This is what we have come to. In the end it all depended on the interpretation of a sick note issued by a doctor and whether one believed John Hlophe when he claimed that he was so desperately ill that he could not attend the JSC hearing – despite his doctor having stated that his symptoms would probably have completely abated on the day the hearings of the JSC finally commenced.
Judge President John Hlophe thus scored another Pyrrhic victory today in his attempt to avoid facing up to the charges of gross misconduct leveled against him by the judges of the Constitutional Court. In a split decision, two judges found that there was nothing unlawful about the conduct of the JSC up to the date when it started the formal hearing against him.
However, the majority found that Hlophe had shown good cause as to why the hearing should not proceed in his absence on 7 April because Hlophe had tendered a sick note from a doctor indicating that he would be able to attend the hearing – at the earliest – on 7 April when his symptoms would have completely abated. Although the sick note indicated that Hlophe’s symptoms would have abated by 7 April, the majority chose to believe Hlophe who had indicated (without providing further proof) that he was still so desperately sick that he could not travel to attend the JSC hearing on 7 April.
(One question: if Hlophe had wanted to attend the hearing, why would he need to wait until his symptoms had completely abated. Ordinary hard working people often go to work when they are not hundred percent recovered, although shirkers will always run out the clock with the help from a sick note.)
In any case, the majority thus found that:
The JSC acted improperly and unreasonably in refusing the applicant a further postponement. The decision of the JSC unjustifiably violated [Hlophe's] right to a fair hearing and to participate freely in the proceedings which affect him. The proceedings of the JSC of both 7 and 8 April are unreasonable and unlawful. They ought to be set aside.
The majority set aside the hearings on 7 and 8 April and ordered that it proceed at a date suitable to both parties (oh, oh). The majority did not deal with the litany of allegations made by Hlophe against the JSC, so there was no finding here that the JSC acted in a biased manner or that it was unlawfully constituted when it started hearing the case.
The minority felt that the application was premature as a review of this kind should not be reviewed by a court before the body had completed its work. A court, said the minority, must be careful not to open sluice-gates that could render the functioning of the courts and the innumerable administrative tribunals throughout the land untenable. If individuals could challenge the lawfulness of a hearing even before it had been concluded, it would create chaos and would potentially flood the courts with such premature applications.
The JSC will now have to start the hearings afresh. At these hearings what happened on 7 and 8 April will be irrelevant. As the minority points out:
The order [issued by the majority] may create even greater difficulties for the applicant: he will be deprived of his opportunity to argue that, on 7th and 8th April, 2009, an irreversible wrong was perpetrated against him.
This means that the JSC will now be able to continue with the case and that Hlophe will not be able to argue that what hapened on 7 and 8 April would make the new hearing unalwful. As the majority also found that it could not find that what preceded these two days were unlawful, absent any new cause of action Hlophe will not be able to further stall the proceedings.
This means that the JSC will now be able to hear the case against Hlophe and that further delays (bar some mysterious new attack of ill health on the part of Hlophe or the emergence of some illegally obtained transcripts of telephone conversations showing bias on the part of the JSC) will not be allowed. Although Hlophe therefore scored an important moral victory today, this judgment might come back to haunt him as it seems to rule out any further delays, something that Hlophe seems desperately to get to try and string out the case and postpone his inevitable day under cross examination.
This is a good thing. The sooner we hear from Hlophe himself (and the sooner he is taken under cross examination to probe some of his less plausible assertions) the better for all. We all need this issue to be dealt with as soon as possible. Sadly recent events suggest that Hlophe will do anything he can not to have the JSC conduct a hearing and not having to face cross examination.
The big question now is: will Hlophe and his lawyers continue to play for time and if they do, what new reasons will they conjure up to try and delay the case? As they cannot bring a bias application until the proceedings have been concluded, they seem to be boxed in and will now have to face the music.
I have just read through both judgments and, with fear of once again being criticized as racist given the split, I must say that Willis J’s judgment is much more reasoned and convincing than that of tskoka J (with whom Maluleka J agreed). The sick note stated that Hlophe JP was ill from 3 April with recommended bedrest for 3 days. Four days later, Counsel (yet again a different one than the previous 2) requested postponement, this time without a sick note (but not in order to consult as indicated by previous Counsel) because Hlophe JP was too indisposed to attend. (Why didn’t he just get a new sick note?) Obviously, this is not good cause shown for postponement and, on the majority’s own reasoning, that being the case, the JSC could not be faulted for continueing in Hlophe JP’s absence. Circular reasoning at its best was employed by the majority.
