The ANCYL – in its usual hysterical way – lashed out at Madonsela for finding Nyanda guilty of being “truthful” and questioned whether she was protecting the public, or merely “parroting misperceptions of opposition parties”. (This defense of Nyanda is interesting because it suggests that the tenderpreneurs of the ANCYL and the tenderpreneurs in cabinet were watching each others backs.) DA MP and Justice and Constitutional Development spokesperson Natasha Michael said the ANC had “systematically ignored” the role played by the Public Protector. It praised Madonsela for her investigations and warned political parties not to interfere.

The sentiments expressed by Michael are of course laudable and correct. Political parties should not interfere with the work of Chapter 9 institutions (or courts) and they should not try to politicise the decisions of these institutions for short term political gain. This is a principled and constitutionally honourable position to take. But I suspect Michael did not clear this statement with her leader, Helen Zille, who seems to hold a different view.

In the wake of a report by the Human Rights Commission into the Western Cape toilet saga, Zille did exactly what Michael says political parties should not do: she questioned the political motives of a Chapter 9 institution and claimed that the Human Rights Commission was being abused as part of a dark conspiracy to tarnish the good name (if any) of the DA, stating as follows: 

Three years ago when the City was locked in a make-or-break battle with the Province over the unconstitutional Erasmus Commission, Professor Pierre de Vos took me to task for saying: “some judges allow themselves to be used and, unfortunately, (Judge) Nathan Erasmus is one of them.” Today, I repeat that in relation to the SA Human Rights Commission: Some Chapter Nine institutions allow themselves to be abused and, unfortunately, the SA Human Rights Commission is one of them.

Instead of sticking to a factual and legal argument about why the SAHRC report might be flawed (something she had every right to do), she attacked the integrity of the Commission to try and deflect attention from the extremely embarrasing saga about open toilets. It is so much easier to attack the messenger than to deal with the substantive issues: the DA equivalent of “pulling the race card”.

Sadly, this is part of a broader pattern in which the DA in general and its leader in particular seem to have one standard for the ANC and other political parties and another standard for itself. It is as if the DA believes that it is exempt from the same standards it holds others to because it believes it is the only party who knows what is best for everyone (a rather patronising view) and that it is therefore the only party who can be trusted without having to be held to the general principles on which a functioning democracy is based. It thus sees itself being exempt from the duty to honour the principles it claims to espouse. “Do as we say, not as we do,” seems to be the DA motto.

Given our history and given the racial profile of the DA, one would be forgiven for concluding that the DA believes only white people can be trusted, that white people therefore do not have to follow general principles of constitutional democracy and good governance, and that white people are therefore allowed to deal with each situation on its own merits without having to stick to the rules it claims to respect and honour. Black people, on the other hand, must be held to a higher standard because they are inherently unprincipled and corrupt enemies of democracy.

When Gwede Mantashe attacked judges of the Constitutional Court as counter-revolutionaries, the DA rightly criticised this because the ANC leader was launching a personal attack on judges of the highest court and was undermining respect for the judiciary. But when The Dear Leader, Helen Zille, attacked the integrity of Judge Nathan Erasmus, a High Court judge, thus undermining respect for the judiciary herself, we were supposed to cheer her on. She argued that, given the facts, she had every reason to question the integrity of a judge. And besides, so Zille argued, the High Court had declared the Erasmus commission unlawful and her attack was therefore justified.

This is, of course, nonsense. The High Court (per Swain J) never found that Erasmus had allowed himself to be used by the ANC (as Zille had implied) and the High Court did not question the integrity or motives of Judge Erasmus. In fact, although Judge Swain found that the then Premier had acted with an ulterior purpose in appointing the Commission, he explicitly exonerated Judge Erasmus stating: “I wish to make it absolutely clear that I do not suggest that Erasmus J was in any way a party to such conduct“.

The High Court - re-interpreting the jurisprudence of the Constitutional Court in a rather “innovative” manner – did find that a judge should not have agreed to chair the commission, but the court made it clear that no ulterior purpose (as alleged by Zille) was present on the part of the judge. This fact was lost in the post judgment spin by Zille and the DA sycophants.

What was also lost was that the DA and Zille had actually not pressed the point before the court at all that Erasmus personally was allowing himself to be used or was biased. In fact, judge Swain explicitly found that he did not have to answer this question. The High Court therefore did not exonerate Zille regarding her personal attack on Erasmus as the matter was not pursued before the court by the DA lawyers (although it was raised initially). Lawyers are not stupid so they probably knew that there was no chance that a court would endorse Zille’s scurrilous attack on a sitting judge. 

Of course, courts often find that other judges had erred, but this does not give anyone the right to call into question the integrity of the judge whose decision was found wanting by another court. Down that road lies anarchy and a complete disrespect for the judiciary.

