In the first judgment, the SCA found that the Constitution requires the Premier of the Western Cape to sit on the JSC when it considers disciplinary action against a Western cape judge, with the effect that JSC had to reconsider both the Constitutional Court Justices’ complaint, and Hlophe’s counter-complaint.

In the second case, the SCA set aside the decision of the JSC “that the evidence in respect of the complaint does not justify a finding that HlopheJP is guilty of gross misconduct”, with the effect that the JSC had to reconsider the complaint against Hlophe by the judges of the Constitutional Court. In this second judgment it was pointed out that in a case like this where two versions of an event is presented it is required to cross-examine witnesses and make a determination on the preponderance of probabilities to determine who is lying and who is speaking the truth.

In a unanimous judgment by the Constitutional Court (Mogoeng CJ, Cameron J, Froneman J, Khampepe J, Skweyiya J, van der Westhuizen J, Yacoob J and Zondo AJ writing as “The Court”), it was decided that acting judges could not be appointed to hear the case and that it was not in the interest of justice for the “compromised” Constitutional Court to hear the merits of the two appeals from the SCA judgments.

The Court pointed out that section 167(1) of the Constitution provides that the Court consists of eleven Judges and that the Court usually sits en banc (in other words, with all 11 judges). However, section 167(2) provides that a matter before the Constitutional Court must be heard by at least eight Judges. The problem in this case arose because six of the serving Justices currently appointed to the Court were serving as Constitutional Court Judges when the complaint against the applicant was lodged with the JSC. Three of them recused themselves from the hearing before it was argued (but one acting judge – Ray Zondo - is currently serving on the Court). This left the Court with a bare constitutional quorum of eight, including three Justices who were parties to the complaint lodged with the JSC against the applicant and two others who had been involved in attempted mediation.

If these Judges were disqualified from hearing the applications for leave to appeal because of their perceived or actual interest in the outcome of the matter, there would be no quorum for this Court to hear and determine the matters. Because of this unusual situation all the parties accepted that it was necessary for the Court (even with its possible five “tainted” judges) to decide whether Acting Judges may be appointed to the Constitutional Court in terms of section 175 of the Constitution to hear the application for leave to appeal and the appeal; and, if not, whether the existing judges should adjudicate upon the substantive merits of the applications for leave to appeal.

In terms of section1 75, the President may, on the recommendation of the Minister of Justice and Constitutional Development acting with the concurrence of the Chief Justice, 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”. Pointing out that the “ordinary meaning of the word ‘absent’ carries some ambiguity”, the Court nevertheless found that:

any possible ambiguity is removed when we consider that the recusal from a particular case does not preclude Constitutional Court Judges from continuing to perform duties of their office. A recused Judge remains required to perform the rest of her judicial duties. The action of recusal is the performance of a judicial duty. The effect of a recusal therefore cannot be considered to be an absence… Recusal leading to a lack of a necessary quorum in this Court is an exceptional occurrence. Vacancies of Constitutional Court posts resulting from retirement, possible ill-health and death are not. Nor are temporary physical absences of Justices of the Court, caused by periods of leave, personal circumstances or some illness unusual. Viewed in a general context, it is clear that the purpose of section 175(1) is to deal with these normal instances of vacancies and physical absences.

This interpretation is supported if one took into account the context of the Constitution as a whole. In this regard one must remember that constitutional provisions relating to the appointment of Judges must be interpreted with due regard to the constitutional imperatives of separation of powers and entrenchment of judicial independence. There was a potential danger to judicial independence and the separation of powers whenever individual  judges are appointment to hear a specific case. Mindful of this danger, it is not possible to interpret “absent” in section 175(1) as covering a situation where Constitutional Court Judges recuse themselves from hearing a specific matter.

The next question to be answered by the Court was whether the eight judges (three of them having been involved in lodging the complaint against Hlophe JP) nevertheless had to hear the substantive appeals because of section 34 of the Constitution, which states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

The Court found (once again as predicted) that they could not hear the case and pointed out that section 167(6) of the Constitution does not provide litigants with a right to have their case heard by the Constitutional Court. Litigants only have a right to consideration of any application for leave to appeal. As the Constitutional Court found in S v Pennington and Another litigants do not have an automatic right of appeal. Leave must only be granted if the Court concludes that it is in the interests of justice to do so.

