In late medieval times, so it is claimed, theologians argued about how many angels can dance on the head of a pin. The majority of the disciplinary committee of the Judicial Services Commission (JSC) would have felt right at home amongst those theologians.
In their decision, handed down today, on why it would not proceed with a full hearing of the complaint of the Constitutional Court judges against Judge President John Hlophe, the JSC provides a stunning example of splitting hairs and drawing distinctions without any meaning in order to justify their decision not to proceed with a full inquiry.
The JSC found that because Judge Nkabinde (and Jaftha) had not “with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way” (in other words, in favour of Zuma) there would be no use in pursuing the matter. The judges have of course said – very consistently – that Hlophe had said that the case had to be decided “properly”. The JSC found as follows:
We also accept, for the purposes of our decisions, that in their conversations Hlophe JP in all probability said, among other things, that the Zuma/Thint matters must be decided properly; that privilege was an important element of the matters that were before the Court; that he used the word “mandate”; that he, like President Zuma (then President of the African National Congress) was persecuted; that there is no case against Zuma; that “sesithembele kinina” – “we pin our hopes on you”; he believed that the issue of privilege was a very concerning one and had to be dealt with properly; he felt strongly about privilege and fair trial rights; that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege; that the Zuma/Thint cases was probably one of the most demanding of cases that the Court had dealt with given its important to the President of the ANC, Jacob Zuma and the ANC itself and the country. We also accept that his discussion with Jafta JA was robust…. [Nkabinde] has not with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way, in particular in favour of Mr Zuma. As pointed out above, when pertinently and expressly asked if Hlophe JP had said so, she was firm that he had not.
Because Nkabinde had not claimed that Hlophe had ever said the case must be decided in favour of Zuma, a hearing would not be necessary as there was no evidence that Hlophe had improperly tried to influence the judges to decide the case one way or another.
This distinction drawn by the JSC seems to me to be so absurd as to border on the irrational. It means that if a judge wants to improperly influence other judges he or she could get away with it as long as he or she never says the magic words: “Decide the case in favour of X.” He or she could say the case must be decided “properly”, and can argue what a “proper” decision would be, but this would not, according to the wise people at the JSC, constitute an attempt to influence the judge approached.
The JSC also accepted that there were “sharp disputes of fact between the different versions” given by Hlophe and the complainants. Nevertheless it found that these disputes were “not central or material to the validity of the respective complaints” and therefore a full hearing with cross examination would be of no use.
In this context the JSC found that:
[I]t is difficult to conclude that Hlophe JP acted with “wilful blindness,” “with the addition of a vituperative epithet”, “involving extreme departure from the standard of reasonable person which must demonstrate complete obtuseness of mind or total failure to take care” when he spoke to Nkabinde J and Jafta JA, which would be “gross misconduct” within the meaning of section 177 of the Constitution.
Although the JSC found that Hlophe had discussed the pending matters with two judges of that Court in matters in which he had not sat, it did not amount to gross misconduct. Rather it may merely have been “unwise, ill-considered, imprudent, not thought through”.
Judge Hlophe just simply did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved. Maybe it was an honest mistake?
This decision, with respect, is utterly implausible. It will inevitably tarnish the image of all parties concerned. All the complainants (Hlophe and the judges of the Constitutional Court) will now have to continue sitting as judges despite the fact that we now know for a fact that one or more of them are pathological liars. The judge or judges who truthfully gave evidence to the JSC have been treated in a shocking manner as the JSC has decided not to make a finding about who is lying and who is speaking the truth, tarnishing the reputation of all involved.
That is why I cannot imagine that either Hlophe or the judges of the Constitutional Court would gloat about this decision as it leaves a dark cloud hanging over all of their heads. If anyone gloats about the decision it would strongly suggest that the gloating party or parties were liars and were just too happy to be let off the hook despite telling huge lies.
The JSC itself also comes out of this saga with its credibility in tatters. It drew a distinction where none existed to avoid a full hearing that could have exposed the lies of a sitting judge (or judges) and could have gotten rid of one or more bad apples on the bench. The fact that the JSC does not seem concerned about the fact that its decision condones scurrilous lies, suggests it does not have the ethical compass required to deal responsibly with matters like this.
All in all, it is a sad day for our judiciary and for the JSC. There are no winners here.
PS: The full decision of the JSC can be accessed on the “Seminar Room” page of this Blog
As I have asked in the past, with the Zuma decision, the Shaik decision, and so forth…
Is anybody actually suprised?
