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
10 July 2009

New JSC appointments bad news for Hlophe?

Good news for the executive and for racial nationalists, but (perhaps) bad news for Judge President John Hlophe and for those who believe in real and deep transformation of the judiciary.

This is my tentative reaction to the news that President Jacob Zuma this week sent letters to the party leaders in parliament requesting their input before July 13 about his intention to appoint Advocate Dumisa Ntsebeza SC, Advocate Ismael Semenya SC, Adv Vas Soni SC and Andiswa Ndoni, the current president of the Black Lawyers Association to the Judicial Services Commission (JSC) in the place of Adv George Bizos SC, Adv Kgomotso Moroko SC, Adv Seth Nthai and John Ernstzen.

It is of course impossible to say for certain how the new appointees will deal with the complaint against Hlophe and what influence they will exert on the JSC regarding the appointment of judges. But at first glance the appointments do not inspire much confidence.

The new appointments include Advocate Ntsebeza who was fired by Hlophe after Ntsebeza’s rather lackluster performance before the Supreme Court of Appeal (SCA) in Hlophe’s case against the judges of the Constitutional Court. Judge Hlophe revealed in an affidavit submitted to the JSC that he had lost confidence in Ntsebeza, who had been his trusted ally since the controversy broke in January last year. Ntsebeza was then accused of “messing up Hlophe’s case”.

I might be wrong, but I assume that there is no love lost between the Judge President and Advocate Ntsebeza after the tardy way in which he was treated by Hlophe. Hlophe might also ask Ntsebeza to recuse himself from proceedings when the JSC continues to consider the complaint against him.

Ntsebeza, along with Andiswa Ndoni, the current chairperson of the Black Lawyers Association, are perceived by some to be racial nationalists who might push strongly for the racial transformation of the bench and may frown upon the appointment of progressive white lawyers to the bench. One will have to wait and see whether this perception will be proved wrong or whether the JSC will move sharply to the right, appointing more  black but conservative, anti-human rights, lawyers to the bench.

Advocate Vas Soni has also not always demonstrated a keen and abiding belief in the values of openness and transparency underlying our Constitution. As an acting judge he ordered the gagging of the Mail & Guardian, ruling that that Imvume, and its boss Sandi Majali’s right to privacy, dignity and reputation, trumped both freedom of expression and the public’s right to know about the conduct of their elected government.

At the time this ruling was severely criticised for striking completely the wrong balance between the individual rights of a flashy businessman on the one hand and the right to open and transparent government on the other. As it turned out the Mail & Guardian’s story which formed the subject of the gagging order was spot on and the ANC paid back the money that Majali’s company had donated to the ANC after a dodgy deal with Petro-SA. Soni’s judgment was definitely pro-executive. Pro-human rights it was not.

Advocate Ismael Semenya has also been embroiled in controversy. He stepped down in protest from the Johannesburg Bar council earlier this year after the bar council failed to promote some of his preferred candidates to senior council. At first blush, this seems like a commendable steps. At last a man who took a stand in favour of transformation!

But Noseweek reports that there might have been other reasons for Semenya’s behaviour. According to Noseweek:

Among the 41 juniors who applied for Silk this year were two Aft [Advocates for Transformation] members, Jacco Venter and Andre Bezuidenhout, both from Semenya’s Pitje Chambers. But in the deliberation process over the final list both were excluded.  Semenya was furious that Bezuidenhout was dropped. “He threw his toys out of the cot and said that unless at least Jacco Venter was included then he and the three other Aft silks on the committee wouldn’t vote for anyone,” says a senior advocate.

As a compromise, 50-year-old Venter was put on the list. But this did not stop Semenya from resigning as bar council chairman the same day. Why was Semenya so angry that Andre Bezuidenhout didn’t make it?

Well, besides their legal partnership, they also have a long-standing business relationship. They are co-directors of Pitje Chambers (Pty) Ltd, which owns Pitje Chambers in Pritchard Street, close to the high court, and, as major shareholders, derive a generous rental income from some 70-plus advocates who rent chambers there.

Semenya, 50, and Bezuidenhout, 47, are also directors of Ilangabi Investments, formed in 2001, and Luendo Holdings – “a holding company for diversified investments” – incorporated in 2004. Back in 2006 Business Report carried an intriguing story about how Luendo Holdings had attempted to gain a stake in South Africa’s Porsche agency. Not in that story was the background to their pitch.

In late 2005 a letter was dispatched to the luxury car manufacturer in Germany – on the letterhead of the Presidency and signed by Mbeki’s legal adviser, advocate Mojanku Gumbi. A senior advocate who has seen this letter tells noseweek: “It said that the state president had noted with some dismay that Porsche had not seen the light in South Africa. Its agency [LSM Distributors] had not become empowered and was lily-white – and the president considered this was wrong. The letter recommended Luendo Holdings as an empowerment component.”

Gumbi, who no longer works in the president’s office, is not a member of Aft. Her CV states that she is a member of the Azanian People’s Organisation, as well as an executive member of the Black Lawyers’ Association. Semenya and Bezuidenhout duly made a presentation to Porsche late in 2005. To fend off their bid, Toby Venter, whose family had owned exclusive rights to import Porsche cars since 1995, announced that he was giving a 30% stake in LSM Distributors to new empowerment partner Hlongwane Consulting, headed by former Denel director Fana Hlongwane (who was also adviser to then Defence Minister Joe Modise at the time he was nurturing the notorious arms deal).

I hope I am wrong, but these four appointments do not bode well for the real and deep transformation of the judiciary, by which I mean the appointment not only of more black and women judges, but also of more judges who have internalised the values of the Constitution and would act in a scrupulously honest and ethical manner.

President Zuma seems to have “talked the talk” regarding respect for judicial independence on Monday before the judges, but with these appointments it is far from clear whether he is “walking the walk” on this matter. The signal sent by these appointments is that when the ANC and the government it leads talk about judicial transformation, they might mean something completely different from what progressive lawyers and politicians mean when they use this phrase.

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