Publication: Sunday Times Issued: Date: 2006-01-01 Reporter: Carmel Rickard

Choosing the Zuma Judge a Tough Call

 

Publication 

Sunday Times

Date

2006-01-01

Reporter

 Carmel Rickard

Web Link

www.sundaytimes.co.za

 

Race, ethnic loyalty and ambition all thrown up as factors by observers

[]‘There is no reason why this should not be a showcase for the new judiciary’[]

The upcoming corruption trial of former Deputy President Jacob Zuma has turned Judge President Vuka Tshabalala into Father Christmas with a present no one wants.

Judge Tshabalala has the stature and the geniality to play the seasonal role, but most of his judges are saying they want to duck the particular gift he is carrying around right now.

As leader of the judiciary in KwaZulu-Natal, Judge Tshabalala must decide who will hear the Zuma trial. And he knows that the case could become as much a trial for the presiding officer as for the accused ­ not just in the sense that it will be physically and intellectually taxing, but also because the presiding judge will come under close scrutiny from the media, the public and the ever-vigilant Zuma camp. And there will inevitably be serious criticism of the outcome, whatever the result.

That’s why Judge Tshabalala has made at least one firm New Year’s resolution. Asked by the Sunday Times this week when he would disclose the name of the person to hear the matter, he said: “As close as possible to the date of the trial.

“I do not want any judge to be under intense scrutiny beforehand. Of course, I may approach the judge earlier [than a public announcement is made] but tell him or her that it is a confidential matter.

“The case is very sensitive with far-reaching implications, at least for the politicians.”

In the past, a high profile trial such as this would likely have been heard by the judge president, but a number of sources in the province say that Judge Tshabalala is unlikely to do this. He has increasingly found his leadership niche as an administrator rather than as a trial judge. Plus, he knows the accused well and might feel that it would be inappropriate to preside himself.

What qualities will he want in the judge he selects? “Someone who I feel will be able to dispense justice. I am not thinking about all these other niceties.”

As to race, he says it will not be a consideration when he makes his decision. “I can choose anybody.”

And there lies the big divide ­ what part, if any, should race and political background play in selecting the judge? Should the judge president be mindful of the political tensions within the province and ensure that the trial judge comes from the same grouping as Zuma ­ or perhaps deliberately choose someone from another?

Some observers believe it would put any black African judge in an invidious position to preside; that a judge without even the suspicion of an ethnic bias would be better. In this connection Judge Chris Nicholson, a founder of the Legal Resources Centre, and Durban High Court Judge Achmat Jappie have been mentioned.

Others say that the case will be difficult enough and that the judge president should seek to reduce the tension as much as possible for whoever will preside. One way to do this would be not to play the race card at all, but to say that race and ethnicity are not important in relation to the person handling the trial.

“There is no reason why this should not be a showcase for the new judiciary,” said one expert who supports such an approach, but who cannot be named. “We would want a judge who can handle the trial with the same diligence, thoroughness and care as Judge Hilary Squires showed in the Shaik matter. And there are black judges who can do it ­ so why not show off that it can be done?”

Among the black judges who might be considered under this approach would be respected Deputy Judge President Thabani Brian Jali, and Judge Herbert Msimang of the Pietermaritzburg High Court, who was an assessor in the murder trial of General Magnus Malan in 1996.

“The judge will have to be thoroughly capable,” said Professor Karthy Govender of the University of KwaZulu-Natal. “There will be objections to evidence and search warrants, and many complex issues to decide. You will want to see the judge having the confidence to make decisive rulings and to be firm towards both sides.

“Race should not be a factor.”

Referring to a suggestion that the judge president should prepare a shortlist from whom the defence would choose their preferred judge, Govender said this would be intolerable. Towards the end of the apartheid years, particular judges were chosen to hear sensitive political cases because they were perceived as being pro-government, and this practice of selecting judges brought the rule of law into serious disrepute, he said.

His colleague, Professor Robin Palmer, said it might be best to choose someone without any obvious judicial ambitions. Otherwise there could be the perception that the person might be influenced to find in favour of the side that could guarantee promotion.

Members of the Judicial Service Commission, the body that recommends candidates for judicial promotion, are predominantly politicians, he pointed out, and they might be thought to consider the outcome of a trial such as this in making recommendations.

“The solution could be to choose someone with no political ambitions, or someone who has retired.”

That was the option chosen by Judge Tshabalala when he appointed retired Judge Squires, and it is a strategy which has the additional virtue of not taking one of the active members of the Bench away for an entire term.

Among recent retirees, the most likely to be considered would be judges Brian Galgut (formerly deputy judge president) and Keith McCall, once a contender for the position.

With acknowledgements to Carmel Rickard and Sunday Times.