Mouse, be that as it may, the stage is set for a gruelling hearing I have been longing for for sometime. I could not help notice Tsoka J’s insinuations about Nkabinde and Jafta JJ’s credibility.
Let the ‘games’ begin!
I know that if the JSC were to appeal Harmse would uphold the appeal. For progress sake, I hope JSC would take this on the chin and proceed to hear the matter.
Bongs – Yes, indeed, let the games begin – sorry for the typo with Tsoka J’s name – Tsoka J’s insinuations about the credibility of two CC judges, while that issue was not before court is however tantamount to a politically loaded decision that is partisan and unfounded on the evidence before court, and if that is the kind of reasoning emanating from judges (as was the case of Nicholson J’s Zuma judgment), then I see difficulties ahead for the rule of law. How could one ever think one is receiving a fair trial if the judge is willing to say such things while not required to do so? Just a question.
Have our courts got nothing better to do than entertain the vacuous wrigglings of this obnoxious fool and his lawyers?
Mouse and Bongs – a link to the judgements?
Peter, see http://www.saflii.org/_za/cases/ZAGPJHC/2009/19.html
thanks to Samaita @ 11:49
Mouse
“Tsoka J’s insinuations about the credibility of two CC judges, while that issue was not before court is however tantamount to a politically loaded decision that is partisan and unfounded on the evidence before court, and if that is the kind of reasoning emanating from judges (as was the case of Nicholson J’s Zuma judgment), then I see difficulties ahead for the rule of law”
You are a bit too harsh on Tsoka J. This was not even a finding. He was just emphasszing the need for JP to have been present in these proceedings.
Bongs, I agree. No appeal. Let’s start the hearing from scratch and get this thing done with.
Bongs – I also agree that there shouldn’t be an appeal, the JSC should just start hearing the matter afresh and get the matter over with. I do however still think that the majority’s decision is wrong, and any prejudice that Hlophe may have suffered, could have been remedied by the re-calling of (all) the witnesses and cross-examination. That way, a whole lot more time, energy and resources would’ve been saved, and he would still have had the opportunity to see and confront the witnesses eye-to-eye although he was absent from the evidence in chief – he could even ask them to repeat certain parts of their evidence. I particularly disagree with the following extract from the majrity judgment:
“To cross examine a witness whom one has not observed and noted such witness’ demeanour is an impoverished and a futile exercise. For cross-examination to be the best vehicle ever invented to discover the truth, (see Eric Morris: The technique in Litigation) it must benefit from hearing and observing any witness who testify in a particular matter. It is in this context, that I understand the Bapedi saying that “Ditaba di tswa mahlong” (which may loosely and contextually be translated as: to truly appreciate and evaluate testimony one must have looked at and observed the witness testify).”
As the majority was clearly wrong in its finding that Hlophe JP did show good cause for a postponement on the 7th, the result shoud have been, as they themselves said should happen if he could not show good cause, that the proceedings had to be kept in place subject to his right to recall and cross-examine. (More or less like the case in a crimial trial where an accused person absents himself with or without leave and permission of the court.) That would’ve been the right thing to do, but I think in the circumstances, the most prudent thing would be for the JSC to start the hearing afresh. I’m just wondering about that guy that withdrew after the proceedings did go ahead in Hlophe’s absence.
I dont think good cause was shown by Hlophe for not attending so I am in respectful disagreement with the majority. The JSC looked at the totality of circumstances and the endless delays by Hlophe and his team and thought another delay based on an assertion not backed up by affidavit did not show good cause for further postponement. The majority judgment focused narrowly on the sick note and gave Hlophe the benefit of the doubt that he was not fully recovered, despite the fact that there was no new sick note and no formal affidavit confirming that he was still so desperately ill that he could not attend.
If, in the coming days, Hlophe and his team tries to delay this matter again, we would know that the majority was wrong as it would show that they are abusing the process to avoid accountability. If Hlophe and his team speedily agrees to a date for the hearing, I will concede that the majority might have been correct. I hold my breath (not!)
I cannot comment on the legal aspects of the case, as I am not qualified to do so. However, it does seem to me that we are fast establishing a different kind of precedent in SA – one whereby it doesn’t matter what you’re accused of, as long as you can argue all sorts of different legal technicalities, smattered with good doses of playing the victim (political conspiracy, racist agendas, etc). Our public office bearers are learning that morality and ethics are irrelevant, as long as minor technicalities (which have no impact on guilt or not) are around to argue until the cows come home.
