Constitutional Hill

An easy solution to the Hlophe appeal problem

It came as no surprise that Western Cape Judge President John Hlophe intends appealing against two SCA judgments that prompted the Judicial Service Commission (JSC) to agree to reopen a complaint into his conduct. According to news reports, Hlophe’s lawyer Barnabas Xulu said Hlophe’s legal team was preparing to file papers at the Constitutional Court. It is, of course, Judge President Hlophe’s right to try and avoid a situation where the JSC is forced to decide whether it was him or the judges of the Constitutional Court who lied to it under oath and he has every right to lodge an appeal. He just does not have any right to have that appeal heard by the judges of the Constitutional Court.

In any case, this creates a fascinating constitutional problem which us lawyers will discuss for years to come. However, the problem is not one that is too difficult to solve and the awkward situation created by the appeal can be easily addressed.

The problem is this. Only four of the current judges of the Constitutional Court are not complainants in the case. The seven judges who took part in the original complaint would have to recuse themselves as they cannot hear a case in which they are personally involved. Where there is a reasonable apprehension of bias on the part of a judge who has to hear a case, he or she has a duty to recuse him or herself. That would clearly be the case here. However, section 167(2) of the Constitution states that a minimum of 8 of the 11 judges of the Constitutional Court must hear a case. The four remaining judges therefore would not constitute a quorum and those four judges could not hear the case alone.

One solution would be to appoint four acting judges to make up a quorate bench of eight judges. However, appointing four acting judges is not feasible. Section 175(1) of the Constitution states that:

The President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.

Where a judge recuses him or herself from a case but remains at work there is clearly no vacancy in the court. Neither is the judge absent when he or she is sitting in the office but has merely recused him or herself from hearing a particular case. This interpretation is in line with the ordinary meaning of the words as well as with the case law dealing with the meaning of the word “absent”. In the case of Natal Rugby Union v Gould the Supreme Court of Appeal decided that ordinarily the word “absence” in a constitution of a voluntary association means the state of being absent, that is to say, physically absent and not “legally disqualified”.

As judges are legally disqualified when they recuse themselves, they are therefore not absent as required by section 175(1) of the Constitution and no acting judges can therefore be appointed to the Constitutional Court in these circumstances.

But even if one could re-interpret the term to mean that a judge is “absent” when he or she recuses him or herself, no acting judges can be appointed for yet another rather important reason. Such acting appointments are made by the President on advice of the Chief Justice and the Minister of Justice. But the Chief Justice and the Minister of Justice are both parties to this dispute while the President might reasonably be perceived as having an interest in the dispute as the approach by Judge President Hlophe allegedly took place on behalf of President Zuma. No acting judges appointed in this manner by those empowerd by the Constitution to do so could possibly be perceived by any reasonable person to be unbiased.

But this is not the end of the world. Everyone has a right to lodge an appeal against a decision of a lower court with the Constitutional Court. But no one has a right to have their appeal heard by the Constitutional Court. The Constitutional Court often declines to hear appeals lodged with it, inter alia, because it is not in the interest of justice to do so. The Constitutional Court will therefore have no option but to decide that it is not in the interest of justice to hear the appeal and that the SCA judgment should therefore stand.

Of course, one may argue that because the majority of judges of the Constitutional Court are involved in the Hlophe matter, they should not be involved in a decision about whether the SCA judgment should stand. Judge President Hlophe’s lawyers may very well apply for the judges to recuse themselves even before a decision is taken on whether it is in the interest of justice to hear the appeal. This is where the doctrine of necessity enters the picture. This doctrine allows, inter alia, for a judge to hear a case even if he or she has an interest in it in a case where it is impossible for any other judge or tribunal to hear the case.

The Constitutional Court will therefore be required to deal with the general constitutional point (but not the substantive arguments of Judge President Hlophe) raised by this appeal and will probably have to decide that it can never be acceptable for a party with a direct interest in a case to take part in the appointment of acting judges, that acting judges can therefore not be appointed in this case and that it is therefore impossible for the Constitutional Court to hear the case. The SCA judgment will therefore have to stand.

There would be nothing extraordinary about such a decision. Neither would it fundamentally affect the rights of anyone. In 2008 in the case of American Isuzu Motors, Inc et al, Petitioners v Lungisile Ntsebeza et al the United States Supreme Court could not hear a case because a majority of judges on that court had an interest in the case. The Supreme Court judges (including those who had an interest in the case) therefore decided not to hear the case and to affirm the decision of the lower court from which the appeal was lodged. The same solution could be used in this case.

Given the fact that no one has a right to have their appeal heard by the Constitutional Court (who only hears cases when it is in the interest of justice to do so), and given that it could not possibly be in the interest of justice for the bench of current judges to hear the case, nor for a bench constituted by parties with a direct interest in the case to hear a case, the only elegant solution seems to me to be the one proposed above.

Those who do not have the best interest of the judiciary, the legal system and our constitutional democracy at heart might be tempted to try and exploit this awkward situation to discredit the Constitutional Court or the legal system as a whole for short term gain. They may argue (wrongly) that by not hearing the case the Constitutional Court is infringing on the rights of the appellant.

Demagogues might also exploit the ignorance of the public who might not be aware that one does not have a right to have one’s case heard by the Constitutional court. However, I am confident that all reasonable people – no matter where they stand in the matter of the complaint against Judge President Hlophe – will not allow such demagoguery to go unchallenged.  

Although the situation is of some academic interest and presents the Constitutional Court with an awkward problem, talk of a crisis is somewhat overblown. If everyone acts in an honorouble manner, several solutions (including the one proposed above) could be found to ensure that no crisis will arise and that our judiciary will emerge stronger and more credible on the other side. 

  • Maggs Naidu – maggsnaidu@hotmail.com

    Eish PdV,

    “If everyone acts in an honorouble manner”.

    This matter is precisely about a judge who did not “act in an honorouble manner”.

    The CC judges who decided at the time to take sides have messed up.

    It’s naive to expect ‘honourable’ actions now!

  • Sdumeza

    “Demagogues” “best interest of the judiciary” “reasonable people” and of course ‘counter -revolutioneries’- Same difference. Methinks.

    Maggs Naidu – maggsnaidu@hotmail.com says:
    April 26, 2011 at 11:04 am

    The problem is that nobody wants to fess up that the decision by the CC was a bad bad one. That would be condeming the highest judicial institution in the land. It is the CC that created this mess.

