News that Judge President John Hlophe is planning to claim R10 million from the judges of the Constitutional Court for defaming him, comes as somewhat of a surprise to me. Hlophe’s lawyer Lister Nuku is quoted saying that the constitutional court judges is being sued for making “untested allegations of gross judicial misconduct against [Hlophe].”
The letter says their media statement was “deliberate, and aimed at injuring [Hlophe's] personality rights, thus forcing him to resign from his position as a judge”. “Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their judicial status to mobilise vicious and vindictive public views against [Hlophe] with the sole aim of forcing him to resign from his position as a judge.”
Apart from the fact that the amount claimed is extremely high, there are some other problems with this potential claim. The Judge President will have to convince a Court that the judges of the Constitutional Court were deliberately negligent in publicizing the complaint. In effect, a court will have to find that the Constitutional Court lodge and published the complaint with the purpose of getting rid of the Judge President.
In the absence of any proof of the intention of the Constitutional Court judges, I am not sure many judges will find it easy to come to such a conclusion because it would require them to believe that there was really a conspiracy by the Constitutional Court judges to get rid of Hlophe. If one assumes – as one must – that judges should normally be given the benefit of the doubt and that not many judges are ever part of evil conspiracies, this will be a hard sell.
This is even more so given the fact that Hlophe confirmed in his submission to the JSC that he had approached judges of the Constitutional Court and had tried to convince them to decide a legal issue then before the court in a certain manner. On Hlophe’s own version of events there are therefore grounds to lodge a complaint against him and he will have to convince a court that despite this, the publication of the complaint was done with some malice and forms part of a larger plot to get rid of him.
But there are also tactical threats for Hlophe lurking in the defamation action. If this action ever gets to court, Hlophe might have to take the stand because the Constitutional Court will argue that the statements it made were true and in the public interest. Hlophe will have to argue that the statements were vague and untrue. But if Hlophe takes the stand he will expose himself to cross examination and possible humiliation and exposure as a liar.
Just ask Ronald Suresh Roberts how badly a defamation case can go wrong once one has taken the stand and has been savaged by a lawyer under cross examination.
I will be very surprised if this claim ever reaches the courts. The dangers for Hlophe of being exposed to cross examination are just too great. A cross examiner will obviously explore the difference between the statement made by Hlophe in the media when the complaint became public and the version presented by him in his papers to the JSC.
The Judge President stated to John Matham on Cape Talk Radio that it was rubbish that he ever approached any of the jduges on the Constitutional Court on the Zuma matter but in his papers he admitted that he discussed this matter with the two judges concerned.
I can imagine Wim Trengove asking Hlophe: “So Mr Hlophe, please tell the court which of these contradictory statements are true. Tell the court whether you lied when you spoke to the media or whether you rather lied in your submission to the JSC? Judge President, why are you a liar?”
Hlophe might also be asked about previous contradictory statements he had made and why he claimed that Oasis was only paying him “out of pocket” expenses before it was revealed this amounted to more than R500 000. I suspect the defamation letter is a political tactic to place pressure on the JSC. Maybe Hlophe and his lawyers is angling for a deal?
Could it be that the Judge is just trying to drag out the legal process until after the elections next year? Maybe he is hoping that a change in goverment will get him a better position not as a judge. If he gets impeached before it could be problametic for him and for the new goverment to appoint him?
Well Prof I must say that when I heard the news of this potential defamation case against the Constitutional Court judges my first impression was that it is not about the money claimed or winning the case.
Firstly, as you have rightly argued, the money claimed is exorbitant. Therefore, I opine that he knows very well that he will not get that amount even if he wins his case, which in itself will be an uphill battle.
Secondly, the case is more about publictly vindicating JP Hlophe and proving to the public at large that he is just a casualty of victimisation, or racism if you like, taking place in the judiciary. He wants to get public sympathy and support, much like JZ, in the hopes that his woes will be forgotten by the public.
Thirdly, he might be sending warning shots to the JSC that he indeed is not guilty of any misconduct and he is merely a victim in the circumstances.
Fourthly, he might be just proving a point to the the Constitutional Court judges that they may serve in the highest court in the Republic but are not above the law which they must apply.
In conclusion, I opine that his defamation case is far away from being about justice or the rule of law but about boosting his inflated ego… Rings the bell???
