Mr President, did you forget to mention Acting Judge Cheat?

THIS WEEK President Ramaphosa moved to defend South Africa’s yellow judiciary from accusations made no less by a member of the Judicial Services Commission. The media has been at pains to aver lack of any evidence supporting accusations of bias against any of the country’s top legal authorities, despite politician Julius Malema condemning actions amounting to political interference.

“Unless supported by evidence, such claims undermine confidence in our courts, and weaken our Constitutional order,” wrote the President in his weekly newsletter on Monday.

He said South Africa’s Constitution makes provision for the removal of judges who fail “to uphold the values and principles with which they have been entrusted.” So I guess if any corrupt members of the judiciary bash the preamble to our Constitution or lower the status of the TRC and its report, they got this one covered?

Unfortunately the nitty gritty of provisions against malfeasance in office in particular, the abject failure to provide legal aid to those on the receiving end of corruption, unfair treatment and lack of fairness and impartiality, makes this a practical impossiblity.

“The National Assembly is empowered to remove judges who are found by the Judicial Service Commission to be guilty of gross misconduct” claims the President.

“The Judicial Service Commission is a carefully constituted body, which includes representatives from the judiciary but also the legal profession, academia and Parliament. There are clear processes established in law to deal with allegations of misconduct against members of the judiciary,” he said.

Ramaphosa then urged those who had ‘evidence of any wrongdoing by any judge to make use of the avenues provided in the Constitution and law to ensure that appropriate action is taken.’

Stating there to be “avenues” without providing any details, of how he intends to help those who do possess evidence, does not translate into action by the President, the Judicial Service Commission nor Parliament for that matter. Particularly when the ruling party in the form of the executive, is involved in the appointment of the nation’s officials, and in some instances, actively influencing the outcome of decisions (see below).

The judiciary is expected to remain independent and impartial, unfortunately the appointment of persons such as Albie Sachs to the bench in the 90s, set the tone for card-carrying members of the judiciary. Political apparatchiks believing themselves entitled to appointment to the ‘commanding heights of the justice system’ via a political project of cadre deployment and involving gerrymandering of the system.

So far as the removal of corrupt officials sitting on the bench is concerned, the constitution is rather vague and opaque on which steps which need to be taken — impeachment via Parliament or finding of gross misconduct by the JSC — surely both actions should occur concurrently? Any miscarriages of justice involving the ruling party exerting undue influence over proceedings should at very least be debated on the floor of the National Assembly?

The President was thus silent on the vexing issue of ‘acting judges’ — those who act in the place of judges, and who for all intents and purposes, are judges. In the liberal language of our constitution, literally anyone with sufficient ‘qualifications’ may be a judge, and while there is provision for citizens to act as lay assessors, this mechanism is rarely used.

The JSC currently disclaims any authority over the behavior of its acting judges, those coopted into the judiciary, leaving an alarming fracture in accountability. The result is that literally any director of a sizeable law firm may act as a judge or magistrate, without disclosing assets or an interest in the proceedings, lending credence to the assertions made by Malema and demonstrated by the evidence provided below.

And this with Judge Hlophe seemingly back at work, as if the hearings into gross misconduct before the JSC never happened? (See ‘He’s a danger on the bench’ – Kriegler  and Be gone, John: the JSC has a duty to get rid of Hlophe)

An as yet unsigned affidavit detailing attempts to prosecute an ANC political partner, labour broker, and erstwhile law professor Halton Cheadle, who presided as an acting justice over a matter affecting both his client and business associates, including then speaker of the House of Assembly Max Sisulu, during a hearing at Labour Court in 2010 and thus implicating the party in capture of the judiciary, is provided.

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