Sisulu Presidency – Searching A Solution to Incompetent Judiciary and State Organs (Law Enforcement Agencies)

By: Paul Ngobeni

Minister Lindiwe Sisulu’s much anticipated candidacy for the president of the ANC and the country will rekindle the hopes of many South Africans yearning to build a capable state within an appropriate ethical framework and the required competent and incorruptible judiciary.

Untethered to Stellenbosch and unencumbered by financial shenanigans requiring sealing by the judiciary, Sisulu is likely to emerge as that leader single-mindedly focused on building  a capable, ethical and developmental state which is a crucial facilitator for the successful execution of government’s goals of achieving the targets of the 2030 National Development Plan. She will lead the charge towards a developmental state that is going to develop the economy, create jobs and improve the conditions of society standard of living through proper corruption-free judicial system.

I say this because she proved herself to be very loyal in implementation of ANC resolutions, unlike those who dilly-dally around radical reforms of the ANC. She proved herself recently on Israel downgrading resolution. Ramaphosa punished her for implementing that ANC resolution. She removed her from that portfolio (International Relations). He did this without explaining to her, as to why she removed her. That should tell you something about the leadership we have.

By the way he (Ramaphosa) dropped the very same Sisulu at the door step of Nasrec conference. He again abused his discretion by removing her from water without telling her what was the fault, but guided by phobia and insecurity. He did this to protect those who Sisulu was about to arrest, who belong to his (CR) faction.

The ANC Women’s League has recently declared that it will continue its fight to have a woman elected president of the African National Congress and the country. The league also condemned the replacement of female mayors and councillors with men, and it says the upcoming local elections must reflect gender parity. Unfortunately through sheer monumental incompetence of the ANC that dream is likely to be deferred as the party failed to register candidates in some wards in at least 36 municipalities and to submit all its proportional representation lists.

Equally exciting is the increasing clamour for the country to appoint a woman chief justice.  Of course these well-intentioned calls must go beyond mere platitudes – they must be based on a correct diagnosis of the challenges within our judiciary awaiting any future president of the country.  That President must emphatically be a competent and experienced woman leader.

Enshrined in the Beijing Declaration, women’s  right  to  participate  in  all  aspects  of  public  life,  including  the executive and the judiciary,  has  been  internationally  recognized   as  a  fundamental  human right. This particularly recognizes the significance of women’s empowerment and their full participation based on equality in all spheres of society, including participation in the decision- making process and access to power, as foundation for the achievement of equality, development, and peace around the world.

Sisulu doesn’t take nonsense, especially on corruption. She is hated by her thieving cabinet colleagues for this, this includes a conniving President by virtue of the benefit of hindsight in the Giyani project. This means that South Africans should not be shocked when his name crops up on corruption in some of these big projects. There are many things that will explain her reshuffle from Human Settlements, Water And Sanitation.

She was on the toes of the people in the high office. This is one of the things that make her much reliable. She fears no one.

Equally crucial, is the colossal challenge requiring Sisulu’s leadership in the shocking level of incompetence prevailing within our judiciary at the highest level, the Constitutional Court. The Apex court imposing a prison sentence on former President Zuma without the benefit of a fair trial and in complete disregard of international law is one example.  To add insult to injury, the Judicial Services Commission’s recent handling of the complaint against Judge President Hlophe reveals complete disregard of the Constitution and the rule of law.

In 2016, Justices Khampepe and  Mbha formed part of the Constitutional Court panel that issued judgment in Nkabinde and Another v Judicial Service Commission and Others.  They dismissed a lawsuit by their colleagues Justices Nkabinde and Jafta on, amongst other grounds,  that “the Chief Justice was disqualified because he is Chairperson of the JSC” and that “all members of the Court may have been compromised because of the personal relationship between colleagues at the Court.”

With full knowledge of that judgment, Justice Khampepe inexplicably acted as a Chairperson of the JSC panel that recently voted to impeach Judge Hlophe. It gets worse because Judge Mbha, (another member of the Constitutional Court panel in 2016) also participated in adjudicating the Hlophe matter.Clearly, it would not only have been prudent but it was mandatory for both Justices Khampepe and Mbha to heed the admonition of the SCA in  Dube & Others v The State (523/07) [2009] ZSCA 28; 2009 where the court stated the following:

‘The rule is clear: generally speaking a judicial officer must not sit in a case where he or she is aware of the existence of a factor which might reasonably give rise to an apprehension of bias. The rationale for the rule is that one cannot be judge in one’s own cause. Any doubt must be resolved in favour of recusal. It is imperative that judicial officers be sensitive at all time. They must of their own accord consider if there is anything that could influence them in executing their duties or that could be perceived as bias on their part.”

Instead of resolving doubts in favour of recusal the two Constitutional Court justices deliberately chose to participate in the JSC hearings without disclosing the findings of the Court that they “may have been compromised because of the personal relationship between colleagues at the Court”.  Even more disconcerting, Justice Khampepe is a former judicial colleague of Nkabinde and is currently a colleague of Justice Jafta.  Khampepe should have been alive to this reality – is untenable for anyone to countenance Justice Khampepe adjudicating a matter where her colleagues are key and material witnesses.

