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Time for judges’ to walk their talk on independence, impartiality

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Picture: Timothy Bernard / African News Agency (ANA) / Taken on March 24, 2022 – Deputy Chief Raymond Zondo is announced Chief Justice as of April 1, 2022. The effectiveness and independence of judges has become questionable lately. Lack of consistency when delivering judgments on similar offences puts into question their impartiality and independence, the writer says.

By Bheki Mngomezulu

Recently judges – those serving and those retired – have been in the media for various reasons.

Former Chief Justice Mogoeng Mogoeng shook President Cyril Ramaphosa’s Cabinet when he openly criticised the president on how he has handled certain issues – including his CR17 campaign. Specifically, he took issue with the secrecy in which the campaign was handled.

Coupled with the Phala Phala saga, Ramaphosa’s activities could not evade Mogoeng’s scathing attack. Even Parliament’s failure to act promptly on pertinent issues did not please Judge Mogoeng. He raised serious concerns about the slow pace in the prosecution of those implicated in the Zondo commission’s report.

For his part, Chief Justice Raymond Zondo triggered a hot debate when he publicly commented about issues that are being ventilated in law. Among them were the charges laid against former president Jacob Zuma.

Justice Zondo also commented on Parliament’s delay in implementing some of the recommendations made by his commission. While it is true that Justice Zondo was raising genuine concerns, his statements were unwarranted.

As the sitting justice of the Constitutional Court, it was unbecoming of him to make public comments about issues that are still to land on his table. Having made his views public on the matters, how could he be objective if the issues go to the Constitutional Court?

Within this context, Justice Zondo, assisted by the heads of courts, convened the Judges’ Conference in Sun City. The conference was set for December 4 to December 7. Its stated objective, according to the statement issued by the Office of the Chief Justice on November 29, was “to discuss matters of interest to the judiciary in relation to its constitutional role and mandate”. The last of such meetings to reflect on how the judiciary had executed its constitutional mandate was held in 2012.

The main aim of the conference was “to provide judges and magistrates with a platform to, among others, reflect on judicial independence including institutional independence, which will ensure that the chief justice receives adequate support to fulfil his functions and other matters concerning the functioning of the courts to ensure that courts serve the people better”.

Undoubtedly, the aim was justifiable. Other matters stipulated in the announcement pertained to the efficiencies in the court system, resourcing and capacitation of the judiciary, as well as judicial accountability, integrity and the ethical conduct of judicial officers – which included magistrates and judges.

The theme of this conference was cogently thought through and carefully articulated. It was coined: “Towards a single, effective and fully independent judiciary.” What was not immediately clear was whether the judges tacitly conceded that they were neither effective nor independent or if they felt that they met the requirements and simply wanted to confirm them.

However, given the opening statements at the beginning of the article, the effectiveness and independence of the judges has become questionable lately. Lack of consistency when delivering judgments on similar offences puts into question their impartiality and independence.

Having the majority and minority judgments on critical cases, including those concerning Zuma and Ramaphosa, questions the extent to which the judiciary is indeed “single”.

In his opening remarks, Justice Zondo informed delegates that the conference had been convened in response to calls made by members of the judiciary to convene one.

He then told them that this was their conference, which had to be used to ensure that the judiciary earned its respect and enjoyed its credibility as an independent body.

The indictment of the judiciary that it was compromised and captured was refuted by Justice Zondo and Gauteng Judge President Dunstan Mlambo. They argued that anyone making such a claim must substantiate it with concrete evidence. Moreover, the judges appealed to the public to protect judges.

A counter view is that the onus is on the judges to behave in such a manner that it would be difficult for members of the public to find fault in what they do and/or say.

Refuting any form of allegation levelled against judges just because they can does not help their cause. While the view that the public must protect judges cannot be summarily dismissed, equally important (if not more important) is that judges must protect themselves and the offices they occupy. Any reckless conduct will not protect their public image.

One of the resolutions was that the Judicial Services Commission Act may be amended to allow more members to share the workload. Alternative dispute resolution was proposed as a mechanism to reduce the number of cases which remain unresolved.

While the recommendations are justifiable and fair, they do not remove the cloud that continues to hang over members of the judiciary on real and assumed impartiality. The focus should have been on self-introspection, not self-defence!

Prof Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy (CANRAD) at the Nelson Mandela University.