I am not sure what your article aims to achieve but if it is to dissuade Hlophe JP from proceeding against the libellous CC because of the rigorous nature of cross-examination, you are at liberty to do so but if it is once more to try and sell to us that Hlophe’s defamation action wont succeed I caution you to refrain from these prediction which normally dont materialise and then the inevitable mundane onslaught on the reasoning of the Judiciary!
Prof,
To the best of my recollection, the JP described as rubbish allegations that HE HAD ATTEMPTED TO INFLUENCE THE CONSTITUTIONAL COURT JUSTICES. He did not deny that he had met some of the Justices. So I am not aware of any contradiction between his media statement and his admission in court. Simply put, the JP ONLY admitted to having met and discussed with some of the Concourt justices, but denied to have done so in an attempt to improperly influence them.
I am curious to note that you already tout Trengove SC as a possible counsel for the Concourt in future litigation between the JP and the Concourt! Was he not politely asked to step aside as the friend of the court in the WLD matter? I wonder what will become of Marcus SC who has thus far been retained by the Concourt in? Or, it a Freudian slip, Prof?
“I wonder what will become of Marcus SC who has thus far been retained by the Concourt? Or , is it perhaps a Freudian slip, Prof?”
Pierre
“The Judge President stated to John Matham on Cape Talk Radio that it was rubbish that he ever approached any of the jduges on the Constitutional Court on the Zuma matter but in his papers he admitted that he discussed this matter with the two judges concerned.”
Do you have any substantiation for this? A link perhaps? You have not mentioned it before as far as I can remember, and I can’t find any reference on an internet search.
Linda and Z, see the following quote from the Mail & Guardian site: “However, Cape Talk radio presenter John Maytham said on air that Hlophe had spoken to a reporter for the station about the referral to the JSC. “He did deny it in the bluntest of terms and said he never approached anybody,” Maytham said.” If this is correct, it clearly contradicts what Hlophe said in his papers where he admitted that he had approached the judges and that he discussed the case with them. Either the radio station got it wrong or Hlophe has been caught out lying. Also interesting is that before the High Court, Hlophe argued that it was wrong for the CC to have made public the complaint against him, in part, because he did not know what he was being accused of. But that same evening he spoke to a reporter and denied that he had approached anyone on the CC, so the JP actually knew exactly what he was being accused of!
Former president Mandela has made it clear that he does not want to get involved in the factional tensions within the ANC.
This is because he knows that Mbeki Fucked up and Mandela never wanted him (Mbeki) to be the president. We wonder how come he beame the so-called “president”
In a news report on IOL, quoting Marcus SC, it is clearly stated that in Hlophe’s own papers filed before the court that he admitted to meeting with the two CC justices and that he had spoken to them about the Zuma case before them.
Again, one needs to approach news reports with an element of caution, but the link for this article is: http://www.iol.co.za/index.php?set_id=1&click_id=3078&art_id=nw20080820142258409C270605
According to the article, Hlophe’s own papers admit to his meeting the two justices and discussing the case with them. Accordingly, Pierre is correct in his assertion that Hlophe is now lying to the media about his meetings and denying ever having met them.
Pierre
Thanks. I just couldn’t seem to get the right search terms.
(You might want to fix the link it has a quote character at the end.)
Your statement isn’t completely accurate: you said “The Judge President stated to John Matham on Cape Talk Radio” whereas the link says he spoke to a reporter and then Maytham mentioned that on air.
It is the reporter’s word against his, since it wasn’t a direct quote he could also say that it was not what he meant and even if “approached anybody” was a direct quote he could say that he mean “approach anybody in an untoward manner”.
It is clear though, that the reporter did understand the just of it, in the way you presented it. (Well according to Maytham).
Samantha
The part that he met them is undisputed, it is the part that he denied meeting them that is in dispute.
So the Constitutional Court judges were “deliberately negligent”. Are you having us on or did this gibberish actually appear in the letter of demand?
Lindelani
Mandela chose Mbeki to become president. Why would he choose someone he didn’t want?
z: I can see that you are not an ANC Member. The mere fact that you say Mandela Chose Thabo Mbeki tells me this. Thabo Mbeki was nominated unopposed and Mandela was not happy with this. He gave a passionate speak about purging and surrounding oneself with yes men. Please Google.
