So, who gets attracted to become a judge in South Africa?

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By: Clyde Ramalaine 

– Judges civil servants in the expressed and clearest forms of descriptions –

Do our judges come vetted as true custodians of law, equipped as seasoned practitioners of the law and mature minds to guard our interest and need for justice in a democracy?

Quis custodiet Ipsos custodes? otherwise understood in the English language as the famed question ‘Who Guards the Guardians?’ naturally comes to mind when one observes the judiciary in South Africa which increasingly includes the apex court duly known as the Constitutional Court.

Reading the heads of argument submitted by the State of Capture Commission in its request to the Constitutional Court to find against former President Zuma one cannot but see a flimsy attempt to interpret Zuma’s public views about both the Commission and CC as insults. It is either a case of them being oblivious not to see their blatant denial of his constitutional rights or a deliberate choice to engage in this because it is Jacob Zuma at the end of this stick. It’s a given that this act in collusion of attempt aims at denying Zuma the acceptable freedom of speech which they interestingly seek to ring-fence as insults.

For the record, Jacob Zuma like all legal citizens in SA is entitled to every one of his opinions on anything including structures of the State if the constitution is the yardstick. It appears the Commission continues non-stop despite earlier warnings from some of us that it is straying increasingly into the spheres of political and personal domains heavily intoxicated to abscond reasonable law or in the attempt of crafting the vibrating Zuma persona exceptionalism laws since its current attempt borders on emotionally blackmailing and stoking the CC to a particular finding. This undeniable attempt at making the courts subservient to the phenomenon of exceptionalism in the design of its practice and law around a person is what we all so starkly were confronted at the hand of apartheid legislation and its courts with its 1970’s Sobukwe Clause.

The State of Capture Commission led by its chairperson DCJ Raymond Zondo attempts employing a method of instructing the CC as to how Zuma disrespected it as an institution and insulted it so that in blithe and anger less in the sanity of law the apex court with its nine judges who had shown an appetite for this case against better wisdom would be further compromised to continue along this precarious dark corridor of the conflation of law and politics.

As I read through this, what one cannot but have to reduce to cheap-blackmail informed less by the prescripts of law but the gross assumption of comfort drawn less in probity but in easy refuge of the central figure of a DCJ who appeals to the CC yet the same space where holds the number two seat in our judiciary, constitutes the heads-of-argument of the Commission. There is little doubt that the Commission since its call for a jail sentence measurable in two years, long indirectly conceded it will never have Jacob Zuma in front of DCJ Zondo as a chair of the Commission. It knows that since it opted to let an administrative issue of not letting Zondo step aside deny Zuma his long indicated willingness to appear and present his counter version. To this end, it seeks to exact a sentence with its earlier and now all of sudden absent two -year jail sentence. I am not cynical to argue the collective sanity of many of us who dared to challenge the Commission on its preoccupation to direct and compromise the CC with this special instruction of a jail sentence on this matter may have brought sense to realise how they setting up the CC by directing it to break standard rules and advocated fines for the type of infringement for which they seek relief.

As I usually do since these are legal matters I converse and engage with friends in the legal fraternity to ascertain if my analytical theologian and social scientist mind are making legal sense. I guess I will soon have to take some two guys up with the offer to have me pursue legal studies for which they willing to pay… lol. I wanted to know from a practising Senior Counsel if my thoughts were remotely aligned to constitute a proper argument in this instance. Equally, so I began to muse on who really gets attracted to be a judge in SA.

I guess one is asking for the market segmentation and pool from which South Africa’s judges on diverse benches are produced. Is it true that the legal professionals who became judges are the ones who either failed in personal practising of law or whose law business practices failed a long time ago?

Firstly, the economics that juxtapose a choice to be a judge versus a practising SC simply don’t make sense. We all know an advocate or Senior Counsel makes in income in two days what a judge earns as a monthly salary. Are we to naturally surmise all judges are apparently socialists in the traditional sense anti-capitalists and, therefore, not interested to make money as in attaining multimillionaire status? Shall we, therefore, deduce that they all are defined by an apparent human-rights and traditional civil society ethos that represents selflessness? If it was not about money why can it not be argued a pension to live for the rest of one’s life from public funding constitutes nothing but financial security, meaning who says it is not about money?