A balance needs to be struck between the Court’s obligation to provide finality in this matter (as it would be intolerable to have a case pending indefinitely) and possible injustice to the applicant. These factors weigh heavily in determining the extent to which it is in the interests of justice to enter into the merits, and thus whether to grant leave to appeal. All the parties were in agreement that this matter cannot remain pending. There is a need for finality. This was not disputed. In determining the extent to which we should consider the merits, regard must be had to whether substantial injustice will be done to the applicant should this Court refuse to grant leave to appeal. The underlying right which the applicant seeks to protect on final instance to this Court is, importantly, a procedural one: the rejection of that right will result in the continuance of a process only and will not result, without more, in a finding against him on the substance of the complaint. What is more, the applicant has had the benefit of an appeal. These considerations mitigate the threat of injustice. In addition, although the parties have consented to the conflicted Judges’ sitting in the present matter, regard must still be had to the fact that they would ordinarily have to recuse themselves. For this reason, this Court should deny leave to appeal to preserve the fairness of its own processes.

As I have thus argued consistently throughout this process, there is no right for anybody to have their case heard by the Constitutional Court. It is only when it is in the interest of justice to dos o, that the Constitutional Court hears a case (if it deals with a constitutional matter, of course).

This means that Judge President Hlophe’s attempt to stall the investigation into his alleged gross misconduct has finally come to an end. The JSC will now have to consider the matter again and will have to call both Hlophe and the accusing judges who will then be cross-examined to try and determine whether it was Hlophe or the judges of the Constitutional Court who lied.

But of course the JSC has in fact already admitted that it believes it was Hlophe who lied and not his accusers as subsequent to the complaints being made it appointed one of his accusers (justice Chris Jafta) to a permanent post on the Constitutional Court, something it would surely not have done if it had thought that he had lied about the alleged attempt by Hlophe JP to influence the Constitutional Court.

It will be interesting to see how the JSC deals with this hot potato. Who knows, it might even act correctly and restore some of its lost credibility. One lives in hope.

The Act now establishes a Judicial Conduct Committee (JCC), who must  receive and consider all complaints against judges. The Committee comprises of the Chief Justice (who is also the chairperson of the Committee), the Deputy Chief Justice, and four other judges, at least two of whom must be women, designated by the Chief Justice in consultation with the Minister. These four judges are appointed for a term of up to two years. The Act makes clear that in the event of an equality of votes being cast by the Committee members present at a meeting, the person presiding at that meeting has a deciding vote in addition to his or her deliberative vote.

It was this Committee (comprising only of judges) who have decided to refer the complaint against Judge Motata to a Judicial Conduct Tribunal for a full hearing. This is what happens, I guess, when politicians and political appointees are not involved in decisions about complaints against judges — it helps to de-politicise the handling of the complaint.

As the JCC comprises only of judges, the judiciary retains some control over the disciplining of judges, which seems appropriate to me. The Chief Justice will usually have a deciding vote if those members of the JCC present at a meeting are deadlocked. The establishment of Judicial Conduct Committee will therefore remove some of the politics out of the JSC’s consideration of complaints against judges.

Any person may lodge a complaint against a judge with the JCC, alleging incapacity on the part of a judge giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177(1)(a) of the Constitution.

It is important to note that the Act for the first time allows for the consideration of ”lesser” non-impeachable offences not mentioned in the Constitution, including “any wilful or grossly negligent breach of the Code of Judicial Conduct” (which has been drafted by the Chief Justice in consultation with the Minister of Justice) and a failure to declare registrable interests. Accepting, holding or performing any office of profit or receiving any fees, emoluments or remuneration or allowances in contravention of the Act, is now also prohibited, but would usually not on its own constitute an impeachable offence.

(The latter two provisions could be called the Oasis/Hlophe amendments as they deal with some of the issues raised during Judge President Hlophe’s original brush with controversy.)

The JCC may also investigate any wilful or grossly negligent failure to comply with any remedial step proposed by the JCC in cases where it had previously found that a judge had been guilty of a serious but non-impeachable offence.