Similarly, after the High Court had found in favour of Zuma in his case to have the search and seizure warrants declared unlawful, the decision was finally overturned by the Constitutional Court. This did not allow either Mantashe or anyone else to call into question the integrity of the High Court judges or the judges of the Constitutional Court. Neither the High Court nor the Constitutional Court had found that any judge involved in the case had acted like counter-revolutionaries, so Mantashe had no right to make that allegation. Like Zille, he was attacking and politicising one of the three branches of our democracy. Unlike Zille, he has not continued to defend the indefensible.

And of course, when serious allegations of wrongdoing or criminal activity by ANC leaders surface, the DA – once again, rightly, in my opinion - demand that the affected leader should be suspended or should step aside until such time as the allegations have been dealt with or the criminal case concluded. But when a DA MP was charged two weeks ago with raping a young woman, the DA blithely stated that it had no reason not to believe the denials of its MP, that the MP is innocent until proven guilty, and therefore that the DA would not suspend that MP.

The same pattern repeats itself over and over again. It tarnishes the name of the DA (to the extent that it has a name) as it opens the party to charges of hypocrisy and, worse, racism. It reflects a kind of arrogance that is often associated with someone who has been the Baas his or her whole life and is used to being the Baas and to tell others what to do and how to behave while not having to follow suit. “We are always right, we are always principled, therefore we do not have to follow the same principles we claim to hold so dear and demand others respect.”  

No wonder the vast majority of black people (and most of the sensible white people I know) refuse to vote for the DA – despite the corruption and maladministration of many ANC led municipalities and provinces. Who wants to be lorded over by such a bunch of self-righteous and unprincipled hypocrites?

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.

Writing on the Daily Maverick website, Groottes argues, first, that – unlike in South Africa – the appointment of judges in the USA is a highly politised process. This seems to me, to put it mildly, rather naive. A majority of members on the Judicial Services Commission (JSC) are political appointees and while judges and lawyers play a more influential role in the the appointment of judges in South Africa, few observers of the JSC process would argue that politics play no role in the appointment of judges in South Africa.

The political issues might differ from the hot-button political issues in the USA, but surely they are just as important for those who make decisions about who to nominate to the High Courts or the Constitutional Court than for the members of the Senate who has to confirm the President’s nominees in the USA. Of course, in South Africa the politics behind the process is often obscured to some degree - unlike in the USA - but this is partly because of the difference in reporting on judicial nominations itself.

If our journalists explained the legal and political stakes of a judicial appointment and analysed the judicial philosophies of judges like they did in the USA, we would all be far better informed about the politics (with a small “p”) of the members of one of the  three branches of government. Without this information ordinary citizens do not have the information necessary to play their proper role as active citizens in our democracy.

JSC members grill prospective candidates on their membership of secret organisations, on what they have done for transformation, on their views on social and economic rights, and on their relationship with colleagues. Once or twice JSC members have even grilled candidates about their sexual orientation or their religious views – which was rather scandalous and wrong, but which does show that JSC members are very much aware of the politics involved in the appointment of judges. In January 2005 the ANC in its annual statement made the following assertion which puts the point beyond doubt:

We are also confronted by the similarly important challenge to transform the collective mindset of the judiciary to bring it into consonance with the vision and aspirations of the millions who engaged in struggle to liberate our country from white minority domination. The reality can no longer be avoided that many within our judiciary do not see themselves as being part of these masses, accountable to them, and inspired by their hopes, dreams and value systems. If this persists for too long, it will inevitably result in popular antagonism towards the judiciary and our courts, with serious negative consequences for our democratic system as a whole.

We might not like it, but politics do play a role in the appointment (or non-appointment) of judges (as it should). Decisions about whether to appoint Jeremy Gauntlett to the High Court or John Hlophe to the Constitutional Court are made at least partly on the basis of the perceived politics of the candidates. We might couch this in broad phrases about “pro-transformation” or “anti-transformation” candidates, but we all know that we really are talking about the judicial politics of the candidates. The fact that the media does not report on it like that, does not make it less true.

Second, Groottes complains that our legal system is far more closed and that lawyers and most legal academics refuse to speak to the press. This, he says, make it difficult to report on legal and judicial matters in the same way as in the US. It is of course true that the US legal system is more open than our own, but this does not stop the media from doing its own research and analysis.

Adam Liptak of the New York Times provides brilliant coverage of the work of the US Supreme Court and explains to its readers what the trends on the Court are and what certain judgment might mean for the political orientation of that court. He does so by reading all the briefs submitted to the court, then listening to the oral arguments and lastly by studying the judgments and academic law review articles on such judgments – not by phoning one or two academics for a dial-a-quote.