Lets hope the JSC starts afresh and puts this to bed once and for all.
Lady Justice was desperately trying to raise one knee in her determined struggle to arise, but now, down again! We can’t let this happen, she must rise for all within SA’ s borders, and indeed for the Continent and the wider world. Everyone interested in, or studying Democracy, is watching.
South Africa is of unique world interest, thanks to Madiba. The International community watches our every move.
Do they with the power know we are not fooled? Do they care? Do they laugh at those who care while swirling their whiskeys. In their own hearts they do know they are cheating, interested only in their own welfare, self enrichment, power. Eventually, there will be a reckoning.
Otherwise, all my pessimistic friends and family will say: told you so, we’re driven into the ocean. And what then will be the loss for this beloved country?
…and then there was Judge Nkola Motata and his fair share of shenanigans …
Prof askies for the questions out of order but I m desperate here? 1. Is it compulsory/standard procedure to conduct a dc hearing in the workplace on audio tape recorder? 2. Can the chair of the hearing have the HR manager, while having a company rep leading the case for employer, present as an observer , linked to this, for what can the chair consult the HR manager??….Prof or anyone PLEASE. Sorry for this guys But I m desperate here!
Spuy:
1. it is neither standard practice nor compulsory, but there is nothing wrong or unusual about it either. Disciplinary proceedings are not required to be conducted with the same level of formality as court proceedings.
2. There is nothing preventing the HR manager from being present during the company rep’s presentation, but if the HR manager is going to testify it may be undesirable.
However, it is not clear why the chair finds it necessary or desirable to “consult” with the HR manager – the chair must apply his mind to proceedings and make his own finding.
Practically speaking, you can always refer the outcome of the enquiry to the CCMA; if it turns out that the company bolloxed the procedure, you’re home free.
Hope this helps…
Spuy, I’m breaking the Law by doing this but, I’ve copied the Code of Good Practice for dismissals:
4 Fair procedure
(1) Normally, the employer should conduct an investigation to determine whether there are grounds for dismissal . This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee . After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
(2) Discipline against a trade union representative or an employee who is an office-bearer or official of a trade union should not be instituted without first informing and consulting the trade union.
(3) If the employee is dismissed, the employee should be given the reason for dismissal and reminded of any rights to refer the matter to a council with jurisdiction or to the Commission or to any dispute resolution procedures established in terms of a collective agreement .
(4) In exceptional circumstances, if the employer cannot reasonably be expected to comply with these guidelines, the employer may dispense with pre-dismissal procedures.
I would imagine that a recording is safe as you would be able to admit that as evidence if you have to go to the CCMA at some stage. It seems fair to have the HR manager there because they’re well versed on employment issues. Just ensure the employee has a rep and the company has a rep and that the proceedings are fair.
Excuse my ignorance but, if this had been an ordinary matter where a layman had tio appear before the court, would the court have accepted what Hlophe JP did? If not, then I do not see how this accords with fairness. I also understand the point that is said to have been made by Willis J. Hlophe JP has assumed that the JSC will be biased against him.
Well this to me is just a lesson to the JSC and their lawyers. Stop screwing around with the taxpayers money and get things done right. Obviously, as seen with the the hearings of the now President, a high profiled case needs high profiled tactics. It is not possible for one to accurately guess on how low one would stoop to buy time(rare commodity), so i suggest that the bloody well cover all the cracks, for now and the future!!!
I am sorry to repeat myself again, but why did the JSC not ask for Judge Hlophe’s plane ticket for the first date (when the sick note was presented)?
This would be speculative, but if he could not produce a valid ticket, then everyone would know that the first illness was a sham.
Could anyone maybe have a word with the JSC…
I am a little confused by the kid gloves Hlophe is treated with to be perfectly honest. Such a fuss over nothing.
As I understand it: Hlophe’s sick note ran out. His Counsel was unprepared because he sacked his former Counsel on the door of the Hearing. His Counsel turned up, didn’t get their own way, and as far as I know, flounced out of the Hearing.
Everyone else says, to hell with this, we have lives to be getting on it, first witness please.
That seems to me like a perfectly adult response to a tantruming child. Yet the High Court wants to get all spineless. I’m not liking the fundamental messages we are sending out to society.
Hlophe should have extended his sick note, or made time to brief his counsel. It wasn’t the JSC’s problem. (Of course there was the small problem of Hlophe having been sighted cycling around Pinelands during his period of bed rest by several people, so perhaps the doctor would not be so willing).
