The Democratic Alliance (DA) has questioned Judge Desai’s independence following the circulation of images on social media, during the past week, which appear to depict the Western Cape High Court Bench member in what is alleged to be an ANC meeting.
According to the Constitution, the responsibilities and confines of SA’s Judiciary state: “The Courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
DA Shadow Minister of Justice, Adv Glynnis Breytenbach, says she wrote to Judge Desai – via his registrar – requesting confirmation, or otherwise, that it’s him in the photos. He has not replied, so today Adv Breytenbach has escalated the matter to the Office of the Chief Justice, requesting an enquiry into the circumstances surrounding these photographs. The result of the enquiry will determine if future steps should be taken, she said.
“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,” said Adv Breytenbach in a media statement on Tuesday.
“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.”
Judge Desai will be retiring in the next couple of weeks, but if it is him in the photographs then “the consequences do not cease due to his retirement”, said Adv Breytenbach.