Right and wrong, ethical or not, integrity or no – these things are irrelevant when it comes to decisions about the ANC and it’s loyal supporters. The only thing that matters in South Africa today is where your allegiance lies – if you’re for the ANC and it’s beloved members, your position and profile (and paycheck) will be protected, if you’re against, you’re out in the cold on your own.
All you Hlophe supporters out there – I wonder how vocal you would have been had a white judge gone to white CC judges and said that a case against a white man facing fraud charges must be “properly decided”. I would venture that there would be howls of outrage and cries of racism from all corners of the country, and the rest of us whiteys would have to cringe and cower in the expected collective shame of the white race.
But no – when a black man approaches black judges and tells them to find “properly” in a case against the ANC president, we’re called counter-revolutionary, racist, colonial, and so forth. Damned if you do and damned if you don’t, it seems.
I would like to see all you Hlophe supporters being as vocal next time a white farmer is killed by a black man, or Julius Malema tells the ANC that top positions should only be reserved for “Africans” (I was born in Africa – I thought I was an African too?), or an 85 year old white woman is raped by a 17 year old black thug, or patriotic expatriates are almost denied the vote. I want to see you crying racism with the same vigour that you screamed it when Johan Nel shot innocent black people in Skierlik, and when Hlophe JP was hauled up before the JSC, and JZ was charged with fraud.
I doubt it will happen though, because people like that generally lack the capacity to critically analyse facts for themselves – they need the Malemas and Nzimandes and Winnies of the world to tell them what to think.
Well done SA, these are the people we have elected to lead us. Cry the beloved country – the more things change the more they stay the same.
Again – is anybody suprised?
Prof: I actually don’t like responsding before others more balanced than myself comment. I refer to my post on your previous blog however, ‘this is where we find ourselves’. The racist attacks for all who speak against injustice, as it has ironically continued in our glorious South Africa, that is those truly knowing injustice, carefully qualify their comments. What does media call it? Self Censorship? Likely good for all of us.
I for one am thinking deeply: how do I now proceed? What appraoch do I take? How do I express myself?
I accept what has happened to the ANC, and even though I find Zuma interesting, charming, and possible, and know time is required for true democratic awareness, I think its time to re-examine our approach to it all.
Thanks hugely for keeping me, for one, in tune. Cheers
Big Slipper: says it all.
HLOPHEPHOBES may weep and gnash their teeth. But they must accept that this long and sorry chapter is closed. TRANSFORMATION of our judiciary will continue – led by one of the finest legal minds in our time, a man who advised several people on their labour rights in the struggle. Perhaps because, even after returning from Cambridge, he was forced to sleep on the dank floor of a grass hut in Kwa-Zulu, he felt acute EMPATHY for the people of Joe Slovo, albeit recognising you can’t consult forever.
Mikhail: I do understand what you are saying. The complaints of whites, are coming from an educated and experienced background. They are knowing of how Democracies become Dictatorships, where only the elite relish life. We all need to work together. What is the standard by which we decide to interact. Is it Justice as She has been known for centuries, or is it anarahy and power over the populace, where few live in privlidge. And if you think only whites live in privlige, then you don’t know nuttin.
How I see it with whites criticising blacks, is that they criticise you for not being honest, truthful, clear thinking… its a cultural and educational thing, which you the blacks were denied. Wrong, wrong and wrong again, no question.
But how do we continue my bro… its getting scary, we whites fear anarchy and dictatorship and progoms… we’ve seen it repeatedly, try to understand this.
And we whites want to contribute, we’re not all greedy, as not all blacks are greedy….
Time to re-think bro.
We seem to be building a tradition of releasing “we’re sweeping it under the carpet” type announcements on a Friday.
Proper execution of the law may be at a premium, but our masters seem very apt in the art of damage control.
Who makes up the majority and who makes up the minority. Why are these odd documents posted on IOL unsigned and undated?
Professor, I agree: the JSC has produced a weak and contrived piece of reasoning. Frankly, the majority ought to be ashamed of themselves. It seems Kriegler J’s sentiments become truer with everyone of the JSC’s activities: it is more of a hindrance than an aid.
This is just another example of how political solutions are now used to solve criminal problems. South Africa is now no longer a country governed by the principle of the rule of law or even equality before the law for that matter, or at any rate not if the interests of the country’s rulers are at stake. South Africa is now a country governed by the principle of Ultima Ratio Regum, or the last argument of kings – perhaps not as dramatic as the olden days when it referred to the right of kings to go to war, but clearly nonetheless so in principle in as far as it means that our rulers and their allies are not to be held accountable for their actions in court.
