It was nigh impossible to capture or bribe the bench to ensure a favourable court ruling, a candidate for the Northern Cape division said on Friday. This was in response to a pointed question from Gauteng Judge President Dunstan Mlambo on political attacks that have hung like a cloud over this week’s interviews of aspirant judges at the Judicial Service Commission.
Mlambo asked advocate Sibongile Nxumalo, a member of both the Nigerian and the Johannesburg Bar, why he would seek a seat on the bench given the fraught climate of attacks on the judiciary and persistent claims of “judicial capture”.
“What is your view about the narrative that says there is judicial capture and the other narrative that says these attacks on the judiciary are weakening the judiciary and therefore a threat to our democracy?” Mlambo asked.
“Because you want to become a judge, you want to join this judiciary, so I just wanted to hear your thinking about these issues.”
Mlambo was returning to an issue he raised earlier in the week when fellow Gauteng judge Audrey Ledwaba was interviewed for a position at the Supreme Court of Appeal.
In mid-February, former president Jacob Zuma named Mlambo thrice in a statement in which he attacked Deputy Chief Justice Raymond Zondo, the Constitutional Court and the wider judiciary, in particular the Gauteng division.
He accused Mlambo of forsaking legal principle and precedent “simply to punish me”.
Zuma in the same statement charged that some judges “have had their hands filled with the proverbial 30 pieces of silver”, and that Ledwaba had enabled President Cyril Ramaphosa to hide the identities of those who bankrolled his bid for the ANC leadership.
In his response to Mlambo, Nxumalo turned directly to these allegations of bribery, which came mere weeks after the Zondo commission heard testimony from the State Security Agency that there was circumstantial evidence that a judge was bribed — ironically at the behest of Zuma’s administration.
“It is a very ambitious exercise for anybody to embark upon because of the checks and balances,” he said.
“If you want to bribe a magistrate and your opponent appeals to a full bench, you will have to bribe those two judges, and then your appeal goes to the full court of five, you will have to bribe all five of them and you first have to know who is going to be part of the panel when the matter is adjudicated in Bloemfontein.
“Before the ink on your bribery cheque is dry, you have to bribe again 10 judges in Braamfontein,” he continued, referring to the Constitutional Court.
Nxumalo added that judges were also highly unlikely to get away with slanting a ruling to favour a particular litigant because writing a judgment involved articulating — to the parties, their peers and the public — how one had arrived at a particular conclusion.
“And if people don’t know how you got there, the academics are sitting in the wings to criticise your judgment, your colleagues are there to criticise it, and your SCA is there to scrutinise it,” Nxumalo explained.
It served to ensure that decisions from the bench were consistent and predictable, and those who engaged in forum-shopping in the hope that a particular division would rule in their favour were likely to be disappointed.
“It does not follow that a trend in a particular jurisdiction necessarily means that certain judges in one division are opposed to a particular party in another division. I think if a proper analysis is made of who is ruling against whom, we will find that everything turned on the merits and not as to who was before the court.”
Zuma has implied that the Gauteng courts favoured Ramaphosa and it was here that he cited judgments by Mlambo and the directive by Ledwaba that a record of decision by Public Protector Busisiwe Mkhwebane which included information on donations to Ramaphosa’s ANC leadership campaign remain sealed until there was a agreement or court ruling to the contrary.
In a recording leaked this week, ANC deputy secretary-general Jessie Duarte, echoed Zuma’s allegations against the Gauteng bench, saying Mlambo’s judgments invariably went against the governing party.
Ledwaba was questioned on that directive this week by Economic Freedom Fighters leader Julius Malema, whose party has argued a court application to have the information on the CR17 campaign donations be made public.
The judge, who was interviewed for a position at the appeal court, calmly explained his procedural reasoning.
He was pointedly asked by SCA President Mandisa Maya whether he was corrupt and with equal calm replied that he was not.
Mlambo noted that he and Ledwaba had mulled avoiding politically sensitive cases because these attracted attacks and agreed that they could not avoid them because it would amount to shirking their responsibilities.
Ledwaba did not get the JSC’s nod for the appeal court, nor did Judge Elias Matojane whom Malema tried in vain to corner about a ruling in which he awarded former finance minister Trevor Manuel damages for defamation against the EFF. This
Concluding his answer to Mlambo on Friday, Nxumalo said judges should accept that criticism came with the terrain.
“We should have that thick skin, as judicial officers we should understand that the nature of the job is the occupational hazard of being criticised, so you should be able to stand up to scrutiny and to be above approach and impeccable, and very industrious in how you communicate your judgments, how you research.”
Mlambo said this was fair, but it was a fact that the South African public was “gullible”.
“South African society is a very gullible society where people come to court and lose, the first thing they say is that those judges were bribed. You have a list that keeps surfacing that says judge so-and-so received so much, judge so-and-so received so much.
“Mostly by people who are faceless, on social media, only in recent times have certain people identified themselves propounding the same allegations. Should we still have a thick skin about those, you don’t think the gullibility of South African society isn’t where the foundations are for weakening the efficacy of the judiciary, when allegations like that are made?”
Mlambo pointed out that Mogoeng had already done so in the past, which Nxumalo conceded.
But the chief justice this week baffled observers when he seemingly shored up a blunt attack by Malema on Constitutional Court hopeful Judge Dhayanithie Pillay.
Malema charged that her friendship with Public Enterprises Minister Pravin Gordhan meant that she was unfit as she abused the bench to settle factional scores. Mogoeng then recalled that Gordhan five years ago, when she had also been a candidate, at the close of a meeting relating to the tax ombudsman, had asked him how she had fared in her interview.
He made plain that he was taken aback by the question.
Pillay did not make the list of five names the JSC forwarded to Ramaphosa from which to appoint two justices to the apex court, fuelling the discourse Mlambo referenced on Friday.