Coleeagues, mark my words, i doubt if these proceedings will ever be resuscitated. cahnces are, to avoid further embarrasment on both sides of the spectrum, some ‘amicable solution’ WILL be found. if that were to happen, then maybe it would be for the better and let everybody move on and save our judiciary.
I guess there will be lessons learnt by all and sundry.
I still believe that there is merit in this matter being resolved amicably and without admission of liability by any of the egos involved, failing which, this whole thing will degenerate further to abyssmal proportions, not that same is not already the case.
lawyers by their very nature are highly egotistical animals. i have not even commented about judges. so, you can imagine what is realyy going on in various chambers.
I was one of those who were hoping that the truth “will out”, but with the recent developments, I am very confused and close to getting bored with this matter. the fact is, the JSC blundered, while my friend, Justice Hlophe seems to be makinmg a meal of it. my only concern is whether this feast (at Hlophe’s instance) is sustainable or not. if it is, of what public benefit is all of this?
in the end, it would appear that public funds are being misdirected, not that I suggest that colleagues should not be paid for their services, to the contrary, i am for paying colleagues well for their services. my point is gravamen of my point is more about the bigger picture and the ‘soul” of our judiciary. Let me hasteb to add that jusctice Hlophe is perfectly within his rights to fight back with all the vigour he can muster, however, at some point, sanity must prevail.
Once again, let us watch the space.
On a very sad note, my condolence to thefamily and friends of all tose passengers in flight 447 headed for France. I am not condemning their souls, but if all the media reports are anything to go by, amy their souls rest in peace.
ZM
Erratum
please pardon the typos in the earlier post
eg. Colleagues, chances,etc
Colleagues, mark my words, i doubt if these proceedings will ever be resuscitated. chances are, to avoid further embarrasment on both sides of the spectrum, some ‘amicable solution’ WILL be found. if that were to happen, then maybe it would be for the better and let everybody move on and save our judiciary.
I guess there will be lessons learnt by all and sundry.
I still believe that there is merit in this matter being resolved amicably and without admission of liability by any of the egos involved, failing which, this whole thing will degenerate further to abyssmal proportions, not that same is not already the case.
lawyers by their very nature are highly egotistical animals. i have not even commented about judges. so, you can imagine what is realyy going on in various chambers.
I was one of those who were hoping that the truth “will out”, but with the recent developments, I am very confused and close to getting bored with this matter. the fact is, the JSC blundered, while my friend, Justice Hlophe seems to be makinmg a meal of it. my only concern is whether this feast (at Hlophe’s instance) is sustainable or not. if it is, of what public benefit is all of this?
in the end, it would appear that public funds are being misdirected, not that I suggest that colleagues should not be paid for their services, to the contrary, i am for paying colleagues well for their services. my point is gravamen of my point is more about the bigger picture and the ‘soul” of our judiciary. Let me hasteb to add that jusctice Hlophe is perfectly within his rights to fight back with all the vigour he can muster, however, at some point, sanity must prevail.
Once again, let us watch the space.
On a very sad note, my condolence to thefamily and friends of all tose passengers in flight 447 headed for France. I am not condemning their souls, but if all the media reports are anything to go by, amy their souls rest in peace.
ZM
Mpho,
How do you know about the business of being seen cycling? Is there someone who would wite an affidavit?
You see, if Judge Hlophe was not genuinely ill, then he has committed criminal fraud (“an intentinal misrepresentation that leads to actual or potential loss to another”). He may also be huolty of contempt of court.
Would somebody have a go at this…
The thing is that this judgment by the High Court, now providing for binding precedent, would mean that every time that an accused person fails to appear in court, without a sick-note, just because his lawyer says he received a phone call informing him that his client has the flu, then the court may not issue a warrant for his arrest or act against him for his failure to appear. In the case of repeat offenders, with other accused persons and the public being prejudiced because of the one accused person’s absence, the court will not be in a position to rule that the trial may continue in his absence as provided for by the CPA. I think that the ‘general principle’ espoused by the majority here will lead to many problems for lower courts in future.
Zola Majavu – I don’t agree that an amicable solution is the best thing in the circumstances. I already think that Hlophe JP cannot be trusted by litigants due to the earlier matter, and now, him using the stature of his office to try and influence a higher court to make a political decision. Who can trust him. The honourable thing for him is to resign to avoid possible impeachment and/or distrust in the system – his character has been scathed, and he is surely not someone that is fit to be a judge, never mind a JP.