It is therefore far too easy to blame the legal profession for the lack of intelligent and nuanced reporting on the judiciary in South Africa. An intelligent journalist who has the support of his or her editor, is dilligent and hard working and has the ability to packgage complex ideas and issues in an easy to understand way for ordinary consumers of the media will be able to do a far better job than is presently the case with most legal reporting in this country.

Lastly, Groottes argues that a lack of resources hamper reporting on the judiciary. Why would an editor send a journalist to sit in court for a whole day (as the Mail & Guardian did to its credit for the Selebi trial), when that journalist could cover three Julius Malema press conferences in the same period? This, it seems to me, is a valid point. Why would you make a careful study of the work of the judges of the Constitutional Court if you know your editor will give you 300 words to report on a particular case or the appointment of a judge?

Media bosses are often holier than thou about the important role the media play in our democracy, arguing that they fulfil a vital function to keep the public informed and to help create active citizens that are empowered to make proper decisions on who to vote for and what to think and believe. Sadly they often do not do their job properly because they want to make fat profits in the short term. Who cares about educating readers to become more intelligent and informed consumers of news and opinion in the long run if one can make a quick buck?.

Why invest in journalists and more space for editorial content in a newspaper when one can make more money in the short term by allocating ever larger proportions of one’s newspaper to advertising? Why have 10 minute discussions about the judicial philosophies of Constitutional Court judges when one can have half an hour of Solly Philander talking to the “garden boy” about pruning one’s roses, interspersed with many well-placed and lucrative adds for Stodels?

There is one thing that bothers me though. Could the print and electronic media – even with limited resources – not do a better job at informing the public about the work of one of the three branches of government? Surely, despite limited resources, the media is quite good at telling us about the internal workings of the ANC, about whether Julius Malema is stealing our money and about corruption in government. This is because they focus on such stories and thus have made choices about where to focus attention. If they CHOSE to, they could do the same kind of reporting on the judiciary.

I suspect the media do not focus attention on the judiciary at least partly because they think (without ever having asked anyone) that their readers, listeners and viewers are not interested in this. They often assume that we are all stupid, lazy and ignorant and that we really want to listen to Solly every day, that we are only interested in the breast size of Advocate Barbie and, at a push, the sex life of our President.

I wonder whether such assumptions are not based on a kind of pre-democracy mind-set which sees politics (which they report on whether consumers of news are thought to be interested in it or not – perhaps because politics is seen as anti-intellectual and macho) as completely divorced from the law. Perhaps media people – especially editors – fail to understand that the judiciary now make decisions that may have far-reaching political ramifications for all of us. And because the media do not report on the work of the judiciary in this way, ordinary people may not understand how important it is and how it may affect their lives.

But perhaps there is another reason for this sad state of affairs. Maybe it reflects the deeply anti-intellectual strain in our society, a strain pampered and supported by the media. Most South Africans - including most editors and journalists – seem uneasy with nuance and complexity. Most see the world in black and white and reject anything that reeks of intellectualism.

Many years ago on a visit to Calcutta in India I was amazed to spot a long article in The Telegraph about the work of French philosopher Jacques Derrida. The Telegraph, a far superior paper to anything produced in South Africa, is printed every day in a city that probably has far more problems with poverty than anything we are used to and has a middle class of comparable size to Johannesburg. Yet, it produces a newspaper containing superbly written articles on many topics – including some that would never see the light of day in South Africa because they would be viewed as too intellectual or “girly” (thought being seen as not macho enough) by most of the editors of our local rags.

I suppose most South Africans are more interested in blaming apartheid or the ANC government for everything while trying to make obscene amounts of money – preferably without working or by getting others to do the work for them – than actually reading stimulating and complex stories that might challenge their prejudices and hatreds. And editors do not seem to be any different, perhaps because they believe – without evidence – that readers really will not tolerate intelligence and complexity.

Even if the money was coming out of our ears we would probably not produce a newspaper of the quality of The New York Times or the Guardian in London. Goodness, who on earth would actually READ all that stuff, I hear all the media people ask?  Who would want to re-think what they already think they know? Nah, let’s just have another beer and see how we can fleece a few more suckers before we emmigrate to Porpoise Spit.

PS: I do not mean to pick on Stephen, who does a better job than most under trying circumstances. My point is a general one which touches more broadly on the state of the media and discourse in South Africa

At the end of the cross-examination it was very clear why Selebi’s council, Jaap Cilliers, had brought an application for the acquittal of Selebi at the end of the state’s case. Having consulted with Selebi, he must have realised that Selebi might not make the best of witnesses and that he might not be able to keep his story straight, so it was imperative to keep him away from the witness stand.

We do not know – and I am in no way speculating – on whether Selebi will be convicted on any of the charges he faces. It is for a court to decide whether the state has proven its case beyond reasonable doubt after hearing all the evidence. But the cross-examination did reveal that Selebi was a less than reliable witness. His “Swiss army knife” defence (Selebi claimed previously that the only present Glen Agliotti ever gave him was a Swiss army knife) turned into a classical “the dog ate my homework” defence.

