Judge Potterill’s unethical and incompetent judgement in Gordhan v Public Protector

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By Paul Ngobeni

Judge Potterill’s ruling in Gordhan v Public Protector and Others is emblematic of an overwhelming miasma of fake law untethered to the record.  Preliminarily, the judgment portrays a judge who is either ignorant of basic judicial ethics or is blithely insouciant about ethical judicial opinion writing. Judge Gerald Lebovits and others opine in “Ethical Judicial Opinion Writing” that in a democracy, judges have legitimacy only when their words deserve respect, and their words deserve respect only when those who utter them are ethical. Because judicial opinions offer a glimpse into a judge’s mind, they must be credible, impartial, dignified, and temperate and must meet these high ethical standards.  A judge must ensure accuracy and honesty in research, facts, and analysis. Sadly, Potterill’s judgment is replete with false and dishonest conclusions and lacks candor, respect, honesty, and professionalism.
In haste to get on the “Pro-Pravin” bandwagon Potterill overreached. As the Public Protector’s office succinctly put it, “instead of confining herself to matters relating to minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application.” A judge who uses abusive and contumacious language against a head of a Chapter 9 institution and characterizes her rulings as “nonsensical” fails to follow the law, treats litigants inappropriately, and publicly displays contempt for the judicial system.
Sadly, a careful perscrutation of Potterill’s unenviable judicial record exposes her inveterate bigoted behavior and incompetence.  Indeed her current judgment was simply a rehash of an earlier judgment against Thuli Madonsela, South African Bureau of Standards v The Public Protector (27 March 2019); in which she ruled the Public Protector “should not have after a 10 -12 year period investigated the complaints in the manner she did and acted irrationally in doing so.” She concluded that “the process followed by the Public Protector was unfair and irrational” and reviewed and set aside Madonsela’s report. The Public Protector was ordered to pay the costs.
Just last year, in Gumbi and Others v S the SCA set aside convictions and sentences imposed by Potterill. The SCA noted t her lack of compliance with basic criminal procedures and stated: “In this case, none of that occurred. Potterill J simply picked up where Webster J had left off. That was impermissible and the failure to follow the steps outlined above meant that no new trial was commenced and the proceedings were invalid from the outset. Nonetheless, it is desirable to deal with the approach of Potterill J to ss 214 and 215 of the Act.”  The SCA ruled that Potterill convicted the appellants upon improperly admitted evidence and that “neither the appellants nor their counsel could by their acquiescence validate the invalid procedure adopted by the learned judge.”  Accordingly, the SCA concluded: “[14] It is manifest that convictions resulting from proceedings conducted in this way cannot stand. Where, as here, there has been such a gross departure from the established rules of procedure that the appellants have not been properly tried, this is per se a failure of justice (S v Moodie 1961 (4) SA 752 (A) at 758E-G). As the convictions were a clear miscarriage of justice, it is open to the prosecution to re-indict the appellants, if so advised.” Without doubt Potterill’s judgments have reached such notoriety for incompetence that Counsel for the State was forced in two appeal cases, Mndebele v S (173/2015) [2016] ZASCA 7 (3 March 2016) and Mchunu v The State (20770/14) [2015] ZASCA 115 (09 September 2015 [6] to concede that Potterill’s judgments were indefensible. In the former, Counsel conceded that the sentence of 8 years’ imprisonment imposed by Potterill was ‘inappropriately harsh’. Potterill is a white woman and her gross incompetence does not bother the frenzied white mob baying for Advocate Mkhwebane’s blood. A different yardstick is applied depending on the race of the person targeted.
The litany of gross errors Potterill routinely makes in her judicial decisions also highlight that she does not observe the principle that in reversing the opinion of a lower court or quasi-judicial tribunal such as the Public Protector she must not insult the hallowed rule that the function of her Court is to see that justice is done according to law. Judge Magruder of the First Circuit Court of Appeals of the United States once said: “We should never unnecessarily try to make a monkey of the judge in the court below, or to trespass on his feelings or dignity and self-respect. ..” Magruder, The Trials and Tribulations of an Intermediate Appellate Court, 44 Cornell L.Q. 1, 3 (1958). From this vantage point, Potterill is an unethical, bullying and incompetent judge guilty of transgressing the limits of these boundaries in her decisions. Her resort to injudicious language blasting others for “nonsensical” rulings says more about her own insecurity and incompetence.