The French flight – ghastly and shocking thing. I hope the matter can be made to rest sooner than later.
Annonymouse
You can rest assured that justice Hlophe will not resign, if anything, he seems well braced for a long fight, hence my suggestion (of an amicable without prejudice) settlement. There is a lot of egos at play here and you can accept that none of the judges would want to back off.
Maybe we should takethis saga as a very good lesson and hopefully, develop the rules governing our judicial office bearers succinctly, after all, we are already doing that with politicians,arising from various incidents. by the way, even justice Nigel at some point also alluded to the possibilty of parties seeking ways of resolving this matter amicably. i guess he too was acutely aware of the likely repercussions.
i am not suggesting, for one second, that all is well. to the contrary, all is far from well, which why we need cool heads, as opposed to over exaggerated egos from both sides.
Watch gthe space.
Annonymouse
You can rest assured that justice Hlophe will not resign, if anything, he seems well braced for a long fight, hence my suggestion (of an amicable without prejudice) settlement. There is a lot of egos at play here and you can accept that none of the judges would want to back off.
Maybe we should take this saga as a very good lesson and hopefully, develop the rules governing our judicial office bearers succinctly, after all, we are already doing that with politicians,arising from various incidents. By the way, even justice Nigel at some point also alluded to the possibilty of parties seeking ways of resolving this matter amicably. I guess he too was acutely aware of the likely repercussions.
I am not suggesting, for one second, that all is well. To the contrary, all is far from well, which is why we need cool heads, as opposed to over exaggerated egos from both sides.
Watch the space.
dear fellow readers and writers
sorry for the duplication, this is receiving attention.
ZM
Anonymouse // Jun 2, 2009 at 2:57 pm
With respect, I do not believe that the judgment sets the precedent you are alluding to. If anything, I think you are guilty of what we normally see in our media, sensationalism.
It seems to me that you, like most other bloggers here, deliberately choose to ignore the contents of the medical report as succintly summarised by Tsoka J in paragraph 14 of his judgment, as well as the circumstances preceding the certificate, viz the change of Counsel and Hlope’s medical condition at the time. Of importance, in my view, is the following:
1. At the hearing on 04/04/09, the postponement was sought on the basis that Hlope had just engaged new Counsel who required to consult with hsi client. Counsel also raised the issue of Hlope’s ill-health as a further reason for the application. “A substantial application SUPPORTED BY AFFIDAVIT AND MEDICAL CERTIFICATE was furnished to the JSC (para 10 of Tsoka J’s judgment);
2. Dr Waynik saw Hlope on 03/04/09 AT HIS HOME and advised him NOT TO TRAVEL or venture out of his home UNTIL his symptoms have COMPLETELY ABATED. He was also NOT TO CONSULT WITH HIS LEGAL REPRESENTATIVES until early the following week (being the week of the 7th);
3. Dr Waynik’s affidavit and medical report were not disputed by the JSC;
4. Hlope was at his home IN CAPE TOWN (where he was examined by the Dr) and the hearings were to be held in JOHANNESBURG;
Now even if you assume that Hlope’s condition would have abated by the 7th, how exactly was he supposed to be in JHB at 09h00 on that very same day? Mind you, he had not consulted with his lawyers, as per the doctor’s orders and the new Counsel (Ngalwana) still had to consult with his client. We do know at this stage that on the 7th Hlope;s condition was said
I agree with Tsoka J, once the evidence of Dr Waynik was accepted, it is difficulty to see how one can still argue that Hlope had failed to show good cause for not attending the hearing on 7 and 8 April.
I do not even want to discuss the issue of importance of being there when a witness is testifying against you. I am sure that those who cross-examine witness on a daily basis will tell you that you can never do a good job at it by simply looking at the record That you seem to view this as a non-issue is truly unfortunate.
Accordingly, in my view, there is no dangerous precedent that has been set. I think that the majority judgment makes it very clear that the circumstances of each case will have to be considered by the judicial officer. That you, as a judicial officer, seem to have misunderstood this is yet another sad day for administration of justice in this country. I think you are, with respect, very wrong to see this as a “general rule”, that a “court will not be in a position to rule that the trial may continue in his absence as provided for by the CPA”. In my view, the judgment creates no such precedent. All the judgment does is to reinforce (not that I think it even needed to) the importance of having the “accused” person available when testimony is hear against him unless of course his absence is due to his own fault.