Selebi claimed during the cross examination that he had cash slips and receipts in his possession proving what he had spent his money on and disproving the state’s claim that he had received hundreds of thousands of Rands from Agliotti as bribes. But on Friday Selebi failed to bring cash slips and receipts to court as requested because he claims his wife destroyed them on Thursday.
 
Both prosecutor Gerrie Nel and Judge Meyer Joffee looked astonished when Selebi told them he did not bring the receipts because his wife did not only discarded the slips but actually shredded them (yeah right). The former police chief claimed that his wife had shredded them on Thursday because she had found credit card statements which she thought would be better evidence. Nel described this explanation as ridiculous and accused Selebi of playing to the court. He said this showed Selebi was arrogant and had no credibility, a claim one finds difficult to dispute.

Then there was the “secret report” that Selebi claimed he had declassified and had at home. He was sent home to fetch it, but when he produced a document the next day Gerrie Nel claimed that the document was a “cut and paste” job. Nel pointed out several problematic issues in the document such as different colours in the printed fonts, the SAPS logo cut off on the front page original when it appears in full on the “copy” handed in earlier and differences in the typing on various paragraphs.

As I followed the crumbling of Selebi’s various stories under relentless cross-examination, I was reminded of the Judicial Services Commission (JSC) and wondered whether the members of that august group were taking notes and whether they felt embarrassed at all for deciding not to proceed to establish the truth of the complaint of gross misconduct levelled against Judge President John Hlophe by the judges of the Constitutional Court and not to consider the counter-complaint by Hlophe either.

Remember, the majority of members decided that although there were fundamental disputes of fact between the version put to it by Judge President John Hlophe and the versions put to it by other judges of the Constitutional Court (in other words, although the JSC admitted that either Hlophe or the judges of the Constitutional Court were lying), the JSC was not persuaded that cross-examination would “necessarily lead to more clarity on the disputed issues”.

As has so amply been demonstrated by the Selebi case (as well as by the devastating cross examination of Menzi Simelane at the Ginwala Inquiry where he was exposed as a person with a difficult relationship to the truth), this kind of argument is such utter nonsense that one cannot believe that any lawyer would have made it with a straight face. If the three main protagonists had been cross-examined vigorously two things would have emerged.

First, some witnesses would have shown themselves to be more credible and others less so and thus their version of events would have had to be accepted as the more plausible. After cross-examination the finder of fact must decide whose version was more probably true and to help them in this, credibility becomes all important. Cross-examination helps to make findings on credibility “finish and klaar” (as Selebi said about his friendshipp with Agliotti). 

Second, the judge or judges who had lied might very well have been exposed as such because – as Selebi has shown – if you start lying it is difficult to keep your story straight and then you tell more lies, which leads to even more lies and finally to exposure as a liar.

In any case, as it turned out, the cross-examination was not really necessary as the JSC had already decided who were probably lying to them during the Hlophe affair and who were telling the truth: it just did not want to take the action it is constitutionally required to take. Given the fact that both Hlophe and Judge Chris Jafta (who had contradicted Hlophe’s version of events) applied for a position to the Constitutional Court after the decision by the JSC not to go ahead with a hearing, and given the fact that the JSC had nominated Jafta for a position on the court but not Hlophe, one must make the irresistible inference that the JSC believed Jafta and Judge Bess Nkabinde and not Hlophe.

There were two versions of the events that took place in the offices of Jafta and Nkabinde before the JSC: Hlophe’s version and the version of the other two judges. If the JSC had thought that Hlophe was telling the truth, it surely would not have appointed Jafta to the Constitutional Court. Even for the JSC it must surely be unthinkable to appoint someone to the highest court in the country it suspects of having told blatant lies about a fellow judge. If it had thought Hlophe was the honest one, surely he and not Jafta would have been nominated for a position on the top court by the JSC.

In any event, what the Jackie Selebi cross-examination shows is that the JSC’s argument that cross-examination of Hlophe, Jafta and Nkabinde would not take the matter further was about as credible as Selebi’s “the dog ate my homework” defence.  Given the fact that the JSC’s original decision has now been set aside, the JSC will have to make a new decision on whether to do its job or not. When it does, it would really enhance that institution’s credibility if it keeps in mind what happened to Selebi under cross-examination. But don’t hold your breath.

When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).

In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.

Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:

A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .

It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?

On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.

(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)

On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case. 

If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.

In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.

Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.

Of course, for black women this phenomenon is even more pronounced.  The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.

Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.

In the light of the above it is actually surprising that almost a quarter of judges are indeed female. 

The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do? 

The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.

I do not agree with all the criticism leveled at the JSC, although I suspect some good candidates might not have been appointed. Nevertheless, at this point it might be helpful to take stock and to evaluate the performance of the JSC.

