Quote of the week

We’ve got a president who makes things up, and won’t retract when he’s cornered. This week press secretary Sean Spicer followed the leader. He picked up Trump’s wiretap story and added a new exciting detail: Not only had Barack Obama bugged Trump Tower, he might have used British intelligence spies to do the dirty work. The British, of course, went nuts, and national security adviser H. R. McMaster tried to smooth things over. McMaster is new to the job, having succeeded Mike Flynn, who had to resign for lying about his phone conversations. Flynn was not even around long enough for us to find out that he was also a lobbyist for Turkish interests and took $68,000 from various Russian connections.

Gail Collins
The New York Times
27 September 2008

A judgment lacking in convincing legal reasoning

I have now had time to read the judgments in the application by John Hlophe against the Constitutional Court and concur with the analysis offered by Michael Osborn in the comments section below. This is a moral victory for Judge President Hlophe but it does not affect the ability of the Judicial Services Commission to deal with the complaint.

I have very serious problems with the kind of “reasoning” – if one can call it that – employed by the majority in this case. The majority found that it was “not in the lodging of the complaint per se that the applicant’s rights were violated, but in the speed and lack of detail [such that no account was taken] of his right to dignity and the right to have his dignity respected and protected.”

In coming to this conclusion the learned judge for the majority argues that if Justices Jahtha and Nkabinda had lodged the complaint there would have been no need for a hearing. But the Court lodged the complaint and they should have been aware that there might be two versions of the events complained of. They were therefore under a duty to hear Hlophe’s version of events as well to ascertain whether a complaint should be layed. The Chief Justice therefore is found not to have a right to believe the judges of his own court!

This argument is not based on any rule or principle of common law or any provision of the Constitution, but a fabrication, invented by the judge for this case. He is saying that the Chief Justice and the Deputy Chief Justice had no right to believe the version of events relayed to them by two of their colleagues, but had a legal duty to hear Hlophe’s version of events. This” legal” duty is not substantiated with reference to any provision of the Constitution or any precedent of the common law. It confuses law with good manners.

Mojapelo also found that by issuing the media statement about the complaint only a few minutes after informing Hlophe constituted unfair treatment of him and violated his rights to natural justice and procedural fairness, as well as his right to dignity and his right to equality. However, he cannot refer to one South African case, one piece of legislation or one rule that requires this, neither does he refer to any section of the Constitution that might be relied upon. Once again he fabricated a “legal” rule that does not exist.

In any event, it seems to me this newly invented rule will lead to absurd results and is not in line with the right to freedom of expression and the founding values of openness and transparency set out in our Constitution. It is not clear whether this duty to be heard and this duty not to make a statement to the media before a complaint has been particularised, only falls on the Chief Justice and whether it also binds ordinary South Africans who wish to lay a complaint against a judge.

If it is the former, why this right should be limited to cases where a complaint is made by the head of the judiciary and not an ordinary citizen is never really fully explained. If it is the latter, this would entail a severe infringement of our right to freedom of expression. Of course this right may be limited but then must be done in terms of a law of general application. No such law exists.

Mojapelo finds that the right to dignity and equality of Hlophe was infringed by the complaint and the media statement. The latter because “he was placed in an unequal position with regards the protection of his rights”. No reference is made here to the jurisprudence of the Constitutional Court on the right to dignity or equality. There is a good reason for this: such precedent could not possibly sustain the conclusions drawn by Mojapelo.

I am at a loss to understand why there could possibly have been an infringment of Hlophe’s right to equality. The judge does not even say whether this is an infringment in terms of section 9(1) (which requires a rationality test) or in terms of section 9(3) (which requires the application of the impact test). I assume it is the former, but no mention is made of the Constitutional Court jurisprudence as set out in Prinsloo v Van der Linde about when a breach of s 9(1) will occur. If a student of mine had made such conclusions in an essay without any reference to the case law, I would have not given him or her more than 25% for their assignment.

The majority also confuses the common law notion of dignity (which is based on a subjective view regarding the feelings and standing of an individual) and the Constitutional Court’s jurisprudence on the right to dignity (which is based on the objective notion that every person has an inherent human dignty regardless of their feelings or standing in society).

At the very least, the majority should have referred to the many Constitutional Court cases dealing with dignity as a value and a right in our Constitution and should have explained why this right was violated in this case, based on the Constitutional Court precedent. It dismally failed to do so. If it had engaged with this jurisprudence it would have been impossible to make a finding that because the subjective dignitas of Hlophe was affected by the complaint and media statement, this constituted an infringment of his Constitutional right to dignity.

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