Now that President Jacob Zuma spends more time “acting” as President than appearing as a criminal defendant in court, he has (mostly) stopped saying really silly things and has impressed many people – including me – who might otherwise have been ill disposed towards him. While one is (still) not sure what Zuma really thinks on any number of issues (or whether he has any original thoughts at all, given the fact that he claims to be at one with the ANC collective – which like the Borg in Star Trek seems to assimilate its leaders), his utterances and actions since he has become President has often been quite impressive.
This morning’s keynote address at the Second Judicial Conference for South African Judges in Pretoria is a good example of the post-dropping-of-charges-Zuma. President Zuma hit almost all the right notes on the judiciary and his speech contained very little that might be of concern to lawyers, judges or ordinary citizens, worried about the Rule of Law, the independence of the judiciary and the supremacy of our Constitution.
He praised the Chief Justice and Deputy Chief Justice (whom he had criticised previously when he was still an accused) as well as George Bizos, one of the JSC members who are quite independent minded and outspoken, and pointed out that they all had an impeccable record in the fight for justice, freedom and human rights in our country. He also affirmed the government’s support for the independence of the judiciary and the separation of powers.
As there is some nervousness that the talk in government about the need for the transformation of the judiciary might mask sinister motives to attack the independence of the judiciary, it was also good that President Zuma explained what the government understood with judicial transformation. Said the President:
Let me from the onset state that the transformation of the judiciary should be advanced and undertaken without interfering with the principle of judicial independence. An independent judiciary is one of the cornerstones of any democracy. As the Executive we respect without reservation, the principle of judicial independence and the rule of law.
When we talk of judicial transformation and access to justice, we are talking about three issues in particular. We want to ensure that even the poorest of the poor do enjoy access to justice. Secondly, that the justice that people access is of a high standard and thirdly, that justice is attained without undue delay.
Central in the struggle for a just society has always been, and continues to be human rights and the rule of law, which are fundamental pillars of a Constitutional democracy. Under apartheid colonialism South African Courts discriminated on the basis of race, culture, gender and religion. The oppressed therefore viewed the courts as part of the instruments of the apartheid system of oppression.
It has therefore been a mission of all administrations since 1994, to create a society, which would be underpinned by justice and human rights, guided by our country’s Constitution. Transformation should also mean the appointment of judges who are committed to the new democratic order. It means increased access to justice for all sectors of society, including the poor and marginalised. Transformation means the promotion of a culture of judicial accountability, and the creation of structures necessary to foster judicial independence.
If one assumes that a judiciary committed to the democratic order does not mean a judiciary committed to the interests of the ANC government, but, instead means a commitment to the values in the Constitution – including the value of respect for diversity, something President Zuma mentions in his speech – this view of transformation is not controversial at all. Some might raise an eyebrow about the remark that the judiciary should be more accountable, but elsewhere in the speech the President mentioned respect for the separation of powers and the independence of the judiciary and also dealt with criticism of judges.
President Zuma quoted the words of late Chief Justice Mahomed who said that it was fine for judgments to be subjected to vigorous attack and criticism before continuing:
A viable and credible constitutional culture evolves most effectively within the crucible of vigorous intellectual combat and even moral examination. What they are entitled to and demand is that such criticism should be fair and informed; that it must be in good faith, that it does not impugn upon the dignity or bona fides and above all it does not impair their independence, because judges themselves would not be the only victims of such impairment.
This principle was of course (ironically) not adhered to by Mr Zuma’s backers when Zuma was still an accused person. Julius Malema and Gwede Mantashe, amongst others, attacked the personal integrity of the judges of our highest court, even calling them – ridiculously – counter-revolutionaries. Mr Zuma (as he then was) never repudiated them. Only time will therefore tell whether President Zuma really believes everything he said today or whether the attitudes emanating from him and his supporters during his court case linger on.
President Zuma also said some other potentially controversial things during his speech. He said that the government “need to work harder to deal with the perception that the rights of criminals are prioritised” above those of the rights of victims and pleaded that the approach to the granting of bail needed to be examined. “Communities see alleged perpetrators arrested and then swiftly released only to commit further crimes or to intimidate witnesses”.
This statement seems uninformed and problematic from a human rights perspective. To my mind there is nothing wrong with the current bail provisions which do provide for a denial of bial where there is a real fear that a person will commit further crime or intimidate witnesses. Zuma here is playing to the peanut gallery. As a person who was swiftly granted bail after being arrested on a charge of rape, he of all people should have some appreciation of how important the granting of bial is in a human rights based culture.
