Who judges the judges?

Quis custodiet ipsos custodes? Who judges the judges? In his children’s book Did I Ever Tell You How Lucky you are?, Dr Seuss (the pen name of the writer Theodor Seuss Geisel) describes how a lazy bee is assigned a “watcher” to ensure that the bee works hard enough to produce honey, pollinate flowers and so forth. But when the watcher does not watch hard enough, other “watcherers” are added until eventually the entire town ends up watching-the-watcherers-watching-the-watcher-watching the lazy bee.

Ray Hartle

Seuss was continuing a satirical thread which reaches back to Roman times and is reflected in the question Quis custodiet ipsos custodes?

The Latin phrase raises the issue of how to hold to account powerful individuals or institutions who hold the rest of society in check. It has translated variously over the centuries as “who watches the watchdogs?” or “who guards the guardians?”

In South Africa, it is worth reflecting afresh on “who judges the judges?”

Coincidentally, Seuss’s implication of bees in the narrative is replicated in an essay by Laurence Whitehead, who uses natural analogies, including the pollination work done by bees, to assess democracy promoters in society, such as the judiciary.

“Democracy promoters are themselves potentially flawed moral agents with their own distorting interests and questionably democratic identities,” writes Whitehead.

Our fraternity of judges constitutes an essential part of the government triumvirate established in 1994 and affirmed by the constitution. Apart from their inherent part in adjudicating criminal and civil proceedings, the judges are a critical check on the executive and legislative branches.

Arguably in an era of state capture, this is their most important role.

The Judicial Services Commission is responsible for vetting and recommending for appointment members of the judiciary. It also receives complaints of misconduct against judges. On the surface, the JSC process sets a good standard of transparency for other agencies to emulate. But the JSC has shown itself incapable of dealing with the challenge of judging the judges.

Disciplinary measures against Western Cape judge-president John Hlophe for trying to influence two Constitutional Court judges and against teetotaling but drunk driving judge Nkola Motata, have been hanging around like a bad smell for years.

The JSC currently is the subject of a ConCourt review of its decision-making processes in a case brought by the Helen Suzman Foundation (HSF) regarding the appointment of Mokgoatji Dolamo as a judge of the Western Cape high court over Jeremy Gauntlett whom, many believe, was better qualified for appointment.

The HSF case has wide import, given that it could lead to records of confidential JSC deliberations being made available as public records. This is hugely relevant for the Eastern Cape, where we are constantly left in the dark about JSC decisions, such as not yet appointing a full-time, permanent judge-president to our Bench.

The incumbent, Judge Themba Sangoni, formally vacated his office last month.

In April, the JSC announced that none of Sangoni’s potential replacements had garnered enough votes.

It provided no explanation, leaving speculation focused on the demographic profile of the candidates and the quality of their performances. Patently, the judges interviewed in open sessions in April missed opportunities to show they understood the challenges of the division and possessed the leadership capabilities to run it.

This is not the first time the JSC has failed to explain its failure to appoint.

In 2014, the JSC inexplicably delayed replacing retired Bhisho Judge Joe Ibrahim.

A year later, after Bhisho Judge Duncan Dukade died, it again failed to appoint a replacement, deciding that Mthatha judge Nozuko Mjali, who had applied for the vacancy, had not advanced “good cause” for a transfer to Bhisho.

Minimum standards for appointment to the bench include professional qualification, knowledge of the law and experience in the hurly-burly of trials and motion court. Some aspects are less easy to pick out, such as a candidate’s legal philosophy, or a surly disdain for the people in whose interests the law is practiced and decided.

There are no prescripts for what makes a good judge-president. But it would include being ethical and trustworthy, a hard worker, a goal- and delivery-oriented leader, team-focused, proficient in the best practices of the field, technically savvy. The JP appointment process however, demands more rigorous attention to administrative skills than courtroom experience.

