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Richard Calland: Why judges matter — an illustrative tale

It was supposed to be a quiet Sunday pottering around the neighbourhood. But for Johannes Mahlangu of Middelburg, 29 May 2005 was to be the start of an eight-month nightmare. 

Four days before, on 25 May 2005, a family of four had been brutally murdered nearby. Short of evidence of a probative value, the investigating officer, one Lieutenant Mthombeni, and three fellow cops, went to Mahlangu’s home and despite the fact that Mthombeni had no basis for whatsoever for suspecting that Mahlangu was involved in the commission of the murders, arrested him without a warrant, failing in the process to advise him of his rights in terms of the constitution.

This was the first in a shameful litany of constitutional transgressions. 

Arguably the worst occurred upon arrival at the Middelburg serious violence and organised crime unit. “In order to force him to admit that he had committed the crimes, they placed his legs in irons, handcuffed his hands behind his back and repeatedly suffocated him by placing a rubber tube or a plastic bag over his head. This lasted for several hours. Mr Mahlangu ultimately succumbed and confessed to crimes he had not committed.”

So held the Constitutional Court in a judgment handed down a fortnight ago

When Mahlangu was asked how he killed the deceased persons, he initially said that he had shot them with a firearm. This was pure guesswork and it was not correct, found the court: “When he was put under further duress, he, by chance, got it right and said that the deceased persons had been stabbed to death.”

Mahlangu then endured nearly nine months of incarceration, during which he was subjected to further violence and torture, before he was released on 10 February 2006 following a new police investigation that ultimately led to the arrest and conviction of the real perpetrators of the crime. 

On release, he sued for damages and was awarded a paltry sum of R90 000 by the high court, on the basis that the government’s liability ceased once the magistrate made an order for further detention during the first court appearance on 31 May 2005.

This story provokes a range of deeply troubling questions.

First of all, how was it that over 10 years into South Africa’s democracy the police were, and still are, committing such crimes, in flagrant breach of not just the constitution but all fundamental precepts of a civilised society? 

Second, why is it that the case has attracted so little public and media attention? It should be a huge news story, as it would be in many other countries. Is it because South African society is so inured to violence?

Why has the minister for police or the national police commissioner not publicly apologised? Why have they not resigned in shame? Is it because state violence is now, in fact, sanctioned from the very top, especially when it comes to working-class (and, therefore, invariably, black) people? 

Thirdly, a different sort of concern: why did two courts – the high court and then the Supreme Court of Appeal (SCA) – fail to recognise what would be obvious to any lay observer: that everything flowed from the police unlawfully arresting Mahlangu and obtaining a false confession from him through torture and coercion? 

Both the high court and the SCA tied themselves in formalistic legal knots, to the point where they could no longer see the wood for the trees, including finding that because the defence had failed in the bail proceedings to plead properly and, on a subsequent occasion, opted not to seek bail at all, the decision to remand in custody on the basis of the adduced evidence of the “confession”, was the lawful cause of the prolonged detention.   

This, of course, is a long (legal) story made short. As the Constitutional Court held with admirable straightforwardness, “Public policy dictates that delictual liability must attach [to the ‘egregious’ conduct of the police officers], lest we find ourselves in a situation where freedom as a constitutional value and the right to freedom and security of the person are devalued.” 

It awarded damages of R550 000 to Mahlangu. 

A wider point deserves no less consideration, and it goes to how judges are appointed. Judges always matter. But in a constitutional democracy, judges matter even more, because they have the authority to reverse decisions taken by the legislative and executive branches of government. 

Given abuses of power and other shortcoming of the state, and the feebleness of parliament in holding the public service to account, South Africa needs a strong judiciary more than ever. 

Judges may be the ultimate bulwark, South Africa’s last hope, against a dismal slide into failed-state oblivion. 

Judges are the ultimate bulwark against a failed state.

This itself is a sobering thought. Yet it requires the judicial appointment process to be subjected to even more scrutiny than ever, and that it’s integrity be safeguarded at all costs, especially since 2021 is a big year for the judiciary and for judicial appointments — the biggest since 2009, when four outstanding members of the first Constitutional Court retired (Justices Pius Langa, Yvonne Mokgoro, Kate O’Regan and Albie Sachs). 

This year the churn will be even greater. Currently, the Constitutional Court has nine judges, two short of its full complement of eleven (though its quorum for hearing a case is eight). But because Deputy Chief Justice Raymond Zondo is otherwise engaged, and the Chief Justice, Mogoeng Mogoeng, has taken long leave ahead of his retirement from the bench, the court is effectively down to seven – a far from satisfactory situation that reflects badly on Mogoeng’s management. 

The Judicial Service Commission (JSC) held interviews in April and has provided President Cyril Ramaphosa with the requisite shortlist of five names (three more than the number of vacancies, as required by the constitution).  

However, the JSC’s proceedings may well be challenged on the grounds that they were fatally contaminated by the conduct or failings of two of its members, and the court may be requested to press pause on the president’s final choice. 

Economic Freedom Fighters leader Julius Malema attacked one of the unsuccessful candidates, Judge Dhaya Pillay, because of her association with the EFF’s bête noire, Pravin Gordhan. This was highly inappropriate. Malema is on the JSC as one of six MPs, whose constitutional mandate is to represent the National Assembly, and indirectly, the electorate, not to settle petty political scores. 

Mogoeng, who as chief justice chairs the JSC, not only failed to intervene to protect Pillay from Malema’s partisan malevolence, but added fuel to the flames by mentioning for the first time that several years earlier Gordhan, then finance minister, had asked Mogoeng how his friend (Pillay) had performed in an earlier (also unsuccessful) interview for a position on the SCA. 

Since the decision had already been taken, Gordhan was not trying to exert influence over the process because there was by then no process to influence. So Mogoeng’s decision to dig this little vignette out of the blue must have been designed to torpedo Pillay’s prospects and/or to open up a new front for Malema to exploit. 

As the Mahlangu case illustrates poignantly, the focus of the JSC should be on judicial philosophy and mindset, and on whether a candidate’s technical aptitude embraces the underlying values of the constitution. 

All too often in the past, and especially under Mogoeng, the JSC has strayed from this core responsibility. 

Acting Chief Justice Sisi Khampepe and Chris Jafta will also retire in October, in addition to Mogoeng. So by year end there will be five new judges on the Constitutional Court, including a new chief justice – which will be one of Ramaphosa’s most important and politically sensitive appointments, which is why he is considering establishing an advisory committee of some kind — as he did in respect of the appointment of Shamila Batohi as national director of public prosecutions. 

Nonetheless, the JSC will still be involved: the precedent was set with earlier chief justice appointments that the JSC would conduct a public interview of the president’s nominee. Indeed, no one who was present will ever forget the charged atmosphere of Mogoeng’s interview in 2011. 

A more immediate test of the JSC’s fitness for purpose comes on 4 June as it finally deals with the recommendation of the Judicial Conduct Tribunal that Western Cape Judge President John Hlophe should be impeached. 

In many respects, the judiciary is the “last frontier”. And as Johannes Mahlangu would no doubt attest, having the right men and women on the bench is of enormous importance.

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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