WoW! JSC very predictable.
The decisions that involve the Zuma corruption case have become so predictable that one wonders if those who dole them out expect the discerning public to believe their sincerity.
Unfortunately we are setting bad precedents that will be hard to rectify as we slide down the corrupt path of ineptitude and lawlessness. These are symptoms of failed states – and we are in denial.
Who will take the JSC seriously from now on?
As for me and my house, we will not be fooled by these demagogues – the likes of Hlophe and the JSC.
Noseweek: February, 2006
EDITORIAL:
“HLOPE’S FAILURE OF JUDGEMENT”
“We know that Cape Judge President John Hlophe got away with it once last year. But twice is too much. In the first instance, the Judicial Services Commission apparently decided to be patronisingly kind to Judge Hlophe in the matter of his racist abuse of a member of the side bar – and his subsequent dishonest denial of it. But such benign restraint is surely racist in itself. The JSC appears to imply that M’Lud should be forgiven because he is black and therefore incapable of comprehending the dignity and obligations of high office. There is surely no other explanation for their weak complaisance.”
Pierre, surely you knew in your heart of hearts that this would be the decision. I admire your fortitude in blogging so tirelessly on these issues. I’m afraid I long ago adopted the path of least resistance – cynicism. Become a cynic, remain cynical, and you will never have a ’sad day’ or a disappointing one sneak up on you. You wake up in the morning, run through your list of stock phrases – I told you so, Hmph, knew it, What’s new? Well, I never, who’d have guessed? Great Scot! Oh well – then grab the Cape Times and start muttering them at the appropriate places.
I knew Hlophe would get off scot free. And no doubt he’ll wriggle out of the Sello Alcock case too.
By the way, Sirjay, MDF is being IRONIC. His online name is a clue for starters. Note the carefully modulated build-up in his comment: from the subtle (his reference to Hlophe’s contribution to the struggle) to the comic (sleeping on a dank floor) to the screaming sarcasm “of he felt acute EMPATHY for the people of Joe Slovo”.
Sarah, I certainly appreciate that it is very hard not to become disheartened given the JSC’s cowardly display and its obvious lack of regard for judicial legitimacy. And if I made things at all worse by ruining your trousers: you know I’m sorry.
But being hopeful, although risky in some respects, is not such a drag you know. True, the JSC is, for the most part, bad comedy. But at least we can still openly criticise it. And we can still make suggestions. For instance, one might suggest that given the JSC’s dreadful track record, some relevant body could look to implement (a) other ways to hold judges accountable and (b), suggest revamping the JSC by clarifying exactly what it is that the public is justified in expecting of it given that appeals to the import of transparency are clearly not sending enough of a message.
The verdict of the JSC points to how deeply embedded crookedness and corruption have become in our institutional life.
The obvious conclusion is that black judges must be held to a lower standard of ethical behaviour.
Ever since the earlier proceedings in the JSC were set aside (which, so it is submitted, could have been appealed witth success); and the JSC was restructured to exclude earlier members (of integrity) and to include lawyers that are clear Hlophe(and perhaps, Zuma) supporters, everyone with a sound mind should have known, the writing was on the wall for the JSC (mene, mene, tekel, ufarsin); and that the JSC would kick for touch, rather than press forward for the goal of judicial acountability and transparency of process. (Good thing that the members of the JSc are not rugby players for the national team, because such poor positional kicking would surely cost the Boks the game today.)
Like with the OASIS thingie, once again the JSC’s reasoning is weak and contrived. (Such poor easoning in a judicial judgment would almost invariably lead to its setting aside on appeal.) Saying that that his approach of Jaftha and Nkabinde was, in the circumstances, unwise, even stupid, but does not amount to gross misconduct so that Hlophe can remain in the running for a position in the CC, actually brings across the mesage that the JSC is willing to interview and have stupid judges appointed to the Highest Court, designed to uphold the Constitution and the Rule of Law. Then there is that libel suit hanging against Hlophe after judges from the outside gave permission for the suit to be instituted. Hlophe is a Maverick that should never have been allowed on the Bench, never mind in the position of JP, and now his way to the CC is being paved by the JSC. … Shit! … What a disgrace!