    Let Hlophe exhaust all means avaliable including this one. Its naive of people, analysts to expect him to be saddled with a problem not of his making. I fail to understand how one can be asked to act with so called reasonableness when fighting for ones livelihood, through a judicial process. For him this case is real, not academic

    Let your theories be tested in court.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Sdumeza
    April 26, 2011 at 11:22 am

    Hey Sdu,

    I agree with you on both points.

    “It is the CC that created this mess” and “Let Hlophe exhaust all means avaliable including this one”.

    There’s no reason why Hlophe should fight the fight on the legal terrain set by those whom he is engaging.

    p.s. I think Hlophe’s behaviour is not befitting for a judge but that’s not reason enough for our CC judges to have behaved in the way they did which has now resulted in what now “presents the Constitutional Court with an awkward problem”.

    Hlophe may correctly say “don’t make your problem, my problem”. :P

  • Mikhail Dworkin Fassbinder

    Maggs and Sdu are right

    (Admittedly, the JSC itself, and the SCA, both held there was no basis whatsoever for Hlophe JP’s various counter-complaints against the CC.)

    But that is not the point. I say Judges Langa et Moseneke, having heard about the JP’s visit from two junior judges, should have offered them each a cup of tea in the privacy of chambers, and commended them for dealing with the embarrassing approach so well.

    Instead, the irresponsible CJ and DCJ rashly reported the matter to the JSC. How very indiscreet of them!

  • http://deleted Brett Nortje

    Succinct lucid analysis, Pierre.

    http://www.businessday.co.za/articles/Content.aspx?id=140920

    ‘Get to the truth of disputes of fact between Hlophe and judges
    he visited to talk about finding in favour of Zuma’

    PAUL HOFFMAN: Rule of law
    JSC can still redeem itself by holding open Hlophe hearing

    Published: 2011/04/21 07:05:20 AM

    THE Supreme Court of Appeal (SCA), in two separate but related
    matters – both aimed at correcting the lackadaisical attitude of
    the Judicial Service Commission (JSC) towards its duty to
    discipline judges who stray from the paths of probity and
    integrity – has spoken clearly. It has decided by a margin of 10
    judges of appeal to nil in favour of those questioning the way
    the JSC tackled the dispute between all the judges of the
    Constitutional Court who graced its bench in 2008 and Western
    Cape Judge President John Hlophe. These findings should be both
    sobering and corrective.

    It is therefore more than worrisome that Justice Minister Jeff
    Radebe , an ex officio member of the JSC, at a function in Durban
    on March 31, shortly after the two seminal judgments were
    delivered by the second- highest court in the land, had the
    following to say: “Each time the issue of the Cape Judge
    President John Hlophe is resuscitated in courts, there is a
    numbing feeling that there may be forces that are working against
    the imperatives of transformation.”

    The innuendo in this ill-considered remark is that those who were
    dissatisfied with the improper and procedurally unsound
    white-washing administered to Hlophe by the JSC, then newly
    reconstituted by President Jacob Zuma , were acting against
    transformation. This is prima facie defamatory of all 10 judges
    of appeal, Freedom Under Law, the premier of the Western Cape,
    who were the litigants, and Prof Kader Asmal, who entered the
    fray as a friend of the court. A comprehensive spectrum is
    represented here – it is manifestly not Hlophe’s blackness that
    exercises them, it is his untested fitness for judicial office in
    the face of dire charges of criminality on his part, pressed by
    the full bench of our highest court. All judges, and the premier,
    solemnly swear to uphold the constitution on taking office.

    Radebe is respectfully reminded that our transformative
    constitutional order requires that there be accountability,
    openness and responsiveness in governance. These are foundational
    values of the supreme law. Successful transformation will never
    be attained if they are not punctiliously upheld by the JSC in
    all it does, both in recommending judges for appointment and in
    disciplining, where necessary, those against whom complaints are
    laid. This is all the more so when the complaints are laid by all
    of the judges of the Constitutional Court. The SCA trenchantly
    expressed its misgivings about the way the JSC conducted itself
    in attempting to avoid the unavoidable – convening an adversarial
    hearing with oral evidence and cross-examination of witnesses to
    get to the truth behind the many disputes of fact raised between
    Hlophe and the two judges he visited on Constitution Hill early
    in 2008 to talk about making a finding in favour of Jacob Zuma,
    then a presidential hopeful, in litigation pending before them.

    As a constitutionally created body, the JSC is bound to uphold
    the foundational values outlined above. It failed to do so in its
    Hlophe debacle, according to the findings of the SCA. These
    finding ought to be used as a yardstick by the JSC to mend its
    ways, and could present an opportunity for it to redeem its
    reputation in the eyes of all who attach value to an independent,
    impartial, effective judiciary, which enjoys the confidence of
    the public and is of unimpeachable integrity.
    Instead, Radebe carps about “forces . working against the
    imperatives of transformation”. It is not an imperative of
    transformation that judges of questioned integrity and probity
    occupy leading positions in our courts. Hlophe’s record is less
    than glorious. The head of court dismissed his so-called Report
    on Racism as having been “refuted” by those whom he accused of
    racism. No retraction or apology has been forthcoming from
    Hlophe. His earlier disciplinary record reveals him as a tax
    defaulter, who did not pay income tax on questionable moonlight
    earnings timeously. This is not the type of human resource from
    which to build a sustainably transformed judiciary. His alleged
    antics on Constitution Hill, even on his own version of them,
    reveal a judge who has descended into the political arena, a
    place not visited by proper judges who act as the constitution
    requires, namely “without fear, favour or prejudice”. On the
    version of one of the judges he visited, he came “with a mandate”
    from his political masters – something beyond the pale for any
    self-respecting judge.

    The constitutional “transformational imperative” for the
    judiciary is that gender and race be “considered when judicial
    officers are appointed”. There is an obvious need for the
    judiciary to reflect the racial and gender composition of the
    nation.

    But this consideration cannot trump the requirements that judges
    be qualified, and fit and proper persons for their onerous
    duties.