Where the JCC makes a finding that the complaint prima facie indicates incapacity, gross incompetence or gross misconduct on the part of the judge, the JJC may refer the matter to the Judicial Conduct Tribunal (JCT) or may decide that it does not constitute an impeachable offence, in which case it will refer it to the Chairperson (usually the Chief Justice) for an inquisitorial inquiry. In the latter case the Chairperson may then impose remedial steps on the judge after conducting a hearing.

If the JCC decides that there is a serious case to answer that may lead to impeachment, it will refer the matter to the Judicial Conduct Tribunal which consists of two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one person who is not a judge but whose name appears on a list of persons who have been approved by the Chief Justice, acting with the concurrence of the Minister of Justice. The JCT is therefore dominated by judges — not by politicians or non-judges.

The JCT will then hear evidence and in an inquisitorial process try to determine where the truth lies. The aim would be to get to the truth behind the complaint and there would be no onus on any of the parties to prove or disprove any fact. In other words, the formal rules that apply in an accusatorial system would not apply and the aim of such an inquiry would be to get to the bottom of the complaint against the judge. This is important as this would make it impossible for the Tribunal to reject a complaint merely because a judge provides a different version of events than the complainant. At such a hearing the judge would be able to lead evidence and have witnesses cross examined. The Tribunal may also subpoena witnesses and order them to produce any documents relevant to the inquiry.

The catch here is that the Tribunal will usually do its work in secret — which is perhaps a reason why the JSC would want to deal with the complaint against Judge President Hlophe in terms of the new rules. However, the Tribunal President may in the public interest and for the purposes of transparency, determine that all or any part of a hearing of a Tribunal must be held in public. This decision must be taken in consultation with the Chief Justice. As is the case with many other aspects of these amendments, the role of the Chief Justice is pivotal. The whole system now depends on the integrity and wisdom of the Chief Justice, which is why — at present — it will probably work much better than the previous politicised JSC process.

The Tribunal must then report to the properly constituted JSC on its findings and must also provide the JSC with all the relevant documents. The JSC can then decide to accept or reject the findings of the Tribunal as the JSC is constitutionally required to decide whether it wants to recommend impeachment of a judge to the National Assembly.

If JSC rejects the findings of the Tribunal, it will obviously delegitimise itself and the judiciary as a whole, so even though the JSC is not above politics it is going to be very difficult for the JSC to reject a finding made by a Judicial Conduct Tribunal. Such a decision by the JSC to reject the factual and legal findings of the Tribunal would, in effect, be mean that the JSC would be replacing a legal and factual decision with a purely political decision. This will cause severe harm to the judiciary and would obviously destroy the legitimacy of the JSC.

Where does this leave Judge Nkola Motata?

Well, Judge Motata will now probably face a full inquiry by the Judicial Conduct Tribunal (if news reports are correct), and the Tribunal will have to investigate the complaint, which relates to remarks Motata made after he crashed his car into a wall in Johannesburg while drunk. An audio recording of the events was played in the Johannesburg Magistrate’s Court during his drunk driving trial. Among other things, Motata seemed to have channelled his inner Julius Malema and said with reference to Richard Baird, owner of the house where the crash happened: “No Boer is going to undermine me. This used to be the white man’s land, but it isn’t anymore.” Motata also allegedly told members of the Johannesburg metro police that “they should not support the white man.”

His fate now rests in the hands of two judges and a lay person. It will be interesting to hear who will sit on the Tribunal. Obviously, a finding that a judge is racist must surely lead to a recommendation of impeachment. Some conservative critics of the JSC and of transformation of the judiciary might well cheer on the Tribunal in a display of schadenfreude as they would love to see the downfall of a judge who happens to be black and just had one cup of tea too many and said what many other people think.

But they should think twice before they rejoice about any such possible finding. Unlike in Kenya where the new Constitution requires a vetting of all judges for re-appointment, many judges in South Africa were appointed before 1994 and have never been vetted to see if they comply with basic requirements of honesty and adherence to values of non-racism. It would be surprising if some of these judges (as well as judges — both black and white — appointed after 1994) do not privately express racist beliefs or ideas based on racial prejudices that would make them unfit for judicial office if expressed publicly.