Apla – “WoW! JSC very predictable.”
How’s that for transparency!
Well Prof as you know, the JSC is only a quasi-legal entity and the decision can be taken to a higher court for review. The Constitution has widened the “list” of persons or parties who may do so. In fact even the press may do so.
So why do you not do so if you are so convinced that they erred ?
Or will you remain a draadsitter ?
I do not believe the breakdown of the majority/minority at the JSC been revealed. If it is along racial lines, that would be most unfortunate from any perspective.
What would arguably render such a split less stark would be the consideration that both the most prominent CC complainants and the respondent are black.
A competing analysis would view the split as in-part generational rather than specifically racial. But that would not necessarily be inconsistent with a more subtle racial analysis: If most or all black JSC members voted for Hlophe, and no white did, vould that signal that the black members were more prone to make common cause with an man who is (rightly or wrongly) identified with exclusivist African nationalism, rather than with the older generation of non-racialists on the CC who were more personally involved in the struggle, and its attendant non-racial ideals?
I am not sure. And all remains speculative until we learn who signed the two decisions.
What distress me more than anything is the schism amoung Africans and non-Africans on any subject that involves the judiciary and politics.
I would like to know where all the hand wringers and doomsayers are when a Judges like Blieden and other Aparthied area judges are blatant partiality toward white litigants and their hired hands.
If I heard the same type of comments about judges who obviously discriminate then I would be able to take your comments more seriously.
@ C Vaughn, I may agree that there is opportunism all round.
But can you agree there is also profound ignorance? Case in point: People have attacked Pierre for his vigorous arguments re the dispute about the JP, implying that he is racially selective in his approach. But they can only do that if they are either ignorant or wilfully blind to the fact that Pierre has written thousands of pages attacking white racist jurisprudence.
Same goes for current attacks on white “liberals.” These often come from people who are too young — or too lazy to read about — the fact that some (not all) of these liberals devoted entire careers to unrelenting attacks on the apartheid judiciary and administration.
I even feel ashamed of these palookas that tarnish the image of Black South Africans.
Leigh, I am sure you can see why I previously suggested the composition of an independent body the way I did. I have no doubt that this so called JSC is the ANC in another guise.
I think even my gandmother may be able to detect the parten, i.e, the Zuma droping of charges, Schabir schaick Parole miracle, and now is Hlophe.
The question is, where is this going to lead our Judiciary?, if the political party is going to be making and interpreting the Laws. (Is this a new defination if trias politica doctrine?, Kevin may you assist on this).
If the ANC meant this, by upholding the Judiciary they have got Zero per cent.
Why is this only happening after the new membership have taken charge, is this the reason why Hlophe had ‘Flu’, so that he can have the new member placed first, I now agree that Hlophe is the next chief Justice.
What a shame to all of us.
Weell, the Boks won Down Under 32/25 – and there were not many kicks for touch as I thought would be the case. The JSC’s kick for touch – now thinking of it, and comparing styles – suggests that Bernard Ngoepe wrote the majority judgment (is that why he held his head and refused to mface the cameras when shown on TV last night?). What are these guys trying to hide by not revealing the nature of the split and who gave and who signed which judgment? As I have said earlier – finding that a judge (actually a JP) acted in a manner that was “unwise, ill-considered, imprudent, not thought through” actually amounts to a finding that Hlophe JP is stupid, and should not be a judge at all! We’ll now have to wait and see whether he is short-listed for one of the vacant CC posts next week – if so, weell, judge for yourself – Sebjeni, I agree, a bunch of “palookas’. I’d hang my head in shame if I was a judge in the Western Cape, … and if my tenure relied on the JSC.
The Magistrates Commission has made similar blunders in the past – failing to act against a magistrate that struck 20 cases off the roll when feeling tired, just because they were enrolled after 9 o’clock in the morning; or against a maistrate that fell asleep during the trial of a case and refused to recuse herself [and, on top of that refused to vacate the home from where she was evicted per court order for not paying her bond]. The Commissioners do not really seem to have a grasp of what is regarded as imprudent enough to warrant dismissal of magistrates.
The problem, I humbly would venture to suggest, is that politics is running judicial appointments and dismissals, and that the independence of the entire judiciary is in jeopardy. This places a big question mark over the process of appointing judicial officers. Viz, the debate earlier this year on whether magistrates and judges should be appointed by the same body, the JSC. I do ot think that either body, the JSC or the MC (chaired by Bernard Ngoepe!), should be allowed, given their present composition, to comment on the suitability of aspirant judicial officers to assume office. The hands of politicians should be kept out of structuring the judiciary.
