Controversial Johannesburg lawyer Peter Soller would like to sue a judge whom he says defamed him. There’s just one snag: he first must get a colleague of the judge to give him the go-ahead.
Soller’s problems started in November 2002 when Pretoria High Court Judge Eberhardt Bertelsmann struck Soller off the attorneys’ roll.
He said that Soller was “afflicted by serious shortcomings in his personality, resulting in a lack of insight, detachment, objectivity, and professional judgement. He cannot continue to practise; he has become a danger to society and an embarrassment to his profession.”
Judge Bertelsmann ruled that Soller had “deliberately lied to the court in an application against the Law Society; that he had made grossly contemptuous remarks about members of the Cape Bench as well as a Pretoria High Court judge and had made completely unsubstantiated charges of attempted murder against a former judge president of the Cape Division of the High Court”.
He had also made serious and defamatory allegations against three top officials, alleging involvement in child pornography.
The judge said Soller had “advanced fanciful theories about international conspiracies [against him] on the flimsiest of grounds, thereby demonstrating that he no longer possessed the clarity of mind and detachment which is required from an officer of the court”.
Soller found the comments defamatory and filed papers with the Johannesburg High Court for damages.
The court ruled last month that his case could not be heard until he had complied with requirements of Section 25 (1) of the Supreme Court Act that anyone suing a judge should first get the permission of another judge.
Soller now wants the Constitutional Court to find that the relevant section of the Supreme Court Act “offends the right to equality as provided for in the Constitution; and offends the rights of access to a court of law as obligatory in the Constitution”.
According to the Act, “notwithstanding anything to the contrary in any law contained, no summons or subpoena against a chief justice or any other judge of the Supreme Court shall in any civil action be issued out of any court except with the consent of that court”. This means that a judge in the division at which Soller has brought the case must give consent before the case can be heard.
Soller has cited Judge Bertelsmann as third respondent behind President Thabo Mbeki and Minister of Justice and Constitutional Development Brigitte Mabandla, who are the first and second respondents respectively.
He has not yet approached the Constitutional Court, but says in the papers he wants it to intervene because he distrusts the other courts.
“The whole system of advocacy in South Africa unwittingly creates a perception of a ‘club’ type situation. Traditionally the mainstay of the judiciary at Supreme Court level is that judges are appointed from the ranks of advocates, who practise in the same groups as each other and are obliged to be members of the same groups.
“When advocates ‘cross the road’ and become judges, they do not have an automatic change of mindset and do not suffer from amnesia of the past at least to the extent to which authorising actions against colleagues will come with many personal difficulties.”
He felt that Constitutional Court judges did not carry the same “old school” baggage as ordinary judges.
“It is conceded that this problem is not a problem with the Justices in the Constitutional Court. This was seemingly well considered when creating the judicial appointments for that court,” he says in the papers.
Judge Bertelsmann has indicated in responding affidavits that he will abide by whatever decision the court would make, while lawyers for the president and the justice minister say they will meet Soller in court.
They say the section in dispute is desirable because it “ensures the orderly functioning of the courts and administration of justice” and “prevents an abuse of process against the various judicial functionaries mentioned in the section”.
The application before the Johannesburg High Court has been postponed indefinitely to allow Soller time to seek permission as demanded by the Act.