The one really scary and stupid idea raised by President Zuma (reflecting ANC policy adopted at Polokwane) is that the Judicial Service Commission and the Magistrates’ Commission should be integrated into a single appointment mechanism and that a single grievance procedure for all judicial officers should be established.
This would be a disaster and would fundamentally weaken the independence of the judiciary. As the Constitutional Court pointed out in the Van Rooyen case, our court system is hierarchical and affords greater protection and safeguards for the independence of High Courts than for the Magistrate Courts. Because Magistrate Court judgments can be appealed to higher courts whose independence is more vigorously protected, the judicial system as a whole remains independent.
The quality of appointments to Higher Courts is also – as a general rule – much higher than the quality of appointments to Magistrate Courts.
If the Magistrates Commission and the JSC are collapsed into one body it will fundamentally weaken the independence of the High Courts and will open the door for the appointment of really spectacularly unqualified people to the High Court Bench. The quality and integrity of the High Court and its judgments would almost inevitably suffer – perhaps disastrously so. We will all – rich and poor – then equally have access to a Bench unable or incapable of providing us with the justice promised by our Constitution.
Let us hope this absurd and dangerous idea is quietly dropped after consultation with the judiciary.
Although the sounds he is making are pleasing, he has proven himself to be an anarchist and shameless liar. Zuma is a man without honour and it takes a very special kind of “optimist” to believe him. It is almost as believable as Mantashe’s claim that the government is not considering the privatisation of the mines. Anyway, the farce of the Waterkloof-four case has been brought under Zuma’s attention so let’s just see how committed he is to the accountability of judges. Did he mention how to handle corrupt judges? The JSC is currently spectacularly ill-equipped for that.
You chameleons are funny.
well this is what the superior court bill is all about.
@Pierre
“If the Magistrates Commission and the JSC are collapsed into one body it will fundamentally weaken the independence of the High Courts”
No it wont.
Both magistrates and judges will be called Judge and will be regulated by the same body. Their salaries will also be brought in line with each other.
the other problem is the administration of the courts must be transfered from the Minister of Justice to a newly established body something like the “National Council of Justice”. This must bring about the independence of the judiciary and put an end to the control of the government.
I also would like to know if the administrative autonomy of the ConCourt will cease to exist and is integrated into this single judicial organisation?
Much as Mr Zuma should have indentified with both the rights to bail he should have also acknowledged the accused rights to be presumed innocent until proven guilty.
Mr Zuma has once again refered to accused as criminals, according to his own rhetoric I suppose it would also be admissable to refer to him as a criminal on the count of corruption anyway.
Prof, you’re being danderously optimistic. I’m loathe to believe Zuma in light of what he said earlier this year. We know the speech was written for him and I wonder who’s the “minister of propaganda”.
The transformation issue is interesting. It seems the need for true judicial transformation is secondary to the cosmetic transformation which is always being promoted. “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed”.
However, judicial transformation goes beyond the composition of the judiciary in terms of gender and race. Other aspects must be considered as well.
Transformation should also mean the appointment of judges who are committed to the new democratic order. It means increased access to justice for all sectors of society, including the poor and marginalised.
I would say that the committment to a new democratic order should be the primary objective. That will certainly (if not mainly) include those who are women and PDI’s. If we champion race and sex it will lead to the same thing as happened under apartheid where it was one’s exterior that generally granted them a seat on the bench and not one’s open-minded approach to law. The majority of non-white and female judges we currently have would still make it if this were the criteria because they are chamions of transformation and not because of their looks.
We must take what Zuma says with a pinch of salt (or even the entire salt seller) and be vigilent to the state’s actions to the contrary of the soothing words.
I think Zuma said some nice things. However, there is precious little evidence suggesting that he actually means to hold to the more uncontroversial features of his address. Rather, I think the content of his address tends to favour the view that (a) the ANC will pursue its own ends even at the judiciary’s expense and (b), that the ANC will adopt whatever stance towards the courts it thinks will secure for it the most advantageous political position.
It seems to me that four features of Zuma’s address make the above position deserving of at least some considered thought. First, talk truly is quite cheap. And Zuma’s talk was really just that.
Secondly, and as the Professor clearly made out, even though Zuma neatly unpacked what he meant by judicial accountability, the fact that while he was an accused he failed to take some of his supporters to task over misinformed, crude and mala fides reproaches of the courts gives me to believe that Zuma’s talk here amounts to the sailing of political seas. He did not have the nerve or honour to say it when the chips were down as it were and I am thus disclined from believing his ex post facto diplomacy.
