WE add more than a dollop of controversy to judicial appointments in SA, and the body that interviews and recommends candidates has more than once been scolded by the courts.
But we’re not the only ones with problems. This week I read a fascinating judgment from the constitutional court of the Seychelles that dealt with a disputed judicial appointment and concluded by making an extraordinary order setting aside a judge’s official appointment.
Several judicial officers were klapped by the Supreme Court of Appeal in decisions delivered late last term: over just five days, at least eight sharp criticisms were handed down to other judges, magistrates – and a retired judge.
Of course an appeal court considers whether the presiding officer in the previous court was right or wrong – that’s the point. But usually a higher court will say something bland, such as “We disagree”, or “This is not the only conclusion that can be reached”. But there are times – notable exceptions – when the court strongly criticises the original decision or the way in which it was reached. So what pushes appeal judges to klap the presiding officer in a lower court? Let’s start with something easy: how the accused person is addressed.
Most people know that a lawyer who is guilty of misconduct may be struck from the roll and prevented from acting as an advocate or attorney again. But supposing the person involved never was a proper member of the profession in the first place – what happens then?
It’s a problem that has arisen in the Sasolburg area, where four trials were forced to a halt. In addition, the five accused involved in these matters will have to be compensated for any legal fees they may have paid, after it emerged that the man who took on their defence, holding himself out as an attorney, was not qualified.
It's all very well for the government to fuss about whether courts are implementing the constitution properly. But what are government departments doing to make sure their staff understand and implement the law, particularly the constitution and bill of rights?
Officials of the Department of Home Affairs, for example, appear to believe they may ignore court orders when it comes to people who, in their view, should not be allowed into SA. Now the high court in Cape Town is trying to ensure that the department trains its officers properly so that they understand the law – and their obligations to obey court orders.
The Free State is supposed to be the home of the “Boer maak ’n plan” approach to life; but sometimes, even in the Free State, that “plan” doesn’t quite work out.
A couple of years ago two attorneys from the province, struck from the roll, tried a way round the court’s order barring them from practising: they formed a CC and set themselves up as “providers of legal services” – but they charged at attorneys’ rates for work only attorneys may do.