Sebjeni, I remember that when Zuma first assumed the presidency, the Professor generously suggested that Zuma should be given some time to make his intentions clear. And by necessary implication, the suggestion was that the ANC should be given a measure of time.
I say that the Professor’s suggestion was generous given that it plainly ran contrary to his better judgment – as it offended the better judgment of other reasonable people as well.
Now of course we are able to see that Zuma’s first few months in office have been spectacular for some deeply troubling reasons. Yes, the JSC is another of the ANC’s guises. That much is clear. But on rather a hopeful note, the daunting question is: what are we to do about the this sorry state?
I must respectfully confess that apart from the Professor, I am very disappointed in the academy. HLA Hart defended some daring and socially germane positions in his day. The conduct of the JSC certain denotes a disquieting pattern and it probably won’t stop itself. Thus I think we need a body of fresh and innovative solutions to the threat which the JSC poses and one of the more important places to which we ought to be able to turn for that is the academy.
Yes, the usual chorus of HLOPHEPHOBES, singing from the same song sheet, under the baton of choirmaster Pierre de Vos, have already begun their pitiful bleating about yesterday’s decision. But however much they hate the outcome, even the most fanatical liberals cannot fault the exquisite logic to be found in the majority’s decision to exonerate the JP.
I need do no more that point to three pieces of reasoning in the majority’s decision that pretty much settle the case:
1. If the JP had really wanted to improperly influence the judges, he would have followed the matter up with Jafta and Nkabinde JJ. Having called them both and visited their chambers, he would surely have persevered, with follow up calls to them, if truly he was hell-bent on saving his hero from an adverse decision!
2. The JP spoke to the CJ, DCJ, and Ncgobo J at around the same time he approached Jafta and Nkabinde JJ Now, as the JSC acutely observes, “decision of the CC . . . area taken by a majority.” That being so, had the JP really meant to sway the Court, he would have of course have taken the opportunity to influence these judges too. (An irresistible inference indeed!)
3. In any case, there would be no point in cross-examination of the JP. For it would be “naïve” to expect he would not stick to his guns. Again, this is surely unassailable reasoning. All practicing lawyers know that judges routinely deny cross examination, precisely on the basis that it would be just futile to cross question a witness who we can tell will not budge from his account.
Whatever one might want to say about the fitness of otherwise of the JP for the bench, the sheer brilliance of the legal reasoning employed by the JSC majority speaks volumes for their own analytical acumen. Bravo, I say!
Prof: my only worry about the legal system (if bloggers in your blog are in the judiciary) IS THE AMOUNT OF GENELISATION WITHOUT ANY CONCRETE EVIDENCE. The ANC is said to be involved in the debacle? where is this evident? What is worse is the racial undertones. Black equals lower standards etc.
PEOPLE IN THIS BLOG IS TO BE NAIVE IF NOT IGNORANT. THEY MUST START GOOGLING SO THAT THEY SEE HOW OTHER COUNTRIES REALLY DEAL WITH THESE ISSUES. ESPECIALLY THE COUNTRIES THEY SEEM TO TRUST (WEST). IT SEEMS YOUR BLOGGERS SEE WHAT THEY WANT TO SEE IN THE WORLD AND THROW AWAY THE REALITIES.
I AM AFRIAD TO STEP IN A COURT OF LAW IF THESE ARE THE JUDICIAL OFFICERS WE HAVE IN THIS COUNTRY.
Sorry:PEOPLE IN THIS BLOG ARE EITHER NAIVE IF NOT THEN IGNORANT.
Senior judges wanted Hlophe case to continue:
http://www.int.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20090830102254128C205768
“Rounding up the group who voted in favour of the matter being dropped were Moerane and Durban attorney Mvuseni Ngobane, who last year wrote a “dissenting view” on the JSC’s decision to proceed with the inquiry into the Constitutional Court’s complaint instead of granting Judge Hlophe a postponement. Judge Mpati refused a postponement on the grounds that “good cause had not been shown for a further postponement”.
Why was no action taken against Ngobane when he broke ranks and revealed the internal discussions of the complaints committee?
What more do you need to show bias? If he had been biased against Hlophe, Hlophe would have demanded his recusal.
Memories are short and getting shorter every hour …
Thomas,
We must be careful not to mix political and legal solutions; the latter is what we are dealing with in this Blog.