A finding against Judge Motata – a finding which is by no means certain and which I do not pre-empt — might therefore send a welcome message to judges of all races who harbour prejudices based on race, sex, gender, religion or sexual orientation. Whatever happens, the way in which the Tribunal and the JSC deal with the complaint against judge Motata presents an opportunity to improve perceptions about the JSC and, ultimately, the judiciary.

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. 

In essence the SCA found that the JSC had not done its duty as required by the Constitution because it attempted to sweep this matter under the carpet. By assuming that because there were two versions of what happened — one presented by Hlophe and another presented by Justice Jafta and Nkabinde – that cross-examination of the witnesses who presented these conflicting versions would serve no purpose and hence that no further and proper investigation was required, the JSC did not act lawfully. As the judgement states:

It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.

It is important to note that this judgment should not be seen as pre-judging the issue of whether Hlophe did indeed attempt to influence the judges of the Constitutional Court. Judge Hlophe is therefore not necessarily the big loser of today’s judgment (although he was slapped with a cost order). We do not know for certain what happened when Hlophe went to speak to Jafta and Nkabinde as there are two diametrically opposed versions of these discussions. If Hlophe’s version is the true one, he may even emerge as the winner in this sad and sorry saga. But what we do know now is that it is the job of the JSC to find out what happened. It is their failure to do so that came under attack today.

The winner today was not so much the judges of the Constitutional Court or Freedom Under Law (FUL). Instead, the judicial system and the citizens of South Africa were the ultimate winners today. After all, as the SCA noted, it is in the interest of every South African citizen that the JSC should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should the JSC shirk its duty in this regard, it can have grave repercussions for the administration of justice.

The judgement does leave the JSC with some egg on its face though. It shows up the JSC decision not to pursue the complaint against Hlophe as a deeply flawed one and finds that the reasons provided by the JSC for its decision were clearly unjustifiable.

Recall that the JSC decided to dismiss the complaint (by the Constitutional Court judges) and the counter-complaint (by Judge President Hlophe) because the majority of its members were of the view that the evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did not establish and, at a formal enquiry, could not establish that Hlophe JP had attempted to improperly persuade them to decide the cases in Mr Zuma’s favour. It found that Jafta AJ’s evidence alone could not establish grounds for a finding of gross misconduct and that the evidence of Nkabinde J which contradicted that of Hlophe JP was immaterial to the matter at hand.

The SCA found this latter finding of the JSC irrational as Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said, thus virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her.

It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J that Hlophe JP said, when making an appointment to see her, that he had a mandate, that, when he visited her, he said that the reason why he was there was that a concern had been raised that people in the Constitutional Court did not understand our history, that he said, when asked who those people were, that ‘he has connection with some ministers’, that he said that the question of privilege should be decided properly because the prosecution’s case rested on it, that Nkabinde J reprimanded him for speaking about a case he was not involved in, that he said that there was no case against Mr Zuma and that Mr Zuma was being persecuted, that he said that some of the people implicated in the arms deal whose names appeared on a list he had obtained from National Intelligence were going to lose their jobs when Mr Zuma became President. These were the facts which the JSC had to consider together with Jafta AJ’s evidence, to determine whether Hlophe JP attempted to influence them. Once it had been determined that he did attempt to influence them the JSC had to decide whether his attempt to do so constituted gross misconduct of such a nature that it may justify his removal from office.

The problem for the JSC was that in the absence of cross-examination of the witnesses, its finding and reasons for the finding just do not add up. As the SCA points out, the JSC applied the criminal standard applicable at the end of a criminal trial, namely proof beyond reasonable doubt, to dismiss the complaint, at a stage when neither of the conflicting versions of the two judges on the one hand and Hlophe JP on the other hand had been tested by cross-examination.

Although the finding that it could not reject Hlophe JP’s version was quite correct, this did not mean that no-cross-examination was required:

By disallowing cross-examination that result was made inevitable. It would have been highly irregular to reject his evidence without having given him an opportunity to cross-examine his accusers. Utilising this procedure for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers. The procedure adopted was therefore not appropriate for the final determination of the complaint.