The first striking feature of the appointments is that several white men were appointed to the various High Courts. This underscores the fact that it is a myth that “white men need not apply” for positions on the bench. All three judges appointed to the Labour Court are white men and two of the five appointments to the Gauteng High Court are also white men. Judge Willem van der Merwe was promoted to Deputy Judge President despite the fact that he is a white man.

Although members of the JSC asked pertinent questions about the need for the racial and gender transformation of the bench (questions that are perfectly relevant), the majority of members clearly do not believe that race and gender are the only criteria to be used when deciding on appointments. This view is correct and perfectly in line with the Constitution.

Second, I might be wrong, but I see a trend emerging regarding the appointment of white lawyers to the bench. The majority of members on the JSC seem reluctant to give the nod to progressive white lawyers. Although Judge Dennis Davis was said to have had by far the best interview before the JSC when it had to consider appointments to the Constitutional Court, he was not appointed. Davis was an energetic and tireless progressive (as opposed to liberal) campaigner against apartheid and has handed down many progressive judgments as a member of the Cape High Court.

Similarly Adv Glen Goosen, who was an anti-apartheid activist and worked for the Truth and Reconciliation Commission and has a well-earned reputation as a progressive lawyer, was overlooked by the JSC in the most recent round of appointments. Previously the JSC had also declined to appoint Adv Jeff Budlender, one of the most brilliant progressive lawyers in South Africa. Budlender had been involved in several social and economic rights cases and was active in progressive anti-apartheid politics during the struggle against apartheid.

If I am correct, it would suggest that the JSC is more comfortable with the appointment of pro-establishment white lawyers who might not have been active in anti-apartheid struggles than with the appointment of more critical lawyers. Could this be because progressive white lawyers are perceived to be too critical and too prepared to intervene on behalf of the vulnerable, the poor and the voiceless? Are candidates being appointed who are perceived to be traditionally conservative about gender issues and issues of social justice because they would be less likely to hand down progressive judgments that would embarrass the government?

Third, it is unfair to criticize the appointment of Judge Willem van der Merwe as Deputy Judge President of the Gauteng High Court on the basis that he acquitted President Jacob Zuma on the charge of rape. It is unfair to Judge van der Merwe, who clearly based his decision on the facts presented to the court and on the law. The argument that he was “rewarded” for acquitting Zuma does no one any favors and is wrong.

Hopefully no one is implying that Van der Merwe acquitted Zuma to further his own career. Most observers agree that Judge Van der Merwe came to the correct decision when he acquitted Zuma and he should surely not be penalized merely because in applying the law without fear favor or prejudice he happened to have acquitted the President on the charge of rape.

Having said that, the appointment of Judge van der Merwe could be criticized on different grounds. Feminists and gender activists criticized Van der Merwe for allowing the defense in the Zuma case to question the complainant on her sexual history. The judgment deals with these arguments and makes a plausible case for the decision. Nevertheless, given the fact that the transformation of the judiciary also requires the JSC to appoint non-racist, non-sexist and non-homophobic judges, it would have been better if the members of the JSC had quizzed Van der Merwe vigorously about his commitment to gender equality.

I have no idea whether Van der Merwe is a closet feminist or whether he harbors stereotypical views of women and express no opinion about it. However it surely is the role of the JSC to try and find out. In the same way that it is allowed to ask questions of candidates about their commitment to racial equality, the JSC is allowed to quiz judges on their social attitudes towards women.

Lastly, in discussing the appointment of judges it is important to take a nuanced view and not to jump to conclusions. At the same time this does not mean the JSC should get a free pass and that we should not criticize it when it overlooks a particular individual who has the legal skills, the temperament and the social justice credentials to advance broader transformation goals.

It is unclear to what extent perceptions about Gaunlett’s alleged patronising attitude towards judges and fellow lawyers played a role in the decision. It is not for me to speculate about such things.

However, the affair made me wonder again on what basis a reportedly brilliant lawyer should be denied appointment to the bench. Is it ever justified to deny a brilliant and experienced lawyer an appointment to the bench and if so, on what grounds may the JSC do so?

Section 174(1) of the Constitution states that “any appropriately qualified woman or man who is a fit and proper person” may be appointed as a judge. However, section 174(2) states that the “need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered” when judicial appointments are made.

As I understand these two sections, any lawyer who is appropriately qualified and has the necessary integrity and honesty may be appointed to the bench. Constitutionally, there is no need to appoint the most brilliant lawyer if other qualified candidates are available and the appointment of those candidates would help to address the racial and gender imbalances on the bench.

Ideally, this would mean that the most suitable white male candidates (more about this later) would be appointed along with the most suitably qualified black men and women. This would lead to an end to the kind of affirmative action for white men which used to characterise the appointment of some judges during the apartheid era.

