THE DEBATE of the public protector directing other organs of state was the main bone of contention when Gauteng Division Judge President Dunstan Mlambo was in the hot seat for the chief justice position in Sandton, Johannesburg.
Commissioners peppered Judge Mlambo with questions on the instructions of other organs or state instructing actions be taken against members of the executive such as President Cyril Ramaphosa on the CR17 bank statements.
In March Judge Mlambo, leading a full bench of the North Gauteng High Court, slammed Public Protector Busisiwe Mkhwebane for exceeding the scope of her powers, when the CR17 report was referred to the National Prosecuting Authority (NPA) for investigation, and for prosecuting those guilty of acts of money laundering that emanated from CR17 funding. She wanted Parliament to punish Ramaphosa for misleading the House.
Judge Mlambo was seen as being biased toward Ramaphosa. In 2017 the judge dismissed assertions made by the legal team of former president Jacob Zuma that former public protector Thuli Madonsela exceeded her powers in her state capture report.
As part of her remedial action, Madonsela had made a binding recommendation that there should be a commission of inquiry to probe the allegations of state capture. Zuma’s legal team said this was perceived as her exceeding her powers.
Judge Mlambo said that on the facts of the case against Ramaphosa, she could not do it as there was no substance in the first place.
Judge Mlambo said: “We dealt with the remedial action first, before we dealt with these two aspects of the case of going to Parliament and going to the NDDP.
“In the first part we were clear that there was no evidence supporting this remedial action, therefore it was a non-starter.”
Commissioner Julius Malema quizzed Mlambo on whether the facts were clear and applicable, and that it was well within the public protector's right to give another organ of state an instruction based on remedial actions.
Judge Mlambo argued that the public protector had no right to want feedback after referral to another organ of state.
Malema countered by saying that this was only a referral, and that putting a deadline on a probe was only to make sure that the matter was being followed through within a short space of time.
Malema said: “Not necessarily saying charge with racketeering, charge with money laundering, charge… and this must be done within the next six months. I hear her to be saying, `’I hear you have some role to play here, make further investigations and tell me how you have acted on these matters.”
Malema said that this would be accompanied by evidence and referral to other institutions.
Malema said that he thought that Mkhwebane was insinuating that within a set period of time they should be prosecuted.
Malema further said that he knew that Madonsela would refer matters to the NDPP for further investigation, with which Judge Mlambo agreed.
Malema also questioned him on a clip where there was student protest during the days of the Struggle and he was seen to cower under pressure, a point which Judge Mlambo denied. Justice Mlambo did however say that he would be the first to run when police arrived on campus.
The judge said what he said in an interview was he had only made a note regarding Advocate Lengane, who had been the organiser of the protest action at the University of Limpopo.
Commissioner Dali Mpofu asked Justice Mlambo if there was a judicial hit squad where names of certain judges appeared in very high profile cases.
Mpofu then quizzed Judge Mlambo about allegations of sexual harassment in which Mlambo was allegedly implicated.
“Are there any victims out there who might come out when you are Chief Justice and embarrass the country, or is this just one of those (instances) where people just smear without any foundation?” Mpofu said.
Justice Mlambo said that there was no substance to the “rumour”, and that it were insidious, poisonous rumours.
“When I heard about it I was actually shocked and I was actually hoping that someone would come up and (say) ’I’m one of those who has been sexually harassed by Judge President Mlambo’,” he said.