The requirement of proof beyond reasonable doubt (the only reasonable inference) was similarly not appropriate. Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course and an investigation of a complaint of gross misconduct is not a criminal enquiry but more in the nature of a disciplinary enquiry where proof on a balance of probabilities is required at the conclusion of the enquiry

As many of us pointed out at the time, this reasoning of the JSC did not seem plausible. Courts frequently have to decide where the truth lies between two conflicting versions and they often do so where there is only the word of one witness against another and neither of the witnesses concedes the version of the other. Although a court may, after cross-examination, still be unable to decide where the truth lies, “that possibility does not entitle a court to decide the matter without allowing cross-examination and it does not entitle the JSC to do so”.

The only credible option open to the JSC is to re-open the hearing, to call all the appropriate witnesses and to allow cross-examination of those witnesses — including the judges of the Constitutional Court and the Judge President. This procedure was not followed and this led to the finding that the procedure used was unlawful. If cross-examination had been allowed, it would have put the JSC in a position to decide whether the version by Hlophe JP or the version judges of the Constitutional Court who made the allegations about his alleged attempt to interfere with their work was the correct one. Such a finding would, in effect, require it to decide who had lied in this case.

If the JSC now revisits the matter as required by the SCA and if it makes the appropriate finding about whose version is truthful after cross-examining the witnesses, one would assume that the party or parties who are found to have lied would then be found to have been guilty of gross misconduct, which would trigger a recommendation of impeachment. This process may well be painful for all concerned. But as the SCA pointed out, sweeping the question under the carpet is not in the interest of the judiciary, the administration of justice and ultimately the citizens of South Africa.

Now the Sunday Telegraph reports that Dewani fears that he will not receive a fair trial in South Africa because he will be tried by Judge President John Hlophe. For anyone with even a passing knowledge of the South African legal system, this argument must seem laughable and even a bit desperate.

As far as I know, a trial judge has not yet been allocated for the Dewani case. It is therefore far from certain that Judge President John Hlophe will hear the case. Advancing arguments at this early stage about the impossibility of receiving a fair trial based on nothing more than the possibility that the accused will be tried by a certain judge seems, well, a bit desperate and unhinged.

But even if Hlophe decides to hear the Dewani case, this does not mean that Dewani will not receive a fair trial. Now, as we all know Judge President Hlophe is a judge who has been mired in controversy, and any accused appearing before him has a right to ask the judge to recuse himself on the basis that he would not receive a fair trial. The problem for Dewani would be that such an application is almost certain to be rejected — and rightly so.

Last month the Constitutional Court in the case of Benert v Absa Bank once again dealt with the issue of when a judge should recuse him or herself. In a judgment written by Chief Justice Sandile Ngcobo the Constitutional Court once again succinctly set out the legal position in South Africa on this issue:

It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.9 And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.

This means that the mere fact that a judge has previously acted in a controversial manner — as Hlophe has done — is not in itself ever going to be relevant. The question is whether a reasonable person with all the facts at hand, a person not animated by the racial prejudices of your average British national (or journalist), will have a real apprehension that the judge will be biased because of what the judge had done or said either before or during the trial.

Now, personally I might not want to be tried before Hlophe JP because I have been rather critical of him and I might well have a reasonable apprehension — rightly or wrongly — that Hlophe would find it difficult to be completely impartial and unprejudiced in hearing my case. But Dewani does not have any similar history with Hlophe. Neither is there any direct link between the controversies in which Hlophe had been  involved in the past and the Dewani case.

No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case. Hlophe has not made any utterances about the case and neither can any of his previous actions or utterances be linked in any way with the facts or the circumstances of the Dewani case.

Dewani is, of course, free to rush back to South Africa to stand trial and if he were to be tried by Hlophe he would have a right at any time to ask for the recusal of the judge if anything happens during his trial that gives rise to a reasonable apprehension of bias on the part of Judge President Hlophe. Dewani would similarly be entitled to ask for the recusal of any other judge allocated by Hlophe to hear the case — but only if there are real reasons for Dewani to fear that he would not receive a fair trial.

