In this fifth segment in a series, Vuyani Ngalwana SC is in conversation with the Judge President of the Gauteng High Court of South Africa, Dunstan Mlambo.
We explore more of the Man behind the Judicial Robes and gain some insights on his views on the following issues:
- Is the perceived “Notoriety” of the Pretoria High Court Justified?
- What does the preventing of the President in the “State Capture” case from exercising his constitutional power to appoint the Judge to Chair a Commission of Inquiry say about the presumption of Impartiality in a Judge?
- What’s your view on South Africa’s briefing patterns?
- Do Judges lose their political rights and free speech rights just for being Judges?
One cant a be a judge in his own case.simple as that
One cant be a judge in his own case.indeed judges should steer clear of polarising matters.we all know what happened to DCJ Moseneke.
Thank you Advocate Ngalwana for this initiative. This is a great initiative. I think judges must speak to the public in such forums and not just through their judgments.
I think you asked the JP a very key question about the role of the judiciary and other repositories of raw constitutional power such as the President. Your question was in relation to the decision, which the JP was part, involving a review of the Public Protector’s remedial action. However, the judge’s response to the role of the president in the state of capture case was less than satisfactory. I was hoping the JP will help us understand the rationale of the decision which confounded many known constitutional principles. The JP’s response sounded like a law student, who received half marks in an exam question and then comes to a lecturer to query/review their marks and then during the conversation with their lecturer about their responses in the exam the student realizes the full extent of the question that was asked and why they missed the mark. I get students like this all the time and after discussions they begin to appreciate why they got less marks. A student must always read and appreciate all legal issues in an exam question before responding to get full marks.
In the same way, I think a judge must always assess the full implication of his judgment, especially when dealing with constitutional principles like separation of powers like the state of capture case. Remember that the Constitution expressly grants the President as Head of State the power to appoint commissions of inquiry. The cases of Hugo (1997) and SARFU (1999) (para 38) judgments confirm this and said this is a power conferred by the framers to the president alone. So why would a court rule that the president is not allowed to exercise this power? Didn’t the framers contemplate that a president may very well be part of an investigation in which he appoints a judge? How do you reconcile the state of capture case with other constitutional principles like judicial independence?
Thus, I was dissatisfied by the judge’s response to your question because it showed that the court did not fully appreciate the full extent of its decision in the state of capture case. In his response to your question, the JP explained that the court looked at a narrow aspect of the issue on whether the President should appoint a commission of inquiry or not given that he was implicated. He also mentioned that the court did not consider the implication of their decision on the presumption of impartiality of a judge who serves in any commission of inquiry. This narrow interpretation of the law that the JP explained in your talk should have been explained in the court decision to help us understand the judgment and its rationale. It is problematic that the court was silent on these questions. A beautifully written judgment should have addressed these questions.
The sad part is that this case is now precedent even though (in my view) it was not properly justified, which is not good for a new democracy that is building its political constitutional jurisprudence and society. When judicial decisions are not properly justified, they create a perception (rightly or wrongly) that the court may be deciding in a certain way to appease the public. Despite the alleged conflict of interest, the court should have properly explained why the President was prevented from appointing a Commission of Inquiry when the text of the Constitution and jurisprudence of the highest court confirms that this is the domain of the President alone. As I listened to your discussion with JP, I recalled the recent case EFF v Gordan  ZACC 10 at para 97 where the Con Court said:
“it must at all times be remembered that courts must show fidelity to the text, values and aspirations of the Constitution. A court should not be moved to ignore the law and the Constitution, and merely make a decision that would please the public. The rule of law, as entrenched in the Constitution, enjoins the judiciary, as well as everyone within the Republic, to function and operate within the bounds of the law. This means that a court cannot make a decision that is out of step with the Constitution and the law of the Republic.”
I felt that the Pretoria High Court did not adhere to the above principle in the state of capture case and a few other cases where JP was part. I am busy writing about some of these issues in academic journals.
Thank you again Advocate Ngalwana for this initiative.
Many thanks, Professor, for an insightful comment. If you don’t mind I shall bring your comment to the JP’s attention.
I think you may be right. The reasoning (at paras 141 to 150) of the “State Capture” judgment leaves much to be desired.
For a start, the drawing of parallels between limitations on powers conferred on a president by the Constitution, on the one hand, and limitations on a judge’s duty to sit and decide cases, on the other, seems misplaced. Judges do not have a power equivalent to that conferred only on the president by the Constitution. And for the court simply to cite “conflict” of interest by the president and “public perception” as bases for denuding a president of his constitutional power without any analysis of what constitutional implications this may have, is both troubling and an opportunity lost to make other jurists and the public alike fully to grasp the enormity of this judgment.
Also troubling is what this judgment means for the impartiality of the judge appointed by the president to chair a commission investigating him. All judges are appointed by the President. Taken to its logical conclusion, the import of this judgment is that every judge hearing a case in which the president is a party cannot be expected to be impartial because s/he is tainted by being appointed by a president who is “conflicted” and so “public perception” demands that every such judge recuse himself or herself. It is an intolerable proposition.
Please do share your articles with me. I’ve been thinking of doing a critical analysis of this judgment but my plans are too grand and that has prevented me from even starting.