/ 20 April 2012

Politicians grill ‘outspoken’ judges

The Judicial Service Commission’s (JSC’s) interviews with candidates to fill positions on the Bench this week at times resembled the relationship pages of magazines such as Cosmopolitan.

The swift interviews for positions on the Eastern and Northern Cape High Courts on Tuesday were described by one witty person present at Cape Town’s Westin Grand Hotel as an exercise in “judicial speed dating”. Zolani Dukade’s interview for the single vacancy on the Eastern Cape High Court, a position for which he is the apparent favourite, took all of four minutes, for example.

But for South Gauteng High Court Deputy Judge President Phineas Mojapelo, his interview on Thursday for the position of judge president of the North and South Gauteng High Courts could have run under a front-page splash titled “He beats me, but maybe he loves me too”.

During Mojapelo’s marathon interview of two hours and 25 minutes, Justice Minister Jeff Radebe went on the offensive over an article published in the Sunday Times in May last year in which Mojapelo argued that due consultation and public participation in appointing a chief justice were integral to the “legitimacy” of the process.

Mojapelo argued that because the commission had not followed its own procedure by announcing the chief justice vacancy or inviting nominations before the appointment of former Chief Justice Sandile Ngcobo in 2009 (President Jacob Zuma had opened the process by nominating Ngcobo as his favoured candidate at the time), the process had been “critically impoverished” and “robbed of an important element of legitimacy” because it did not take the country along with it.

Gauteng Premier Nomvula Mokonyane had initially asked Mojapelo whether he stood by the article that was critical of the decisions emanating from “this supposedly honourable house”.

The judge, a former commission member, replied that criticism was an “incorrect attribution” and the article was not “a critique of a particular decision of the JSC”, but an “outline of the importance of the office of the chief justice under our constitutional order — and an explanation of procedure that is followed in terms of regulations that govern this body”.

Later, Radebe asked for further explanation, saying of the article: “If this is not a critique, I don’t understand what is a critique.”
Mojapelo, who remained even-tempered, said he had been “anxious” about potential litigation over the lack of procedure and felt compelled to air his views “because I had a duty to my country”.

Mojapelo also referred to his stint on the first JSC when it became apparent that, although Arthur Chaskalson was a favourite to be South Africa’s first chief justice, then-president Nelson Mandela had favoured Ismail Mohamed. But due process, which resulted in the latter being appointed, was nevertheless followed.

Radebe asked whether the appoint­ment of Chief Justice Mogoeng Mogoeng, which followed the same procedure as that of Ngcobo, was also “tainted”.

Mojapelo, pointing out that he had gone to great lengths to research the legal meaning of “consultation”, stated that the “tainting” described in his article referred to the “[legal] challenge or threat of a [legal] challenge based mostly on consultation”.

At the end of the interview, Mogoeng pointed out that both former Chief Justice Pius Langa and Deputy Chief Justice Dikgang Moseneke had been appointed in a similar manner to himself.

Another able contender, Labour Court Judge President Dunstan Mlambo, had a much smoother interview. He was allowed space to articulate his accomplishments, especially in turning around an extremely dysfunctional division in just less than two years. By all accounts an energetic and innovative judge and administrator, Mlambo’s credentials appeared to win over Radebe and the ANC bloc.

The commission is at times a crazy mix of agendas, constituencies and perspectives that often remains a microcosm of South Africa, reflected even when observing who has coffee together during the breaks.

The ANC MPs in the mix stood out, especially during the quizzing of candidates for the two Supreme Court of Appeal vacancies on the separation of powers and the perception that the judiciary was “encroaching” into the executive and legislative spheres of government. It was like a demonstration of the underlying tensions of a ménage à trois in which jealousy was raising its ugly head.

During the appeal court interviews, judges had to defend consistently their constitutional powers to review legislation from Parliament and the actions and decisions of the executive.

Eastern Cape High Court Judge Xola Petse, considered one of the frontrunners with Judges Ronnie Pillay and Clive Plasket to fill one of the two appeal court vacancies, was quizzed by ANC MP and Deputy Minister of Home Affairs Fatima Chohan about his statement to the commission that the “judiciary was the weakest of the three arms of government” because “it doesn’t have a purse and it doesn’t command a force”, which she considered “not correct”.