    Despite what Radebe said in Durban about the suitable
    “qualifications” of some candidates whom he may regard as capable
    of transforming the judiciary into a better institution, the “fit
    and proper” criteria cannot be ignored. Usually, experienced
    practitioners are better able to satisfy these requirements.
    Hlophe had virtually no relevant experience, other than an
    academic career, when he was appointed. Oliver Wendell Holmes
    said that the stuff of law is not logic, but experience, and, as
    Aldous Huxley remarked: “Experience is not what happens to a man;
    it is what a man does with what happens to him.” What Hlophe has
    done with what has happened to him has brought dishonour to the
    high office he occupies. He brazenly disregards calls for his
    resignation. Attempts to dislodge him by negotiation have failed.
    Nothing remains but to proceed with an impeachment hearing, no
    matter how awkward this may be for our constitutionally
    sanctioned transformation project. The necessary respect for the
    rulings by the SCA requires this be done by the JSC, regardless
    of how doggedly Hlophe obfuscates.

    The consequences of the alternative are too ghastly to
    contemplate. The Hlophe- induced toxicity in the judiciary will
    eventually ruin it: the sheer wrong-headedness of his
    now-dismissed counterclaim against the judges demonstrates this.

    Unfortunately, it is not clear from Radebe’s speech whether he
    was referring to the transformational imperatives of the
    constitution or to the inherently incompatible imperatives of the
    national democratic revolution. The latter were summed up by Zuma
    in these scary terms in January: “We reiterate . that we place a
    high premium on the involvement of our cadres in all centres of
    power. ANC cadres have a responsibility to promote progressive
    traditions within the intellectual community. We also need their
    presence and involvement in key strategic positions in the state
    as well as the private sector, and will continue strategic
    deployments in this regard.”

    “All centres of power” includes the judiciary; heaven forbid that
    there are “strategic deployments” taking place as a consequence
    of the activities of the JSC, which itself has a caucus of
    “deployed cadres”. Hegemonic control of the judiciary is the
    death knell of the rule of law, as the Mugabe regime has
    demonstrated in Zimbabwe.

    The JSC should take the criticisms by the SCA to heart, and
    redeem itself by swiftly convening the hearing that is so
    obviously needed. The hearing has to be along the lines
    foreshadowed in the SCA judgments: the premier must be involved
    and there must be oral evidence with cross-examination of
    witnesses. Anything less won’t do, unless, miraculously, Hlophe
    resigns.
    . Hoffman is director of the Institute for Accountability in
    Southern Africa.

  • Henri

    One just get the idea that the further appeal [with NO prospect of success at all – which should be abundantly clear from a reading of the feeble arguments presented at the SCA, as can be gleaned from reading those judgements – and this is an important note regarding the “bona [actually, mala] fides” of Hlophe’s legal team and himself in this appeal] is staged for two reasons, nl:

    [i] they just WANT to embarrass the Concourt to the MAXIMUM and make further inroads into its legitimacy; and
    [ii] they want to create the situation that the JSC for another year or more can not [may not/need not] proceed with the Hlophe disciplinary hearing pending this junk [baseless] appeal. Possibly to in the meantime further pack the JSC with the “right” members in time for the hearing, should it take place.

    But the main loser is the Concourt and its diminishing prestige the further this could be dragged out.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 26, 2011 at 12:00 pm

    Hey Dworky,

    “Instead, the irresponsible CJ and DCJ rashly reported the matter to the JSC.”

    As I understand it, the allegations are that Hlophe approached two judges ‘with a mandate’ to rule ‘properly’.

    One of those judges, then acting judge, has since toned down or did a flip-flop.

    Only Judge Mokgoro has been consistent. And if I recall correctly she was concerned but did not think that this warranted being reported.

    But here’s the thing – if the accusations are valid (which those may be) why did it need the strength of numbers?

    And on what basis did the rest of the judges, who only evidence was hearsay, deem it necessary to be party to the complaint?

  • Mikhail Dworkin Fassbinder

    @ Maggs

    I can see we are heading for another round of HLOPHEPHOBIA that may be as virulent, if not more so, that the MALEMAPHOBIA that has paralysed our people of late.

    Plainly, you are much more familiar than I with the relevant facts. (“Only Judge Mokgoro has been consistent.”) So I cannot tell you on what basis the rest of the CC judges deem it necessary to be party to the complaint. Could it be because all 11 of them were part of a CONSPIRACY to take down the finest young legal mind since Sir William Blackstone?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 26, 2011 at 14:41 pm
    \
    Hey Dworky,

    “Could it be because all 11 of them were part of a CONSPIRACY to take down the finest young legal mind since Sir William Blackstone?”

    Could it be that all 11 of them thought they were GOD?

    Until President Zuma burst the bubble by pronouncing “The Constitutional Court is not GOD”.

  • Sdumzela

    Henri says:
    April 26, 2011 at 12:26 pm

    I dont think this is about embarrasing the court. Its merely seeking clarity. Where my mind gets hazy is where the judges argue that they didnt lodge the complaint as a court.

    How then can the same court not be avaliable to hear Hlophes case. My understanding is that Hlophe is/will be seeking access to the case to deliberate on a constitutional matter.

    This thing will get bogged down in courts ad infinitum. The problem is no longer Hlophe. Its vindictiveness of the highest order.

  • Chris

    I do not know what Hlope’s grounds of appeal are, but what he asks for is very clear: He does not want the JSC to be allowed to try to establish what the truth is. He has very little faith in the JSC making a proper finding of fact, even with its “caucus of ‘deployed cadres’”, or he know what the finding would be if the matter is properly handled by the JSC.

  • Chris

    “he know” should read “he knows”.

  • Mikhail Dworkin Fassbinder

    Chris, I can reveal to you (on a strictly confidential basis), the essence of Hlophe JP’s grounds of appeal. It is this: Every one of the ten JA’s who ruled against him are UNTRANSFORMED persons who, in their hearts, associate themselves with the RACIST CONSPIRACY against one of the finest legal minds ever to grace a bench!

    Thanks.

  • Chris

    Dwork, I read your words, but perhaps I’m just not a fine enough legal mind to understand it. I know those who ruled against Hlope in the SCA were Streicher, Brand, Cachalia, Theron and Seriti, but who are the other five untransformed persons? And isn’t it sad that a person like Azhar Cachalia, who was banned and detained so often for his anti apartheid activity, became so untransformed.

    One aspect on which I must agree with you is the way Hlope reminds one of Sir William Blackstone: The noble Sir Blackstone was deeply involved in politics.