Thirdly, Zuma’s saying that he wants to deal with the perception that the rights of criminals trump the rights of victms due to current bail provisions effectively amounts to him saying that what some might consider pleasant appearances should be allowed to prevail over the protection of the basic rights of accused persons. That is, if it looks like the law favour victims even if it certainly unduly prejudices accuseds, then all is well. I cannot accept this position but it could be that my reasoning is flawed.
And finally, I accept the Professor’s reasoning that the standard of judicial appointments to high court benches, given that magistrates court proceedings go on appeal thereto, should be kept as high as possible. That is not to say that there are no magistrates who would make fine judges. I believe that some would. But merging the two commissions would, as I read the Professor’s reasoning, deprive us of a useful quality control and the consequence of such a removal could well be a qualitative decline at high court level.
So the following is what I consider to be the cumulative effect of these questionable features of Zuma’s address: just more of the same from Zuma and company. For a start we have talk which might well be empty but helpful toward the realisation of ANC ends. And for a second we have more submissions the implications of which have apparently not been thought through.
Honestly Prof De Vos, I cannot see the logic in your closing remarks, namely that, if the JSC and MC are amalgamated, and if a single judiciary is established, the independence of the judiciary (or at least, of the High Court) will be in jeopardy. Firstly, a single judiciary would presumably still have a hierarchy of courts along the same lines as they currently function. What would it do to the independence of judges if magistrates are also called judges (district judges, regional judges)? Remember, the regional courts have already been afforded almost concurrent criminal jurisdiction with the High Court, and they may try all crimes except treason, and may (or rather, must) in certain circumstances impose life imprisonment (s 51 of Act 105 of 1997 as amended). Intermediate civil and family jurisdiction will shortly be afforded the regional courts, which would also be more or less concurrent with that of the High Court in many respects, especially as far as family matters are concerned. Moreover, many magistrates, and many regional magistrates (if not the vast majority of them) are suitably qualified and experienced for appointment to the High Court Bench. Secondly, implying that the quality of appointments recommended by the MC is of a lower standard than those that were recommended by the JSC is worrying and insulting. One should remember that more than 90% of all criminal cases are tried in the magistrates courts, and more than 90 % of all serious criminal cases are tried in the regional courts as courts of first instance. Why must those courts, just because they are lower in the hierarchy, be stigmatized as less capable than the various Divisions of the High Court to try crimial matters? Many magistrates and many regional magistrates are just as (or better) qualified and experienced than many High Court judges, especially many of those appointed since 1994 (not only black, but also white). Moreover, why must they be afforded less protection as far as their independence are concerned? Your argument (partially based on the Van Rooyen judgment, which is a ’sorry’ judgment wanting in many respects) that because magistrates courts’ judgments are appealable to the High Court, and because the High Court’s independence is better protected than that of magistrates courts, the whole judicial system can be regarded as independent is nonsensical to say the least. Remember that High Court judgments are also appealable to the Full Bench, the SCA and/or the CC. Does that mean that the High Court’s independence should be less vigorously protected than that of say the SCA and the CC? We, as magistrates and regtional magistrates, have been battling for more than 20 years now to become independent from the public service and the whims and fancies of the other pillars of government, and we value our independence, office and stature very highly. We also do not want to see ‘bad’ or ‘poor’ appointments to the lower court benches, just as much as many people do not want to see ‘bad’ or ‘poor’ appointments to the High Court Bench. Furthermore, if your surmise is correct that the MC is notorious for appointing judicial officers of a lower quality than High Court judges, then it would rather have a wholesome effect if the JSC takes over the role of appointing all judicial officers, would it not?
Anonymouse, thank you ever so much for your thoughtful post.
I read one of the salient points in your post as follows: in some respects, magistrates are sometimes more qualified than judges. I agree. Magistrates see facts tried frequently. And in criminal suits for instance, they can be called upon to hear some intricate proceedings. Now seeing facts tried in complex suits not only requires but also encourages the development of some profound legal skills.
So I will agree with you that some people may do well to revisit the assumption that judges are necessarily better lawyers than magistrates. Happily I have met magistrates with obvious legal skill. But mabe some steps should be taken to see a foul, condescending and an apparently largely ill-premised assumption dispelled. So thank you once again for an enjoyably considerate post.
