Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
29 April 2008

Another racial spat in the judiciary

The Northern Cape cannot really be considered as the hub of the South African economy or politics. Between the Groot Gat in Kimberley and the diamond fields of Oranjamond less than a million voters reside in this often inhospitable land. But like the rest of South Africa, people living here are not free from our history and thus not free from allegations of racism and counter racism.

The Sunday Times reported on Sunday as follows about this sad matter:

Some of South Africa’s top judges are embroiled in a bitter fight over alleged racism, nepotism and discrimination. Northern Cape Judge President Frans Diale Kgomo sparked the controversy when he lodged a complaint with the Judicial Service Commission in 2006, demanding that judges Steven Majiedt and Hennie Lacock be axed for misconduct after they allegedly insulted him.

Another Northern Cape judge, Lazarus Pule Tlaletsi, also lodged a complaint against Judge Majiedt and Judge Lacock, accusing them of misconduct. In return, Judge Majiedt filed a complaint of discrimination, racism and nepotism against Judge Kgomo.

The JSC is said to be close to deciding on the matter after discussing it at its meeting in Cape Town two weeks ago. The fight was triggered when Judge Kgomo recommended to Justice Minister Brigitte Mabandla that Judge Tlaletsi be appointed to act as head of the court while he was on leave.

The spat turned ugly when Judge Majiedt allegedly sent an SMS to Judge Kgomo, accusing him of being a “sly, devious, conniving person but also a coward”, who was motivated by “sheer racism and malice towards him (Judge Majiedt)”, according to Judge Kgomo’s complaint to the JSC.

This story seems to encapsulate so much of the difficulties experienced by the transformation of the judiciary in South Africa.

On the one side one finds proponents of “tradition” whose fragile egos have obviously been affronted by a decision by the Judge President to appoint a more junior member of the judiciary to act as head of court in his absence.

There used to be a strong tradition within the judiciary of respecting the seniority of judges and of awarding long serving judges with perks and appointments. Judges of the Norther Cape might have been particularly invested in this tradition as their court cannot be said to be the most glamorous and go-getting one in the country and some members of that bench probably have a bit of an inferiority complex.

On the other hand one has the Judge President who claims to have wanted to advance transformation by appointing a black African judge to act as head of court but it is unclear whether this was done truly as a way of advancing transformation or because of nepotism. In a small court with a strong tradition this might have appeared like a snub or a slap in the face of the more senior judge that was overlooked.

Using the racial tropes so well known in South Africa, I assume (wrongly?) that the overlooked judge was a person who would have been classified as coloured during the apartheid years and therefore feels – a bit like Oregin Hoskins – that he is perfectly entitled to benefit from transformation policies because he is also black – just not as black as the black African judge.

What is sad for me is that the spat had deteriorated to name calling. I cannot say who is more right or more wrong in this case, but it does suggest a lack of maturity on the part of all concerned that the story landed up in the Sunday Times. Transformation issues are difficult to manage and when adults sit together and try and resolve the inevitable tensions that will arise they will serve their institution and South Africa better than when they revert to name calling.

In this case, the judges obviously let the emotions get the better of them -which makes one wonder whether there are not more fundamental underlying racial tensions on the Northern Cape Bench.

In any event the Judicial Services Commission and the Chief Justice will hopefully get these people together and give them a talking to and tell them to sit down and sort out their problems without acting like scorned lovers and reverting to vicious sms messages.

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