  • Mikhail Dworkin Fassbinder

    Chris, I will leave it to Sdu and others (Maggs, perhaps?), to elaborate on the UNTRANSFORMED personae at the SCA. But I do agree that the case of Azhar Cachalia JA is very sad. He betrayed the cause very badly by pooh-poohing the imperative to emphasise skin colour above everything in judicial appointments. What a tragedy that someone from a distingusihed struggle family would associate himself with Lewis JA. and other liberals, who hide their RACISM behind the thin veil of the discourse of so-called “competence” and “qualification.”

    Thanks.

  • Snowman

    I had a long chat with Maggs Naidu this afternoon. (Always a stimulating event.)

    We have a simple solution to this unholy mess: get rid of the Constitution. It is a millstone around the neck of our country.

    No one really wants it and, after all, the sunset clause should now kick in.

    So you can guess who Maggs and I will vote for in the next general Election: the party who will get shot of the present Constitution and replace it with a better one.

    In the meanwhile, our collective advice to Judge Hlophe and the JSC is that they should kick the dispute into touch – something that lawyers know well how to do.

  • Sivakashi

    Hey Maggs

    On the version of the statement containing details of the complaint against Hlophe JP which appeared on Politicsweb Langa CJ explained the decision as follows:

    The reason for the complaint by all judges

    53. In terms of Section 167(2) of the Constitution, a matter before the Constitutional Court must be heard by at least eight judges, The Constitutional Court has recognised that there is an obligation upon members of the Court to sit in matters unless disqualified or unable to do so for a material reason President of the Republic of South Africa and Others v SA Rugby Football Union and Others 1999 (7) BCLR 725 (CC); 1999 (4) SA 147 (CC) at para 46).

    54. The attempt to influence Nkabinde J and Jafta AJ in the manner described above –

    a.) was calculated to have an impact not only on the individual decisions of the judges concerned but on the capacity of the Constitutional Court as a whole to adjudicate in a manner that ensures its independence, impartiality, dignity, accessibility and effectiveness as required by Section 165(5) of the Constitution:

    b.) constituted a breach of Section 165(3) of the Constitution which prohibits any person or organ of state from interfering with the functioning of the courts.

    55. In President of the Republic of South Africa and Others v SA Rugby Football Union and Others 999 (7) BCLR 725 (CC); 1999 (4) SA 147 (CC), the Constitutional Court had to consider an application for recusal against five members of the Court. The Court noted that if one member of the Court is disqualified from sitting in a case, the Court is “under a duty to say so, and to take such steps as may be necessary to ensure that the disqualified member does not participate in the adjudication of the case”. (at para 31) The Court noted that if one disqualified judge decides to sit in a matter, that “could fatally contaminate the ultimate decision of’ the Court, and the other members may well have a duty to refuse to sit with that judge”. (at para 32)

    56. It follows that every member of the Constitutional Court not only has a direct and substantial interest in any improper attempts to influence the decision- making process required of any member of the Constitutional Court, but a duty to ensure that all judges who sit in a matter are qualified to do so. It is in the light of these obligations and the seriousness with which the judges of the Court viewed the conduct of Hlophe JP that the judges of the Court (including Moseneke DCJ and Sachs J) unanimously made the complaint to the JSC.

    Sdumzela

    You will recall that first five judges of the High court and then nine SCA judges found that the complainants acted not as a court but as individuals. Difficult to argue with fourteen judges.

    I would agree with those who say there’s no crisis here. Perhaps poor public relations, but little more. Judges are not special. They should be subjected to the same legal processes as would anyone else. Hlophe is represented by very learned counsel, and so are the complainants. Let the matter go to as many courts as necessary. I believe the SCA in its recent judgment put paid to the argument that the matter should not proceed because it has taken a long time. Ultimately its likely that one side will not be happy with the eventual outcome. Ordinary litigants experience that feeling every day.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 26, 2011 at 21:20 pm

    Hey Boiled head,

    “But I do agree that the case of Azhar Cachalia JA is very sad.”

    Is that the same CC hopeful who said that criminals want a fair trial?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Snowman
    April 26, 2011 at 22:43 pm

    LOL!

    Whatever meds you’re on, stop taking it, it’s making you delusional.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Sivakashi
    April 26, 2011 at 23:59 pm

    Hey Sivakashi,

    “The reason for the complaint by all judges”

    As I understand it, this was not initially a matter which was volunteered to the court by Judge Mokgoro – it was ‘extracted’.

    And when it did emerge, she was reported (if I recall correctly) to have thought that it was not a matter worth reporting.

    But here’s the thing that I find bothersome – if only two judges had direct contact with Hlophe, on what basis did the rest deem it fit to be party to the complaint?

    Unity is strength?

  • Mikhail Dworkin Fassbinder

    Maggs, you are surely right. But I remain curious. What is your source re the “extraction” from Mokgoro? And who did the extracting? Also, what exactly is your problem with all of the judges having signed the complaint? Are you suggesting their hands were forced? Is so, by whom? Thanks.

  • Gwebecimele

    Lets cut through the spin. This is the least of our problems. Whilst Hlophe might have acted in a questionable way in the past. We should never allow his enemies to draw his last drop of blood.

    Hlophe is an Transformation Agent and should be supported.
    If we can live with apartheid judges in the bench then Hlophe can a have seat there as well.

    The Zuma vs Mbeki tussle, tainted every possible organ of state and all of us are responsible for creating that mess.

    We can either move forward and build or go back to selectively victimising the soft targets.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 27, 2011 at 8:38 am

    Dworky,

    “What is your source re the ‘extraction’ from Mokgoro?”

    I am sure you read the same reports which I did.

    Anyway I made my views known – refute those if you think it is wrong. Or explain why it was correct for the other nine to ‘complain’.

    In short I think that the other nine judges based their complaint on hearsay – which I think is wrong even if the source is entirely reliable.

    For what it’s worth I an inclined to accept Judge Mogkoro’s submissions and I think that Hlophe tried to influence the outcome of the matter before the CC.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Gwebecimele
    April 27, 2011 at 9:45 am

    Eish Gwebs,

    “Hlophe is an Transformation Agent and should be supported”.

    Hlophe has behaved, in my view, in ways that are inconsistent with our transformation agenda – I don’t think that he should be a judge, let alone a JP.

    I don’t think he’s innocent in this matter either.