Annonymouse, you make some good points. Of course many Magistrates do excellent work and are highly competent and some fears about a merger of some sorts will be based on snobbery. But I have two what I believe are cogent reasons for expressing my concern. First, the Magistracy used to be part of the civil service and was not at all independent. The notorious way in which magistrates acted in inquests into the death of people who died in police custody – like Steve Biko – reflected a culture that was deeply intertwined with the state and the governing party. Although this formally changed in the early nineties and although there has been a remarkable change in the way Magistrates operate and see themselves, an institutional culture established over one hundred years cannot be changed completely overnight. Second, Magistrates do not enjoy the same constitutional independence as Judges. Unless the Constitution is changed to fully entrench the independence of Magistrates, a move to integrate the appointments procedures of judges and Magistrates will pose a threat to the independence of the judiciary.
Hi Prof: good that you are back and firing on all 12 pistons. Haven’t read all the comments yet as this is such an impacting posted blog . Ironically when I linked to you tonight I got your last truly brilliant blog: “Lunatics Running the Asylum” and went through the comments, great, suggest you review them. It was March as you likely recall.
A few repeats here with my comments: We know JZ loves to be loved, and surely we can’t blame him, don’t we all want the same.
The proof is in the pudding as Nettie Pikeur would say, so lets see, as in time will tell. At the same time I have always stated that maybe and possibly, who knows, JZ is one of those leaders who will excel and surpass even his own desires, corruptions and limitations.
But I’m sure curious. Who is writing his speeches, who is the spin extraordinaire puppeteer?
I love a quote by poet Cohen,although I may not have all the words right, as follows: “I love this country, but I don’t love the scene”.
And congrats to our Prez for not supporting Gadaffi’ s USA (Africa – at this time). First foreign policy decision ANC has made in years that encourages and inspires less shame. As for Bashir… give it time. Karma has its way, with Justice Her sword.
Thanks Prof, you’re an inspiration. If you get a chance, listen to “Live in London”, double album. (Leonard Cohen at age 75)
And @ Anonymouse also, thankyou.
We all know that Zuma is just covering his bases in case the DA application goes South for him…
Anonymouse, excllent post. I have, for some time, wondered why the Magistracy is not afforded greater protection. Prof has not adequately shown why this should not be so. The way things stand the Magistrates are very open to abuse and the fact that they are under the control of a dept as public servants is worrying. I do not believe that there should be one body but that each body should have very high standards and should be regulated similarly. The fact that academics and judges have not also called for a more independant Magistracy is disappointing as it shows there is little regard for truly independant courts for the poor. Prof’s argument that the Steve Biko inquest is an example of how flawed the Magistracy is provides a great reason to ensure the indpedance of the judicial officers in our lower courts so that they can no longer be viewed as political pawns. Prof should also remember the the Supreme Courts and the AD also made some dodgy judgements but their independance has been retained, and strengthened, since 1994. In transforming the justice system we should make a true effort that reflects our constideration for all the participants, especially the poor.
Sirjay, I don’t know if I’d want to stay in SA if we became part of the new USA. maybe it is the same elitist attitude that has been shown with regard to the justice system but we really would all go down the tubes with the rest of Africa. How Zuma, and the rest of the poliicians, could support this idea is quite beyond me.
Nkululeko, thank you for joining the present discussion and for your well-considered contributions. I really appreciate that sort of thing about bloggers such as you, Samantha, Lara, Mzo and Michael to name but a few.
I read one of your views as follows: that it is somewhat disappointing that the academy and judges have not called for the Magistracy being rendered more independent. And I read your basis for this position as being that it suggests that they are not terribly concerned about the promotion of independent courts for poorer litigants.
I think you may have a point. Now I would not read anything sinister into their apparent failure to do so. But it is rather a discomforting oversight. I would like to think that magisterial impairments of rights commited at the behest or urging of the executive have been relegated to the pages of our shameful history. But that might be just a touch naive.
Professor, I hope you may find the time to take a thought that I have entertained further. You say earlier in the current discussion that magistrates do not enjoy the same constitutional independence as judges. My questions are: might restricted magisterial independence amount to a limitation of the section 9 (1) read with section 34 rights of poorer litigants? And if so, might it be the case that the constitution demands that the issue of the Magistracy’s independenc be revisited with a view to bringing it into line with the content of the constitution?
Accountability and independence are two mutually exclusive concepts in this context. Which is it going to be?
“the farce of the Waterkloof-four case”
Please elaborate. I don’t understand or am unaware of what you are referring to.
I do not think that accountability and independence are mutually exclusive. The judiciary should be independent from the State to apply the law without fear of retribution, but they should remain accountable for everything they do to avoid bad apples getting away with corruption. It is a delicate balance, but it should be easy to maintain if the judiciary remains open to public scrutiny.
The Waterkloof-four farce is a lengthy proof. I suggest you click on my name and go to “Waterkloof-four wronfully imprisoned” for all the documents required.