Potterill dealt with the Public Protector’s jurisdiction and ruled she is barred to entertain the complaints under S6 (9) of the PP Act which reads as follows: “Except where the Public Protector in special circumstances, within his or her discretion, so permits, a complaint or matter referred to the Public Protector shall not be entertained unless it is reported to the Public Protector within two years of the occurrence of the incident or matter concerned.”  Contrary to Potterill’s misguided and twisted interpretation the statute is not setting forth a strict prescription period. Rather, the Public Protector is given unbridled discretion to permit in special circumstances a complaint not reported within the two year period of the occurrence of the incidence. Potterill blithely overlooks the abecedarian proposition that the Public Protector’s investigations are triggered, for the most part, by complaints filed by citizens the majority of whom are laypersons.  Potterill ignores that the time lag between a citizen’s acquisition of knowledge of maladministration sufficient to justify a complaint to the Public Protector and the actual occurrence of the incident will never perfectly fit the two-year time limits. She baldly and falsely asserts that the complaints relating to Gordhan flows from a meeting in 2010 and the establishment of an investigative unit in 2007. She concludes that the Public Protector was not entitled to entertain these complaints. Not so. It is perfectly within the encincture of her discretion to accept these matters for investigation and she needs only articulate special circumstances to do so.
By Gordan’s own admission, the establishment of the investigation unit was secretive or at least not a matter of public knowledge. It carried out its spying functions for a considerable period of time after it was created and the equipment is purchased for such purposes are still not accounted for. The “continuing violation” doctrine overrides the statute of limitations bandied about by Gordhan and Potterill. It is alleged that the implicated persons ran a covert unit within SARS, unlawfully revealed taxpayer information, were engaged in an unlawful interception and other wrongs from the inception of the rogue unit until at least 2014.  It is simply ridiculous for a judge to assume that ordinary citizens would have sniffed out these covert activities or uncovered sufficient facts within two years from 2007.
As if to underscore her legendary gross incompetence Potterill ignores admissions contained in Pillay’s Affidavit submitted to Public Protector that “the events to which certain allegations pertain span a period of between ten and twenty years ago.” Para. 26. Some of the unlawful activities of Von Loggerenberg and other affected officials only became known through a whistleblower report addressed to the Parliamentary Standing Committee on Finance “which was leaked to the media by a Member of Parliament in April 2015.” Pillay Affidavit. Para. 29.9. Potterill deliberately distorts facts when she asserts that “the complaints relating to Gordhan flows from a meeting in 2010” when the allegations are that he misled Parliament later when asked about meeting the Guptas.
Potterill is woefully ignorant of another legal doctrine applicable to the “Rogue Unit” matter, that is when a party has concealed his misconduct, the limitations period does not begin to run until after the duped party discovers, or with due diligence should have discovered, his claim against the deceitful party. A good illustration in government matters is Smith v. Nixon, 606 F.2d 1183, 1190 (D.C. Cir. 1979), cert. denied, 453 U.S. 912 (1981). Smith sued former US President Nixon, former National Security Adviser Henry Kissinger, former Attorney General John Mitchell, and former presidential aides including H.R. Haldeman and John Erlichman for illegally tapping his phone in connection with efforts to plug leaks of information to the press… In view of the secrecy surrounding the wiretapping, the court held that Smith could avail himself of the fraudulent concealment doctrine. Id at 191 & n.44. The doctrine also has been advanced in other cases such as Barrett v. the United States, 689 F.2d 324 (2d Cir. 1982), where the plaintiffs’ father was the unknowing subject of chemical warfare experiments conducted by the Army in 1953, and had died as a result of an injection of a mescaline derivative. The tolling claim was premised on the Army’s suppression of information concerning its involvement until 1975.
Potterill’s bizarre legal reasoning has weakened the war against corruption, impoverished our jurisprudence and is guaranteed to make us the laughing stock of the world. It is in the public interest that we not recognize artificial barriers in the war against corruption. S v Shaik & Others [2006] the SCA held that “The seriousness of the offence of corruption cannot be overemphasized. It offends against the rule of law and the principles of good governance. It lowers the moral tone of a nation and negatively affects development and the promotion of human rights. As a country, we have traveled a long and tortuous road to achieving democracy. Corruption threatens our constitutional order We must make every effort to ensure that corruption with its putrefying effects is haltered. Courts must send out an unequivocal message that corruption will not be tolerated and that punishment will be appropriately severe.” In South African Association of Personal Injury Lawyers v Heath the Constitutional Court held that “Corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution … If allowed to go unchecked and unpunished they will pose a serious threat to our democratic State.” In S v Yengeni [2005] ZAGPHC 117; 2006 (1) SACR 405 (T) at 427 b to c it was stated that “To state that corruption and other crimes of dishonesty on the part of elected office­bearers and officials in the public service have become one of the most serious threats to our country’s well being, is to state the obvious. Their incidence may well be charecterised as a pandemic that needs to be recognized as such and requires concerted and drastic efforts to combat it.”
To state the obvious corrupt transactions in state agencies are often cloaked in secrecy and are sometimes discovered many years after the event.  In Potterill’s world, the Public Protector must allow the corrupt to keep their loot and leave them undisturbed so long as they manage to beat the two year limitations period.