recommend his appointment Gauntlett resorted to vilifying the
JSC and suggesting in newspaper interviews that the JSC was biased, incompetent
and corrupt. Certainly the JSC
cannot now appoint to the Constitutional Court a person it rejected for
appointment to the Western Cape High court a mere three months ago.
B.
Gauntlett’s Previous Attacks
on JSC Decisions and And Undermining of the JSC Process.
Unfortunately
Gauntlett’s attacks on the JSC are not an isolated incident – Gauntlett has
engaged in a pattern and practice of attacking the JSC 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 JSC and Judge President Hlophe.[2]
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.
The
JSC had properly concluded that Hlophe’s ethical lapses do not warrant further
investigation or formal hearing.
The JSC did not shirk its responsibility in its investigation of
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 Hlophe’s blood at all costs. His critics know all too well
that Judge Hlophe cannot 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 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 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.”[3] 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 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.
In
2011, the Botswana Law Society condemned Ramodibedi and described his action as
“an assault on the judiciary and rule of law in Swaziland”[4] 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.[5]
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.[5]
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.[6] 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”.[7]
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 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.[8] 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 in 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. In regard to
the Constitutional Court appointment, the constitution expressly requires that
the appointed person must be a South African citizen. Where a person with dual citizenship has demonstrated
a penchant for falsely accusing the JSC and has even allowed attacks on the JSC
by his foreign-based supporters, the JSC must seriously question the candidate,
C.
The JSC Must Promote
Consistency of Principles and Equal Treatment 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 has involved 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".[9] As shown above
Gauntlett has been harping on the same theme and has publicly suggested that
the failure of his candidacy was due to the JSC’s bias, incompetence, mendacity
and corruption.
It
is a matter of record that 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 Gauntlett’s case, the JSC itself has commented on his lack of
humility and judicial temperament.
In reaction to that Gauntlett launched attacks based on false
allegations against the JSC. The
JSC musyt determine whether a candidate for judicial office who falsely accuses
the appointing body of bias and other
malpractices has integrity to be appointed a judge. Just as Ginwala Commission could
evaluate Simelane’s statements and comment thereon, the JSC is similarly
entitled to determine whether Gauntlett’s accusations could be said to emanate
from a person with integrity. But
unlike Ginwala, the JSC is duty-bound to resolve that question and it may not
shirk its responsibility by merely holding that Gauntlett has the right to free
speech.
Gauntlett has sought to
exploit the propagandists’ theme of white exclusion by the JSC – a fact that
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.” But that has not prevented Gauntlett from publicly
accusing the JSC of having a “slate in mind” and suggesting that he is the
victim of JSC’s over-emphasis of transformation and affirmative action. 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 the 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.
Gauntlett’s
statements about the JSC are based on falsehood – it should not matter that the
lies about the JSC and the Chief Justice were told to journalists and not the
JSC itself.
D.
During his October 17, 2012 Interview Gauntlett Was
Not Candid In His Response to the JSC Regarding His Relationship with Judge
President Hlophe.
It
is undisputed that Mr. Gauntlett wrote an email to the Chaipersons of the CBC
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.” The CBC
Chairperson Jamie responded to the email on the same day and pointed out that
he considered “any call for suspension now to be premature.” Jamie stated that he “intend waiting
for the outcome of the JSC deliberations, and will then recommend to
Council.” Undeterred by that 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.”
The
much-anticipated Judicial Service Commission (JSC) interview of Jeremy
Gauntlett SC proceeded on Wednesday, October 17, 2012 a mere 41 days after his
email exchanges with members of the Cape Bar Council involving planned
suspension of Hlophe JP. 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 a mere 41 days before the
interview. 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 Hlophe JP would have maintained
the same attitude if he knew that Gauntlett actively campaigned for him to be
suspended and that he had been likened with Gen. Richard Mdluli’s case
involving murder allegations.
It
is now a matter of record that, within days of Gauntlett’s being denied
appointment by the JSC, 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 they were considering calling for his suspension – all in
line with Gauntlett’s importuning. Hlophe JP was deeply affronted and
considered that 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.
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 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.
The lack of candour hear is worse than
what was alleged against Simelane.
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.
E. Advocate
Gautlett’s 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, humility and
tenacity and Jeremy Gauntlett has none of these attributes. He has through his words and
deeds showed that he keen intelligence and extraordinary communications skills
but lacks the rudimentary passion for inclusiveness. Mr. Gauntlett demonstrated his insouciance
towards the constitution’s imperative for transformation.
In
2005, a City Press article[10]
reported that Gauntlett had urged the Bar
“to take 'principled position' that would see no African acting judge in
Western Cape.” The paper
reported that “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 that “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.
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 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 minority group.
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. 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 to the Constitutional court 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.
F. Mr.
Gauntlett is The Subject of Pending Misconduct Complaint
I
have brought to the attention of the members of the Judicial Services
Commission the fact that I filed misconduct complaints against Mr.
Gauntlett. The Cape Bar Council
dismissed the complaint on January 24, 2013 and I am currently pursuing an
appeal in regard to this matter. I
trust that Mr. Gauntlett, who had a continuing duty to make disclosure, did
timeously disclose to the JSC that there was a complaint filed against him on
November 21, 2012 and before the JSC shortlisted him for the currently pending
interviews. If Mr. Gauntlett SC
did not make such disclosure that fact in itself should weigh heavily against
his candidacy.
To the extent that Mr. Gauntlett argued
that his appearance before the JSC did not involve a “professional” capacity
the JSC must decide for itself whether a candidate for judicial office who
engages in conduct described herein can still be considered to have integrity
for appointment as a judge. A
judicial candidate who falsely states the law and facts in public newspapers
and casts aspersion on the JSC is unfit for office.
B. 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 inteview with biased and
prejudiced minds, that the Chief Justice lied and manufactured reasons for not
appointing Gauntlett and that “humility’ was introduced as an after-thought to
justify not appointing Gauntlett to the bench. Gauntlett has established a pattern and practice of
attacking JSC decisions he does not like.
Mr. Gauntlett’s response to Commissioner Ntsebeza’s questions was
misleading and lacked candour. For
these and other reasons articulated herein the JSC must not recommend
Gauntlett’s appointment to the Concourt.
Given his belittling comments about the Chief Justice’s religious views
and his accusation that the JSC over which the Chief Justice presides
manufactured reasons after the fact, was biased against him and acted
unlawfully, it is inconceivable that Gauntlett would work in a collegial
relationship with the Chief Justice.
Submitted
Paul
M. Ngobeni
Paul M. Ngobeni
[1] Running the
Gauntlett: Why the struggle for appointment? Pierre de Vos
[2] See, 'Judge
Hlophe betrayed the nation with his greed' - General Council ...
[3] 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
[4] 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
[5] Id.
[6] 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
[7] 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
[8] 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
[9] 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.
[10] 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