I again ask the question, what was the rush? If the Dr says the guy MIGHT BE fit on the 7th, why not allow him 2 or 3 more days before you call him to come to a hearing (in JHB nogal) to ensure that he has sufficient time to recover? ….unless of course you never believed that he was sick in the first place!!
I am going to read the terms of reference of the JSC to see whether this is an hearing and even if it can be perceived to be administrative action, I would argue that fair administrative action only require a fair opportunity to face your accusers.
Linking up to the function of whether the matter can be viewed to be a disciplinary matter.
The report talk about a medical affadavit. is this a medical certificate, if yes then why not call it a medical certificate.
there are requirements to a medical certificate- prognosis , diagnosis and extent of illness. (minimum requirements, without looking at doctors information)
If the afffadavit, is an affadavit, it does not comply with the requirements of a medical certificate. If a doctor lies on the medical certificate, as per my understanding , they are subjecting himself to fraud and can be scrapped from the roll of the medical board.
I do not know whether lying per affadavit would lead to the same scrapping, so technically calling it an affadavit can be strategic, if the doctor is found to be lying. if it is an affadavit then it creates the impression of a lie, why not just forward a valid medical certificate.
from a Labour relations point of view only a valid medical certificate should be accepted. I would even think that this would be an administrative point of view.
Extent of illness
If it is an medical certificate as defined, the length of the illness should be defined e.g. 4 days , 6 days and not a guestimate as i can make out from (14) of Tsjoka J finding.
In absence of another certificate (which would constitute proof) and inferences drawn from the sacking and reappointment of new council, the impression is created that judge Hlope is stalling.
My view of the hearing
The hearing is to provide the accused a reasonable opportunity to be heard. Failure to make use of the reasonable opportunity does not make the process reviewable or rather should not make the process reviewable.
a fair opportunity to defend himself was given.e.g. the venue , the charges, the date, the post-ponements.
more than ample time to brief council. I would even argue that if he decided to sack council, that the hearing should continue, he is still being given a fair opportunity to defend himself he is unfortunately the creator of his own predicament.
Fair opportunity that is all. The reason for this is that he did not make use of chance he was given. I would argue that the right protected in a criminal trial, and the right protected in a tribunal (civil) matter differ completely.
Why should he then be given an opportunity to play the game, but when the game runs against your interest you want to cry foul.
No amicable resolution. Finish the process. if you are found guilty : take it like a man because you dug your own grave so please lay in so that we can put dirt on the coffin and move on with our lives.
Sorry if I am not clear about the right to a fair hearing. I am actually speaking about the right to face your accuser.
sorry for double posting.
http://www.unaids.org/en/
ps have a look at the global map
Mzo // Jun 2, 2009 at 4:14 pm
Amen!!!
Mzo et Bongs – You forgot to read a little further in the majority’s judgment: “IN DR WAYNIK’S OPINION, THE APPLICANT WOULD ONLY BE ABLE TO CONSULT, LEAVE HIS HOME AND TRAVEL TO JOHANNESBURG AT THE EARLIEST ON 7 APRIL 2009, THE DATE OF THE HEARING.”
On the 7th, Hlophe JP, or his lawyers, did not (or rather could not) present a new medical certificate to show that his symptoms have not abated. Nowhere in any affidavit does it appear that Hlope JP has on the 7th, or any subsequent date seen Dr Waynik 9or any other doctor) again, or when his symptoms of acute bronchitis have subsided. I still smell a rat as a result, and I still think the JSC took the right decision to continue.
I agree with anonomouse – no new medical certificate was produced.
after reading up a little bit on acute sinobroncitus. It is stated that the symptoms last a couple of days and I also understand the need for the doctors affadavit, otherwise the medical certificate would on its own would constitute hearsay evidence.
What should have been appropriate was for judge Hlope to have obtained another medical certificate. the original medical certificate was only valid for the period it was issued.
I still do not understand the argument of what prevented his legal representatives not to be able to consult with him. I would also like to know how it can be considered that serious without performing the necessary amount of tests unfortunately this could possibly be contained in the affadavits.
