In this case, the judge is guilty

2014-04-21 10:00

Criticising judges and politicians amounts to sacrilege of the worst kind in many countries across the world.

Just last month, two journalists in Swaziland were summarily jailed.

Their sin: questioning flamboyant Chief Justice Michael Ramodibedi’s unorthodox ways of administering justice.

In this country, there is a growing trend in which politicians and their overzealous spin doctors declare open season on the justice system and question the credibility of judges because of a judgment they don’t like.

I’m not suggesting judges should be above scrutiny?–?far from it.

Their conduct should be watched closely, especially in a country like ours with its sordid past, where the legal fraternity perverted justice to prop up the apartheid regime.

But the criticism has to be fair and just.

Based on this, I find myself, reluctantly, in a situation where I have to question the appropriateness of Judge Neil Tuchten’s conduct.

Tuchten is presiding over the Limpopo textbook delivery case between lobby groups Basic Education For All, 39 schools and the basic education department.

Basic Education For All and the schools are represented by Section27, a public-interest law group.

The applicants brought the matter to court after revelations that thousands of books were still outstanding in Limpopo.

On March 31, Tuchten asked the applicants and respondents to see if they could find solutions out of court.

But in light of the urgency of the matter, he made it clear in no uncertain terms if they did not find a solution, he would find time to hear the matter “even if it means cutting short my vacation”.

The parties failed to agree and the honourable judge postponed the matter to April 3.

Everybody correctly assumed the matter would be first on the roll, but on April 3, Tuchten prioritised other cases.

By the time the matter received attention, it was almost noon.

And then the trouble began. Instead of giving the parties a hearing, Tuchten insisted they settle out of court, which amounted to denying the poor access to justice.

In commercial matters, out-of-court settlements might be justified.

But in a case like this, where the rights of the poor to education are under threat and where numerous attempts to have all textbooks delivered have failed, it is critical for judges to administer justice without delay.

Tuchten then referred parties to the deputy judge president to re-enrol the case before another judge.

I balked at Tuchten’s lack of professionalism and his cavalier attitude towards the case. It is dishonest for anyone, much less a judge, to promise to cut short a vacation to discharge his duties and then, two days later, find reasons not to deliver.

He might as well have ruled that the case was not urgent. If he cannot be trusted with something like keeping his promises, it’s anyone’s guess whether he can be trusted with weightier legal matters.

More disturbingly, speaking to Chris Erasmus, the department’s senior counsel, Tuchten said: “Addressing you as a judge?...” But then he turned to Adila Hassim, the counsel for the applicants, and said: “Addressing you as a parent?...”

I’m not one of those feminists who overturn rocks, climb on rooftops and dive to the bottom of the ocean in search of sexists but, at best, I find Tuchten’s comment to Hassim inappropriate in a court of law while, at worst, it was patronising and smacks of sexism and patriarchy.

Why don the “judge hat” when addressing a male advocate but reach for the “parental hat” when talking to a female advocate?

Worse still, after it was revealed in court that the department had budgetary constraints, Tuchten suggested that, due to the principle of a separation of powers, he could not make a ruling dictating to the department how it should spend its budget.

Even with my elementary understanding of legal issues, I know that judges can, and have, delivered rulings with far-reaching budgetary implications for the state. The famous case between the Treatment Action Campaign and ex-health minister Manto Tshabalala-Msimang is a case in point.

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