Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
4 September 2008

Calling the Magistrates Comission

Sometimes when I read a news report I have to check the date to see whether it is not perhaps April 1 and whether the report is not perhaps an April Fools joke. So it was when I read that a Pietermaritzburg magistrate, a former member of the Scorpions, has launched a legal bid to block state prosecutor Billy Downer from taking part in the case against ANC President Jacob Zuma.

According to IOL, in papers lodged in the Pietermaritzburg High Court, Magistrate Ashin Singh has applied to be admitted as an amicus curiae (friend of the court) in the Zuma case. In his papers he claims: “Unless one of the members of the team of prosecuting counsel is removed from that team, the accused will not be afforded a fair trial. The member of the team of the prosecuting counsel that I refer to is Mr WJ (Billy) Downer SC.” He claimed that Downer – a prosecutor in the Zuma matter – had “scant regard for honesty and integrity, and that he will wilfully mislead a court in breach of his legal obligation as a prosecutor”.

Now I have no knowledge of Mr Singh’s case or whether Billy Downer acted in an inappropriate way in this case, but as some readers of this Blog have already pointed out, it is highly irregular for a Magistrate to get involved in a criminal case over which he or she is not presiding.

Apart from the rules governing magistrates with which I am not intimately familiar, there is a broader principle at stake here that was addressed by the Constitutional Court in the case challenging the constitutionality of the Heath Special Investigative Unit. In that case the Constitutional Court made clear that the seperation of powers requires judicial officers not to get involved in actions that may drag them into the political arena.

The separation of powers doctrine requires judicial officers to stick to adjudicating cases and not to act in any other capacity not associated with their office. This is because the legitimacy of our courts really depends on this. The same principle was applied by the judges who found that the appointment of Nathan Erasmus as the head of a Commission of Enquiry by Ebrahim Rasool was unlawful.

One may well argue that judicial officers are also citizens and that they have a right and a duty to assist courts in impoartnt matters like this. But there are other – less problematic ways – of doing so. Mr Singh could have informed the Zuma camp of his gripes and could have been called as a witness.

He could also have complained to the National Director of Public Prosecutions and could have asked for Mr Downer to be dismissed. Instead, he is trying to insert himself as an amicus curiae party to one if not the most controversial criminal trial in the history of South Africa. This is so obviously unwise and beyond the role of a responsible judicial officer that one is tempted to speculate about Mr Singhs motives. But I would not want to exarcerbate the already problematic situation so will refrain from doing so.

I would think however, that Mr Singh has acted in a manner that may well be froned upon by the Magistrates Commission and would hope that this Commission would look into his conduct and would make an appropriate finding if they agree that this kind of action is highly inappropriate for any judicial officer.

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