On October 3, the JSC convenes the re-loaded version of interviews for the JP post. Initially three candidates were shortlisted but, surprisingly, in its schedule of interviews published this week, only two candidates are listed:

l Judge David van Zyl is Bhisho High Court deputy judge-president. He was part of the previous group of judges interviewed – and rejected – for the position. He did not have the support of Grahamstown advocates on the basis that his appointment went against transformation imperatives.

Ironically, his appointment to Bhisho deputy judge-president was stalled for five months after President Jacob Zuma received a complaint from an Mthatha firm of attorneys about his conduct. Neither the gist of the complaint, nor how it was resolved was ever disclosed by either Zuma’s office or the JSC, an issue at the heart of the HSF court application; and

l Judge Selby Mbenenge ran a busy practice as a senior counsel before successfully applying for a position on the Bhisho bench two years ago. Months after his appointment in 2015, he was back at the JSC, applying for promotion to deputy judge-president of Bhisho, and faced tough questioning about his “uncontrollable ambition”. However, Mbenenge presented valuable pointers to how he might fix the leadership malaise in the division, leaving little doubt about his suitability for appointment but failing to convince the JSC, which recommended Van Zyl.

Following the April interviews, he was elevated to acting deputy judge-president in Mthatha, presumably as a precursor for a run at the JP job.

Judge Xola Petse, who has been on the Supreme Court of Appeal since 2012, was initially shortlisted for the October interviews. When asked three weeks ago about rumours he was withdrawing, Petse said: “As I am speaking to you now, I’m shortlisted for next month.” He did not respond to e-mails and calls to his office yesterday.

The absence of explanatory pointers from the commission raises questions that cry out for answers:

•What motivated Petse to apply for the position and why is he no longer in the running?

•If Van Zyl is regarded as eligible enough to be shortlisted twice in quick succession for the same vacancy, why was he not appointed in April?

•And, if transformation was an issue before, then surely it remains so now?

•So is his name simply on the list this time to make up the numbers and give a veneer of respectability to a one-horse race?

• How did the JSC resolve the earlier complaint against him?

•Is Mbenenge’s appointment as ADJP in Mthatha reflective of his putative favourite status for even higher office?

•Are there really no other judges in the province – especially from among the nine eligible women judges – with more experience than Mbenenge, worthy of consideration for elevation to the JP’s office?

•Are women candidates boycotting the process because of the JSC’s treatment of judge Nozuko Mjali during her 2015 request for a transfer when she was subjected to vicious cross-questioning? The Open Democracy Advice Centre said at the time the issue posed the question of whether the judiciary accommodated women.

It is also worth asking candidates what, in their previous or current roles, they have done to address horrendous infrastructure backlogs (notably Mthatha and Bhisho) and legal service delivery problems (the unresolved jurisdictional issue of apartheid’s “white corridor”) in the division. Have they promoted or retarded inter alia accountability, transformation of the bench, transparently identifying women practitioners for acting appointments, mentoring acting judges and especially providing support for women with children in the light of the Mjali issue?

Ameliorating Mjali’s case to better serve her family’s interests is a touchstone for any prospective JP. The head of division can deploy judges as he or she believes necessary. Will either of the candidates do the humane thing and redeploy Mjali to Bhisho if elevated to the JP post?

If the ConCourt finds against the JSC and in favour of the HSF, the JSC must reexamine its rules of engagement to ensure that deeply personal matters – which are not necessarily in the public interest for us to know – are kept confidential.

Chief Justice Mogoeng Mogoeng and Eastern Cape premier Phumulo Masualle – who sits on the JSC whenever an Eastern Cape vacancy is decided – have failed to account to the people of the province why we are getting the short end of the stick.

Following Seuss, the judges and those on the JSC who judge them could do with more judges judging them.

It seems we must all become (with apologies to JSC member Julius Malema) much more “judgarag” than we have been to date.

Ray Hartle is an Eastern Cape journalist

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