By The Division of Communication and Advancement

 

On 6 August 2024, Retired Judge of Appeal Azhar Cachalia delivered a compelling public lecture at Rhodes University, where he criticised Parliament's questionable decision to appoint individuals with known unethical conduct to serve on the Judicial Service Commission (JSC).

Judge Cachalia, a Visiting Professor at Rhodes University’s Faculty of Law, was appointed as a Judge of the High Court in Johannesburg in 2001 and later as a Judge of the Supreme Court of Appeal in 2006. He currently serves as chair of the non-governmental organisation Freedom Under Law.

Professor Helen Kruuse, who introduced the judge, highlighted his remarkable legacy in advancing justice in South Africa. Dating back to the 1980s, Cachalia was a founding member and the long-standing national treasurer of the United Democratic Front. Despite enduring detentions and bans early in his career, he persevered and became a partner at the esteemed activist law firm, Cheadle, Thompson & Haysom.

The retired judge explained that his topic for the evening was whether the JSC is fit for purpose: "This is really a personal reflection of more than 15 years of observation and a reflection of what I believe has happened to the JSC."

He contextualised the JSC's role by explaining its two primary functions: appointing judges and investigating judicial misconduct complaints.

"The JSC must protect the independence of the judiciary by appointing competent and ethical persons and safeguarding it from undue political interference," he stated.

It goes without saying, then, that those appointed to the JSC to perform these functions must themselves be fit and proper for that purpose.

If that's true, Judge Cachalia questioned why Parliament appointed the likes of Economic Freedom Fighters (EFF) leader Julius Malema, and impeached former judge president John Hlophe to serve on the JSC. He pointed out that Malema had been found guilty of breaching the Members of Parliament Code of Conduct and that Hlophe was found guilty of gross misconduct and declared unfit to be a judge.

"This means that the very body (National Assembly) that found him [viz Hlophe] unfit to be a judge proceeded to select him to serve on the JSC," Judge Cachalia emphasised. It also means that, as a member of the JSC, Hlophe will now have to decide whether candidates for judicial office meet the high ethical standards required to be appointed as judges. "Standards that he felt no need to adhere to as a judge," Cachalia emphasised. "This is akin to asking the fox to guard the henhouse."

To understand how things got to this point, Judge Cachalia took the audience back to the JSC’s establishment in 1994.

For over a decade post-Apartheid, Judge Cachalia said, the JSC functioned without significant complaint, and South Africa had taken its place among democratic countries, lauded for its progressive Constitution and independent judiciary.

However, around 2011, it became clear that things had begun to change for the worse. The JSC started ignoring and distorting application guidelines for judges (section 174 of the Constitution), leading to arbitrary decision-making. The National Development Plan 2011 warned that there was little consensus between the JSC and the legal fraternity concerning the attributes required for appointment to the Bench. Furthermore, the JSC was becoming hamstrung by political and vested interests within the profession.

"Sadly, instead of acting on these concerns, the situation was allowed to worsen," said Judge Cachalia.

He then took the audience through a series of events, starting with then-deputy president Jacob Zuma’s corruption case in 2005, followed by his election as President in 2007 and the subsequent state capture. It became evident how the repercussions of Zuma's unethical and self-serving decisions affected bodies like the JSC, even long after he resigned as President in 2018.

The Zondo Commission's investigations revealed how key role players enabled state capture to take hold. The current President undertook to act on its recommendations, and when the seventh Parliament was elected, there was an expectation that it would act to fix the institutions that required reform. It was hoped that Parliament would designate suitable persons to serve on the JSC—a task that should not have been difficult. But, according to Judge Cachalia, it failed dismally by appointing Malema and Hlophe.

"And it is not only the politicians on the JSC who are responsible for this. Some judges have acquiesced in this development, and senior lawyers with vested interests have not only watched but have also been complicit," he added.

Judge Cachalia quoted retired Justice of the Constitutional Court Edwin Cameron, who referred to these individuals as those who "seek to propel an agenda. They are skilled liars, dissemblers, manipulators, and propagandists. They employ the instruments of legal practice to create confusion and dismay. They have even used the JSC to hinder the advancement of conscientious and capable candidates for judicial preferment."

Despite this grim outlook, Judge Cachalia assured the audience that there are organisations such as Freedom Under Law (FUL) which are challenging decisions made by Parliament, such as Hlophe’s appointment, with the aim to eventually restore public confidence in the JSC.

In closing, Cachalia addressed the future generation of legal professionals in the room: "I ask Rhodes University and the graduates from its iconic Law Faculty to be vigilant—to speak out and not look the other way."

To watch the lecture in full on YouTube, click here.

For the full text of Judge Cachalia’s public lecture at Rhodes University, click here (Daily Maverick).