In a rigorous exchange, with Chohan pushing Petse to reconsider his statement, that compared the judiciary’s role during apartheid with that in South Africa’s current constitutional democracy, the judge eventually conceded that the judiciary is “probably [the] most powerful” of the three arms “to the extent that the [apartheid] legislature could do as it pleased — [and] could pass any law that it could”.

Judicial politics came to the fore during the interviews for the KwaZulu-Natal deputy judge president’s position contested by Judges Mjabuliseni Madondo and Fikile Mokgohloa. The latter was supported by the 14 members of her division, whereas Madonda had the approval of only three.

The commissioners raised concerns about judges publicly supporting colleagues in this manner, something that historically had divided the KwaZulu-Natal division along racial lines and created the public perception that it was fractured.

But if there was a story about how to snag a sensitive man at this week’s interviews, it was written by Inkatha Freedom Party MP Koos van der Merwe, who, following Mojalepo’s gruelling interview, lightened the mood. He said that when his wife’s cellphone had rung during the interview, he had started preparing to make a bail application for her — a few years ago Mojapelo sentenced someone in his court to 30 days in custody after a cellphone rang during proceedings. The decision was later overturned by the appeal court.

New hurdles for Hlophe hearing
The Judicial Service Commission’s decision to follow new rules outlined in the amended Judicial Service Commission Act in resolving the complaints against Western Cape Judge President John Hlophe is likely to hit a few speed bumps, despite the commission’s intention to resolve it as fast as possible.

Commission spokesperson Dumisa Ntsebeza confirmed to the Mail & Guardian on Thursday that there was a “challenge” regarding Chief Justice Mogoeng Mogoeng’s chairing of the judicial conduct committee that will have to decide whether the matter constitutes a prima facie case of judicial misconduct.

Ntsebeza acknowledged that the amended Act did “not make provisions for instances when the chief justice would be conflicted”.

Mogoeng had tried to mediate between the two parties in the matter, an action that resulted in him recusing himself from the commission’s deliberations on the Hlophe saga earlier this week in Cape Town.

He had attempted to resolve one of the biggest crises facing South Africa’s judiciary since 1994. In 2008, a complaint was lodged by the justices of the Constitutional Court alleging that Hlophe had approached and improperly sought to influence two judges of that bench, Bess Nkabinde and Chris Jafta, in a corruption case before it involving President Jacob Zuma, then an ordinary citizen.

Hlophe then lodged a counter-complaint with the commission alleging that the Constitutional Court’s issuing of a press release regarding the complaint had infringed on his constitutional right to dignity.

The commission’s decision not to pursue an investigation has been tied up in the courts. The Constitutional Court recently upheld a supreme court ruling that the matter should be fully investigated and interrogated.

According to the new Act, the chief justice, as chair of the conduct committee, will decide whether to refer the matter to the conduct committee.

The committee, which can invite representations from the affected parties, must decide whether to refer the matter to the commission, which will decide whether it needs to set up a tribunal for a full investigation. Because of a Supreme Court of Appeal judgment, that investigation will have to include cross-examination, something the commission decided against in 2009 when it chose not to pursue a full investigation into the complaints, later successfully challenged in court.

The amended Act stipulates that the conduct committee be made up of the chief justice, his deputy, Dikgang Moseneke, and four other judges, two of whom must be women. Moseneke is one of the Constitutional Court complainants against Hlophe and although it is unclear at this stage what decisions will be taken, there remains the possibility that both Mogoeng and Moseneke will have to recuse themselves from the process.

Mogoeng’s office referred inquiries about a possible next step to the commission. Ntsebeza refused to speculate on what the next step would be, but did say that the “Act may need revisitation” because it was silent on the “challenge” of having a conflicted chairperson. Hlophe’s lawyer, Barnabas Xulu, said he was waiting for formal notification of the commission’s decision before he could comment. — Niren Tolsiju