Daily Maverick article on Judge Sardiwalla borders on disinformation

5 December 2023

The Ministry of Justice and Correctional Services has noted with great concern the shocking allegations contained in an article penned by Kevin Bloom entitled “In new Stalingrad defence low, Ramaphosa’s discharge of D D Mabuza trial Judge delays truth for many more years” published in the Daily Maverick dated 04 December 2023.

In this article, Mr Bloom implied that President Ramaphosa, and the leadership of the judiciary connived, by discharging Judge Sardiwalla due to a medical condition to quash the case against former Deputy President Mabuza. This captious conclusion by Mr Bloom was neither based on any facts nor evidence to substantiate it. Instead, the article is laced, innuendos and speculation.

It is common cause that the President, on 24 July 2023 signed a Minute in which he discharged Judge Sardiwalla from active service in accordance with section 3(2) (c) of the Judges Remuneration and Conditions of Employment Act, 1998.

The impression given by Mr Bloom is that the President may out of his own volition just decide to discharge a Judge if he is of the opinion that the Judge suffers from a medical condition that renders him or her incapable of performing his or her official duties. This assumption is incorrect and misleading.

There is a due process followed by the President whenever a Judge has to be discharged from active service on the basis of medical condition. Judge Sardiwalla met with the Judge President of the Gauteng Division of the High Court and provided the Judge President with a medical report in which it was recommended that he should be discharged from active service on medical grounds. The Judge President processed the request with the Minister of Justice and Correctional Services who then facilitated the request together with all the supporting documents to the President.

Having considered the documents and the medical reports the President was satisfied that all the jurisdictional requirements were met for the medical boarding of Judge Sardiwalla. He then signed the Minute discharging Judge Sardiwalla with effect from 24 July 2023.

Neither the President nor the Minister of Justice and Correctional Services were made aware that Judge Sardiwalla was presiding in the matter involving former Deputy President Mabuza. To further create an impression that the President would discharge a Judge from active service on medical grounds for flimsy reasons is an insult to our Judges.

Our Judiciary is comprised of men and women of integrity who fully understand the principle of judicial independence. And for a reputable paper such as the Daily Maverick to publish such a story based on unfair and biased assumptions devoid of any truth is deeply concerning.

In order to support his conspiracy theory that the President had ulterior motives when he signed the discharge, Mr Bloom lists five judgements which were delivered by Judge Sardiwalla following his discharge and therefore, so he averred, it could not be that he is incapable of performing his duties. This judgements are listed not once but twice. The second time they are listed with a special note from the editor which reads “Sorry for the repeat listing of the five cases – we felt we also needed them presented to earlier in this story- Ed)

The fact of the matter is that Judges even when discharged from active service on medical grounds may be expected to finalise their reserved judgments depending on their nature of their medical condition. This point was eloquently emphasised by Judge Claassen in Poswa v President of South Africa and Others when he said

“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.”

It is precisely for these reasons that Judge Sardiwalla delivered his reserved judgments even after he was discharge from active service. And sadly, Mr Bloom did not appreciate this fact when he penned his story.

There is nothing untoward that the President did other than to exercise his statutory responsibility as provided for in section 3(2)(c) of the Judges Remuneration and Conditions and Employment Act, 2001.

A conspiracy theory does not meet the threshold under which medical records should be released for public consumption.

Issued by Chrispin Phiri, Ministry Spokesperson, 5 December 2023