Justices Khampepe, Judges Mbha and Mlambo and all members of the JSC panel were fully cognizant of the fact that judges do not adjudicate matters involving their colleagues from the same Court, especially where credibility determinations are central to the case. They know this from the South African Motor Acceptance Corporation (EDMS) BPK v Oberholzer – 1974 (4) SA 808 judgment which clearly states:

“Where two judicial officers are attached to the same Bench as colleagues and one of them is a litigant or an accused, then there is a reasonable ground for the other legal official to be recused from trying the action …That recusatio judicis suspecti applied in respect of all judicial officials irrespective what their order of rank in the hierarchy of the administration of justice might be. It also made no difference whether the action concerned was a civil or a criminal nature.”

The rule of law certainly requires that a judge subject to automatic disqualification not preside over a matter. A good example is the U.K. case of R v Bow Street Metropolitan Stipendiary Magistrate & others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 where a judgment was vacated because one of the judges had a conflict of interest and an appearance of bias.

Justice Khampepe and Mbha were judges in the 2016 Nkabinde matter, and this automatically disqualifies them from presiding over the matter in which the credibility of Justices Nkabinde and Jafta stood to be rigorously examined.  Accordingly, their report regarding JP Hlophe’s removal should have no legal status in the National Assembly.

President Sisulu (Elect) should also address the sheer incompetence of our judges and legal professionals on the JSC, that of JSC being improperly constituted when it decided the Hlophe matter.  That renders the entire findings null and void. In Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115 (14 September 2012), the SCA ruled that the absence of President of the SCA from meeting of the JSC where his deputy was also not invited meant that the JSC was not properly constituted, and the decisions at the JSC meeting were consequently invalid.  That is exactly what the repeat offender JSC has done in the recent Hlophe decision.  Section 177 (7) of the Constitution states:  If the Chief Justice or the President of the Supreme Court of Appeal is temporarily unable to serve on the Commission, the Deputy Chief Justice or the Deputy President of the Supreme Court of Appeal, as the case may be, acts as his or her alternate on the Commission.

In this regard, Judicial Service Commission and Another v Cape Bar Council and Another (818/2011) [2012] ZASCA 115; 2012 (11), held that the determination of whether or not a meeting of the JSC was properly constituted must be made with regard to who was present at that meeting and the purpose for which it was held. Neither Maya, the President of the SCA, nor Petse her deputy, were present when the JSC voted to find JP Hlophe guilty of gross misconduct.  Accordingly. the meeting and the decisions taken were unconstitutional and invalid.  Judge Mbha is neither the President nor a Deputy President of the SCA and therefore lacked the status to act as an alternate at the JSC meeting.

To make matters worse, the representative of the Black Lawyers Association (BLA) at the JSC died a few weeks before the JSC deliberations but the JSC did not invite his replacement.  The nefarious aim of excluding blacks who were likely to support Hlophe was achieved without much fanfare.

Another strange thing occurs in government, the then Director General of Higher Education (Mr Qonde) reports a corruption of Minister Blade Nzimande to Mr Ramaphosa. What did he do about it? He sacrificed the DG instead, and protected his corrupt Minister because of factional politics. He keeps in his cabinet all Bosasa implicated Ministers like Mantashe and Makwetla, yet he goes hard on Vincent Smith. It’s all because of factional alignment and the consolidation of CR22. How does one explain Zizi Kodwa and David Mahlobo to be still serving in his cabinet after the Zondo Commission revelations? This will never happen under President Sisulu, the real corruption buster.

During many years of Sisulu’s government experience in government we have a reason to be optimistic – her proven and competent leadership skills untethered to Stellenbosch or corporate lobbyists might just be the panacea for all our judicial corruption ills. This is so, because of not only her initiative in bringing the Bill of Anti-corruption while she was the Minister of Public Services and Administration, where she barred baureocrats from doing business with the State, it was unfashionable at the time.

Another classical example is the high level of corruption she unravel in the Water sector through her competent advisors, whom one of them is under siege and a victim of state organs such SSA and Crime Intelligence, simple because he exposed the Eastern Cape Premier’s family involvement in the Amatola Waterboard utility.

To make things worse, the new Minister of Water is busy forcing water boards to write affidavits about Sisulu’s officials, instead of delivering water to the people. He goes as far as to subvert all of Sisulu’s corruption investigation reports to suit his implicated faction, than proper governance and laws. He governs with instinct and emotions than statues of corporate governance or water service act. The desperation goes as far as to work with opposition parties like DA, to discredit Sisulu’s highly qualified officials, for them (CR factional Ministers) it’s better to work with the DA than fellow comrades, to a point of refusing to even take a handover report from Sisulu. That’s how deep our government is factionalised by Ramaphosa. These Ministers are acting on his (CR) instructions to ostracise ministers who are perceived to be independent. This is really childish, we desperately need real Ministers.

The question, is why are they not arresting Eastern Cape Premier’s wife for unduly benefiting in Amatola Waterboard, together with the then CEO (Zitumane)? We are told warrants of arrests are withheld on the Strong man’s instruction in Eastlondon, because it implicated people in his faction. Why would a whole President and a Premier factionalise not only the ANC, but government and their cabinets? President Sisulu will have to deal with all these shenanigans, before the State get gansterized. Sooner the country will know who is the real crime buster between Sisulu and Ramaphosa. As things stands, Sisulu hasn’t sealed anything on her part through the assistance of the courts.

*Paul Ngobeni is Lawyer, writing in his own personality.