THE Public Protector has found that President Cyril Ramaphosa did not violate the law when he discharged Judge Cassim Sardiwalla from his duties.
This after the Public Protector Kholeka Gcaleka said the allegation that the process followed by Ramaphosa was in violation of applicable legal prescripts was unsubstantiated.
Sardiwalla was released from his duties at the Gauteng Division of the High Court in Pretoria.
Gcaleka investigated the allegations after the director of the Institute of Accountability in South Africa, Advocate Paul Hoffman, lodged a complaint to her office.
This followed Ramaphosa’s discharging of Sardiwalla on July 24, 2023, in a signed order that referred to him becoming permanently incapable of performing his official duties.
This was after Sardiwalla allegedly asked to retire for medical reasons.
At that time, Sardiwalla was presiding over evidence that implicated former Deputy President David Mabuza in a large Mpumalanga criminal enterprise, which raised eyebrows regarding Ramaphosa’s decision.
Hoffman said Ramaphosa had no power to remove a judge in the absence of a finding by the Judicial Service Commission (JSC) that a judge was suffering from some relevant incapacity.
He said the minutes of the decision signed by Ramaphosa on July 24, 2023, were void for vagueness as it does not identify whether it was the body or mind of the judge that caused him to be incapable of performing his official duties.
Hoffman said the section of the act referred to in the minute was unconstitutional because it had the effect of bypassing section 177.
He also suggested that the report of the Public Protector be drawn to the attention of the National Assembly in the seventh parliament as the office of the Chief Justice.
In her report, Gcaleka said the evidence in her possession indicated Ramaphosa discharged Sardiwalla from service in terms of section 3(2)(c) of the Judges’ Remuneration and Conditions of Employment Act, which provides for the discharge of a judge by the President from active service if he or she becomes afflicted with a permanent infirmity of mind or body which renders him or her incapable of performing his or her official duties.
She said the evidence further indicated that the process was initiated following a report from Sardiwalla’s medical doctor which recommended that he should be medically boarded.
“The president in the circumstances acted in terms of section 3(2)(c) of the Judges’ Remuneration and Conditions of Employment Act that empowered the President to discharge Judge Sardiwalla from active service on medical grounds,” said Gcaleka, adding that the Public Protector does not make a determination on the constitutionality of section 3(20(c) of the Judges’ Remuneration and Conditions of Employment Act, 2001, as it does not fall within the mandate of the Public Protector to test the constitutionality of legislation.
She said Ramaphosa’s conduct in this regard did not constitute improper conduct as envisaged in section 182(1) of the Constitution and maladministration as envisaged in section 6(4)(a)(i) of the Public Protector Act.
Gcaleka added that the evidence also indicated that the process set out in section 177 of the Constitution was not applicable as Sardiwalla was not removed from office but rather discharged from active service due to ill health.
Asked to comment on the report, Hoffman said the matter was referred to Parliament as the office of Public Protector does not regard the consistency of the Act with the Constitution to be part of Gcaleka’s remit.
Asked if he would challenge the report, Hoffman said: “Depends on what Parliament decides in relation to the need to protect the sanctity of the independence of the judiciary.”
Last year, the Department of Justice and Correctional Service backed Ramaphosa, saying in terms of section 3(2)(c) the president may discharge a judge from active service on account of permanent infirmity of mind or body that renders him/her incapable of performing his/her official duties.
“That, however, does not discharge such judge from obligations to render judgments that were outstanding at the time of such discharge. To interpret this section any other way would fly in the face of the core duty of a judge to render judgments and also fly in the face of the constitutional imperative in section 34 for access to justice.”