Judging guardians, judging judges

South African Times newspaper reported on 27 January 2012 that the country’s top judges had “vehemently opposed” Justice Minister Jeff Radebe’s plans to have them declare their financial interests. And in the words of South African Communist Party – the judges’ comments have left me “extremely concerned”. And that’s putting it mildly.

Judge President of the Gauteng division of the High Court Bernard Ngoepe and Supreme Court of Appeal judge Robert Nugent told Parliament on my birthday (26 Jan), according to the report, that the country’s 200 sitting and retired judges were against draft regulation aimed at compelling them to disclose their assets and business interests and those of their children and spouses. This, sadly, despite the judges claiming to occupy occupations that gives them the rightful obligations as the custodians of the Constitution and to uphold it at all the time. The regulation is seen as the minister’s plan to allegedly reform the judiciary.

Senior official at the Department of Justice, JB Skhosana, told the newspaper at the time that the law compelling judges to declare their interests was only passed in 2010, meaning judge are not obliged at this stage to declare their business interests. Skhosana is quoted as saying: “The law [that] requires declaration was only passed in 2010 and the law requires regulations to be passed and this is the processed”.

Many have seem the regulation as the ANC’s impatience with the judiciary as it received what is seen as an attack by the ruling and country’s president Jacob Zuma and ANC general-secretary Gwede Mantashe. Their comments follow after some of the country’s court made judgments that were seen as anti-government by the ruling party and it alliance partners. Zuma is quoted saying in November last year that: “our view is that the executive, as elected officials, has the sole discretion to declare policies for [the] government” and that it (the executive) “must be allowed to conduct its administration and policy-making work as freely as it possibly can”.

Mantashe, on the other hand, is also quoted saying: “one of the things that is dangerous, the independence of the judiciary and the separation of powers, must never be translated into hostility, where one of those arms becomes hostile to the other”. “Unless this issue was addressed, it was going to cause instability. It undermined the other arms of government”, said Mantashe.

According the Times report the judges argued that to date there had not been any evidence to support the introduction of the strict regulation, claiming there has only been one sitting judge found to have carried out questionable financial practices (my emphasis). This refers to an incident in which controversial Western Cape Judge President John Hlophe was found by Judicial Service Commission to have apparently moonlighted for Oasis Asset Management and thereby receiving a R10000 a-month when he gave the company permission to sue fellow judge Siraj Desai.

Nugent claimed, according to the report, that attempts through regulation to have judges disclose their business interests were “irrational intrusion” of privacy. He said there was “no basis on which these regulations, as far as they apply to the family, will have any effect at all other than to be a major invasion of privacy”. Nugent threatened to even challenge the regulations in the Constitutional Court if they were adopted in its current form, according to The Times newspaper and according to minutes of that meeting in Parliament. “They are irrational; they serve no legitimate purpose and they go far beyond any legitimate purpose one might speculate on”, said Nugent.

The Times claimed Nugent said judges would only support a framework where only sitting judges declare their business interests, a register of which should be kept by the Chief Justice. He also planned to have public access to the register to be strictly limited to those who would show reasonable grounds to ask the Chief Justice for it. “If you feel that there should be disclosure by sitting judges, we are amenable to that, but respect the privacy of that judge”.

ANC MP Amos Matila accused the judges of opposing the regulation because some within the judiciary would not explain their wealth. Matila said “a lot of judges with small salary that they earn, as they retire they own huge farms, they own a lot of things, you don’t know where they got these things from. They can’t account”, according to The Times.

John Jeffery, another ANC MP, also supported the regulation, saying although the judges raised valid points – the regulations were meant to ensure a “judiciary that is beyond reproach”. But Ngoepe disagreed, saying the regulation, if successful, “we will not be able to have people appointed as acting judges if these regulations stand as they are, we are going to hamper the administration of justice”. “We don’t appoint acting judges as a favour to them; they get appointed as a favour to us; we need them, they don’t need us”.

Ngoepe said: “I need to run those courts. As it has happened in many instances, some of them just decline”. “Now when you are going to require them to make a disclosure of this nature, how many are you going to get”. He said according to minutes of that meeting in Parliament that if the regulation is passed, “then the administration of justice would be hampered”, adding that there were 22 acting posts available in his court and that in a three week period there could be 66 acting judges serving three weeks each, asking: “Would all of them have to disclose their interests?” I believe that the attitude of the judges – at least represented by Nugent and Ngoepe – is very disappointing and shocking.

In a speech made in that week at the University of Cape Town – appearing on Sunday Times newspaper on 29 January 2012 – former South African Chief Justice Arthur Chaskalson, quoting former Chief Justice of Australia, Justice Murray Gleeson said that: “As the guardian of the constitution, the high court from time to time disappoints the ambitions of legislators and governments. This is [art of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced”.

It is therefore surprising (or maybe not) that the “guardians” Justice Chaskalson so defended in that week are the very same bunch that do not want to live up to those “checks and balances” that they have set – through their judgements – for other arms of government. It is further worry, for me as a layman, whether both Nugent and Ngoepe had read and analysed the former Chief Justice’s speech and whether it has/had any relevance to their “guardianship” of the Constitution (as always claimed).

As Mpumelelo Mkhabela wrote on Sowetan newspaper 30 Jan 2012: “It is for the same reason the president, ministers and members of parliament declare their interests … to avoid conflict between their public duties and their private interest” that judges as “guardians of the constitution” – just as Justice Chaskalson had noted in that week – should also declare all their business interests, their children’s and spouses’.

This is also because these “guardians” are/will be paid by taxpayers, a bunch of us they should be accountable to. More than anything else, these bunch of “guardians of the constitution” should declare all their interests because they are not and should not be before the law.

And as the Constitution they claim to guard clearly and eloquently states – “Everyone is equal before the law”. Now who the heck are they these judges claiming to the the constitution’s “guardians”?

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