    However I think that the CC judges have reduced their game to his level and hence the ‘constitutional crisis’ that we have.

  • http://deleted Brett Nortje

    Maggs Naidu – maggsnaidu@hotmail.com says:
    April 27, 2011 at 9:46 am

    Maggs, how could Dworky have sucked the same thumb you did?

  • http://deleted Brett Nortje

    Gwebecimele says:
    April 27, 2011 at 9:45 am

    Gwebecimele, if we live with lies that makes us liars. If we live with corruption that makes us corrupt. If we live in a kleptocracy that makes us kleptocrats. Ask Maggs – if we lived in an apartheid state that makes us complicit.

    Silence is assent!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Brett Nortje
    April 27, 2011 at 10:15 am

    Hey Goofy,

    “if we lived in an apartheid state that makes us complicit>

    Not only complicit – evil too.

    And not just lived – actively supported, defended, participated in as well.

    But not you – you were born in 1966 so you did not benefit from apartheid.

    :P

  • http://deleted Brett Nortje

    No, not I.

    I decided when I was a teenager that Apartheid was unChristian.

    But I also refuse to believe that my maternal grandparents – who had an absolute belief in Verwoerd – were evil.

    Just like you refuse to believe that your grandparents were bullshitting when they fed you that bullshit about Nehru sending warships. (2 Frigates a corvette and various armed trawlers and minesweepers…LOL!)

    You have a self-serving definition of ‘evil’ just like you have an entirely self-serving view of the justness of dispossession of property, right-and-wrong, corruption, lies and truth – sheez, I’ll be here all day if I had to list everything.

  • Alibama

    Proper PeeCee people never use the ‘P’ word.
    They always call it an issue, or better still a challenge.
    ———
    But more importantly [for me] where do I get more such quality on-line tutors.
    And given the fact that PdV is so widely read, what’s the effect on White’s
    lawyers and even the CC judges?

  • Anonymouse

    Prof de Vos – Good post. I think it sums up precisely what I have hinted at on this blogsite at the outset of this whole sorry saga.There simply lies no appeal to the CC because the CC is involved as complainant and it regarded the JSC as the proper body to deal with the issue. But, Hlophe does not have the foggiest of the notion that no one should be a judge in his own cause (neminem iudicis in sua causa) – I mean, just look what he did with the whole Oasis thing – giving his coy permissio n to sue a judge in his own division! Now he expects the CC to be the judge in its own cause – ha, ha, haaa.

  • http://deleted Brett Nortje

    Dr Mouse, you’re just bringing up Oasis to delegitimise the Judge as a transformation agent!

    Next you’re going to mention Dullah Omar.

    Thank you.

  • http://www.newstime.co.za/columnist/PaulWhelan/5 Paul Whelan

    Crystal clear and very helpful. Thank you, Pierre.

  • Sivakashi

    Maggs

    I believe the reason is set out lucidly here (whether you are prepared to accept it is a different question):

    “…was calculated to have an impact not only on the individual decisions of the judges concerned but on the capacity of the Constitutional Court as a whole to adjudicate in a manner that ensures its independence, impartiality…

    every member of the Constitutional Court not only has a direct and substantial interest in any improper attempts to influence the decision- making process required of any member of the Constitutional Court…”

    I would agree with those who say the two who were approached, and later said they felt a complaint was not necessary, demonstrated a poor appreciation of their position and duties. Let this come out in cross-examination, and whatever sanction is deemed appropriate should follow. We already know that Jafta AJ was swayed by his friendship with Hlophe JP. He must account for this.

    If anything Langa CJ’s explanation, considered in its entirety, shows that the recusal issue was uppermost in the complainants’ mind. I disagree wholeheartedly with those who say there’s now a “mess/crisis” etc. Honourable men and women, including no less than the Chief Justice – Langa – have gone into retirement with a dark cloud hanging over their heads as a result of Hlophe JP’s now discarded wild allegations. Not only for their sake, but that of the judiciary as a whole must we now see this thing through. Surely Hlophe JP’s favoured “natural justice” demands no less.

    Gwebecimele

    If we are really serious about getting to the bottom of the complaint we should not conflate issues. The complaint has nothing to do with transformation. The fact that we have not dealt with the “apartheid judges” must surely reflect poorly on us, but that is no reason to confuse this issue.

  • Mikhail Dworkin Fassbinder

    @ Gwebe

    “If we can live with apartheid judges in the bench then Hlophe can a have seat there as well.”

    I am no knee-jerk fan of the JP. But, I must say, it is heard to beat Gwebe’s logic here

    I have always said it would be presumptious and utopian to attempt to improve too quickly on apartheid. I say we use the Nationalist regime as a base line and move upwards — but very slowly!

  • Mikhail Dworkin Fassbinder

    @ Maggs

    Maggs, no, I am not so sure I read the same reports you did. I ask again: what is your source for your assertion that the complaint against the JP was “extracted” from Mokgoro J.

    And if so, by whom?

    Thanks a lot.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Sivakashi
    April 27, 2011 at 13:12 pm

    Hey Sivakashi,

    “I believe the reason is set out lucidly here”

    The CJ’s explanation sounds very credible.

    I don’t believe it.

    I think they ganged up on the guy cos he’s such an irritant.

    And ended up with lots of egg on their faces.

    I would like to know which, if any, of those judges think that it is unnecessary to have heard the other side before arriving at a conclusion let alone an action which is as severe as that was.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 27, 2011 at 15:27 pm

    Hey Dworky,

    Mogkoro asked o’Regan for advice or shared her discomfort.

    O’Regan told the DCJ.

    The DCJ told the CJ.

    It was discussed at a judges’ conference.

    If Mogkoro wanted to have it discussed at a judges’ conference she did not need help.

    Once on the carpet, I reckon that she was ‘forced’.

    That’s how I understand it – if that flow is incorrect, please correct it.

  • Maggs Naidu – maggsnaidu@hotmail.com
  • Alibama

    dV wrote: “In 2008 in the case of American Isuzu Motors, Inc et al,
    Petitioners v Lungisile Ntsebeza et al the United States Supreme
    Court could not hear a case because…”
    Here’s some sums for all you ‘word-people':
    What proportion of US Supreme Court cases have Nguni-language title?
    Therefore how many US cases would confirm PdV’s point?
    And yes, the figures cited re. Ms. ‘had her house stolen by incompetent
    [dating from colonial/pre-ANC times] SA law’ didn’t make sense.
    And what about the fact that the initial loan was for a 2 bedroom house,
    and that she had expended it to 5 bedrooms.
    If you buy 2 rabitts from me on hire-purchase, is the equivalent
    execution-sale of the same 2 rabitts, or including the 77 offspring/extension?

