ConCourt fails the test: Who guards the judges?

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By: Professor Sipho Seepe

The Constitutional Court may be the highest Court in the land. But it does not have a monopoly on what justice entails. The Court’s pronouncement in the case involving the Public Protector raises concerns that suggest that it might have been motivated by considerations other than the precepts of justice.
It is a common cause that the Public Protector has become the victim of unwarranted attacks by those hell-bent on seeking her removal from office. Some have gone as far as to suggest that she should be struck from the roll of advocates.
The anti-Mkhwebane lynch mob has been bolstered by the adverse and scathing comment by the highest court in the land. Normally this should end the tenure and professional life of the Mkhwebane.
To make sense of the issues around the recent Constitutional Court judgment, one must pierce through most of the political clutter that constitutes our public discourse. Uppermost should be a few considerations.
Is it possible that the Constitutional Court may have misdirected itself? Stripped of all the garbage, what is the genesis of this case? A dispassionate assessment should introduce reasonable doubt as to the correctness of the majority opinion held by the ConCourt.
With regard to the first question, the answer is in the affirmative. The ConCourt got it wrong this time as it got it wrong in the Nkandla judgment in which it found that the remedial actions of the Public Protector are binding. As in this case, the ConCourt focused on the individual and forgot about the Constitutional principles that require that the Office should conduct its affairs without fear or favor. The same Court was not so long ago found by the High Court to have violated the rights of Judge John Hlophe.
Amidst all the noise, the genesis of the case has been airbrushed out of the equation. The case stems from illegality that took place when the Reserve Bank provided a loan to Bankorp which was later bought by Absa. Judges Willem Heath and Dennis Davis found the loan to be corrupt and unlawful. If there are any misdirections on the part of Mkhwebane, they relate to her attempts to ensure that the money is paid back to the fiscus. Most importantly, there was no personal benefit for Mkhwebane.
The message is quite clear, you don’t touch the rich and powerful even when they are manifestly in the wrong. That is the travesty that the majority of justices chose to ignore.
Indeed, if one sifts through the mountain of verbiage in the judgment and contrast that with a dissenting opinion by the Chief Justice, a different picture emerges. This cast the majority of justices in very poor light. First, it would appear that the majority of the justices were in a state that made them be impervious to both facts and reason. They behaved as if they were on a mission and as such could not allow themselves to be distracted by such inconveniences like paying attention to detail.
They went as far as to disregard the counsel by their own colleagues. Not even the 17 000 words dissenting opinion penned by the Chief Justice could shake them. They displayed the fanaticism associated with those that have embarked on a spiritual war.
But facts, in this case, are inexorable. First, their judgment and obiter dicta are based on erroneous reading and appreciation of both fact and law. That the justices of our courts are influenced by the media-sponsored narrative is no longer in the question. They have demonstrated this time and time again.
All is not lost as some do acknowledge that they have erred from time to time. This includes reconsidering some of the adverse remarks they make regarding litigants. As pointed out by Advocate Paul Ngobeni “scathing judicial criticism of a litigant who happens to be a lawyer does not automatically amount to finding professional misconduct leading to disbarment…[thus] Contrary to the falsehood hawked by white racists, a judge’s harsh criticism of an advocate does not ineluctably suggest that disbarment should follow.”
In this regard, the court in GCB v Jiba and Others observed that:
“Very often when adverse remarks are made in legal proceedings, the person against whom the remarks are made is not given the opportunity to state his or her case to the impending adverse remarks. It is for this reason that courts do not easily make adverse remarks. … Courts are of course willing to reconsider adverse remarks afresh given the responses by the person against whom they were made.”
In penning his dissenting opinion the Chief Justice has done the country a favor. His opinion catalogs various errors of judgment. Some of the errors are so basic that it requires one to be willfully blind not to notice them.
For instance, the majority judgment refers to the Public Protector as a public official. She is not. Her role and office are quasi-judicial. And as such, she should enjoy the same judicial immunity accorded to the judges.
Perhaps the most troubling aspect of this remark is the fact that it locates the Office as part of Chapter 10 institutions. Effectively the majority judgment has rewritten the Constitution.
Holding the Public Protector personally liable offends the Constitutional injunction that requires the Office to launch investigations and report on any conduct in the state affairs and public administration without fear, favor or prejudice. As Mogoeng correctly warns that “making personal costs against State functionaries acting in their official capacities fashionable is likely to have a chilling effect on their willingness to confront perceived or alleged wrongdoing especially by the rich, powerful or well-connected.”
Most disconcerting about this case is the irony that Mkhwebane becomes a victim for allegedly demanding that Absa should pay back the money it had inherited. The money was unlawfully disbursed to its earlier incarnation Bankorp.
The ConCourt misdirected itself with regard to common practice when cost orders are made. The first misdirection, eloquently articulated by Mogoeng, is that “In all cases where this order was made, harm, actual or potential, was apparent. And so should it be in this case. It should only be in relation to conduct that is clearly and extremely scandalous or objectionable that these exceptional costs are awarded. I hasten to say that such conduct has not been shown to exist here.”
Mogoeng proceeded to express his disquiet in that the majority had even failed to “demonstrate how the stringent legal requirements for awarding personal costs on a punitive scale were met. Not only does that inestimably harsh punishment remain unexplained but so is the disinclination to interfere with an order that is in my view not just and equitable.”
One would have expected that the justices would err on the side of caution. It is thus difficult not to assume that they were driven by other motives other than the pursuit of justice. This conduct gives credence to the suggestion that our justices may be up for sale.
If there is a case that may require members of the ANC to vote with their conscience, this one fits the bill. Let’s hope that our legislators would send the message that the judges are not above the law. The ConCourt holds no monopoly when it comes to the meaning of justice. In the final analysis, the majority opinion triggers a constitutional crisis. And the aspiration of achieving good governance has been thwarted.
The ConCourt judgment should not be sustained as it erodes the constitutional criteria of acting without fear. It is now left to the people through parliament, being a special court of last resort, to set aside this determination when the body entrusted with this responsibility fails. The Constitution is an embodiment of the aspiration of the people, not those of the adjudicators.
The ConCourt failed to uphold the rights and independence of the Public Protector. To argue that punitive cost is a constitutional order intended to force officials to behave is flawed and dangerous. What happens to judges whose judgment are found wanting and overturned? What punitive accountability method should they be exposed to since they too exercise constitutional functions. Indeed who guards our judges?