Secondly, it is an undeniable fact that the majority of judges in SA have never argued in any of the various courts in which they now sit as judges? It gets even murkier to realise that the majority if not all the judges in the Constitutional Court from past to present have never appeared as practitioners in the very Constitutional Court spaces themselves. Are we not playing proverbial Russian roulette by entrusting those who either never practised or genuinely failed to argue in any court to produce and deliver justice let alone the letter of the law to direct and guide the constitutional diaphragm of this nation? Meaning people with no true experience who plausibly never were tested in expertise as it relates to law who become the final arbiters in which place we our strive for justice.

Thirdly, it is argued our judges gravitate to laziness and that by itself breeds an obsequious judiciary. Often the practice or norm is they are promoted because this or that politician put in a good word for them, hence the mess of political gerrymandering and suspect verdicts that detail political interests.

We thus must ask do we have judges who were more interested in the security of tenure or a job, as so often is the story of the civil servant, because they know they failed to practice law and would not be able to contest in the open economy like their colleagues? To what extent defines our judges the standard civil servant mindset in good, bad, ugly and incompetence?

It is a given that a minuscule number of top lawyers (be they attorneys or advocates) go to the bench and this then must expose our judiciary to judges that may lack the required confidence to differ with the ruling elites better understood in South Africa still with apartheid racial classification of white advocates appearing before them who are seasoned and the epitome of economic success in which the very judges have failed. I guess I am arguing what negative psychological impact does a known successful Senior Counsel who has crafted and honed his /her skills over decades have on the presiding court officer that must take his/her legal arguments apart to either substantiate a case in law for or against?

What are the implications of not ramifications for having judges on benches who it can be argued are truly failed judicial practitioners if running their practices is the yardstick? Do we have in essence failed jurists presiding in our courts from the lowest to the apex? What are the plausible ramifications for abuse from either political and or economic spheres?

What does this say about the quality of jurists? What does this say of the susceptibility of those who sit in the hallowed spots of a bench?

It is too easy in South Africa to play the victim. We have seen how judges who for some strange reason believe they are above reproach and cannot be questioned play victim. When questioned it is claimed such questioning constitutes an attack today we hear of insults. We warrant freeing South Africans to opine and be honest to reflect on the judiciary and its judges, they not automatically exempted from scrutiny and have nowhere earned an unfettered right not to be engaged.

What former president Jacob Zuma aired with all the statements, regardless of where, on the Commission and the CC as cited today by the Commission’s Ngcukaitobi to flame emotions do not constitute any insult but his honest reflections articulated in clarity of mind as afforded and protected by the constitution. To, therefore, rely on claims of “insults” against the CC is simply frivolous and it’s necessarily a deflection because the Commission has no case since it never should have brought this case to the CC. The CC for its part equally so should never have shown any appetite for such a case since the Commissions Act affords the Commission adequate infrastructure to deal with any intransigent witness. The CC’s error as I long advanced was to allow itself to be duped and intimidated by the person of the DCJ Zondo as the one who presides over the Commission. The one who depending what he delivers on in State Capture report may become the next CJ.

We may also ask is the transformation of the Juduciary a completed task? To what extent if any did the transformation thus far lead to the Bench being incompetent? Is the integrity of our transforming Judiciary in tatters? Is the Zondo Commission vs its Recalcitrant Witness not the fulcrum moment of evidence of this compromised integrity as earlier advanced?

On another score are we not to wonder why we have the failings of the 1994 Project serialized in a national SOAPIE, The Zondo Commission? Is this how we are made viewers of our national drama through the ‘actors’ of the commission instead of participants in it?

In the final analysis, we shall ask again, Quis custodiet Ipsos custodes?

Clyde N. S. Ramalaine
A Lifelong Social Justice Activist Political Commentator & Writer is a SARChi D. Litt.et. Phil candidate in Political Science with the University of Johannesburg. Chairperson of TMoSA Foundation – The Thinking Masses of SA