REYNO DE BEER AND MIKE WHEELER
We fully agree with the gist of Tourism Minister Lindiwe Sisulu's criticism of the judiciary. It is more than warranted: the discussion about its state is overdue.
Sisulu's opinion largely matches our own; it is based on our experience with the judiciary. In short: we must confirm that Sisulu has hit the nail on the head. In the meanwhile, Acting Chief Justice Raymond Zondo has resorted to pretend outrage over what he claims to be an "attack" on the judiciary, and "completely unwarranted".
Zondo should know that blaming the messenger does not solve anything.
At this point in time, Zondo is the highest member of our judiciary. He presides over the system that is supposed to ensure justice for all of us. His and his subordinates' legal minds, as well as the proper functioning of the judicial administration he commands, are to ensure that we all have the option of proper legal recourse.
In the event that things go sour in a dispute we cannot resolve on our own, we turn to the courts for assistance and must be able to rely on independent, just and fair adjudication, administered without fear or favour by all judges and magistrates alike.
Whether the dispute concerns our neighbour or our government – the principle remains the same. From the moment we can no longer rely on our presumption of unbiased adjudication, the legal system has ceased to exist as such and Madame Justice has left the building.
The, let's say it as it is, legal theft of "our" own judgement, which remains the only DMA-related court finding in South Africa that had the interest of the people at its core, is a case in point. This has been stated in detail before, most notably in our papers before the African Union.
The reality is that without a properly functioning judiciary the notion of democracy falls flat on its back. And that is where the actual concern lies. It is therefore important that the top member of our judiciary knows exactly what is cooking in his joint, so to speak. Since Zondo himself bemoaned "the absence of any mention of specific judgments in [Sisulu's] column" he probably doesn't.
So, let's have a quick glance at some of our files to alleviate this shortcoming:
1. November 2020, High Court Pretoria: a public benefit organisation brings an urgent matter concerning human rights infringements caused by some of the DMA regulations. Cited are the Minister of COGTA and the President, LFN is Applicant amicus.
Without any application for joinder, the Minister of Health somehow becomes part of the proceedings. His high-powered legal team "settles" the matter behind closed doors. Since there is absolutely no provision in law for anybody to join a proceeding without being a party, he is in no position to settle.
Attempting to cover up the shenanigans, the court then "orders" the applicant to withdraw. Nowhere in the world can a court do that. Rumour has it that the organisation's representative also receives a rather large pay-out.
2. May 2021, Supreme Court of Appeal, Bloemfontein: In the COGTA application against LFN before the SCA, LFN has reasonable apprehension of bias and brings an application for the bench to recuse itself. The bench refuses to properly adjudicate this application and proceeds unlawfully with the hearing in the main matter. LFN, consequently, cannot partake in the hearing. When LFN evaluates its options for recourse, the record of that part of the proceedings is claimed to have been lost. Without proper record, there is no proper recourse.
Since the proceeding was available online, foreign legal teams have observed the malaise and offer LFN to bring the judges in question before a suited international tribunal. LFN declines.
3. December 2020, High Court Pretoria: Three legal bodies have applied to be heard in relation to their claims of unconstitutionality of the beach closures. The matters are heard together. LFN has submitted its amicus application for the second case. The presiding judge admits beforehand to not have read LFN's application but states that he won't hear it: "Not enough time."
When the first case ends, LFN's connection to the virtual hearing is cut by the court. The connection is re-established just as the third matter begins. When LFN complains, provision is made to hear LFN the next morning. When the virtual link is established, LFN is informed that judgement has already been delivered. When LFN requests the official recording, the court admits to not having any such thing.
4. March 2021, Constitutional Court, Johannesburg: LFN submits an Application for direct access in which it claims that the government violated its own procedures in more than ten instances in the promulgation of the National State of Disaster. In the same application, LFN also argues that the legal definition of disaster, as per the Act, was never met. Within just five days and without having read the Argument from both sides, the court declines the Application for "lack of prospect of success". On the basis that the judgement was flawed, if not fabricated, and that it did not withstand scrutiny on six points, LFN applies for rescission of that judgement. The rescission was later declined without any reasons given.
5. June 2021, High Court Gauteng Division Pretoria: A public benefit organisation applies for an order to compel the Judicial Services Commission to re-interview applicants for judges' positions at the Constitutional Court. Even though the applicant's position is weak, the JSC agrees to re-interview the candidates. Since the JSC is the regulator of the judiciary and is manned to the brim with legally qualified minds, the settlement seems odd. On the basis of the court allegedly "certifying" the validity of an agreement that did not exist, LFN prepares to enter proceedings. In the process, the JSC admits that its commissioners never properly agreed to the settlement. The three senior judges who had made the "settlement" an order of court then stated that they had reviewed the matter and rescind the JSC's decision. Suddenly, the JSC also produces affidavits claiming that more than half of the commissioners now remembered to have agreed to settle. The initially deployed "round robin" excuse for violating procedures they have forgotten.
These are some recent examples of instances in which members of the judiciary were involved in conduct unbecoming, improper or even unlawful procedure, collusion and, very possibly, some form of bribery; instances arising from matters which LFN is aware of in detail.
Should Zondo still believe that all is well with our judiciary and that Sisulu's criticism of the judiciary would be "completely unwarranted", that there would be no "proper factual basis" and that her criticism would constitute "insults", we remind him that the truth can neither be insulting nor defamatory.
Instead of Zondo trying to defend the indefensible, we suggest he instead cleans up the mess. He could begin by retracting his own fallacious statements at his next press conference. This would set a welcomed signal to the many members of the judiciary who also lament its dismal state, caused by some rotten apples within.
Should the Acting Chief Justice then indeed jump over his shadow, climb down the rabbit hole and initiate a proper mop-up of his house, he might actually earn the respect he seeks to be shown, and rightfully so. Ours might just be the first.
Reyno De Beer and Mike Wheelerare members of social pressure group Liberty Fighters Network (LFN).