Despite the problems we face — corrupt politicians, collapsing infrastructure, criminals on the rampage, and so on — we have been able to rely on the judiciary as our last line of defence, the bedrock of our democracy. It has been our safeguard.
It still is, but there are alarming signs. We had exceptional legal eagles such as Ismail Mahomed, the first chief justice of the new South Africa; Arthur Chaskalson; Pius Langa; Richard Goldstone; Dikgang Moseneke; and many others who were not only intellectual titans but jurists of unimpeachable character. They were a cut above the rest, and with them at the helm, we could sit back and relax.
But we have now had several cases of judges behaving badly. A judge president has escaped an ugly, unedifying sexual harassment charge by the skin of his teeth. Two judges are facing impeachment for gross misconduct, one for moonlighting as chair of a parastatal while on the bench, and the other for dishonesty. One judge has been arrested and is facing charges of accepting a bribe. A judge in the Free State has been on special leave for almost three years while fighting serious criminal charges, including fraud, theft, money laundering and contempt of court.
Even more worrisome is the case of the Gauteng acting judge president, Aubrey Ledwaba, who seems destined for promotion even though serious bribery allegations have been levelled against him at the Madlanga commission.
It was such a shock when, in 2007, the public saw a clearly inebriated judge Nkola Motata hurling racial slurs at a Johannesburg homeowner... But it was not until March 2024 that he was finally impeached and removed from office
It was such a shock when, in 2007, the public saw a clearly inebriated judge Nkola Motata hurling racial slurs at a Johannesburg homeowner after he had crashed his car into the wall around the man’s property. It shattered the public perception of a judge as an upstanding and reputable member of society. Two years later, Motata was found guilty of drunken driving and fined a measly R2,000. But it was not until March 2024 that he was finally impeached and removed from office. The wheels of justice, it would seem, grind ever so slowly for judges.
John Hlophe’s case is the stuff of legends. At 35, he was the country’s youngest judge when appointed in 1995. Five years later he was made judge president of the Cape division and looked set to have a brilliant career ahead of him. But evidently power went into his head. Among many controversies, in 2008 he tried to persuade two Constitutional Court justices to look kindly on the then president-in-waiting Jacob Zuma as they considered a case involving him. After many twists and turns, Hlophe was finally impeached in March 2024. Probably feeling guilty for having messed up Hlophe’s career, Zuma appointed him parliamentary leader of his MK Party, where his career has also come to a sticky end.
These two high-profile cases — Motata and Hlophe — caused reputational damage to the judiciary and should have served as cautionary tales for both the institution and judges themselves. But they obviously haven’t. The public has just been treated to the unseemly spectacle of Selby Mbenenge, Eastern Cape judge president, trying to explain why he repeatedly pestered a junior staffer with mobile texts laced with sexual innuendos. He also took a leaf from Zuma’s playbook, arguing that repeatedly badgering a woman against her wishes was part of Xhosa culture. The panel bought into such a canard, and the poor woman, having had the courage to publicly challenge the unwelcome pestering by a powerful man, was humiliated and hung out to dry. But it’s a hollow victory for Mbenenge. His reputation is completely shattered.
Potential candidates for vacancies on the bench have become reluctant to go before the JSC, due to its members’ reputation of doling out humiliation instead of conducting meaningful interviews
Parliament should quickly dispose of the impeachment of Nana Makhubele, who served as chair of the Passenger Rail Agency of South Africa while sitting on the bench, and Mushtak Parker, who told several colleagues on the bench that he’d been assaulted by Hlophe, then later tried to deny it.
But a more concerning case is that of Ledwaba. Katiso Molefe, a so-called businessman and a suspected underworld kingpin facing multiple charges, including murder, was refused bail by a Vereeniging magistrate for the killing of Armand Swart in April 2024. Molefe appealed to the high court, where the presiding judge, Ledwaba, promptly released him on bail. One of the investigating officers claimed before the Madlanga commission that Ledwaba was paid R2.5m for releasing Molefe on bail. Ledwaba has denied the allegation and has offered to testify before the Madlanga commission.
Despite this cloud over his head, Ledwaba is the sole candidate shortlisted by the Judicial Service Commission (JSC) for the Gauteng judge president post. Nobody is saying Ledwaba is guilty, but until he clears his name, he should not be allowed to come anywhere near the bench. The fact that he’s still at work despite such serious allegations against him is in itself an outrage. Chief justice Mandisa Maya says Ledwaba has refused to take special leave. Regard for his tender sensibilities is obviously more important than the reputation of the judiciary. He should be stopped. The judiciary should be saved from itself.
But how do people with flawed characters end up on the bench? The problem seems to lie in their selection. The JSC was created to take politics out of the appointment of judges, but the exact opposite has happened. It’s dominated by politicians who have neither knowledge of nor interest in the law, but simply want to pursue their own nefarious agendas. It’s become a political lottery, the qualifications or character of members counting for little.
Potential candidates for vacancies on the bench have become reluctant to go before the JSC, due to its members’ reputation of doling out humiliation instead of conducting meaningful interviews.
The JSC needs to be reformed or replaced by a body sans politicians, with bar associations and law societies playing a more prominent role. It’s quite incredible, for instance, that nobody seems to have thought of involving retired judges — the only people who know what the job entails — in the appointment of judges.
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