Accountability+in+unequal+measures,+Carmel+Rickard,+Weekender



=Accountability in unequal measures=


 * Carmel Rickard, Business Day Weekender, 16 February 2008**

It is true that I’ve been outspoken about certain judges — actually questioned their integrity on occasion. But even I was shocked this week to realise how thoroughly my views are shared by the Judicial Service Commission, the body that interviews and recommends candidates for appointment to the bench.

Don’t think I’m making this up: when it comes to judges and innuendo about their probity, I wouldn’t dare.

A week ago I told how I had called KwaZulu-Natal Judge-President Vuka Tshabalala to ask what had happened to the shares valued at almost R7m that he had received from Tokyo Sexwale. When this “gift” was discovered last year, there was a public outcry and even calls for him to resign.

Tshabalala had no hesitation in telling me that he had long since given back the shares, as he had been asked to do by the commission last August.

Two questions have been plaguing me since that conversation, and they both have to do with the commission and its handling of the affair.

First, why has the commission not been even-handed in its dealing with judges?

Why did it tell Tshabalala to return his gift because it was inappropriate for him to accept the shares, when the Cape Town High Court Judge-President John Hlophe had no such demands on him to return the sizeable consideration he had received from Oasis, the company that hired him as a “consultant”?

It was considered “inappropriate” for Tshabalala to take the shares, according to the commission, because of the mere risk that a perception of partiality could arise. In the case of Hlophe, where the risk had become a reality, and partiality was publicly alleged by a party to litigation, the commission could not so much as muster a letter requesting that the money be returned.

Worse, the commission was not even able to agree, as a starting point, that the behaviour was “inappropriate”. Hlophe’s claim to have had ministerial permission for the job does not alter the problem of public perception, and this should have been the commission’s chief concern.

Second, why did the commission not tell the outraged public that it had asked Tshabalala to return the shares, and why did it not inform us he had done so?

An answer to this question was given this week by commission spokesman Marumo Moerane. Commenting to The Mercury, he said the commission had not made public “the decision” (presumably Tshabalala’s decision to return the shares) because the judge-president had “only orally” informed the chief justice that he had disposed of his shares, and written confirmation was required.

So, you may ask, why haven’t commissioners asked him to set it down in black and white? Since the judge-president complied promptly with the request to return the shares, I can’t imagine that he would refuse to put his acquiescence in writing.

Far more interesting, however, is the fact that, as Moerane put it, “written confirmation was required” by the commission.

Obviously, a judge’s word no longer carries the weight it might have done in the past, and it’s now clearly the commission’s default position to disbelieve everything a judge says.

What a comment on the state of the judiciary if any judge, let alone a senior judge-president, is not believed when he makes a statement of fact about matters entirely within his personal knowledge.

And what a disgrace that the judge with whom the rot started is still so fiercely defended, his integrity unquestioned, by the commission.

Apart from merely trifling consequences like gutting public confidence in the judiciary and the justice it dispenses, even our language is changing to reflect the new reality. “Sober as a judge” has already taken on a purely ironic meaning; it’s only a matter time for its —sarcastic twin simile, “Honest as a judge”.


 * From: http://www.businessday.co.za/weekender/article.aspx?ID=BD4A707533**

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