Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
20 November 2012

Ngobeni complaint against Jeremy Gauntlett

Dear Advocate:

I am writing to you in your capacity as advocates and officers of the court.  My chief anxiety is to enlist your assistance in pursuing a professional misconduct complaint against Jeremy Gauntlett SC for his false and scandalous accusations against the against the JSC and particularly its chairperson Chief Justice Mogoeng.   I wish to remind you that in terms of Section 1.6 of the GCB Uniform Rules of Ethics, if “counsel has reasonable grounds for believing that another counsel has been guilty of unprofessional conduct, it is his duty to report the matter to his own Bar Council, unless the information is privileged and such privilege is not waived.”   Any failure to report known misconduct is sanctionable.

A.            Background.

As you all know, the JSC exercised its judgment and decided not to appoint Gauntlett as a judge on the Western Cape bench for, amongst other things, lacking requisite humility and judicial temperament.   Shortly after the JSC announced its decision, Gauntlett gave an interview to the Sunday Times, November 11, 2012 in which he stated amongst other things the following:

(a) Gauntlett accused the JSC of taking so long to provide him with reasons for his non-selection because the “reasons didn’t exist.”

When asked if he thinks the reasons were “created after the event” Gauntlett replied that “I know so.”

(b) Gauntlett essentially accuses the Chief Justice Mogoeng of lying and the JSC of conducting a farcical hearing for judicial candidates.  The journalist asked:”So the JSC lied on at least two fronts?”  Gauntlett merely replied: “It’s your word” but he made no attempt to condemn the accusation that the JSC “lied” and made no effort to distance himself from the statement.  Rather, he elaborated further and claimed that the JSC knew who it would recommend before the hearings began.  He stated: “I think they had a slate in mind, yes.”  He confirmed that he thought the JSC made “the hearings a charade” and added that they “certainly do not serve the function that they are intended to.”

(c)  When asked for his opinion on the reasons given by the JSC for not selecting him Gauntlett stated the following: “Interesting.  Firstly, they’ve introduced a new quality for judicial appointments: humility. The JSC itself has gone to great trouble to list required attributes for judges.  This is not one of them and has not been applied to any other candidate.  Unlike other candidates, I have not thought that God has called me to be a judge.”

(d)When asked about the transformation argument, Gauntlett replied: “The Constitution does not require national or regional demographics, it requires the JSC to strive to be representative.”

B.            Legal Basis of A Misconduct Complaint.

The question to be explored here is whether Gauntlett was plainly on notice that his conduct in this case, involving public dissemination of a specific false accusation of improper judicial conduct under the circumstances described, could be held to reflect adversely on his fitness to practice law.  Gauntlett’s impugned act was not generalized criticism but rather release to the media of a false allegation of specific wrongdoing, made without any support, aimed at a the JSC and the Chief Justice who had presided over the interviews.  Gauntlett knew or should have known that such attacks are unwarranted and unprofessional, serve to bring the bench and bar into disrepute, and tend to undermine public confidence in the judicial system.   I must add that freedom of speech cannot be used as a cover for unwarranted attacks upon the JSC by candidates whose oversized egos do not allow them to accept the rejection of their candidacy. Unlike defamation cases, professional misconduct, although it may directly affect an individual, is not punished for the benefit of the affected person; the wrong is against society as a whole, the preservation of a fair, impartial judicial system, and the system of justice as it has evolved for generations. It follows that the issue raised when an attorney makes public a false accusation of wrongdoing by a judge is not whether the target of the false attack has been harmed in reputation; the issue is whether that criticism adversely affects the administration of justice and adversely reflects on the attorney’s judgment and, consequentially, his ability to practice law.   It must be recognized that adjudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjust criticism. While a lawyer as a citizen has a right to criticize such officials publicly, he should be certain of the merit of his complaint, use appropriate language, and avoid petty criticisms, for unrestrained and intemperate statements tend to lessen public confidence in our legal system. Criticisms motivated by reasons other than a desire to improve the legal system are not justified.

In this case, Gauntlett gave an interview to the Sunday Times, November 11, 2012 in which he accused the JSC of taking so long to provide him with reasons for his non-selection because the “reasons didn’t exist.”  When asked if he thinks the reasons were “created after the event” Gauntlett replied that “I know so.”  He essentially accuses the Chief Justice Mogoeng of a post-hoc manufacturing of the reasons for not selecting him and implies the Chief Justice “lied on two fronts.” He further claims the hearings “were a charade” and the JSC members had “a slate in mind.”  Worst of all, Gauntlett falsely claims that the JSC members have “introduced a new quality for judicial appointment: humility.”  The latter statement is demonstrably false and shows Gauntlett to be unfit as an advocate and a candidate for judicial office.