The remark of judge Tsjoka in (26)” I find that the invitation extended to the applicant to make representations is unhelpful and would serve no purpose. The invitation cannot render the refusal of the JSC to grant the applicant the postponement due to the ill–health, reasonable.”
completely mind boggling. Here the opportunity is presented to ratify what was deemed to be a procedural lapse, and the opportunity to ratify it is presented BEFORE a finding is made.
my understanding is still that if a finding is made he can appeal against it. the court should not have interfered in the matter before its conclusion
Mouse
Even on the quote in your last post, you seem to overlook the words “at the earliest”. Now, let’s assume he was healthy enough to consult with his lawyers on the 7th; he was healthy enough to travel and his condition had completely abated, how exactly was he supposed to get to Johannesburg by 09h00 and take part in a meaningful manner?
The fact of the matter remains, however you look at it, the decision to proceed on that day was ill-advised. You are lucky because you can say when you smell a rat, pity the JSC cannot afford to make that concession (even though it’s patently clear that’s what was going through their minds) without lending credence to Hlope’s claims that they are biased against him.
“OCMosesI still do not understand the argument of what prevented his legal representatives not to be able to consult with him”
If you had cared to pay attention to the contents of the medical report you would have noted that the Dr specifically said he should NOT consult with his legal representatives. Doctors ‘s orders, not anyone’s argument!!
I still do not understand the reason why he could not consult with his legal council, yes he was sick, but the consequences to his professional life surely outweigh the irritation of consultation. unless the doctor tells us judge Hlope was on his death bed or alternatively he could not speak (shortness of breath does not mean you are unable to consult), that would be sufficient reason not to consult,
Doctors orders? This just sound like an convenient argument. again he dismissed previous council of his own volition. It was not the judicial council that asked that he change leagal representative. his previous council was obviously briefed.
Even a medical certificate is not the be all and end all for postponement. The fact that you are sick, suffer from post traumatic stress, does not automatically disqualify you from participating in procedures. Again there is no proof, Should we then postpone a hearing every time an accused says “I am not well” without medical proof after giving a medical certificate the first time?”
Here the question is what weighs more, the public interest to act fairly, or to give a “spoile child” another lolly-pop. Clearly – No medical certificate =no proof, therefore no evidence.
What prevented judge Hlope from going to the doctor to get another medical certificate? on the day of the hearing to constitute proof, what prevented him from going on the 6th even to request an extension of the medical certificate.
It is about time that we stop treating sickness with kid-gloves when there is nothing that constitute proof.
what Prevented him from participating on the 7th? No proof.
Again there is still the possiblitiy of appeal. the court should not have interfered, because the procedure was not complete.
I do not fault Judge Hlope for going to court, it is his right to approach the courts, however the courts should know when they should have a hands-off approach.
The high court should take pointers from the labour court.
How was he meant to be in JHB at 9am? I have been from BDn to CPT by plane and it takes 2 hrs. Are you suggesting there were no flights on the day? If Hlope JP would not have been there at 9 am but at 11 am, he should have said so and gone at such a time. I’d imagine the JSC would have accommodated him.
We’ve all been sick of something. Very rarely does that truly prevent us from leaving our homes, making telephone calls, sending emails and talking to people when they come to our humble abodes. Why could Hlophe JP not do that? If the Dr can come to his house then a lawyer could too. he could have had a telephonic consultation or even use his laptop while sipping tea in bed.
Mzo – “Even on the quote in your last post, you seem to overlook the words “at the earliest”. Now, let’s assume he was healthy enough to consult with his lawyers on the 7th; he was healthy enough to travel and his condition had completely abated, how exactly was he supposed to get to Johannesburg by 09h00 and take part in a meaningful manner?”
You are clearly missing the point here. Fact is, not even to date has Hlophe JP obtained or filed another sick-note stating that on the 7th he was still too indisposed to travel and to attend the hearing, nevermind consult (Cousel did not this time around ask for a postponement to cosult like the predecessors!). He has not even filed an affidavit (by himself or a doctor) to that effect. The majority therefore relied on evidence that stated he could (or should) have been up and about on the 7th to determie that the JSC should’ve believed Counsel saying (hearsay!) that Hlophe JP was saying that he is still too indisposed to attend court.
Come, really now? This is not a quest for sensationalism as you accused me of earlier, but rather common sense that the majority did not rely on any evidence at all to base their fiding that Hlophe was able to show good cause for a postponement. And that provides for dangerous precedent.
Mouse
I give up on you. I should have known, nothing done against Hlope can ever be wrong in your eyes. To you, Nkululeko et at, I still feel that my question has not been answered, what was the rush?
