Who judges
the judges?
From City Press, March 17 2024
RAY HARTLE
In a history covering the Makhanda (previously Grahamstown) High Court since 1984, when apartheid-era courts were preoccupied with cases reflecting the extreme brutality into which the country had descended – “necklacing” killings, state murder, “terrorism” trials, land dispossession, forced removals and detention without trial – I reported on every occupant of the judge president’s chambers in Makhanda.
It never occurred to me that there was anything unusual in asserting my right to ask difficult questions of these very powerful individuals.
However, there is currently a sense among some on the bench and in the legal profession that questioning or criticising judges – or even lawyers – can only ever be due to a critic’s nefarious, even racist, agenda.
Current Chief Justice Raymond Zondo has led such characterisation of criticism of the judiciary as unfair and intimidatory.
For over two years, I have been asking officials in the judiciary, the Office of the Chief Justice and the Judicial Service Commission (JSC), as well as assorted legal professionals about a wide range of issues that warrant investigation within the Makhanda High Court.
SEXUAL HARASSMENT COMPLAINT
In the past 14 months, I have been writing about the complaint of sexual harassment against Eastern Cape Judge President Selby Mbenenge.
I have also been concerned about judges and lawyers inveigling themselves into one or another role in support of Mbenenge, outside of legislated processes.
Clearly, the latter focus in my reporting has raised hackles in some quarters.
Before my first report on the Mbenenge complaint was published, I was told that three Eastern Cape judges had been earmarked to be part of an informal mediation session between Mbenenge and Andiswa Mengo, the Makhanda High Court official who has accused him of harassment, presenting what I thought would be a clear instance of inappropriate and possibly illegal interference with a formal process.
When one of the three refused to participate in the informal process, the person doing the approaching decided there was no point in inviting the other two judges and the attempt at mediation ended.
Later, I wrote about Eastern Cape judges Mandela Makaula and Lindiwe Rusi interposing themselves in the complaint process.
Makaula offered to convene a roundtable discussion between Mengo and Mbenenge, but backed off when Mengo asserted her right to follow the formal process.
Rusi allegedly also acted as a “middle person” in calling Mengo and confronting her about her complaint against “uTata”.
In reporting on this incident, I referenced the support Rusi enjoyed, during her JSC interview for permanent appointment to the bench, from Mbenenge and JSC member and Mthatha attorney Mvuzo Notyesi.
Neither Makaula nor Rusi offered an explanation of why they would regard it as appropriate to engage informally with an official whose complaint was the subject of a formal investigation by the judicial conduct committee.
‘OPEN LETTER’
In December last year, Rusi elected to publish an “open letter” addressed to Zondo, in which she accused me of perpetuating narratives about her contained in an anonymous complaint.
The letter was neither a formal complaint through any channel, which would require complying with procedural parameters, nor was it a submission – as a right of reply – to a media article, which would have to pass stringent editorial policies intended to prevent the publication of defamatory allegations, outright lies, malicious innuendo or fake news.
I suggested to the Office of the Chief Justice that there are limits to the processes a judge may follow in ostensibly responding to being maligned by anyone.
Zondo has agreed. In a response I finally received on 8 March to my repeated queries about Rusi’s letter, the Office of the Chief Justice stated:
“The Chief Justice did ultimately get Judge Rusi’s letter, but was not going to respond by way of an open letter. The Chief Justice wrote to the Acting Judge President of the Eastern Cape Division of the High Court and asked him to advise Judge Rusi appropriately.
“The Chief Justice believes that Judge Rusi should not have written an open letter to him, but should have used internal channels if she had concerns that she wished to raise.
However, let us put into context Rusi’s actions on which I reported: she called a complainant who had already made a formal complaint against Mbenenge. She has never denied calling the complainant.
Unless the call was entirely and unequivocally benign, unless Rusi’s statements during the call were agnostic to the complainant’s claim, Rusi interposed herself into a formal process in which she had no role, as far as I know.
Mbenenge’s long-time friend Judge Bantubonke Tokota was acting deputy judge president of the Mthatha High Court in November 2022 when, Mengo alleged, Mbenenge had invited her to his chambers in that court and, pointing to his crotch, asked: “Do you see the effect that you have on me?”
Tokota told the judicial conduct committee, which was considering whether to recommend referring the complaint against Mbenenge to a judicial tribunal, that video footage which he perused did not show Mengo entering the judge president’s chambers as she claimed.
IMPLICATING HIS FRIEND
Perhaps Tokota should have elected not to involve himself in investigating a matter allegedly implicating his friend.
Tokota and Mbenenge have openly discussed their friendship. When Mbenenge applied to be admitted as a judge in Bhisho in 2015, then Advocate Tokota was his nominator, writing in a letter of support of how they had become colleagues in the justice department head office of the former Transkei bantustan.
In 2018, both judges presided at the Makhanda High Court swearing in of Mbenenge’s daughter Nontlahla as an attorney.
Tokota was also part of the 2022 full bench – along with Deputy Judge President David van Zyl and Judge Avinash Govindjee – which took umbrage at the tone of concerns raised by litigant Ikamva Architects in a civil case for damages of R41 million after it had been pushed off the multibillion-rand contract of the provincial departments of health and public works to refurbish East London’s Frere Hospital.
Ikamva said Mbenenge had been potentially conflicted when he ruled that a full bench needed to be constituted to deal with a legal issue which he had argued a decade earlier, as an advocate representing the government departments.
Van Zyl told Ikamva counsel during argument:
“Often, aspersions are cast on the judiciary without any factual basis at all … It creates an opportunity for opportunists with their own agendas to besmirch the judiciary.”
I have often wondered which “opportunists” Van Zyl had in mind.
Lumping Ikamva with a punitive costs order, Van Zyl held that an affidavit objecting “to these routine matters borders on contempt and undermines respect for the judiciary”.
This week, the National Association of Democratic Lawyers took issue with my characterisation of a troubling call in January last year from its prominent member, Notyesi, that he was attempting to dissuade me from writing about the pending complaint against Mbenenge.
CONFOUND TRANSFORMATION
I wrote on my blog that Notyesi had called me on Tweede Nuwejaar (2 January) 2023 after apparently hearing that I was investigating the complaint against Mbenenge.
He imputed that if I wrote about the issue, it would confound the transformation of the Eastern Cape bench, presenting it as a division divided by race.
The National Association of Democratic Lawyers questioned the timing of my post, describing it as “[containing] appalling insults … crude, inappropriate and misleading … deplorable, offensive … unacceptable … distasteful … slanderous … inherently malicious … disparaging”.
The organisation suggested I had “some ulterior motive… [in intimidating] Notyesi in his performance of duties as a member of the JSC and activist” and that it could not “discount racial motivation” for my article.
It is enticing to imagine – in the light of the dismissal by President Cyril Ramaphosa of John Hlophe and Nkola Motata as judges – that our country has appropriately answered the question: “Quis custodiet ipsos custodes?” (“Who judges the judges?”)
However, the fact that the process took 15 years to be concluded and required legal intervention by civil society before motions to impeach the two judges were presented to the National Assembly gives the fantasy to such imaginings.
Even as MPs were preparing the vote on the impeachment, the JSC decided, in the complaint of sexual harassment against Mbenenge, that it was unnecessary to recommend that Ramaphosa suspend him until a judicial tribunal had adjudicated the complaint.
The outrage directed at reporting on Mbenenge is a warning that the question has most certainly not been finally answered.