  • Mikhail Dworkin Fassbinder

    @ Maggs

    As always, I cannot really disagree with you, especially since you speak with such evident confidence.

    I must presume that you are right, then, that poor Mokgoro J was “forced” to join the complaint against Hlophe JP. (Black women can be so pliable, eh Maggs?)

    But in that case, I demand that Mokgoro be harshly punished for having LIED to the JSC when she testified:

    “We encouraged Nkabinde to report the matter. There was a need, I thought, to report this matter as soon as possible.”

    Thanks.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder
    April 27, 2011 at 17:15 pm

    Oops!

    Ok – you proved that I referred to the wrong judge. :oops:

    I suppose that negates my view of what transpired.

    Could I rely on the Hollywood disclaimer – “Only the names and places have been changed to protect innocent people involved”?

  • Sivakashi

    Maggs

    Interesting theory. I too would like to know, which is why I think cross-examination would be exciting.

    Until then we have the unanimous judgment of nine SCA judges who had this to say:

    “there is no authority to which we were referred or of which we are aware – whether in decided cases or in judicial protocols anywhere in the world – that obliges a complainant to invite a judge to be heard before laying the complaint. Indeed, the authorities all say the opposite…and a rule to that effect would be absurd, because it would altogether undermine the process of investigating complaints.”

    If PdV is correct the SCA is the highest court which can hear this matter. I do not believe that the reflections of any individual judge could take the issue any further (so I suppose my interest is merely academic).

  • Alibama

    “Radebe is respectfully reminded that our transformative constitutional
    order requires that there be accountability, openness and responsiveness
    in governance.” How do I answer the natives who say [translated to
    english} “the white man came here to OUR LAND, with his bible. Now
    we’ve got the bible and he has TAKEN OUR LAND. Similarly HIS
    constitution is mere trickery. We have our own ways: BETTER than your
    constitution.”? BTW while reading the eloquent words of “PAUL HOFFMAN”,
    I was reminded of the appeal judge Hoffman in WLD, who the record [and
    thank Gawd for free press] shows, used simplistic clerk-reasoning to
    arrive at inconsistent/illogical conclusions. And the BBC anounced the
    death of the inventer of the teleprompter [for all these fruity speakers
    to read their speech from]. So, how many speech writer worked to create
    PAUL HOFFMAN’s words. I might have mentioned before, that also the
    Zimbabwian on-line presentation of their judiciary system paints the
    picture of utmost correctness. IMO the whole judicial industry is as
    rotten as the middle-ages Catholic church. Except for that bloke who
    initiated the Jaftha CC matter. And we’ve all forgotten his name. —
    “Oliver Wendell Holmes said that the stuff of law is not logic, but
    experience”. I’ve heard that crap too many times. And it explains WHY
    you law-clowns can only walk seeminly familiar paths. Who was that
    SANLAM [I think] exec. who wrote exposee
    in the 70’s; who examined, what he called “the calf paths of the mind”
    mechanism of SA officialdom? —–
    “The Hlophe- induced toxicity in the judiciary will eventually ruin it:”
    What garbage: the records show that the SA judiciary is rotten independant
    of Hlophe. ——
    “Zuma said that we place a high premium on the involvement of our cadres
    in all centres of power.” Isn’t that a version of the PROVEM, post-Mao
    revolutionary guards, and Mugabe’s youth brigade? See: our child-soldier
    stoked up on indigenous narcotics can beat your mzungu hi-tech. —–
    “[ii] they want to create the situation that the JSC for another year
    or more can not [may not/need not] proceed with the Hlophe disciplinary
    hearing pending this junk [baseless] appeal.”
    How do time-limits a?effect this game? —–
    ” (at para 31) The Court noted that if one disqualified judge decides
    to sit in a matter, that “could fatally contaminate the ultimate decision
    of’ the Court, and the other members may well have a duty to refuse to
    sit with that judge”. (at para 32) 56 It follows that every member of
    the Constitutional Court not only has a direct and substantial interest
    in any improper attempts to influence the decision-making process required
    of any member of the Constitutional Court, but a duty to ensure that all
    judges who sit in a matter are qualified to do so.”
    Is this another example of simplistic logic? ———-
    “I believe the SCA in its recent judgment put paid to the argument that
    the matter should not proceed because it has taken a long time.”
    Again: will they use time-out to sweep under the carpet, the gross
    incompetence/abuse in my case? Does time-out prevent justice being served?

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “Ok – you proved that I referred to the wrong judge.”

    Sorry Maggs, did not mean to embarrass you. I still view you with enormous respect, as an authority on this matter.

    Some would say that, because very serious allegations are being made against CC judges (such allegations already having been rejected by both the JSC and the SCA), one should be terribly careful even about details like the names of the judges involved. But I of course reject such pedantry!

  • Jacques Jansen

    Pierre,

    This must be your most naive attempt thus far. Even insinuating that the matter at hand can be resolved in a similar fashion as in the American Isuzu Motors case is preposterous. The chasm of difference between the two cases is so glaringly obvious, one has to accept that you weren’t really in the mood to apply your faculties in the analysis. The constitutional import of an elegant solution cannot be over emphasized but the solution you propose is really no solution at all.

    Given the judgment of the SCA in this matter, it is impossible for the CC to merely decide certain points of law in a vacuum without loosing credibility. Similarly it poses more problems than solutions for the CC simply to refuse to hear the appeal, Hlope’s rights notwithstanding.

    It cannot be argued with any conviction that the case is not of paramount constitutional import and for the CC to refuse to hear the appeal on that basis will irreparably damage the integrity of our judicial system.

    I fear the solution you so easily propose is no solution at all really.

    Regards,

    Jacques

  • Michael Osborne

    @ Maggs

    “Could I rely on the Hollywood disclaimer – “Only the names and places have been changed to protect innocent people involved”?”

    Maggs, how about: “‘Only the names and places AND FACTS’ have been changed to protect innocent people involved.”?

