Judge Tshosa was pushed

| Friday August 17, 2012 00:00

 

It is the view of the league that Justice Tshosa has been constructively dismissed from judgeship. The Presidency had become odious and or intolerable and made things difficult for the learned Judge that he had no choice but to resign from judgeship. We opine that it is most probable that Justice Tshosa's resignation was not truly voluntary; it is in effect termination of his employment. By appointing a tribunal to investigate Judge Tshosa, the presidency was trying to effect a constructive discharge. The President dislikes alcohol and the fact that Judge Tshosa was facing drunken driving and related charges might have influenced his decision. The President had appointed a tribunal in terms of Section 97(3) of the Constitution following Justice Tshosa's conviction at the Magistrate Court. 

The appointment of the tribunal comes at a time when Justice Tshosa has appealed both the conviction and sentence at the High Court. The press release announcing the appointment of the tribunal indicates that its appointment follows Justice Tshosa's conviction. A number of problems arise in respect of this approach. Firstly and most importantly it undermines the rule of law and due process by seemingly setting up two panel structures to deal with the matter.  It is readily acknowledged that Section 97(3) empowers the President to appoint the tribunal to enquire into the conduct of the Judge.

However, the President cannot do so in respect of a matter that is before court and therefore sub judice, for to do so is to undermine due process of law and the independence of the judiciary. The hasty and ill-advised appointment of a tribunal by the President created a substantial risk that the course of justice in Judge Tshosa's case would be seriously impeded or prejudiced. Where the appointment of the tribunal and the subject matter of its enquiry follows conviction and relates to a matter which is before a court of law as in this particular instance, the executive encroaches into the sphere of the judiciary.  It is apparent that until the court convicted Justice Tshosa, the President was not minded to appoint the tribunal and enquire into his conduct.  If that was so he could easily have done so before the judicial process kicked off. That the President allowed the judicial process to take off all along, he must equal patiently wait its conclusion. What is more disconcerting is that Tshosa's case is not the first of its kind. Justice Moathodi Marumo resigned under circumstances which looked a lot like constructive dismissal.

It is our considered view that Judge Tshosa is an astute jurist with thorough knowledge and experience of the law.

The judiciary and the nation at large have lost a great deal from his departure from the bench.  We contend that the independence and integrity of the judiciary are under threat from the executive - in particular the presidency.

The power of appointment of judges, which is vested exclusively in the executive, is instructive. The process lacks transparency and there is continuous failure to account for the appointments. The dominance of the executive in judicial appointments is inconsistent with judicial independence and it is in contrast with the doctrine of separation of powers. If the executive continues to enjoy exclusive privilege in selecting judges, a risk of misuse of the power of appointment will always exist. We are of the view that in recent years, political and or other considerations may have prevailed over the merit criteria for appointments of judges.

By facilitating nepotism and political favouritism, the quality of the judiciary will be diluted. Judges who obtain their position as a result of executive discretion or favour could be compelled to serve the interests of their appointing authority in a manner which might undermine judicial independence. The BCPYL appeals to all pro-democratic forces to protect the independence and integrity of the judiciary by speaking against constructive dismissals and the flawed system of appointment of justices.

Dithapelo KeorapetseBCPYL, President