If the JSC does its job, it would ensure that the most brilliant white male candidates who would also make outstanding judges in our new constitutional order were appointed along with the most brilliant candidates from other race and gender groups.

But what would make someone an outstanding judge and hence a suitable candidate for appointment to the bench?

It is my contention that a person’s brilliant legal mind is not enough to warrant appointment to the bench – no matter what the race or gender of the person might be.

First, the person needs to have the appropriate judicial temperament to deal fairly and calmly with the parties that appear before him or her. An overtly emotional or aggressive lawyer, a lawyer that is so arrogant that he or she makes up his or her mind before hearing the arguments from both sides, will not make a good judge.

Second, a good judge will try and apply the relevant legal rules in such a manner that justice is served in the case – at least as far as the legal materials allows for it. A good judge will have a sense of fairness and justice and this, in turn, will require the judge to have some awareness of his or her own world view and the way in which his or her life experience and other emotional and ideological commitments might colour his or her view of a particular case.

More is required than a mere formalistic adherence to “objectivity” (which is desirable but will always remain somewhat illusive). An understanding of how a specific ruling will affect the litigants and some awareness of the consequences of the ruling for society as a whole will do much to ensure that a judge acts as fairly and as justly as the law allows.

Third, it is my contention that a good judge in South Africa should have a keen understanding of the separation of powers doctrine and the limits of judicial power. Such a judge should consider very carefully before making a decision that intrudes on the exercise of power by the other two branches of government. Judges who are tempted to use the judicial power to get back at the government of the day, for whom they never voted, may do more harm than good in the long run as their decisions may appear overtly political and may detract from the legitimacy of the courts.

Fourthly, a good judge will be courageous and fiercely independent and will not shy away from making unpopular decisions if such decisions are really required to uphold the Rule of Law and the fundamental values enshrined in the Constitution. Such a judge will be aware of the limits of her power, but will use that power to ensure that the rights enshrined in the Bill of Rights are interpreted and applied in such a manner that the vulnerable, the poor, the dispossessed and the politically weak are protected from abuse of power.

Lastly, in my opinion a good judge will have a specific vision of the new constitutional order that centres on social justice. Such a judge will be aware of the vast discrepancies between rich and poor and the harsh effects that formal rules can have on the lives of the poor and economically marginalised and will try and interpret the constitution and the ordinary rules of common law and the provisions of statutes in such a way that it would help facilitate the achievement of social justice.

Such a judge will be aware that traditional legal rules often favour the educated, the propertied classes and the powerful and – while adhering to precedent and while respecting the need to make legally plausible and legitimate decisions – will try to develop or interpret the tradition legal rules differently (with the help of the Bill of Rights) in order to make the law more just and fair in the long run.

From the above it must be clear that I would not support the appointment of a judge who harbours sexist, patriarchal or homophobic views or has a misplaced belief that everyone in South Africa really has the freedom to make all the important life choices that may affect their lives. I would prefer it if lawyers who are fixated on the notion of freedom of contract and the sanctity of property rights – no matter how negatively the application of such principles will affect the powerless and the poor – are not appointed to the bench at all.

In short, if I was on the JSC I would look at race and gender requirements along with requirements of competence. But I would not stop there. Just as important (or perhaps even more important) than all of the above would be a concern to appoint progressive, courageous and fiercely independent judges who care about social justice issues and care about the ways in which legal rules help to entrench or perpetuate social injustice.

When we talk about the transformation of the judiciary I have in mind the kind of transformation that goes much further than merely replacing white, sexist, homophobic capitalist judges with black, sexist, homophobic, capitalist judges. Sadly the JSC does not follow this view. Many judges have been appointed who hold shocking views on women and gay men and lesbians and feel that the law should not concern itself with social justice issues. Such judges are white and black, male and female. This is the real, but often unspoken, scandal underlying the appointment of judges in post apartheid South Africa.

My first reaction to a report that the entire trial of the 15 year old accused and his 28 year old co-accused would be held in camera was therefore one of relief. Maybe this will spare us from the relentless and sensationalistic coverage by the media and allow us to paper over the racial fissures in our society.

According to George Baloyi, spokesperson for the NPA, the entire trial would be held in camera, due to the age of the one accused. ”The law is very clear the trial must take place in camera,” he said. NPA head Menzi Simelane confirmed that there would only be one trial, saying thus far “from the information, they are the only ones involved in the crime”.

The problem is, despite the practical problems with conducting two separate trials and despite the trauma that a public trial might inflict on the body politic, I am not sure that having the trial of the adult accused in secret would be either wise or lawful and constitutional.

Section 16(1)(a) and (b) of the Constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and impart information or ideas. Section 34 does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c) which entitles every accused person to a public trial before an ordinary court.

