Tax ombud and former Gauteng judge president Bernard Ngoepe is confident SA’s courts are sufficiently “competent” to deal with any review of the state capture inquiry report, even though its author, chief justice Raymond Zondo, is head of the judiciary.
“By and large, I think we’ve got a solid judiciary,” he said.
At a press conference on Saturday, former president Jacob Zuma’s spokesperson, Mzwandile Manyi, revealed the latest plan to take the Zondo report on review. Zuma’s legal team, led by senior advocate Dali Mpofu, is developing the case. Mineral resources & energy minister Gwede Mantashe has also announced his intention to launch a review application against some of Zondo’s findings.
Review applications brought in the near future are likely to be heard in SA’s courts while Zondo is still head of the judiciary, and will bring into sharp relief the tensions that can arise when a sitting judge chairs a commission. But Ngoepe is adamant it “shouldn’t be a problem” and sees little difference between a retired judge and a sitting judge chairing inquiries.
“The judges who will hear the review application shouldn’t be concerned about the fact that they’re reviewing a decision of one of the judges,” he said.
Ngoepe, who was Gauteng judge president from 1998 to 2012, gave examples of judges presiding over cases involving colleagues. In 2011, the apex court ruled on Zuma’s decision to extend then chief justice Sandile Ngcobo’s tenure. Ngcobo was judicial leader at the time, and the highest court found his extended term was not permitted in law.
In another case, nonprofit organisations Corruption Watch and Right2Know took issue with the findings of the arms deal inquiry, led by former judge Willie Seriti. The case, interrogating his findings, was heard in the high court in Pretoria in 2019. “It was reviewed by judges in the high court and I don’t think they had a problem in doing that,” Ngoepe said.
On Monday, Ngoepe sat down with Business Day for a wide-ranging interview about his book Rich Pickings Out of the Past. Zondo gave the opening speech at the Johannesburg launch on June 8. Ngoepe said of the final state capture report, released last week: “It is time to pause and reflect very seriously on what we’ve been doing as a nation and try to do things right.”
Ngoepe was among those who drafted the constitution in 1996. Asked about its critics, including Zuma and tourism minister Lindiwe Sisulu, Ngoepe would only respond generally: “There is a responsibility on every single one of us to respect the constitution and make it work.”
He emphasised judges’ oath of office and challenged those who allege that judges have been successfully “captured” in a plot by members of the state security services, dubbed Project Justice, to produce evidence. There are “strong suspicions” that intelligence operatives took money for the project under false pretences, but this testimony at the state capture inquiry is being misunderstood.
“Let them come up with one single judge who was bribed and with evidence and I’m sure I’d be one of the people to call for the impeachment of that particular judge. Until that happens, let us be careful about those kinds of allegations. Let’s not operate on the assumption that they are correct,” he said.
Ngoepe was firm in his defence of SA’s legal system, including the role of the Judicial Service Commission (JSC) in appointing and sanctioning judges. He would not be drawn to comment on the JSC interview of his successor in the Gauteng high court, Dunstan Mlambo, who was in the running for chief justice.
When it came to specific claims of sexual misconduct posed to Mlambo off-the-cuff during the JSC interview, not on the basis of a formal complaint, Ngoepe said: “I don’t feel comfortable about those allegations [...] that’s all I can say.” Instead, he emphasised the JSC’s proper process: “Allegations should be put to the person in advance to give the person an opportunity to respond.”
Ngoepe insisted the JSC must be driven by a common purpose to deliver the best judiciary to the people, and not be swayed by party-political or other interests. “I hope the JSC will continue to deliver on merit. But our concern, everybody’s concern, would arise once the JSC no longer appoints on merit,” he said.
Ngoepe defended the JSC as “good on paper” and argued that if it does not function properly, that reflects on individual members who misunderstand their mandate. “We must begin to be driven by a common objective to deliver a quality judiciary to the nation,” he said.
Ngoepe restrained himself when asked about Western Cape judge president John Hlophe, whom the JSC found guilty of gross misconduct in 2021. He was the first judge in democratic SA to be referred for impeachment and took the JSC to task and to court. The litigation has stalled parliament’s impeachment process.
“To me it’s an unpleasant thing. It’s not an issue of whether it felt only unpleasant with regard to judge Hlophe. I just felt the way I would normally feel when an allegation is made against any judge,” he said.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.