Legal practitioners associations react to Brauckmann AJ’s judgment

May 1st, 2020
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By Kgomotso Ramotsho

The National Association of Democratic Lawyers (NADEL) and the Black Lawyers Association (BLA) have respectively commented on the judgment of Administrator of Dr JS Moroka Municipality and Others v Kubheka (MM) (unreported case no 1170/20, 3-4-2020) (Brauckmann AJ) (see Kgomotso Ramotsho ‘Legal practitioners traveling with no proper permits during lockdown may face possible criminal prosecution’ www.derebus.org.za).

In a statement released by NADEL, the organisation noted the judgment with serious concern.

NADEL pointed out that the case before Brauckmann AJ turns on an urgent application, of which he granted an order by consent of the parties, returnable on 7 May. The organisation added that what Brauckmann AJ did thereafter, must disqualify him from permanent appointment as a judge of the High Court as he is one of the Judicial Services Commission’s (JSC’s) shortlisted candidates for a permanent position.

NADEL added that the judgment brings into question the integrity, competence and capacity of Brauckmann AJ. The organisation said the judgment demonstrates that the ‘acting judge lacks knowledge on the basic principles of law and seriously impugns his knowledge of the legal system, the Constitution and fundamental principles of law’.

NADEL pointed out that the judgment has compelled it to file additional comments on the suitability of Brauckmann AJ for the recommendation by the JSC and appointment by the President to the Bench. ‘It is unimaginable that a person sitting as a judicial officer would not understand that it is a basic tenant of our law that parties should be afforded a hearing before adverse findings are made against them. In the judgment, honourable Brauckmann AJ dealt with the issue of permits for legal practitioners, arrived to findings of fact without hearing the practitioners and subsequently issued orders,’ the statement added.

NADEL said Brauckmann AJ’s comments about the validity or otherwise of the permits albeit that those permits were not an issue before him nor any person had complained about permits. ‘He never afforded the director of the LPC an opportunity to confirm or deny the correctness of the permits. In other words, the honourable Brauckmann AJ decided to be a complainant, witness and a judge. This is not permissible nor a standard expected of a person seeking for appointment as a judicial officer,’ the statement said.

NADEL added that in its view Brauckmann AJ ‘accordingly lacks the necessary skills/capacity required of a judicial officer. His conduct in this judgment shows that he is not fit and proper person nor is he ready for judicial appointment as a judicial officer’. NADEL said it has decided to file additional comments for the attention of the JSC. The organisation said it is mindful of the fact that a period of objections had gone past but seeks condonation on the grounds that the judgment was only delivered after the date of closure for comments.

NADEL insisted that the comments are in the interest of justice and added that it would be regrettable to appoint an ‘incompetent or questionable person purely because information came to light after closing dates’.

The BLA also noted that the judgment by Brauckmann AJ is being appealed. The BLA said it has requested the JSC committee to make comments on Brauckmann AJ’s suitability as a judicial officer (acting or permanent) in view of his latest judgment. The BLA added that it would request condonation to file its comments after the closing date set out by the JSC.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.