Contrary to Gauntlett’s startling assertion, the Concourt itself has stated that judges exercise certain tasks with requisite humility as an essential part of decision-making process.  In S v Shinga (Society of Advocates (Pietermaritzburg)) as Amicus Curiae) , S v O’Connell and Others (CCT56/06, CCT80/06) [2007] ZACC 3; 2007 (5) BCLR 474 (CC); 2007 (2) SACR 28 (CC) (8 March 2007) (Langa CJ, Moseneke DCJ, Kondile AJ, Madala J, Mokgoro J, Nkabinde J, O’Regan J, Sachs J, van der Westhuizen J, van Heerden AJ concurred  in the judgment of Yacoob J) the Concourt stated that in determining whether to grant leave to appeal, the magistrate is called upon to consider carefully whether another court may reach a different conclusion. This requires a careful analysis of both the facts and the law that have underpinned the conviction, and a consideration of the possibility that another court may differ either in relation to the facts or the law or both. “This is a task that has been carried out by High Court judges for many years, … It is a judicial task of some delicacy and expertise. It should be approached on the footing of intellectual humility and integrity, neither over-zealously endorsing the ineluctable correctness of the decision that has been reached, nor over-anxiously referring decisions that are indubitably correct to an appellate court..  without possessing humility, a judge will be unable to perform such task.”  It is therefore asinine for Gauntlett who is dubbed the “best legal mind” to attack the JSC for simply requiring him to have qualities routinely demanded of judges whenever leave for appeal is sought. Contratry to the assertions of Gauntlett and his retinue of celebrity supporters, there is nothing novel in the idea that humility is an essential attribute of a judge.  A judge lacking in humility will be unable to decide simple matters such application for leave which is a ‘judicial task of some delicacy and expertise.”  In short, courts have discussed judicial humility in the context of leave to appeal, and statements emanating therefrom makes it clear that the JSC knows what it is talking about.  See, Stephanus and Another v Firstrand Bank Ltd t/a First National Bank (21862/10) [2010] ZAGPJHC 156 (11 October 2010) where Willis J stated:

 [4] I am also mindful of that fact that the SCA, in a famous case, which shall not be mentioned here today, said that when it comes to novel points of law, judicial humility is especially appropriate when considering applications for leave to appeal. Mindful of the appropriate humility that is appropriate for this court and mindful, too, of the variety of different opinions when it comes to interpretations of the National Credit Act it seems to me that there is indeed a reasonable aspect that another court would come to a different conclusion from my own in this matter.”

What Gauntlett and his supporters seek to do now is to argue that when it comes to an essential quality required of every judge, there must be an exemption for Gauntlett.  But there is more. What exposes Gauntlett’s accusations as flagrant misrepresentation is that the JSC articulated the same position in the recent judgment, Cape Bar Council v Judicial Service Commission and Others (11897/2011) [2011] ZAWCHC 388; 2012 (4) BCLR 406 (WCC); [2012] 2 All SA 143 (WCC) (30 September 2011).  There the JSC explicitly stated in Court that a candidate who is qualified in terms of technical skills and knowledge, “may be found to be wanting in other important and relevant qualities and criteria, such as for example judicial temperament, patience and humility, which may render a particular candidate not suitable for appointment.”  Gauntlett who is a member of the Cape Bar, an applicant in the case never argued that the JSC articulated criteria of judicial temperament and humility were unconstitutional or a ruse.  Gauntlett’s statement that the JSC introduced “a new quality” is a blatant false accusation against the JSC and is deliberate – he is a member of the Cape Bar and he knew or should have known that the JSC named judicial temperament and “humilty” as relevant qualities long before it even considered Gauntlett’s qualities.  Ironically Gauntlett has, through his reckless accusation, made it impossible for the JSC to consider him a fit and proper person for further judicial appointment.  After all, how can the JSC which determined Gauntlett to be lacking in “humility” and judicial temperament miraculously somersault and retreat from that position simply because Gauntlett’s celebrity friends want to see him on the Concourt? But that is besides the point – what matters is whether Gauntlett’s statement that the JSC singled him out for disparate treatment and applied a “new quality” (humility) which was not one of the selection criteria is honest and factually true.  The Cape Bar Council v Judicial Service Commission clearly shows that Gauntlett is guilty of making false accusations against the JSC and the Chief Justice.

I submit that Gauntlett’s statements could not be the result of a genuine error. Suffice it to say that the late Chief Justice Ismail  Mahomed, the first black Chief Justice of a democratic South Africa, eloquently elaborated on these evaluation criteria as follows:

Society is . . . entitled to demand from judges fidelity to those qualities in the judicial temper which legitimize the exercise of judicial power. Many and subtle are the qualities which define that temper. Conspicuous amongst them are scholarship, experience, dignity, rationality, courage, forensic skill, capacity for articulation, diligence, intellectual integrity and energy. More difficult to articulate, but arguably even more crucial to that temper, is that quality called wisdom, enriched as it must be by a substantial measure of humility, and by an instinctive moral ability to distinguish right from wrong and sometimes the more agonising ability to weigh two rights or two wrongs against each other which comes from the consciousness of our own imperfection.

Ismail Mahomed: Chief Justice of South Africa:  ‘The independence of the judiciary’1998 (115) SALJ 658 at 666.

