Let’s revisit the attack on the Constitutional Court

Sometimes one should trust one’s instincts – fully aware, of course, that “instincts” are often just another word for prejudice, racism or sexism. On Sunday night I watched the debate between Mr. Paul Ngobeni and Prof David Unterhalter on SABC3 about the attack on the judiciary and the complaint against Judge President Hlophe by the Constitutional Court, and something told me that Ngobeni is not someone I would buy a second hand car from.

It always makes me suspicious when individuals resort to procedural points when they try to defend themselves or their allies against charges of corruption or impropriety, instead of addressing the substance of a complaint. This is, of course, a legitimate legal tactic, but it often suggests that the lawyers are trying to divert attention from the real issues regarding the substance of a complaint.

Mr. Ngobeni – in line with arguments made by Gwede Mantashe and Judge President Hlophe – argued quite vociferously on Sunday night that the Constitutional Court had breached both the Constitution and long-held principles of international law by making a public announcement about their complaint against the Judge President. But something about his demeanour made me wonder whether he was not bluffing.

I therefore Googled the United Nations Guidelines he has been quoting – the same guidelines quoted by Hlophe and Mantashe – to see what it actually said. It is then that it became obvious that his confident assertion that long-held and deeply entrenched international law principles had been infringed by the Constitutional Court was at best tenuous and at worse disingenuous or dishonest.

The Basic Principles on the Independence of the Judiciary, adopted by a conference in Milan in 1985 and endorsed by the General Assembly of the United Nations in 1985, makes for interesting reading. Section 5 of these principles – not quoted at all by Ngobeni, Mantashe or Hlophe – states, for example: “There shall not be any inappropriate or unwarranted interference with the judicial process”. But the heart of the matter is to be found in section 17 of the principles which states:

A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination [my italics] of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.

There is therefore nothing in the guidelines that requires an individual or institution who lodges a complaint against a judge for “unwarranted interference in the judicial process” from keeping secret the fact that a  complaint was indeed lodged. All that is required is that when the complaint is actually examined by the appropriate body, this examination should be kept confidential and then only during the initial stage of such an examination.

If this guideline was followed by the JSC, it would require them to keep confidential their initial deliberations on a complaint until such time as they may decide that the complaint is serious enough to warrant a full investigation. This makes perfect sense. In an open and democratic society one would want to protect the integrity of judges and the judiciary by not allowing the examination of spurious complaints in public.

But it would surely be untenable to prohibit an individual who lodges a complaint against a judge for deciding a case against him or her because, say, of an alleged bribe, to inform the media of such a complaint.

To hold otherwise would be to prohibit an individual from defending him- or herself against a potentially serious breach of his rights and/or his reputation. If I was to be convicted for murder by a judge who took a bribe, I should certainly have the right to inform the public that the conviction should be doubted because I believe the judge was corrupt. Otherwise my rights may be seriously affected.

Of course the body charged with examining the complaint would be required – at this initial stage – not to examine the complaint in public, but rather to do so in a confidential manner. Mr Ngobeni’s interpretation of the guidelines are therefore not nearly as obvious and clear cut as he has suggested.

Moreover, these guidelines are far from settled international law as claimed by Ngobeni. Guidelines adopted by the General Assembly of the United Nations do not become part of International law. And they can certainly not trump the provisions of a highly respected democratic Constitution of a sovereign state. Our Constitution is, of course, silent on the matter of how to deal with complaints against judges and Ngobeni has been unable to point to any specific provision of the Constitution that he is alleging the Constitutional Court to have breached.

But section 1 of the Constitution does state that one of the founding values of our Constitution is “a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”  I would argue that this openness would require a Court to alert the public about the alleged improper interference with their work by another judge of a lower court exactly to safeguard them against charges of impropriety.

Mr Ngobeni’s blustering and misleading performance on Sunday night exposed him as a demagogue worthy of that title. He is reported to be part of the so called “brains trust” advising Jacob Zuma on how to stay out of jail. The media was obviously rather kind to say that Mr Ngobeni was part of this “brains trust”, but I am not sure whether this kindness stems from the fact that they mentioned his name in the same sentence as the word “brains” or of the word “trust”.

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