    Re your questions of last week, re demagogues exploiting class, economic divisions. You asked who these “demagogues” might be. The most obvious candidate right now would be JM. Other within the YL, Floyd, might fit the bill. Winny is another — although perhaps her hour has passed now.

    As you know, there is an extensive literature on the potential for the economically desperate to be mobilised by right wing nationalists. Marx wrote about the reactionary tendencies of the lumpen-proletariat, as he called them. And many have noted how the Great Depression produced masses of unemployed people that were mobilised by right wing leaders in places like Germany, Spain, Italy, and even the U.S.

    It is not surprising that the desperation of the very poor can be manipulated and turned against ethnic minorities who, for one reason or another, are conspicuously economically privileged. The classic instance is of course Jews in Europe. Others examples are “Asians “ in east Africa; Tutsis in Rwanda; Koreans in South-Central L.A., and, closer to home, Somalis in the Western Cape.
    One need not be an alarmist who sees GENOCIDE around every corner to discern that these dangers are real — although, unless you an alien from north of the Limpopo, not immediate in South Africa.

    You said last week that you believed the democratic ethos of the ANC, and our progressive Constitution, would form a bulwark against reactionary atavisms. I am sure you are correct to some extent. But then again, Weimar Germany had what everyone in the 1920’s thought was the finest constitution in the world. I suppose I just have less faith in the formal institutions of democracy than you do. I wish I could share you faith. And I sincerely hope your trust is vindicated by history.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Mikhail Dworkin Fassbinder says:
    April 27, 2011 at 20:12 pm

    Hey Dworky,

    “Sorry Maggs, did not mean to embarrass you.” – Right. I believe you.

    “Some would say” – when some say I will deal with it.

    “one should be terribly careful even about details like the names of the judges involved” – I think you’re exaggerating so as not to ‘embarrass me’.

    I take comfort in the fact that the SCA (same one that did the rejecting) said something about “generally corrupt” which was far worse than my oopsie – especially since there are several judges all neatly packaged with researchers.

    But in any event – how does that alter the nub of my comments?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Sivakashi says:
    April 27, 2011 at 17:43 pm

    Hey Sivakashi,

    I suspect that we’re heading for a ‘political settlement’.

    Interesting times ahead.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne says:
    April 27, 2011 at 21:39 pm

    Hey MO,

    I doubt that you believe a word of what you wrote.

  • Michael Osborne

    @ Jacques

    I disagree with your rejection of PdV’s “solution.”

    1. The Apartheid Reparations case being heard in U.S. federal court is not as utterly different as you suggest. That too, is a matter with very significant constitutional implications in the U.S. Like the Hlophe case here, it has been the centre of a great deal of public attention and comments.

    2. There is no general right to multiple appeals – especially not in a non-criminal case. Appeals to the CC are, with some exceptions, discretionary. To the extent one has a right to a non-criminal appeal, that right is satisfied by the appeal to the SCA – which enjoys a constitutional jurisdiction that, for present purposes, is just as broad as the CC.

    3. Note the analogy to the Apartheid Reps case in the U.S.: it was not as if the corporations who sought to go to the U.S. Sup Court could complain that they had not had the benefit of any appeals at all. Their appeals from an adverse decision a quo had been carefully considered by the Second Circuit, a court of immense prestige and weight.

    4. There are not close questions of law at stake here begging to be resolved by a higher court. Both the SCA decisions are unanimous. (Do you know of any reputable legal academic that has exposed substantive fatal flaws in the SCA reasoning?)

    5. Politically speaking, a CC appeal would achieve very little. If, as seems almost inevitable, the CC upholds the SCA, that will be seen by the appellants as the result of bias If the appeal succeeds, it will be read as one group of CC judges turning on another. The damage to the most important legal institution in the country could be immense.

  • Michael Osborne

    @ Maggs

    “I doubt that you believe a word of what you wrote.”

    Thank you so much for your carefully considered response to my brilliant mini-essay; I will have you know it more than 25 hours of my valuable time to compose!

  • Gwebecimele

    Hlophe’ views on transformation are well known and I have no doubt that this is an attempt to make sure that he is uncomfortable and possibly removed. Republic of Western Cape and its legal community is untransformed and requires a Hlophe.

    @ Sivakashi

    I want to agree with you that we need to get to the bottom of this and all involved must answer that includes Hlophe instructor and his masters, Langa, Moseneke, Jafta, Nkabinde, JSC, all Complainants. Now you will agree with me that is impossible, so why are we waisting our time.

    @ Maggs
    Let me clear something here, I have posted before on this blog that I am not a Hlophe fan and probably would not appoint him as a JP. Hlophe might not be the ideal “Transformation Agent” but he is better than 80% of the current judges,at least he communicates his views and pays dearly for that . Some of his judgements might fail transformation test but I can live with him on the bench.

    Just like Manyi, Ngobeni and others Hlophe’s views and behaviour on transformation makes them permanent enemies of the usual forces and this borders on racism.

    I look forward to the day we will have the same standard for all those who influence our lives . Judges are human and are drawn from society just like Business Executives, Politicians and Priests and we should raise the bar and hold all our leaders accountable irrespective of their race or title.

    There are many undesirable individuals in our bench (and other organs of state) and Hlophe is not on top of that list , if we need to clean up lets start at the top.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Michael Osborne
    April 28, 2011 at 8:43 am

    Hey MO,

    LOL!

    I think your “brilliant mini-essay” was inspired by, er, boredom.

    “I suppose I just have less faith in the formal institutions of democracy than you do. I wish I could share you faith. And I sincerely hope your trust is vindicated by history.”

    Ok, I admit it. Despite my cynical comments with regard to the formal institutions of democracy I have unwavering faith in our Constitutional Court. They will get some things a bit cronked up but generally it is an exceptional institution, like none other in the world. (I still think the judges were wrong by ganging up on the wayward son).

    I have tremendous regard for our CJ despite my concerns about the pending extension of his term which I think is setting a terrible precedent. I do think that the CJ should not let the dignity of that office slide by the temptation of being ‘asked by the President’ to say on for longer.

    Back to your concerns – for any kind of sustained assault whether physical or otherwise a critical mass of people with common purpose has to be organised.

    We cannot even get eleven people to play soccer or cricket properly, how on earth will someone be able to mass mobilise in the lines you contemplated in your brilliant essay?