It is clear from section 63(5) of the Child Justice Act that the 15 year old accused could (and probably should) be tried in camera. It is also clear from the jurisprudence of the Constitutional Court that this provision is constitutionally valid as it is aimed at protecting the best interest of the child concerned. However, a cursory look at the Child Justice Act and the relevant jurisprudence of the Constitutional Court reveals that the adult accused might well have to be tried in open court.

First, section 63(2) of the Child Justice Act states that “where a child and an adult are charged together in the same trial in respect of the same set of facts” the Child Justice Act will apply to the child while the Criminal Procedure Act will apply to the adult. This could suggest that both could be prosecuted in the same court where the trial would be conducted in secret, or it could mean that the secrecy provision applicable to the young accused should not apply to the adult. To solve this riddle it will be necessary to seek help in the Criminal Procedure Act.

The Criminal Procedure Act contains two relevant provisions in this regard. Section 152 states that usually criminal proceedings in any court shall take place in open court. This provision is qualified by section 153 of that Act which states that:

If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.

The Act also states that in a case where a trial is held in camera “the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever”. This means the whole trial could be held in secret and one would only be able to ascertain details of the case if a judgment is written and published in a bona fide law report. If one assumes that these sections are constitutionally valid – something that is far from certain, given its potentially rather broad ambit – it will have to be interpreted in such a way that it conforms to the spirit, purport and object of the provisions in the Bill of Rights quoted above.

The Constitutional Court has made several statements in this regard, emphasizing the importance for the credibility of the administration of justice of having public trials. In SABC v NDPP, Langa CJ stated the following:

Open justice is observed in the ordinary course in that the public are able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish and they do so. Courts should in principle welcome public exposure of their work in the courtroom, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open courtrooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.

More recently in Shinga v The State Yacoob J explained the constitutional interest in open court rooms in the following terms:

The survivors of crime, those accused of it and the broader community have a right to see that justice is done in criminal matters.Seeing justice done in court enhances public confidence in the criminal-justice process and assists victims, the accused and the broader community to accept the legitimacy of that process. Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy….

The requirement of fairness must also take into account that all victims and their families have an abiding interest in the outcome of the appeal and have a right to attend the proceedings so that if the appeal should succeed, they have at least been given the opportunity to witness the process that gave rise to this result. It is a fundamental tenet of the administration of justice and the rule of law that appeals, particularly criminal appeals, are not held behind closed doors.

Sadly, the forthcoming trial will take on considerable importance as many South Africans have interpreted the killing of Terreblanche in racial terms. In the absence of a public trial for the 28 year old accused, gossip and conspiracy theories are bound to emerge and distrust of the judiciary among some members of the public will be heightened. This problem will become more acute if  a verdict or a sentence imposed (in the event of the accused being found guilty) fail to garner approval of a certain section of the population.

Although there are some practical problems with the splitting of the trials of the child and the adult accused, and although one does not know whether evidence led at the trial might inflame emotions, it therefore seems imperative that the trial of the adult accused be conducted in public. A failure to do so runs the risk of discrediting the trial (and to some extent the whole judiciary) in the eyes of those who do not agree with a verdict or a possible sentence.

One hopes that all involved in this trial will consider the constitutional requirement for open justice as set out above before proceeding with a secret trial for both accused in this case. They will also have to take note of the fact that it is imperative to conduct the trial in such a way that it enhances, rather than detracts, from the legitimacy of the judiciary. Excessive secrecy may well lead to misunderstandings and distrust and may well allow people to question the legitimacy of the legal process – regardless of the outcome – in a manner that could severely harm the authority and integrity of the judiciary.

Although I am slightly conflicted on this issue, on balance, given the legal framework and the jurisprudence of the Constitutional Court, the decision of the NPA to conduct both trials in camera therefore seems wrong on policy grounds. The decision also seems to be constitutionally problematic. A rethink by the NPA is thus required.

But although the killing of yet another South African does remind us of the extremely violent and polarised nature  of the society we live in,  Terreblanche was politically a spent force and his murder – no matter how sad and senseless – was therefore irrelevant from a political perspective and his death should not have been as politically noteworthy as it has become. After all, the AWB consists of no more than a few bearded grey men who seem to have an inability to stay on top of their horses after drinking one brandy and coke too many.

There are far more sinister and politically relevant events to worry about. Our democracy is facing a fundamental threat from the Kebbelists, the tenderpreneurs, the facists and the Stalinists, but we are all so busy getting hysterical about a silly song and about the sad killing of a lonely old man, that we hardly seem to notice.

News that Mr. Kebby Maphatsoe, national chairperson of the MK-veterans association, launched a vicious attack on the judiciary by saying  that judges who ban struggle songs like “Kill the Boer” “wants to bring back apartheid” poses far more of a danger to our democracy than the killing of Terreblanche or even the singing of the “Kill the Boer” song. The fact that Julius Malema and the MK veterans are on the same page and are both undermining the judiciary because of the “Kill the Boer” ruling is really scary.

