The Western Cape High Court has dismissed an application by Willem Heath to set aside a decision by former President Thabo Mbeki to decline his request for a discharge from active service.
Heath argued in court papers that the decision by Mbeki forced him to resign and thereby losing all the benefits of being a judge including a salary for life.
He wanted the court to also condone his 15 yearlong failures to challenge Mbeki’s decision citing poverty.
Heath resigned from the bench in 2001 after his application to be discharged from active service was declined by former President Mbeki.
However, Heath waited for 15 years before challenging Mbeki’s decision in court. He argued in court papers that Mbeki had erred when he rejected his request to be discharged from the bench forcing him to resign as a judge and forfeiting all the benefits of being a judge.
In his letter to Heath’s lawyers in May 2001, former president Mbeki wrote:
“I have had the opportunity to consider Judge Heath’s request to be discharged from active service as a judge, the reason advanced by Judge Heath for this request is that his role as a judge has been compromised by his appointment as the Head of the Special Investigating Unit (SIU).”
“I do not believe that Judge Heath’s sojourn at the SIU has compromised his standing as a judge.”
“The decision of the Constitutional Court you referred to does not suggest that Judge Heath should not resume his duties on the bench.”
“I have taken the liberty of consulting the President of the Constitutional Court and the Acting Chief Justice on this matter. Accordingly, I do not grant Judge Heath a discharge from active service as a judge.”
Mbeki based his decision on an earlier Constitutional Court ruling which held that it was inconsistent with the Constitution for a judge to head an investigative unit such as the SIU as investigation is the function of the executive.
In papers before the court, Heath pleaded poverty for his delays to bring the application.
He argued, “When President Mbeki refused my application for the early retirement special discharge, I was forced to resign. As a result of my resignation from the bench, I had lost all my benefits to which a retired judge is entitled in terms of the Act.“
“I, therefore, did not have the financial means to bring an application to court. I don’t wish to detail the financial difficulties that I have endured as consequences of the decision of former President Mbeki, but these have had a debilitating effect on my livelihood and that of my family.”
His lawyer Narnabas Xulu says they will challenge the ruling on constitutional grounds.
Xulu says the judgment missed an important constitutional point affecting judges.
“It’s a constitutional matter too (if) it is about the constitution of this country and the interaction between the executive in particular, the president and the judges; how the president was supposed to have handled the matter … a very important critical point that is supposed to be decided by the court.”
In a hard hitting judgment, the full bench said granting the relief sought would be prejudicial to the taxpayer and the image of the judiciary.
The court said judges who willingly resign from the bench for whatever reason, must be held to their undertaking to vacate office lest the public perceives that different standards apply to those that hold public office.