    Those who think there’s any kind of possibility that mobilisation of the kind contemplated should get out more often.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Gwebecimele
    April 28, 2011 at 9:41 am

    Hey Gwebs,

    The Oasis saga was a disgrace.

    As was the attempt to influence due process in the Zuma matter.

    Transformation should not be about allowing the same latitude for deviant behaviour that was inherited – it needs to be eradicated.

    A judge, let alone a judge president should be a shining example of what South Africa requires. This ‘the handbook allows it’ mentality has permeated into all corners of the corridors of power it seems.

  • http://deleted Brett Nortje

    Is that a sly dig at the fraud conviction of the JPs firstborn?

    “Transformation should not be about allowing the same latitude for deviant behaviour that was inherited – it needs to be eradicated.”

    http://mg.co.za/article/2010-09-27-hlophes-son-convicted-of-fraud

  • Maggs Naidu – maggsnaidu@hotmail.com

    Brett Nortje
    April 28, 2011 at 10:11 am

    Hey Goofy,

    “Is that a sly dig at the fraud conviction of the JPs firstborn?”

    No, it isn’t a dig at the JPs firstborn.

    If I wanted to dig at public figures through the disgusting behaviour of their ‘firstborns’, I would choose Nobel Laurates Desmond Tutu and F W de Klerk who have abandoned their respective grandchildren ‘to the wolves’ – that for me is disgraceful behaviour of ‘firstborns’ and their very public fathers. Not the JP because his son was wayward.

  • http://deleted Brett Nortje

    Did their sons start paying child-support after the paternity tests?

  • Maggs Naidu – maggsnaidu@hotmail.com

    Brett Nortje
    April 28, 2011 at 10:52 am

    Hey Goofy,

    “Did their sons start paying child-support after the paternity tests?”

    Maybe.

    For de Klerk and co that may be sufficient.

    Tutu however is another matter – it would be an anomaly if all he did was to pay child support.

  • Donovan

    Some how it seems that Maggs must get some type of (side)billing on Prof’s blog, dare I say it, but he remains quite entertaining, and honest.

  • Sivakashi

    Gwebecimele

    I don’t think we should shy away from this thing because it is difficult. When the CC took that bold decision it must (at least in part) be because they too had arrived at the same conclusion.

    What I find patently unjust in letting the matter go is that Hlophe JP has not merely taken technical/procedural points in this litigation. He has made damaging allegations which even he could not possibly have believed to be true. As it turns out his allegations have now been discredited and it is too late to decide not to hear the other side.

    Hlophe’s approach so far has been to attempt to cause as much damage as possible, so I suppose some damage is inevitable. On Jafta AJ’s version there is much that was said which he refused to relay on the basis that it was confidential. Given Hlophe’s shotgun approach I would not be surprised if he unwittingly places the confidential material on the table. In any event I think the public interest should override the confidentiality in this instance. Since Jafta AJ refused to divulge the details, it should be explosive stuff. Out

  • Jacques Jansen

    Here’s an interesting question-

    How has the whole Hlope debacle and the accompanying ongoing critique from all sides changed the manner in which we exercise our freedom of expression when it comes to the conduct, perceived or real, on the part of members of our judiciary?

    Are we not afraid anymore of being held in contempt?

  • Gwebecimele

    I hear you Sivakashi. This is not only difficult but almost impossible.
    If properly investigated and all parties fully co-operate then more individuals (JSC , CC included) will suffer reputational damage.

  • Sivakashi

    Jeepers, timely reminder Jacques. My humble apologies to the Honourable Judge President Hlophe.

  • Maggs Naidu – maggsnaidu@hotmail.com

    Jacques Jansen says:
    April 28, 2011 at 22:58 pm

    Hey JJ,

    “Are we not afraid anymore of being held in contempt?”

    LOL!

    When the judiciary sorts out the mess they have created for themselves then we can get back to being respectful – until then it’s open season.

  • Jacques Jansen

    @Maggs,

    LMAO at “the judiciary”. What was that Julius was saying about dancing monkeys?

    Just a thought.

  • Brett Nortje

    http://www.businessday.co.za/articles/Content.aspx?id=144518

    One less judge available for Hlophe case

    Eight of the 11 current Constitutional Court judges could be disqualified from hearing an appeal brought by Western Cape Judge President John Hlophe
    FRANNY RABKIN
    Published: 2011/06/02 07:02:33 AM

    IT HAS emerged that eight of the 11 current Constitutional Court judges could be disqualified from hearing an appeal brought by Western Cape Judge President John Hlophe.

    It was widely known that seven justices who were party to a complaint of gross misconduct against Judge Hlophe in 2008 could be disqualified from hearing the appeal.

    In directions from Chief Justice Sandile Ngcobo this week, it emerged that Constitutional Court justice Mogoeng Mogoeng was involved in earlier mediation efforts to resolve the dispute between the justices and Judge Hlophe and could also therefore be disqualified.

    The chief justice yesterday asked the parties to the case and the main bodies in the legal fraternity to submit written argument on whether the court can hear the merits of the appeal — considering the involvement of eight of its judges in the dispute.

    He also asked for written argument on whether the constitution allows acting judges to be appointed in cases where a judge recuses himself.

    Finally, he asked whether the doctrine of necessity — a common- law doctrine that holds that a judge who would normally be disqualified may still hear a case if there is no one else to take his place — would apply in this case and to what extent.

    Judge Hlophe has applied to the Constitutional Court to appeal against a judgment of the Supreme Court of Appeal, which held that Helen Zille, as Western Cape premier, was entitled to be part of the Judicial Service Commission (JSC) when it decided to clear Judge Hlophe of the gross misconduct complaint.

    Justice Mogoeng, at the time of his mediation efforts, was judge- president of the North West High Court. He was appointed to the Constitutional Court in 2009.

    In their 2008 complaint, the Constitutional Court justices alleged that Judge Hlophe had tried to influence the outcome of cases, then pending before their court, related to corruption charges against President Jacob Zuma .

    The JSC, in a controversial decision, cleared Judge Hlophe. But the decision was immediately — and successfully — challenged by Ms Zille.

    Opinion in the legal fraternity is divided on whether acting judges could be appointed or whether the court would have to resort to the doctrine of necessity. Submissions were also invited from the General Council of the Bar, the Association of Law Societies of SA, Advocates for Transformation, the Black Lawyers Association and the National Association of Democratic Lawyers.