CD,
In the case of the judiciary I think accountability would mean that the judiciary is not beyond reproach. However, in criticising the judiciary, as Prof has warned, we should be careful not to impugn their dignity as an institution which has been mandated by our Constitution to be the final abiters of all disputes. For this reason, all criticism aimed at the judiciary should be based on sound LEGAL reasoning and not towards to judicial officer which gave the judgment (e.g. calling them conter-revolutionaries, etc). This should be specially the case in our country which affords disgruntled litigants an opportunity to appeal against judgments of lower courts.
Independance, as guaranteed in the Constitution, means that in making their decisions, judges should apply the law without fear, favour or prejudice. This would not be the case if the judges feared that if they were to make an order which is adverse to the ANC-led government, their salaries would be reduced or they may be removed from office at the instance of the Minister of Justice, who, mind you, is also politician appointed to his portfolio by the ANC-led government.
But the the judiciary is already accountable. Firstly there is the right of appeal and review. Surely no-one suggests that once the highest court has had its say on a matter, there should be some other person or body to overturn that if they don’t like it? Secondly, there is the JSC and the right of impeachment for really bad apples.
What more do you want or need that is not going to terrorise the bench? I dislike this talk of accountability. It is the road for populists to attack judges who make decisions they don’t like.
“The Waterkloof-four farce is a lengthy proof. I suggest you click on my name and go to “Waterkloof-four wronfully imprisoned” for all the documents required.”
Okay, I only know what the press has (mis) informed me. I will read when I have a moment.
@ CD
>>>Secondly, there is the JSC and the right of impeachment for really bad apples. <<<
All levels of court have been tried and the JSC as well and still nothing. The JSC was just to eager to address this complaint until they realised the gravity of the matter and then all went silent. Deathly silent…
This is an indication that these mechanisms to address serious problems in the judiciary is not working and that in my mind makes it easier for the “wolfs” to suggest new measures to address the problems.
This matter will be resolved, that I assure you. As soon as I can find a lawyer with a spine I will formalise this matter without a doubt.
Charles Scheepers,
How about taking issue with the lawyers who represented the Waterkloof Four instead of the JSC and the Judges?
You don;t offer the judgmenyt on your blog! Why?
Here is what Judges Seriti and Ebersohn said on page 6 of their judgment:
“Attorney Oelof de Meyer, who represented Appellants 2 and 4, when cross-examining Mr Heinrich von Landsberg, associated himself with the cross-examinaiton of Mr Cilliers.”
“From the above-quoted parts of the Court record, it is clear that at that stage, the suggestion by the defence Counsel and attorney was that the defence of their clients is lack of intent to murder. There was no suggestion at that stage that the accused were denying the fact that the deceased, who was mentioned in the murder charge, and whose post-mortem report was before the Court, is not the person that they assaulted on that fateful night.”
And on page 7:
“At no stage was it suggested to him [the witness] by the defence that the corpse in question IS NOT the corpse of the person who was assaulted by the accused on the night in question.”
[Bracketing and Caps mine.]
I am sure that others on this blog, having read this, will agree with me.
Charles, read the judgment. Remember too that we do not see things as they are but as we are.
@ Snowman
Their entire defence was built on the fact that the body found was not the victim assaulted. This is a convenient extract that ignored the trend of the defence. Magistrate Kotze relied heavily on the intent to murder and refuting that was a small part of the defence. Context is very important.
The judgement is rather large, so I have not put it up yet. I will do so for your interest.
>>> Charles, read the judgment. <<>> Remember too that we do not see things as they are but as we are. <<<
Very philosophical, but it might be an excuse for inaction. Are we not seeing Hlophe as we are? I might as well say that corruption is God’s will and there is nothing I can do about it. These are serious allegations against the judges in question and it should not take people of their calibre long to disprove my accusations. Yet, they choose to cower.
I agree that bringing the Magistrates into the fold would be a better thing and not worse. It also has to be remembered that Magistrates are considerably better trained and their qualifications brought into line with other judges, altering the de facto situation they operate under, and this should make the transition smoother. The Magistrates Courts see the bulk of our court cases (even if only and so it is a nonsense that they are not regarded on a par with other judges.
“Their entire defence was built on the fact that the body found was not the victim assaulted. This is a convenient extract that ignored the trend of the defence.”
