Finding the link between judicial corruption and abuse of the Public Protector

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By Paul Ngobeni

Chief Justice Mogoeng has in recent weeks fiercely defended the judiciary against the “sworn enemy of our constitutional democracy” who makes “allegations so grave against the judiciary without the evidence to back them up.”

No surprises there- almost universally the practice is that the Chief Justice, as a leader of the judiciary is duty-bound to speak out on matters affecting judicial independence and the administration of justice. At the same time Mogoeng issued a challenge to those claiming judicial corruption stating those making allegations should be willing to give evidence even in a court of law.

He said he has been assured by provincial leaders in the judiciary that recent allegations against judges were not true and he believed them. That is true in so far as that goes.

Unfortunately for Mogoeng, evidence of judicial misconduct equaling corruption is not very difficult to find – one only has to analyse the courts’ recent judgments involving both former President Zuma and the current public protector Mkhwebane to appreciate the institutional bias and demonstrable political partisanship of some members of our judiciary.

A perfect example is the recent judgment in President Zuma’s permanent stay application.

A simple issue presented to the full bench in KZN was whether a losing defendant in a criminal case must be condemned to pay costs.

That question had already been answered by the Concourt in another permanent stay case, Sanderson v Attorney- General, Eastern Cape 1998 (1) SACR 227 (CC) (1998 (2) SA 38; 1997 (12) where Kriegler J stated at para [44]:

“Ordinarily the dismissal of a claim such as this in the High Court should not carry an adverse costs order. It is not a suit between private individuals; it relates directly to criminal proceedings, which are instituted by the State and in which costs orders are not competent; and the cause of action is that the State allegedly breached an accused’s constitutional right to a fair trial. Although the appellant failed to establish the constitutional claim he advanced, it was a genuine complaint on a point of substance and should therefore not have been visited with the sanction of a costs order.”

It is unfathomable that the full bench of senior KZN judges flagrantly ignored this controlling precedent that costs orders are not competent when they ruled that Zuma must pay the costs for unsuccessful application. It is mid-boggling that former Concourt judge Kriegler who authored the Sanderson judgment and his NGO outfit “Freedom Under Law” have maintained a deafening silence in the face of this blatant misreading of the law by the KZN senior judges.

Are they quite because Sanderson was white and Zuma is an African? It gets worse for our judiciary when the legal academics and practitioners join in the conspiracy of silence simply because the victim of such gross judicial abuse happens to be maligned Zuma. We can have endless reasonable debates about whether politics and partisanship have so polluted the judiciary as to render some judges nothing more than politicians in robes.

But that is a debate we absolutely must have – it is wrong for the Chief Justice to silence judicial critics by labeling them as “sworn enemy of our constitutional democracy.”

Almost universally every code of judicial conduct does require a judge to respect and comply with the law, to be faithful to the law and maintain professional competence in it, and to accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. The Chief Justice must now explain how the judiciary can retain its legitimacy and public confidence when clear legal rules are deliberately ignored or perverted when it comes to adjudicating Zuma’s cases.

It would certainly be incongruous if the principle “ignorance of the law is no excuse” applies to everyone but those judges charged with interpreting and applying the law to others. No amount of feigned constitutional fatigue about Zuma’s cases or collective “end justifies the means” approach can ever obfuscate the fact that some members of the judiciary have apparently been mobilized to join the lynch mob gunning for Zuma. It is unconscionable that elderly Zuma whose health is reportedly failing is pushed to litigate a gross judicial error for another couple of years.

There is a similar pattern involving the attacks on the Public Protector and sadly court judgments involving the Public Protector have not only exposed institutional bias and judicial confusion about the status of the Public Protector but they have also exposed how some judges have deliberately misread or even perverted clear legal principles to further the political narrative against the Public Protector. To secure the decisional independence our judges are insulated against personal costs orders or even impeachment based solely on judgments they issue.

It matters not how egregious these rulings may be. Section 15 of the JSC Act provides that no judicial misconduct complaint against any judge may be entertained if it is “(c) is solely related to the merits of a judgment or order.”

It requires no rocket science to see the institutionalized judicial hypocrisy and cowardice here. The judges’ decisional independence is guaranteed by shielding them from punitive or disciplinary actions for “mere legal errors” while the Public Protector runs the risk of punitive costs orders or bankruptcy each time she makes a decision or orders remedial actions which result in judicial review applications.

The unfortunate outcome of a personal costs order against a person who makes a quasi-judicial decision is that it serves as an in terrorem weapon available to those corrupt or guilty of maladministration- they can threaten a judicial review each time and threaten personal costs orders against the Public Protector. No judge would ever serve in our judiciary if they were placed in a similar predicament.

When the Public Protector is threatened with a call for resignation or impeachment because of disagreement with a ruling or her findings, the entire Public Protector’s constitutional mandate “to investigate, report on and remedy maladministration” is completely undermined.

The Chief Justice wisely elaborated on this doctrine when he asserted that “we can’t use appeals to measure performance of judges.” But his judicial colleagues are unwilling to apply the same principle to the Public Protector.

The question posed to the Chief Justice Mogoeng and his judiciary is why the Public Protector who is clothed with the same decisional independence by our constitution must be faced with punitive costs orders and sanctions while judges who make gross errors are never exposed to debilitating personal costs.

How can the judicial hypocrisy be reconciled with the Concourt judgment in Nkandla case where the Public Protector’s powers were effectively declared to be quasi-judicial in nature?

Contrary to the Chief Justice I venture here to suggest that there is clear undeniable evidence of judicial corruption exacerbated by unseemly collusion between the executive and some judges to undermine the Public Protector and to accelerate her departure from office.

For starters, a closer scrutiny of one Judge Poterill’s judgment in the case of Pravin Gordhan versus the Public Protector exposes both unabashed judicial corruption and flagrant bias in cases involving the Public Protector.

Poterill was asked to interpret a simple and straightforward statutory provision and she deliberately omitted pertinent language in the statute simply to favour Gordhan. Section 96 of the Constitution mandates that a code of ethics for cabinet ministers and their deputies has to be implemented. Parliament accordingly passed the

Executive Members’ Ethics Act, which came into force on 28 October 1998, requiring the president to promulgate a code of ethics for cabinet ministers, deputy ministers and MECs. The current code was promulgated by President Mbeki in 2007 and was recently cited by the Concourt in the Nkandla judgment. Section 2.3 of the code expressly states that Members may not-(a) Deliberately or inadvertently mislead the President, or the Premier or as the case may be; the legislature;”

Inexplicably Poterill chose to rewrite the said provisions of the Code and adopted Gordhan’s view that Code only prohibits “willfully” misleading the legislature. Poterill did so by deliberately omitting the words “inadvertently mislead” from the actual code.

The Chief Justice must explain how members of the public must still repose their confidence in the judiciary when clear evidence emerges that legal statutes can be amended by judges to favour powerful political litigants like Gordhan. Will the judge who perverted the legal rules, insulted the Public Protector and imposed crippling financial sanctions on her face any judicial sanctions for her errant behaviour? Will she be required to apologize to the Public Protector in the true spirit of Ubuntu? Never!