Is Judge Desai really independent?

Dear Cape Town

Images have been circulating on various social media platforms for around a week now, depicting someone who certainly appears to be Judge Siraj Desai, currently a member of the Western Cape High Court Bench, depicting (him) in what is alleged to be an ANC meeting.

Our Constitution, in section 165(2) sets out clearly the rights, responsibilities and confines of our Judiciary, and states: “The Courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”

I have written to Judge Desai, via his registrar, requesting his confirmation or otherwise that it is indeed him depicted in the photographs. He has, to date, not replied.

If it is indeed the Honourable Judge, then a myriad of problems arise, not least of which is a huge question mark over his ability to adjudicate impartially, and without fear, favour or prejudice.

As matters stand, Judge Desai has presided over a great number of cases in the past involving political parties, and more particularly opposition parties. If he indeed has this close-up and cosy relationship with the ANC, and more particularly with ANC Ward 115 and Councillor Anwa Peters, participating in what is termed “a meeting between the Councillor and community leaders in Walmer Estate ahead of the 9 December 2020by-election” then this is very problematic, and naturally calls into question his independence and objectivity when dealing with matters involving opposition parties, and more particularly, those involving the Democratic Alliance.

If this is the Judge, then he should naturally have declared his cosy relationship up front each time such a matter was before him, and recused himself from the adjudication of such matters, or at the very least, offered to recuse himself, giving the parties the opportunity to apply their minds to his independence and objectivity.

Such a declaration would also have given the Judge President the opportunity to allocate a truly independent and impartial adjudicator. This would have avoided the obvious difficulties that now arise with regard to independence and impartiality pertaining to past matters already decided by Judge Desai.

It is so that Judge Desai will retire in the next two weeks, but if this indeed him depicted in these photographs, then the consequences do not cease due to his retirement. In the absence of a response from Judge Desai on the matter, I have today escalated the matter to the Office of the Chief Justice, requesting an enquiry into the circumstances surrounding these photographs. The result thereof will determine what, if any, further steps should be taken with regard to this matter.

Regards

Adv Glynnis Breytenbach MP
DA Shadow Minister of Justice and Correctional Services