What is egregious here is that Gauntlett is allowing anti-transformation characters like Harms to fan the flames of racial polarization and to attack the JSC on the false premise that “humility” is not a requisite quality in judicial appointments.  It is like agruing that honesty is not a requisite quality for appointment as a CFO.  What is worse, they have unfairly attacked Judge Dolamo and portrayed the JSC as racists who excluded Gauntlett because members had “slates in mind.”

During his JSC interview, Gauntlett falsely stated to the JSC that he had a good relationship with Judge President Hlophe but he failed to disclose that he was busy circulating emails to the Cape Bar members instigating them to call for Hlophe’s suspension.   As you all know, within days of Gauntlett’s being denied appointment by the JSC, the Chairperson of the Cape bar and another person went to Judge President Hlophe to ask him to voluntarily take leave of absence as they were considering calling for his suspension.

Besides, Gauntlett insults the Chief Justice by mocking his religious beliefs.  It is not simply that he evinces religious bigotry – he accuses the Chief Justice of lying, manufacturing reasons and disassembling in order to cover-up the real reasons for his non-selection. This is sanctionableeven if the statements were made out of court and during interviews with newspaper journalists.

In Incorporated Law Society v Bevan 1908 TS 724 at 731-732 the Chief Justice spoke about how practitioners, in the conduct of court cases, play a very important part in the administration of justice. He opined that “any practitioner who deliberately places before the Court, or relies upon, a contention or a statement which he knows to be false, is in my opinion not fit to remain a member of the profession.  This was in reference to statements made in court but the converse is also true.   A lawyer who attacks a tribunal and members of the judiciary and relies upon a statement he knows to be false is not fit to remain  a member of the profession.  Courts repeatedly have endorsed ethical rules regulating attorney criticism of the judiciary based on the rationale that allowing such criticism to flourish would severely diminish the public’s confidence in the judiciary and thus hinder the efficient administration of justice.’   See, e.g., In re Evans, 801 F.2d 703, 706-08 (4th Cir. 1986) (stating that attorney’s letter to judge questioning judge’s competence and impartiality, written during pendency of appeal, amounted to attempt to prejudice administration of justice); In re Shimek, 284 So. 2d 686, 689 (Fla. 1973) (finding that attorney’s statement that judge was avoiding performance of his sworn duty was “calculated to cast a cloud of suspicion upon the entire judiciary”); Terry, 394 N.E.2d at 96 (“Unwarranted public suggestion by an attorney that a judicial officer is motivated by criminal purposes and considerations does nothing but weaken and erode the public’s confidence in an impartial adjudicatory process.”); Committee on Prof 1 Ethics & Conduct v. Horak, 292 N.W.2d 129, 130 (Iowa 1980) (“To permit unfettered criticism regardless of the motive would tend to intimidate judges in the performance of their duties and would foster unwarranted criticism of our courts.”); Heleringer, 602 S.W.2d at 168 (declaring that attorney’s press conference statements that judge’s behavior was unethical and grossly unfair tended to “bring the bench and bar into disrepute and to undermine public confidence in the integrity of the judicial process”).

Additionally, courts have stated that attorneys are officers of the court who have voluntarily relinquished certain rights as members of a regulated profession. See, e.g., In re Snyder, 472 U.S. 634, 644-45 (1985) (reasoning that “licensegranted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice”); In re Sawyer, 360 U.S. 622, 646-47 (1959) (Stewart, J., concurring) (stating that “[o]bedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech”); In re Frerichs, 238 N.W.2d 764, 769 (Iowa 1976) (recognizing that “lawyer, acting in professional capacity, may have some fewer rights of free speech than would a private citizen”); In re Johnson, 729 P.2d 1175, 1179 (Kan. 1986) (finding that one purpose of disciplinary action is to enforce “honorable conduct on the part of the court’s own officers”); State ex rel. Neb. State Bar Ass’n v. Michaelis, 316 N.W.2d 46, 53 (Neb. 1982) (proclaiming that “[a] lawyer belongs to a profession with inherited standards of propriety and honor, which experience has shown necessary in a calling dedicated to the accomplishment of justice”).

C.    Conclusion: 

It cannot be gainsaid that Gauntlett’s statement that the JSC “introduced a new quality for judicial appointments: humility” constitutes a false statement of fact and law.  The statement was made to further Gauntlett’s own ambition of being appointed to the Constitutional Court and to increase pressure on the JSC to accede to his demands.  The damage done to the judiciary is incalculable – the public is mislead into thinking that the JSC was so biased against Gauntlett that it conducted a farcical inteview with biased and prejudiced minds, that the Chief Justice lied and manufactured reasons for not appointing Gauntlett. Even worse, Gauntlett blatantly lieds about the JSC position and fails to disclose that in a case brought by his organization, the Cape Bar Council almost a year ago, the JSC clarified its position and expressly cited judicial temperament and humility as requisite qualities for judges.  There must be consequences here.


Paul Ngobeni

2015 Constitutionally Speaking | website created by Idea in a Forest