On the 4th, they knew that the Dr had said the guy could only get out of his house, consult with his lawyers etc only on the 7th AT THE EARLIEST. Now, when they agreed to a postponement, could they not foresee a possibility that the guy’s condition MAY not have abated on the 7th and avoid another postponement application by simply setting the date for the 9th or 10th or something.
Like you Mouse, “I smell a rat”.
Mzo – the word “MAY” hangs in the air because we do not know what “MAY have happened” did in fact happen. And that is the flaw in Hlophe’s case that was overlooked by the majority.
The rush? Well, it’s obviously in the interets of justice to have a matter finalized and laid to rest as soon as possible., That old adagium, “Justice delayed …” applies here. And when a person like Hlophe JP is so obviously wasting time, trying not to have the JSC go into the merits of the matter, then justice to society (and the Rule of Law) is being denied. That is why the JSC refused to postpone the matter further. In fact, the majority in its decision also by implication said, if Hlophe JP cannot be said to have shown good cause, then the JSC would have been justified to do what it did, namely go ahead with the hearing in absentia. But, because Hlophe had an affidavit by a doctor that said his condition may or may not have abated (the whole thing is couched in unsure and imprecise terms) by the time the JSC refused postponement, they found he did show good cause by stating (through Counsel) that he is still too ill. Fact is, however, there was no evidence before the JSC (or the High Court) to show that Hlophe JP was too indisposed to continue with the hearing, and I still say, because evidence has not been presented, not even before the High Court (and not even to date), the High Court was not justified in finding the way it did. It’s like asking the bones whether a person is to be believed or not.
But let’s stop wasting each other’s time and energy. Speak to Hlophe JP, let him now get the matter over and done with. But, he would not want to do that now, would he? Especially because he still has the limelight regarding which forum (if any) would be competent to consider his appeal against the SCA’s finding. And, if that matter again does not resolve to his liking, yet another court application would follow. And so on, and so on. Until he becomes elegible to be appointed as CJ perhaps? Baloney!!
Mouse
I agree, let’s agree to disagree. But the lack of foresight in people who are supposed to be our greatest minds worries me a lot.
I mean, you know you are dealing with a (“slippery” – I think that’s whaty you would say) )character that will do everything in his power to delay the finalisation of a matter and yet you keep playing into his hands by giving him a reason to complain.
The CC judges did it when they issued the (in)famous media statement – instead of simply acting like all complaints do, simply lodge a complaint and let the JSC deal with the matter as it deems fit, including publishing of the statement.
Now the JSC is again playing into his hands. It’s all very pathetic actually!
Mzo – I agree, but you tend to forget that the JSC is for a great part essentially a political body, and the impeachment of a judge is essentially a political thing, where two thirds of Parliament is required before the President must discharge a judge. As indicated by Willis J, this means that the JSC is not really the forum that will in the end find whether Hlophe JP is to be impeached or not, it may merely make representations in that regard.
Mzo // Jun 2, 2009 at 4:14 pm
Let’s not get rediculous here. The guy was diagnosed with having the flu. And since when does a doctor’s certificate prescribe everyone else’s behaviour? And has anyone ever seen a sick note that says you cannot leave the house or consult with your lawyer???? Why not prescibe some other taboos? You cannot leave the house or read a hardbacked book! You cannot leave home or listen to SAFM!
Really, I want the guy to have a fair hearing, for sure. But must I suspend reality????
I also agree with ‘Mouse that the decision does not assist. How can a doctor claim that a Judge President cannot travel to a disciplinary hearing unless the JP self-diagnoses? If Hlophe got up and said oops, runny nose is still here, that’s it I can’t attend my disciplinary hearing! is that ok? Of course it isn’t. So why is the High Court entertaining such a thing.
Equally, why can’t someone appearing in a junior court point to this judgement to support the same facts in their own case?
And I also think that the Court should have simply ruled that the application could not be heard mid Hearing. How do we know that the Hearing would not have found in Hlophe’s favour?
Mpho – “And has anyone ever seen a sick note that says you cannot leave the house or consult with your lawyer????”
…
Except, maybe, in a case of swine flu?!
It seems we should, just for Hlophe JP, suspend reality and common sense for just a little while.
I’m sorry Mzo but I am unconvinced that Hlophe Jp was teetering on the brink of death such that he could not excuse himself with enough time and in a manner most acceptable to the courts IF he was indeed so ill. He is, as Zuma was, stalling. Pity the NPA won’t bail him out of this one… I don’t see why he’s stalling though, he was in such a rush to get back to chambers earlier in the year that one would imagine he’d have tried to get this resolved speedily.