/ 3 February 2022

Chief justice interviews: Mlambo laments toxic politicking around judiciary

Dunstan Mlambo
Gauteng Judge President Dunstan Mlambo

Gauteng Judge President Dunstan Mlambo pointed directly to the proverbial elephant in the room on Thursday when it was his turn to be interviewed by the Judicial Service Commission (JSC) for the post of chief justice and said the judiciary operated in a toxic environment spawned by political polarisation.

Responding to an invitation by Supreme Court of Appeal Deputy Judge President Xola Petse to speak to his vision for the judiciary, Mlambo said this turned on an efficient, effective independent institution able to fulfil its constitutional mandate.

But along the way he paused to reflect on the context in which it tried to do so.

“That environmental scan informed me that there are perceptions around South African society that the Constitution has not delivered and is not achieving its purpose,” he said, tacitly recalling the Tourism Minister Lindiwe Sisulu’s crude attack on judges.

“My scan told me that there is loss of confidence in the judiciary; loss of confidence as well in the justice system and the rule of law,” Mlambo continued.

“But more worryingly, deputy president, my scan revealed that the judiciary operates in a somewhat toxic environment: toxic in the sense that the judiciary is attacked on a number of fronts; its independence and impartiality are always at stake.

“This is a function of a polarised political space; you also have unfounded claims of corruption against members of the judiciary.”

Still more troubling, he said, was that corruption was taking root in court operations, “not by judicial officers”, but in terms of the usage and circulation of fraudulent court orders.

These were convincingly forged, bearing all the hallmarks of a proper court order, he said, only for investigation to reveal that no court handed down any such order.

Alleged bias 

By the time the tea break was over, Mlambo’s remarks were born out as prophetic as commissioners launched into his, and his division’s, alleged bias and once again a JSC interview became more about street politics than jurisprudence.

Commissioner Thandazani Madonsela began by asking Mlambo if he fought in the apartheid struggle. Mlambo replied that he did not, but acted as a lawyer for trade unions, at which Madonsela asked how he could be the vanguard of “a constitution you never thought for”.

He questioned Mlambo’s record on delivering rulings that furthered social justice, before raising accusations, perpetuated by former president Jacob Zuma among others, that Mlambo was biased in favour of President Cyril Ramaphosa and against the former administration.

Madonsela invoked an objection to Mlambo’s candidacy lodged by public protector Busisiwe Mkhwebane and a complaint by Democracy In Action.

“They bemoan that you have demonstrated incoherence in jurisprudence that exhibit executive-mindedness in judgment writing or decision-making. They say that you find in one breath in relation to public protector powers that there is nothing in the Public Protector Act that forbids or prohibits the public protector to give directions to another arm of the state to conduct further investigations,” Madonsela said.

“Yet in another breath in a case involving the public protector — of course, when the government has changed; in other words when the subject of the complaint has changed from one president to the other, or one administration to the other — you find quite the opposite.”

Remedial action 

Mlambo calmly said that he recognised the cases referred to by Madonsela, and proceeded to lay out the facts after the commissioner added: “It is as though you tailor it in accordance with the times in order to favour the establishment of the time.”

The judge president said he was grateful that the question had been raised, because it allowed him an opportunity to be plain on the matter.

When Zuma challenged the legality of the remedial action then public protector Thuli Madonsela set out in her report on state capture, “there was nothing found unsound with that remedial action where the public protector said the president should appoint a commission of inquiry and must consult the chief justice to appoint a judge to chair the commission,” Mlambo said.

“We found nothing wrong with it and our basis as a bench was the authority that comes from the Nkandla judgment of the constitutional court that says remedial action is situational and case specific”.

He noted that Zuma had been implicated, and this called for an extraordinary measure to ensure that the remedial action was seen through.

“And we agreed with that.”

On the other hand, Mlambo said, when Mkhwebane ordered in her report on the CR17 campaign, in which she found that the president had benefited financially, that the speaker of parliament act against him, she erred both on the evidence and the applicable law.

“To start with, there was no foundation for that finding by the public protector, but worse still, the conceptual flaw was that Ramaphosa was not a member of parliament, therefore the joint committee had no jurisdiction over him. So that remedial action had no effect whatsoever.”

Mkhwebane further found that Ramaphosa had made himself guilty of criminality and the national director of public prosecutions must investigate this and report back to her, with an investigation plan within 30 days.

“Prosecutorial independence is deep in our constitution and, on that basis, she went far beyond what the Public Protector Act permitted her to do and what section 182 permitted her to do and that is why we ruled it offside.”

“So the facts are different, and the application of the law to those facts are different; hence the different results.”

Madonsela replied: “I think the undercurrent of the criticism is that you appear to be making favourable judgments in favour of Ramaphosa and castigating Zuma.”

‘Facts are facts’

To this Mlambo responded evenly: “I think it is fair to say people are at liberty to make comments, but as I say facts are facts in each case and it has nothing to do with who the parties are. It is a question of applying the law to the facts before us.

“I have no soft spot for Ramaphosa, as you say that is the undercurrent of this thing, and I have nothing against Zuma, nothing whatsoever as a judge.”

That was not the end of the matter. Advocate Dali Mpofu, the spokesman of the JSC, complimented Mlambo on his accessible leadership style before suggesting that as a jurist he had failed to display intellectual leadership.

Mlambo disagreed and listed judgments he penned, including that in the Omar al-Bashir controversy. Mpofu followed up by complaining that the division’s panels of three always included white judges and raising the inclusion of a young, female judge in those presiding over high-profile matters.

He and Economic Freedom Fighters leader Julius Malema then raised unsubstantiated allegations that Mlambo had demanded sexual favours from aspiring female judges in return for acting stints on the bench.

Mlambo denied the allegations, adding that he was pained that it had been raised in the interview in an apparent attempt to sink his candidacy.

Mpofu concluded that he was not prepared to let these lie.

Questioned later on the judiciary’s response to Sisulu’s comments, Mlambo confirmed that when acting chief justice Raymond Zondo reacted, that he did so with the buy-in of heads of court, adding that he could not fault him for the intervention.

He added that he found it “offensive” that the minister would term judges “house negroes”.

This story has been updated with subsequent developments.