Charles, I do not understand the reference to “trend”. Although it has been some time since I defended a criminal matter, I can tell you that the defence does (and is expected to) make its defence and put its case clearly and expressly. If the accused (or his representatives) fail to expressly deny a set of facts and put another version of the events before the court, they have only themselves to blame. I have not read the judgement but if the extracts by Snowman are correct, then it seems that the defence did not expressly put the case that you contend for in which case they have only themselves to blame for the outcome of matters. As I say, I do not know the facts so do not intend to debate them here.
I may say also Charles, that I read your website summary briefly and while it may be that there has been a miscarriage of justice in terms of procedure and the rules of evidence etc. at a personal subjective (as opposed to an objective level) I find hard to find much sympathy within myself for the four accused. On their own admitted version of the facts their behaviour was reprehensible in the extreme; it was extreme brutality and viciousness with absolutely no mitigating factors that I am aware of; they chose without provocation and solely for the purposes of their own sadistic pleasure to most viciously assault a helpless members of our society, a person whom any right thinking and vaguely moral person would recognise is someone in need of assistance.
Pierre
“Unless the Constitution is changed to fully entrench the independence of Magistrates, a move to integrate the appointments procedures of judges and Magistrates will pose a threat to the independence of the judiciary.”
I doubt that very much, infact there a number of countries who have integrated the appointment procedures of judges and magistrates and there independence is clearly safe but there is a huge difference.
I think you guys are missing the true threat to your Judicial Independence that I think you should rather focus on.
why oh why is government so persistent on administrative control over the judicary? what is going to happen is this
1) Greater ministerial say over a more centralised (and therefore more easily manipulated) court system.
2)Rule-making to be taken away from the courts and processed through a ‘rule board’ before being approved by the minister and Parliament.
3)The judiciary to “respect the areas of responsibility of other arms of state and not unduly encroach on these areas”.
This is direct from the ANC’s Polokwane policy document on the judiciary this is what is being pushed.
but wait for it…the other arms of the state may encroach on the judiciary through administrative control. The Judiciary cant even have its own budget.
Infact I am extremely lost, does government and the ANC understand what a single judiciary is? because they clearly trying to push for this but have no clue what it means.The control and administration of the county and local courts will fall under the competence of the Minister, thereby dividing the theoretically single judicial system in administrative matters. How is that a single judiciary?
If we have to look at example Hungary they have a “national council of Justice and guess what?? This brought about the independence of the judiciary. The external administration and control that had been exercised by the Minister of Justice in the previous system was transformed into an internal administration. It is writen in there constitution that the executive arm and the Justice minister is “incompetent” towards the Judiciary and their Judiciary manages its own budget.
Im really gab smacked you guys arnt focusing on the true threat to your judiciary.
@ CD
That would be because you believe that this is about four individuals and not about the rest of the ignorant and undeserving nation. If you start allowing corruption in the judiciary you are not only punishing a select few, you punish a nation – see Zimbabwe. Where do you draw the line in breaking the rules?
In my opinion, when a judge applies the law truthfully he is not doing it for the people before him, but for the rest of the idiots that could not care less. They were convicted on accomplice-witness testimony in the face of contradicting physical evidence. Wake up man.
Judge Lex Mphati’s remarks about the few (three) judges on the JSC (reported by the MG and Legalbrief) seems to me a calculated understatement on his part. His remarks reveal a growing restlessness on the part of the judges on the JSC about the abuse of their presence on that body.
They are only whores on the JSC. Their presence is used to mask the truth of the JSC being simply an ANC-dominated commission. But sitting outside of parliament (and created by the Constitution).
A simple evaluation of the prescribed representatives on the JSC shows that it is ANC dominated. And it is well known that there is an ANC “caucus” within the JSC. By their majority they actually decide what happens at the JSC and who becomes judges. That is how Luthuli House’s views hold sway at the JSC. That is how the ANC can ensure that only their candidates get recommended. That is how the JSC is becoming an extension of Luthuli House.
But by their presence the judges add some prestige to what is actually only this ANC commission – then called the JSC. And presented to the public as an oh so independent body that makes recommendations for judicial appointments. What crap.
The previous CJ apparently had no moral problem with the above situation! But Lex Mphati has a better conscience. Obviously he knows what is actually going on and he dislikes being used as an ANC prostitute on the JSC. His remarks were most probably made with the full knowledge of the CJ. It thus reveals a growing discomfort (and rightly so) amongst the judges about Luthuli House’s abuse of the JSC.
It concerns us all. It touches a nerve of the rule of law.
The open question is whether the judges add anything to the JSC process. Or whether their presence on (and chairmanship of) the JSC with its underhand shenanigans undermines judicial independence.