Niel // Oct 13, 2008 at 3:53 pm
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Provided you are arguing against a person being “deliberately negligent” I have the following to say;
In law a person can be negligent deliberately. These words appear to be at odds with each other but are actually complementing each other. The judges could be held to have been negligent in the sense that they did not take reasonable care and diligence in dealing with the matter in such a way that they guard against unjust and unlawful breach of JP Hlophe’s constitutional rights.
The deliberate part comes in the sense that they wanted to achieve the breach of JP Hlophe’s rights through negligent dealing with the allegations against him. Let me assume some “facts” to clarify what I mean:
The Constitutional Court judges were negligent in dealing with the matter in that they could have been more careful to make sure that the media does not get hold of the untested allegations against JP Hlophe because such would result in prejudice to JP Hlophe.
However, they were carelessly dealing with the allegations because they wanted to destroy JP Hlophe’s reputation in the eyes of the public. Therefore, the judges’ manner of dealing with the allegations was negligent because they did not guard against JP Hlophe’s constitutional rights being breached but it is a deliverate negligence because they had the intention to injure his reputation. This, I opine, is what is meant by “deliberately negligent” here.
z,
Sorry – I obviously misread. You are absolutely correct. My apologies.
Sorry, correction:
“Mandela chose Mbeki to become DEPUTY president.”
Thomas
Yes, he had his heart set on Ramaphosa, but he did endorse his election. And I think the tendency now might be to put it overly crass. You mention “purging” which has stronger negative connotations than “The leader must keep the forces together, but you can’t do that unless you allow dissent. People should be able to criticise the leader without fear or favour. ” which is what Mandela actually said.
I realise that the way I put it was very weak. So let’s elaborate:
Lindelani says:
“This is because he knows that Mbeki Fucked up and Mandela never wanted him (Mbeki) to be the president.”
Notice never wanted him, is very strong and speaks not only to initially but also to later. Here is what Mandela said about Mbeki’s running for a second term:
“I will strongly support him for a second term because he has been doing a marvellous job inside and outside South Africa.”
So I would say Lindelani is misusing Mandela’s name to make a score against Mbeki. They had their differences over the years and their agreements (like on Zim)
Sne – I must agree with Niel. There is no such thing in law as being ‘deliberately negligent’. ‘Deliberate’ implies ‘planning’ (‘deliberation’), and one cannot ‘plan’ to be negligent – it is like planning to drive a motor vehicle negligently, in the process killing someone, so that one can only be punished for culpable homicide and not for murder! When one plans such a thing, it becomes an intentional act (dolus) as opposed to a negligent act (culpa). One’s actions may be regarded in law as ‘grossly negligent’ or even ‘recklessly negligent’ (with or without acceptance of the risks involved), but never ‘deliberately negligent’. Negligence is measured objectively ex post facto by testing the conduct against that of the mythical ‘reasonable person’, whereas intention is determined according to the impugned person’s own subjective thoughts. Accusing someone of being ‘deliberately negligent’ does therefore amount to ‘gibberish’ as pointed out by Niel.
Sne
Yes I was referriing specifically to someone being “deliberately negligent”. The only sense that the word “deliberately” could have in the context is intent in the form of dolus. Negligence or culpa is an alternative to dolus but is not sufficient intent for a defamation action.
However, I can’t see how their intention to destroy his reputation (dolus) resulted in their careless (negligent) dealing with the allegations. If they intended to destroy his reputation, what followed was as a result of that intent.
While I realise that this is completely irrelevant to the subject under discussion, it is still possibly worth sharing. In the past couple of months, politics in this country have been characterised by in-fighting, high drama and negativity.
Finally, we have something worth celebrating.
Mayor Helen Zille has been name World Mayor 2008 from an initial selection of 820 nominated candidates, which were whittled down to a long-list of 50. The website (http://www.worldmayor.com/contest_2008/world-mayor-2008-results.html) goes on to say the following:
“In July 2008, City Mayors’ editors drew up a short-list of eleven mayors, who stood out in terms of number of votes and quality of comment from their supporters. Between July and the end of September, the organisers of the World Mayor Project, consulted and took advise on who of the eleven mayors from the final shortlist should receive the 2008 World Mayor Award. Among the editors of City Mayors, Helen Zille was the unanimous choice.”
While many people may not support Mayor Zille and her political affiliations, I believe that this is a victory for South Africa and, particularly, for Cape Town to celebrate.
Congratulations Mayor Zille!!