Julius reinforced the view that he has utter contempt for our constitutional democracy on Saturday when he said the following to the SABC from Zimbabwe (where he was making friends with his fellow anti-democratic kleptocrats):

That court interdict does not apply here [in Zimbabwe]. The order was granted by an untransformed judiciary system, which is the same one that was operating during the apartheid system. It [judiciary] was defeated by the struggle.

Meanwhile the MK veterans association said yesterday they refused to accept the interim interdict. “There is no way we would stop singing this song. The judge (Bertelsmann) is uninformed. It is people schooled in apartheid laws who have been sitting there for 40 years and do not realise that things have changed” which hand down such judgments, Maphatsoe said. According to the MK veterans, judges who do not understand the history of the ANC and the armed struggle is not entitled to pronounce on issues that touch on the heritage of the ANC.

This kind of talk is far more dangerous and irresponsible than the singing of the actual “Kill the Boer” song. It is also uninformed and idiotic and suggests that Mr Maphatsoe is not the sharpest tool in the shed and does not have a firm grip on reality.

The thing is, Bertelsmann granted the interim  interdict on the basis that a case had been made out that it infringed on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act. Mr Maphatsoe and Julius Malema seem not to understand that this act was passed by the democratically elected Parliament and contains a sweeping hate speech provision that will almost certainly be found to prohibit the “Kill the Boer” song when it is sung in a political context. Judge Bertelsmann did not apply apartheid law but the law tabled in Parliament by the ANC Minister of Justice and voted for by the ANC dominated legislature.

It is scandalous that these enemies of democracy now want to argue that because they do not like the law which they themselves passed, they will ignore the interpretation of that law by a judge (who happened to have been appointed after 1994 by the democratically elected President) and will ignore the order by the court. Such statements fundamentally undermine respect for the independence and integrity of our courts and are seditious. This is the kind of fascist talk that poses a grave danger to our democracy.

The statement that only judges who understand and agree with the ANC version of history will be respected and that those judges who choose to apply the law rather than obey the whims of the ANC MK veterans and Youth League cannot enforce the law against the ANC, is so fundamentally at odds with any tenet of democracy that one suspects Stalin himself might have come to Mr Maphatsoe in a dream to give him this startling insight. These people are dangerous. They will destroy our democracy if they are not stopped.

President Zuma rightly received some praise for his statesmanlike remarks in the wake of the killing of Terreblanche. But statements are not enough. ANC leaders need to reign in these dangerous anti-democratic forces in their midst. Talk is cheap, but what is really required is action. Julius should be disciplined for his shocking disrespect for our democratic order and for his behaviour which fundamentally undermines one of the three branches of our government. If he is not disciplined it will suggest the ANC tacitly supports this little fascist kleptocrat (or at least, are too scared of him to do anything about his actions).

Speaking of Malema’s kleptocratic tendencies, City Press reported on Sunday that Julius Malema has now officially asked the Companies and Intellectual Properties Registration Office (Cipro) to de-register him as one of the directors of SGL Engineering Projects. This means, first, that Julius has been lying all this time about not being a director of SGL Engineering and about having asked for his membership as a director to be removed from the register months ago. If he is only now asking to have his name as a director removed, he was obviously lying when he stated previously that he was no longer a director.

Being caught out in such a blatant lie should have embarrassed Julius and the ANC. Brazenly telling lies like this and then implicitly admitting that you had lied, brings one’s organisation into disrepute and perpetuates the view that one’s organisation is stuffed chock a block with dishonest thieves. Surely any organisation with any pride and self-respect, with a moral compass of sorts, would have instituted disciplinary action against a member caught out telling such blatant and self-serving lies?

Second the fact that Little Julie is now giving up his directorship means nothing, because whether he is a director of SGL Engineering is really neither here nor there. The question is whether he owns shares in the company and is entitled to share in its profits. One can give up one’s directorship but still hold a 70% share in the company and take 70% of the profits made by that company. One need not be a director of a company to profit from the illegally obtained tenders given to that company.

So, even if Malema gave up his directorship, chances are that he is still raking in the money as the majority shareholder in the company. No wonder Julius went to Zimbabwe this weekend. He obviously wanted to get some tips from ZanuPF about how they had managed to stay in power for so long while mercilessly looting state coffers and stealing from the poor.

These issues are the issues that will destroy our democracy and will ruin the lives of ordinary South Africans who vote en masse for the ANC - not the singing of a “Kill the Boer” song or the murder of a has been racist. Wake up people and make a noise about the things that matter!

Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.

However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:

Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.

If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.

The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.

However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:

prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.

A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.

Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.

If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.