Charles,
“That would be because you believe that this is about four individuals and not about the rest of the ignorant and undeserving nation. If you start allowing corruption in the judiciary you are not only punishing a select few, you punish a nation – see Zimbabwe. Where do you draw the line in breaking the rules?”
Well, at this point I remain unconvinced that there was any corruption in the judiciary (strong words on your part by the way). Corruption requires mala fide intent. It may be that there was a bad judgement or that the judge got it badly wrong. But that doesn’t prove corruption. Nothing said on your website that I saw or have read here seems to clearly evidence any “corruption”. Corruption is a very different matter to saying that the court got it badly wrong and that they should not have been convicted.
“In my opinion, when a judge applies the law truthfully he is not doing it for the people before him, but for the rest of the idiots that could not care less.”
Yes and no. Justice correctly done benefits the whole of society. But the interests of the individual accused remain of critical importance and our legal system recognises this.
“They were convicted on accomplice-witness testimony in the face of contradicting physical evidence. Wake up man.”
And let’s see, your contention is that the Magistrate was corrupt, that the Pretoria High Court appeal bench was also corrupt and that finally the SCA when it dealt with the application for leave to appeal was also corrupt?
I’m afraid I don’t believe it. I think either you don’t understand criminal procedure and the rules of evidence or you have a personal agenda you are pushing.
@ CD
What personal agenda might that be? The promotion of justice and accountability or maybe murder? I thought it was gross incompetence/negligence until I approached the JSC. Instead of skilfully dispelling my accusations, they shrugged it off. The ever so clever JP B M Ngoepe then stated (in writing I might add) that it is irrelevant when judges are wrong. Then they clamped down. It has now been more than six months and I am yet to receive any intelligent feedback from the “honourable” judges or JSC. Why do you think would they refuse to address accusations of this nature? Can it really be that four levels of court can miss the blatant mistakes made by the learned magistrate?
Every single application for appeal clearly highlighted a multitude of blatant mistakes and it went through all these very intelligent and highly experienced individuals. How do explain that. You are in the business. Have you ever been so dim-witted that you missed a list of 20 mistakes? Have you ever seen a situation where 14 judges missed that? How then can we explain that? If you ever crossed paths with that devilish subject statistics, you will realise that the amount of obvious mistakes made by Magistrate Kotze can not possibly be due to human error.
I think maybe you are the one with the agenda of protecting your friends. It seems to be a culture that permeates the entire legal fraternity.
PS. If you have a pair, prove me wrong!
Just two points: the first point, which goes to views ably expressed by Mpati JP, is that I respectffully agree with him. The process whereby judges are appointed is not entirely transparent. That is, the interviews fall within the public’s reach. But the spell during which the deliberations on the suitability of the candidates occurs does not.
I would say further that the deliberations passsage is arguably the most important passage in the process. I hope I have this right, but it strikes me that the interviewing passage is the spell druing which the JSC members marshal facts upon which they will (we hope) premise their determinations. This is quite distinguishable from the deliberations passage. And it is during this latter passage that the public would be able to determine whether there are reasonable and logical connections between the material gleaned during the interviewing passage and the the material used as grounds during the deliberations passage.
The second point speaks to a point raised by Henri. He seems to draw an inference from Mpati JP’s communications. And to me that inference seems to be that a general tend amongst members of the judiciary is that they entertain reservations about the role which judges are to play in the appointment process given the meagre judicial representation on the JSC. And to echoe sentiments which Henri put forward, I think that they should. It seems to me that judges are rather a token faction on the JSC. One could argue that the principal purpose of their presence is to promote a fiction of propriety so that the JSC can enjoy a measure of legitimacy that is too generous by far.
“Have you ever been so dim-witted that you missed a list of 20 mistakes?”
Maybe, I wouldn’t know. I missed them after all !
“I think maybe you are the one with the agenda of protecting your friends. It seems to be a culture that permeates the entire legal fraternity.”
No, not really. I hate corrupt lawyers. I just don’t see what you’re on about. But then again I will also have to admit that I haven’t dug as deep as you apparently have.
“PS. If you have a pair, prove me wrong!”