It is a fallacy to hold a view that analysts would only be driven by what has been made available. Your emphasis on (outdated) textual interpretation is the one key contributory factor that tempts you to drag all of us into your own restricted view. For your information, the Concourt has dealt away with textual interpretation. The preferred approach is the contextual one. We therefore are not restricted by only what is written before us, in order to construct a valid analysis. Otherwise we would be easily misled.
May I say the following?
(a) The former JSC was willing to pursue the matter, but after the president (the mouth piece of the ANC) has made appointments, the ’same’ JSC has taken an opposite direction with regard to the same matter, involving same parties. (Remember this happened after Hlophe had ‘Flu, which could reasonably be seen to have been a delaying tactic because he knew that after the new correct appointment (s) he will be safe) Are you not surprised (1) they (JSC) attempted to have a secret [so that we may not know how the intended outcome was reached] questioning, and for this, they suffered a blow from the High court. (2) As for the delay we already know, that whatever is unjust cannot be released early enough take for example the Zuma dropping of charges. (3) Again, they are playing their secret card, by not revealing the names of the parties who voted in a given way, (as for this, I for one will not be convinced that they (JSC) are protecting the minority from the political pressure as they claim, I however hold that they are making it difficult for the public to see that the newly appointees are the ones who came with a mandate.
(b) How about if one suggests that you are the one who is naive/ ignorant, because the facts are clear, but you elect to discard the truth and let your wishes come first. We have at least one Judge who is going to continue sitting on the bench being a liar, and you are saying there is no problem with that?
(c) You are the one who generalises a lot more than you realised by;
(i) Assuming that all those who criticise the outcome in question are not ANC members, and are therefore anti-ANC. Let me alert you that we have correct membership of the ANC which do not allow their so called loyalty, hijack their conscious analysis of clear facts. To me good loyalty is the one that puts the interests of the country first as opposed to that narrow one of yours which only puts an individual over the well being of the Judiciary, and therefore the country. I am also not convinced that if Hlophe was a white Judge you would be talking the dame talk.
(ii) In my view, the same Para, where you speak of realities, should have being the one that guided you to be, to the least, impartial but you go on to fight to convince that you are the only one who sees these realities and the rest of the bloggers except yourself, do not see. You do not seem to agree that you are mealy displaying your views, but sound like a better jurist who is showing the way.
Oh dear. I guess one should not be surprised. But I still am.
Can some of the leagle eagles here explain to us how one takes a case on review? How much it will cost? What would it entail?
“The Sunday Independent has established that Judge President of the Supreme Court of Appeal Lex Mpati and North and South Gauteng Judge President Bernard Ngoepe voted in favour of the dispute between Judge Hlophe and the judges of the Constitutional Court being referred to a formal hearing.
And the two judges were part of a four-person minority, which included attorney Julian von Klemperer and law academic Professor Engela Schlemmer, who fought for their dissenting view on the Hlophe matter to be made public – with their names attached to it.”
That is a relief.
Come on Constitutionally speaking readers, please enlighten us on how this matter can be taken further.
another version,
This matter is not about Hlophe (and his fans), but is about the repute of the Judiciary since we now have the Judge who is a liar but is going to continue serving on the bench.
This, I think is the view that the JSC should have considered paramount as opposed to the ANC’s, so called, political solution approach to judicial problems.
My question (s) are: (a) if someone who is a Judge is not capable of telling the truth, how the hell can they see it to be wrongdoing when witnesses are lying before them?, is that not miscarriage of the rule of law?
(b) assuming that is is true that Hlophe went all the way from cape to Braamfontein to do the alleged persuading, what is happening with the matters that are currently before him?
(c) If he hates whites like he allegedly displayed, How is he working with cases involving whites?
(d) In the light of the above, Is this person fit and proper for the task?
It is regretable that Pikoli is being fired for working and others are being let off the hook for being ‘unwise’.
Sebjeni Moyahabo; maybe I am ignorant but these are comments in this blog:
I even feel ashamed of these palookas that tarnish the image of Black South Africans.
Right and wrong, ethical or not, integrity or no – these things are irrelevant when it comes to decisions about the ANC and it’s loyal supporters. The only thing that matters in South Africa today is where your allegiance lies – if you’re for the ANC and it’s beloved members, your position and profile (and paycheck) will be protected, if you’re against, you’re out in the cold on your own.
