Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
The Motata ruling – Structural and human problems behind failure of JSC to protect integrity of judicial system
The Judicial Service Commission has rightly been criticised in recent years for the atrocious manner in which it sometimes deals with the selection and disciplining of judges. The recent judgment of the Supreme Court of Appeal, invalidating a decision of the commission that the dishonest and bigoted actions of Judge Nkola Motata did not warrant impeachment, serves as a stark reminder of just how laughably inept and dishearteningly dishonest some of that body’s decisions have been in the past.
When the Judicial Service Commission (JSC) considers the appointment of judges, it is not an impartial or apolitical body. This is by design. Eleven of its members are elected politicians representing political parties. These are the minister of justice, six members of the National Assembly and four members of the National Council of Provinces. Additionally, four members of the JSC are appointed by the President as head of the executive, which means they serve at the pleasure of the President and are thus, in effect, political appointees.
I have argued before that while it may be desirable to reduce the number of politicians serving on the JSC, some participation by elected politicians in the appointment of judges is a good thing, as this enhances the democratic legitimacy of the judiciary by injecting a democratic element into the selection process.
When self-serving ANC leaders (and other shifty characters) attack the judiciary or individual judges and claim that judges are biased against the governing party, or harbour deep animosity towards some of its leaders, they often talk as if the party had no influence over the appointment of judges. But this is nonsense.
A party in government that has a big say in the appointment of ordinary judges and whose leader appoints all the judges of the Constitutional Court could hardly complain that those very judges harbour a deep animosity towards the party or some of its members.
When politicians like Jacob Zuma and Busisiwe Mkhwebane (as well as their loyalists and enablers within the legal profession) complain that judges are biased or harbour a deep animosity towards them or their claimed ideological project, what they are usually complaining about is that judges are too impartial, and thus that judges are not sufficiently biased in their favour.
Such attacks remind me of the infamous statement made by an apartheid-era minister of justice who once remarked: “The problem with these judges is that once they are appointed they think they are there on merit and they start thinking for themselves.”
While it is therefore not inappropriate that some elected politicians serve on the JSC when it considers appointments to the bench, it is wholly inappropriate for politicians or political appointees to be involved in any decision on whether a judge is grossly incompetent or is guilty of gross misconduct.
Section 179(5) of the Constitution recognises this, as the six National Assembly members and four NCOP members are excluded from participating in JSC decisions on the impeachment of judges.
But as last week’s Supreme Court of Appeal (SCA) judgment in the case of Freedom Under Law v Judicial Service Commission and Nkola Motata illustrates, the exclusion of the elected politicians from JSC decisions on whether a judge is incapacitated, grossly incompetent or guilty of gross misconduct, has not prevented the JSC from making entirely irrational decisions based on political or other loyalties, instead of on the facts and the law. (Of course, the same is true of many of the decisions the JSC has taken over the years to shield Judge President John Hlophe from accountability for his unethical behaviour.)
In the Motata case, a majority of the members of the JSC rejected the findings of a Judicial Conduct Tribunal which had found that Motata had made himself guilty of gross misconduct. The gross misconduct findings related to both Motata’s drunken and bigoted tirade at the scene of a car crash and the dishonest manner in which he conducted his defence in his subsequent drunk driving trial. Because of this decision, it declined to refer the matter to the National Assembly for possible impeachment.
By doing so, the JSC failed to “protect the integrity of the judicial system”.
It failed “to be sensitive to the expectations of a reasonably well-informed and dispassionate public that holders of judicial office would at all times remain worthy of trust, confidence and respect”.
In short, as the SCA judgment amply demonstrates, the JSC protected the judge instead of protecting the integrity of the judiciary. In doing so, the majority of JSC members ignored the proven facts and invented facts of their own.
Notably, the majority of JSC members had rejected the finding by the Tribunal that Motata had acted dishonestly when he falsely maintained that he had not been drunk at the time of the incident. It had done so by blaming the lawyer who represented Motata at his drunk driving trial for advancing this defence.
In other words, it argued that it cannot be concluded that Motata advanced a dishonest defence because he never testified at his drunk driving trial to that effect. It was his lawyer who submitted that he denied that he was drunk.
The majority of the JSC even claimed that Motata was “being crucified, terminally so, for words which were uttered not by him but by counsel, who was never called to explain his choice of words”.
But as the SCA judgment makes clear, the argument ignores the facts and is thus both illogical and dishonest.
This is so because Motata himself had falsely repeated under cross-examination before the Tribunal that he was not drunk at the time of the crash. (Earlier, he had falsely claimed that he only had two glasses of wine to drink on the night of the crash.)
Moreover, during the cross-examination before the Tribunal judge, Motata also admitted that his legal representative at the drunk driving trial had not misrepresented his instructions to any appreciable or significant extent. Yet the majority found that the mistake was that of his advocate and sought to excuse Judge Motata on this basis.
While the SCA judgment goes some way to repair the damage done by the JSC decision, the question remains of what could be done to prevent such a failure in future.
One option would be to amend the Constitution to exclude the minister of justice as well as the four presidential nominees from involvement in JSC deliberations on disciplinary matters. These are all political appointees and may thus be more likely to make purely political decisions when dealing with such matters.
Another option would be to adopt a more stringent test that would only allow the JSC to override the findings of the Judicial Conduct Tribunal in the most exceptional cases.
But, ultimately, the problem is not merely a structural one, but also a human one. In the case of Judge Motata, the JSC would not have made the irrational and dishonest decision to protect Motata if different individuals had served as the presidential nominees and as the nominees representing the legal profession on the JSC.
In this sense, the failure of the JSC to protect the integrity of the judicial system was not only caused by a bad system, but also by bad people.