To be honest, I don’t care enough. Not that I don’t care about corruption. It’s that I haven’t seen anything which to me (as opposed to you) supports the corruption allegation. All I see is the possibility of some poor judgements. But if I think about it for a moment, possibly what you are trying to say is that the judgements are *so* bad that no one could possibly believe that the judge was truly acting in an impartial manner; that is no one has bribed him but he has been so influenced by the admitted atrocious behaviour of the accused that the true essence of the matter has been ignored; the judge may have been bona fide but he screwed it up so badly its obvious to an independant observer that its all wrong and that he is not acting objectively because he is blinded by the behaviour of the accused . Am I right? If so, I can’t see what remedy you have. The process has been exhausted. There is nothing the JSC can do about that I don’t believe – that is for dealing “skelm” judges not with judges who are merely “vrot” judges or mistaken judges or who get it all wrong or who are blinded by their emotions or prejudices. On the face of it I think you’re stuck where you are unless you can clearly show mala fides. But returning then to the question of proving you wrong (or right!) I can’t see what the point is. I really don’t intend to spend the next few weeks of my life trawling through transcripts and other information to figure out whether you are right or wrong and to win a debate here on this blog – and given my sense that you are stuck without further options unless you can show some sort of mala fides I can’t see what else would gained by my doing so. Sometimes the system just sucks but its the best we’ve got. I must tell you though that leaving aside the gladius christi issue of dealing with a corrupt judiciary, I don’t think much will be gained for the four in question. I think if I was on the bench (and admitting I don’t know a great deal about the matter at all) I would probably have given them 12 years anyway just on the basis of their own admitted facts.
Charles, no offence meant but I think unless you have a great deal of money, time and patience you’re not going to get anywhere fast on this one. But hey! I might be wrong!
Take care.
For all our sakes, I hope you are wrong…
Hi everyone – I’m back (have only just arrived) after a two-day session with my promoter and have received permission to submit my LLD thesis for exam. nkululeko, Leigh, Mpho and, I think (with fear of missing someone), Chris McDaniel, thanks for your support on this whole magistracy issue.
Prof, thanks also for the principled support. On the two points you raised, however, just the following:
(1) I agree the Steve Biko Inquest was a farce – and indicative of the fact that magistrates from those days were not regarded as independent. (In fact, as a magistrate from those days, I can vouch that the magistrate – not the same person, but each time the person holding office – stationed at the seat of one of the major ‘battle-field’ constituencies in the Far North during the apartheid years has been forcefully transferred to go and work under ’supervision’ three times during the course of just over a year, just because of politics. You see, in those years, magistrates were not only judicial officers and a few other things, including ‘chief cook & bottle-washer’, but also the main electoral officers in constituencies, and if the reigning party did not like the way a particular magistrate dealt with a specific election, the magistrate was transferred to go and work under ’supervision’ – all without proper disciplinary action’. In this particular constituency, there were three elections during the same year, first a challenge between a member of the CP and a member of the NP to resign their seats and call an interrim election to test each other’s strength; second, that notorious (or is it more positive?) Referendum; and, thereafter a general election.) That is exactly what we (the majority of magistrates that are currently serving – the ‘Young Turks’?) have been fighting against since approx 1990, when it became apparent that we will be having a constitutional state. However, even today, in the determination of pay-packages, the Minister, the Director-General, and many (the majority of parliamentarians) are still meddling with magistrates’ remunertion system, keeping a strong hand on the reign, so that ‘magistrates cannot start thinking for themselves’ (Remember Jimmy Kruger?) but remain subservient to government’s whims and fancies. That is a clear indication that government wants to keep control over a large part of the judiciary, the magistracy, where more than 90% of all legal disputes are being settled daily. And, many of them do not go on appeal. (On the appeal thing, even in the days of the notorious Steve Biko incident, magistrates’ decisions – also in inquests – were subject to appeal/review, and the Supreme Court didn’t make a good show of independence during those days as indicated by one of the bloggers above.) We have to start somewhere in ensuring the magistracy’s independence – and, with respect, I think the CC did not do too well in the Van Rooyen Decision. There is no need whatsoever to delay the issue any further.
(2) The second point – I think that is one of possible constitutional changes that will receive the whole-hearted support of the magistracy and the majority of the public. I do agree however that including the magistracy in a single judiciary should ot be done without a constitutioal change, exactly because, as the CC pointed out in the Van Rooyen decision, magistrates are not as ‘independent’ as are judges, and if they and judges are appointed by the same body, that might adversely affect the independance of the judiciary as a whole.
Magistrates are part of the judiciary.
when you talk about judiciary–they are included.
a judge cannot claim that a magistrate is not a judicial officer.
all Magistrate are legally qualified-some more than a judge.
a single unified judiciary is a constitutional imperative.
a Magistrate gives judgement.
A judge gives judgement.
Their jurisdictional distinction is the only difference.
Why does a sensible person even think that calling a Magistrate a Judge will impinge on the independence of the judiciary? Anonymouse is absolutely correct —Professor!
the Legal Practice Bill once law will reveal the need for this!