The complaints of whites, are coming from an educated and experienced background.
I have no doubt that this so called JSC is the ANC in another guise.
What do these sweeping statements suggest? You are trying to say as judiciary officers you dont even trust your own because you suspect they are ANC or because they are black they are “uneducated and inexperienced”
You also try and make the distiction between politics and the law. That is where I feel you are trying to be ingeneous. Judicial officers can have racist politics but somehow they will be partial in a court of law? How many judgements have we known that have been found to be based on racial stereotyping or just wrong judgents because of the colour of the accused?(I agree with you I am ignorant), Two of the judge that voted for the minority view were black (maybe they are not ANC members therefore they do not count in this so called ANC “agenda”. I might be stupid but saying the facts are clear is being naive in itself. Why would YOU support further investigations into the matter if the facts are clear. Go to the JSC and ask for diciplinary action against JH because the facts are clear or what you mean is that you expect all of us to agree with you because you are the only one who knows the facts? If you where at the meetings/encounters then let us know? If not you know as much as we know.
Can you please enlighten us what you want to actually happen? for JH to be impeached because the facts are clear.
I love the deflection. You hear nothing about the CC and the manner in which they abused their office in trying to discredit a “less than noble” Judge. Two wrongs definitely don’t make a right and I am certain that they will not answer for this horrific debacle they caused. The “PETITION IN SUPPRT OF THE CONSTITUTIONAL COURT” ended up being a lame-duck and wouldn’t be surprised if the Professor will have some cringe moments while brushing his teeth and realizing what a fool he was to be part of a dangerous agenda. I do not agree that the guardians of our constitution must go on a clandestine “fatwa” to counter this “movement” as an excuse to safeguard their interests. I hope that others will see through this masquerade and realize that we are actually at war without the bullets!
The rise of Black Nationalism is complete! The utterings of much of our leadership (see Malema rantings and those of supporting cast of Winnie Mandela and Leonard Chuene recently) is testament to this in their attacking of anything they perceive as a form of racism. Other telltales are the bastardization of the English language which is symbolic of the need of this Nationalist movement to humiliate everything white. Please confirm for me what would occur if you chose to correct “someone” about the correct pronunciation of these words!
I will be extremely blunt! Parallels can be drawn between them and Hitler and his Nazi’s when questioned about their persecution of Jews and those in opposition to them. They would counter instances of these claims with retorts of the nature that they were just looking out for the interests of the German people and it was “they” who were the racists and opposed to change. The attacks were so frequent that the Jews themselves started questioning whether maybe it was true that they were the problem!
Accuse me of shuffling garbage but history tends to repeat itself and just like the instance of the Nazi rise it was all seen too late on what was really happening. Guess I’m the fool here!
The JSC are for the most part a cowardly and disreputable set. To think that in addition to having the gall to base its finding on such a shabby foundation, the majority may have effectively suppressed the minority decision. Plainly, the JSC is a part of the problem.
I have to withdraw my misgivings as far as Bernard Ngoepe is concerned since he is reported to have been part of the minority group of four. Thanks Snowman and Kameraad Mhambi for the info. Lex Mpati, Bernard Ngoepe (both judges, both black – hence racism cannot be cried), Von Klemperer (an attorney); and Prof Schlemmer (academic) apparently wanted their identities and minority judgment disclosed, which is of course to be appreciated. Many if not all of the other six members (especially the three that have recently been appointed) have clear personal/political agendas to protect Hlophe, and some have shown evidence of this in the past already. The fact that there are no judges among the majority would explain the poor quality of the ‘judgment’ setting out the majority’s reasons for not recommending a full scale enquiry.
Kameraad Mhambi – Obviously the matter can be reviewed since clear irregularities can be pointed out pertaining to the lack of objectivity of members; or appealed on grounds of a clearly wrong interpretation of what would amount to gross misconduct (in fact, earlier the full JSC has already indicated that if the averments of either of both sides could be proved, it would amount to ‘gross misconduct’!). Precedent has been set by the matters where Hlophe took the CC judges and the JSC to court, which clearly indicates that the High Court would have jurisdiction to review the matter (or hear an appeal). The only question would be which Division of the High Court might have jurisdiction, probably Gauteng South (Jhb) – but, given the splits in the Gauteng South Court in the past, it is known that Hlophe enjoys much support in that Division. The chances of success might therefore be around 50/50. If it goes to the SCA after that, the chances are however much better that the JSC’s decision would be overturned.