To be equally off the point, I am concerned that Kaglema’s halo might be wobbling – http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2409110,00.html – any scandal here will be a (further) disaster for the ANC, I really hope the prez’s hands are clean.
Peter // Oct 13, 2008 at 10:32 pm
“I really hope the prez’s hands are clean.”
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Dream on… There is no such a thing as a clean politician. It is more like; I wont tell if you promise not to tell. This not only erodes the principle of accountability but it also pervades our society with corrupt officials who continue to acquire undue benefits in a race against each other.
Samantha // Oct 13, 2008 at 9:42 pm
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Your submission is completely relevant ma’am. Your submission fits within the political and social issues in South Africa, the discussion of which Prof Pierre created this blog for.
Moreover, we need a breath of fresh air from all the policial circus we have been experiencing lately. Therefore, this good news that you have come up with neatly dovetails with this desire of fresh air.
Good work to you Samantha and congratulations to Mayor Helen Zille. She has done it, as you correctly put it, not only for herself but for Cape Town and the country as a whole…
Anonymouse // Oct 13, 2008 at 5:06 pm
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Mouse and Niel,
Ever heard of indirect intent? Mouse you seem to love Latin so let me translate that into Latin and also Afrikaans; “dolus indirectus” or “opset by sekerheidsbewussyn”. This form of intent is present where a wrongdoer (the Constitutional Court judges) directly intends (deliberately) one consequence (injuring of JP Hlophe’s reputation) of his conduct (issuing of the media statement) but at the same time has knowledge that another consequence will unavoidably or inevitably occur (negligence). The causing of the second consequence is accompanied by indirect intent.
The Constitutional Court judges can be said to have been negligent in issuing the media statement before informing JP Hlophe of the untested allegations against him because that is a procedural blunder. However, because of the intention that they wanted to injure his reputation, then their actions were deliberate…
Does this not amount to at least indirect intent? If it does, then I opine that is what is meant by deliberative negligence…
the only time a politician speaks the truth is when they say another is lying
Anonymouse // Oct 13, 2008 at 5:06 pm
“Deliberate’ implies ‘planning’ (’deliberation’), and one cannot ‘plan’ to be negligent – it is like planning to drive a motor vehicle negligently, in the process killing someone, so that one can only be punished for culpable homicide and not for murder!”
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If you were a prosecutor faced with similar evidence in your case Mouse, what would you do; Charge with culpable homicide or murder or with murder alternatively culpable homicide? Would you not rely on my indirect intent and charge the person with murder regardless of the fact that though he foresaw the possibility of killing another person through his actions, he was not planning to kill that other person, i.e. that was not his direct intention?
Z,
well the majority of our people don’t wan him and dont believe in him
Sne
Dolus directus, dolus indirectus and dolus eventualis are all forms of dolus. Culpa is negligence. The example given by Anonymouse explains the difference.
Sne
Are you not referring to dolus eventualis. Its not deliberate negligence its a form of intent.
Sne – indirect intent, which can be either dolus indirectus, dolus indeterminatus or dolus eventualis are all still forms of intent as indicated by Niel, but they cannot be regarded as negligence (culpa). The tests are different. In practice, when one is not sure whether intent will be proven, one will prosecute for murder but, if the evidence proves negligence, the verdict would be not guilty of murder but guilty of culpable homicide. That is in a criminal case. In a civil suit for defamation, like this one, the plaintif has to prove intent (dolus) to defame. Proof of negligence will not suffice. Once again, if the words ‘deliberate negligence’ were used in the letter of demand, the plaintif tries to elevate negligence to something akin to intent by adding the word deliberate. But actually, it is a contradictio in terminis.
Anonymouse,
I have just read something on a canadian website about “concious or advertent negligence”. The definition for it is exaclty the same as our definition of dolus eventualis. This “concious negligence” or “deliberate negligence” is a foreign term in our law, but I now understand where JP Hlophe’s lawyers got the concept from. They are in actual fact refering to dolus eventualis. This term is quite confusing as it can distort the clear distinction in our law between dolus and culpa.
shakira – as I said under the other post above, I agree with you. Thing is, however, Hlophe’s lawyers have no excuse for using the terminology they did, first they aver that he ‘deliberately’ intended to defame Hlophe JP, then they say their actions amounted to ‘deliberate negligence’, and then lastly they say Hlophe JP was negligently defamed, for which he intends to sue. Did these guys even get a pass mark for criminal law and the law of delict? I wonder.