Ntsebeza should be probed Advocate Dumisa Ntsebeza's attack on Judge Farlam shows callous disregard for the law and the president Faith Muthambi, The New Age, Johannesburg, 24 August 2015 The utterances of advocate Dumisa Ntsebeza SC during the recent Marikana commemorations have shocked not only the legal profession but also most fair and reasonable minded people in general. Speaking in his Xhosa mother tongue, he laid into judge Farlam the person and his report. Ntsebeza opened by rubbishing the credibility of the report and went into specific details on what in his opinion should have been covered by the report and poured scorn not only on the omission of the issues which in his view were pertinent. But he also attacked the manner in which certain events were interpreted, and he said in no uncertain terms that the report was not worth the paper it was written on. He further attacked the credibility of the Judge, his statement insinuating that: . Farlam was biased in favour of the government led by President Jacob Zuma. . Farlam was appointed to head the Marikana Commission because he "sided with President Jacob Zuma" in the Supreme Court of Appeal case referred to in the statement. . Farlam "sided with President Jacob Zuma" and did not base his dissenting judgment on the facts before the Supreme Court of Appeal. . Farlam acted improperly when he "sided with President Jacob Zuma" and that other four judges acted correctly when they did not "side with President Jacob Zuma". . Farlam acted improperly when he presided over the Marikana Commission because he should not have presided over it due to fact that there was a reasonable apprehension that he might be biased. It is my considered view that Ntsebeza has indeed put not only the judiciary but the whole country into disrepute. Given the man's stature not only in the legal profession but also in the business world, surely it is incumbent upon him to be circumspect. In essence Ntsebeza is saying judges have no honour. It is indeed an insult not only to Farlam but to the whole bench and the profession in general to suggest that the impartiality and integrity of the Judges is to be doubted. I join the presidency in their shock and outrage and their statement which correctly questions the timing of Ntsebeza's outbursts which come long after the Commission has not only completed its work but had also submitted its report to the President. Indeed I concur with the Presidency that Ntsebeza has shown a lack of respect and callous disregard for the decorum we have come to expect from the members of the legal profession. In addition Ntsebeza has also undermined both the president and his office for insinuating that the appointment of Farlam was nothing more than the machinations of president Zuma. He is saying the President is appointing cronies and puppets in such national cases. This cannot go unchallenged. The correct legal position is that a practitioner who has to believe that a presiding officer is or might biased is obliged to advise his or her client to apply for the presiding officer to be recused. The Supreme Court of Appeal case referred to by Ntsebeza was published long before Farlam was appointed. Ntsebeza must have been aware of the fact that Farlam dissented in that case. Ntsebeza should have advised his clients to apply for Farlam to recuse himself for having "sided with President Jacob Zuma" in that case if he honestly and professionally believed that Farlam would be biased as suggested in his statement. A judicial officer who sits on a case in which he or she should not be sitting, because seen objectively the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. It may also arise from the conduct or utterance by a judicial officer prior to or during proceedings. The test for a presiding officer to be recused is whether there is a reasonable apprehension of bias in the mind of a reasonable litigant in possession of all relevant facts that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court. Ntsebeza's statement suggests that there was a factual basis upon which this test could have been passed otherwise he would not have made the statement. It is improper for any person to wait for an adverse judgment before complaining about the fact that the presiding officer might have been biased. It is even more improper and may even amount to gross misconduct on the part of a senior legal practitioner to accuse a presiding officer of bias outside the formal structures where the relevant presiding officer does not have an opportunity to reply. It is not in the interests of justice for any person, in particular a senior legal representative, who had knowledge of all the facts upon which an application for a officer to be recused may have been sought, to allege bias and improper conduct on the part of a presiding officer simply because the presiding officer has delivered an adverse finding. One hopes that Ntsebeza is embarrassed to point out what he ought to have known as articulated here. It is not clear as to why such a senior person both in the legal profession and in mature age would commit such a blatant transgression. Could it be that Ntsebeza thought that by making the address in Xhosa that he was limiting his outbursts only to the vulnerable mine workers who were gathered on the open field? Or could it be that he was trying very hard to save face for not delivering the outcome he might have promised his clients? Or could it be that Ntsebeza wanted to give hope to his clients so that they keep him on their payroll? Indeed his motives need further investigations. The fact that the Farlam Commission has no record of Ntsebeza' s objection at any stage of the commission and the enormity of the potential impact in our justice system and the credibility of the office of the president should indeed lead to a probe of whether he is fit to hold his office. Equally sad but not to be unexpected was a message of support for Ntsebeza's vitriol from the Economic Freedom Fighters which in its desperate attempt to increase its dwindling support base never misses an opportunity to be populist. There is no doubt that an advocate of Ntsebeza's seniority was at all relevant times aware of these trite legal principles. He represented his clients at the Marikana Commission from the commencement to the end. There is no record of his clients having applied for Farlam to recuse himself. In his statement, he does not say that he advised his clients to apply for Farlam's recusal and does not say why he did not do so. His conduct is improper and should be investigated by both the Johannesburg Bar and the Judicial Service Commission of which he is a member. . Faith Muthambi is the Minister of Communications From: http://tnaepaper.co.za/ -- -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . 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