However, one must ask oneself the question whether “die kool die sous werd is”. Even if the JSC at the direction of the Court does conduct a full hearing and, even if it does in the end recommend impeachment, the problem will still remain: How can a majority of two thirds be attained in both houses of Parliament to impeach and secure the dismissal of Hlophe? Given the ANC’s majority, and its clear inclination to promote party-politics (and partisanism among judges to further the cause of the majoritrty political party) rather than proper governance, independence of the judiciary and the Rule of Law, the chances are much less than average that Parliament would impeach Hlophe.
Seems like Hlophe JP, whose actions to approach Jaftha and Nkabinde in the Zuma Thint matters (which must be misconduct seeing that part of the matter emanated from Hlophe JP’s own court) were described by the majority as “unwise, ill-considered, imprudent, not thought through” (in other words ‘STUPID’), is now allowed to again ascend the Bench in the Western Cape. Who wants a stupid (clearly not impartial and politically affiliated) judge to preside over their cases? Moreover, who among the Western Cape judges would appreciate being headed by such a JP? … Banana Republic?
I guess the “Shenanigans” of the JSC saw fruit. Well what you espect with a board which has been pumped with BLA members??
But there is hope the CC judges can ask for a review, If I was them take it to court the JSC can not be trusted nore can it come to a complete decision, The jsc was not in anyway interested to hear evidence.
Anonymouse, you raise an interesting point. The judge’s all subscribed to the minority view. So one question could be: does the majority know how shoddy its reasoning is? Who knows right?
But perhaps the better view is that the majority always knew that Hlophe would catch a break. And that after the media groups successfully launched a very welcome application, the majority was merely forced to accept that it would have to look somewhat foolish and crooked in order to realise its ultimate object.
Annonymouse,
I concur,
We just have to let go of this matter, because even if it goes to parliament, Hlophe will still not be voted out. (May be because the matter has a Zuma name in it).
I know Hlophe is very intelligent and capable of extraordinary, but it is not to the interest of the judiciary (and the country) to have at least one Judge (either one from the CC or Hlophe) who lied, to be allowed to continue sitting on the bench.
Big Sleeper – August 28, 2009 at 17:31 pm
You are spot on Big Sleeper. I am not surprised at all. Unfortunately this is what we have to put up with for the next 10 years under this new administration.
I did not expect a different outcome from this since the foundation has already been laid with the bizarre dropping of the JZ case. And I expect similar outcomes in future where JZ and ANC’s cronies are involved.
Mandela once said he fought against white domination as well as against black domination. Meaning he did not fight to replace the white apartheid with the black apartheid. Unfortunately, the very man he aspires to and pretends to be the next Mandela is institutionalizing another domination based on cult and loyalty to him while Mandela fought for and ensured that fair and equal justice is dispensed to all irrespective of socio-political and economic standing in the society.
Thomas, do you really think there is going to be anything apolitical under this administration when it comes to dispensing justice where the interests of the current ANC leadership is involved? You are expecting too much and you are certainly in for a big surprise of your life.
Prof, the sad day for our judiciary had dawned long time ago when the NPA dropped JZ case on the basis of illegally solicited tapes.
I think that it is time that we restore the use of the word “evil” into our public discourse.
Anonymouse asks:
“However, one must ask oneself the question whether “die kool die sous werd is”. Even if the JSC at the direction of the Court does conduct a full hearing and, even if it does in the end recommend impeachment, the problem will still remain: How can a majority of two thirds be attained in both houses of Parliament to impeach and secure the dismissal of Hlophe? Given the ANC’s majority, and its clear inclination to promote party-politics (and partisanism among judges to further the cause of the majoritrty political party) rather than proper governance, independence of the judiciary and the Rule of Law, the chances are much less than average that Parliament would impeach Hlophe.”
Even if you are right, and I suspect you are, I still think it would be a dereliction of duty not to. It would also send an important symbolic message.
When the Nats changed the composition of the judiciary to remove coloreds from the voters role it was clear nothing would stop them. Still everything was tried.
To give up would shame us forever for generations to come. I still believe that in the end, justice will win, but only if good and principled men don’t do nothing.
I agree with Kameraad Mhambi. The matter should be referred, even if a ‘favourable’ outcome in Parliament cannot be expected.
@Mikhail Dworkin Fassbinder, thank you for pointing out the obvious to all the Hlopephobes and Prof and his sheep. I concur to your post Fassbinder.