In effect, these arguments presented by Dewani and his spin doctors are less about legal issues than about an attempt to win the media war. I suspect Dewani and his spin doctor Max Clifford has decided to try and create sympathy for Dewani by playing into fears and prejudices of the UK public about whether an Englishman could ever get a fair trial in “deepest and darkest Africa”. IF I was a member of the UK public I would be rather sceptical about this transparent move to tap into the racial prejudices of the  public or the erstwhile colonial master and would ask: if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?

]]> http://constitutionallyspeaking.co.za/clutching-at-straws/feed/ 75 http://constitutionallyspeaking.co.za/should-freedom-under-law-appeal-the-hlophe-judgment/ http://constitutionallyspeaking.co.za/should-freedom-under-law-appeal-the-hlophe-judgment/#comments Thu, 23 Dec 2010 08:16:21 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=3242 A few months after the Judicial Service Commission (JSC) decided that it was not worth trying to find out whether it was Judge President John Hlophe, on the one hand, or some of the judges of the Constitutional Court, on the other, who had lied to it, I gave a talk via video-link to academics in New York about the whole saga.

I had previously taken quite a firm stance (to say the least) against the decision by the JSC not to continue with its investigation, so some of my American colleagues seemed taken aback when I told them that while the decision by the JSC was clearly wrong and bad for the integrity and independence of the judiciary, it was quite understandable that the JSC came to this conclusion and that I had some sympathy for the members of the JSC who in effect voted in favour of protecting Hlophe – despite the evidence and the logic demanding a full enquiry.

I explained that given the fact that only a small percentage of advocates in South Africa are black or female and even fewer of them are Senior Counsel, given further that advocates work for themselves and are likely to flounder unless they are absolutely brilliant or unless they can count on the informal support of colleagues and members of the attorney’s profession, and given the fact that there are still some white advocates — maybe good people, but part of the dominant group and therefore not always attuned to both the very practical and the more intangible problems faced by black and female advocates who join what they experience as a hostile environment — many black advocates feel angry and disillusioned.

Some people in the legal profession find this perplexing. Others complain that black advocates are not buckling up and that they are far too sensitive or spoilt. These complaints often emanate from men who do not seem to “get it” because they happen to be steeped in the culture and unspoken assumptions that reflect their own life experience but not that of black, female and gay and lesbian advocates.

Some heterosexual white men who have always operated in an institutional culture that reflects their world view, their life experience and their way of being in the world find it difficult to comprehend that this culture can be extremely alienating and exclusionary to those who do not share their cultural and professional experience. This institutional culture — which is changing, but perhaps faster in Johannesburg than in Cape Town – is  constituted by both formal rules and informal rules that are so part of the dominant group’s life experience that they do not seem to them like rules at all, but just “the way things are”. I suspects large parts of the legal profession are only now beginning to grapple with the kind of changes needed to create a culture that respects or even celebrates the diversity of our country.

I cannot speak for black South Africans or for women, but as a gay man I am acutely aware of the ways in which an institutional culture that does not embrace diversity can disempower one and can make one feel inferior and excluded. This can often work in both harsh and more subtle ways.

One may not be invited to the drinks, the braai, a golf day or the team meeting where bonds are forged, informal alliances made, or informal decisions taken about who will be awarded juicy and interesting work. A feeling of being watched and judged, of always having to prove oneself because one is not “one of the boys”, can permeate one’s professional life. For people who are perhaps not as confident or outgoing as myself or are not as prepared as myself to stand up for themselves and to make “trouble” (yes, I have always had that problem), the professional consequences could be catastrophic.

In this context, it was perhaps inevitable and even understandable that the complaint against John Hlophe – the Judge President of the Division with the smallest number of black Advocates – would be perceived as an attack on black lawyers in general. This is not about taking a “reasoned and principled” stand, but about a highly emotional response that emanates from a highly irregular and unsatisfactory situation.

In fact, I would suspect that for many black lawyers the very “reasons and principles” that those of us who clamoured for a full inquiry in the Hlophe matter relied on, might well have appeared — rightly or wrongly — like nothing more than the “conventional wisdom” of white and privileged lawyers who wished to impose their way of doing things on a vulnerable and angry minority in the profession or to punish an “uppity” black man.

One is always wiser in hindsight, but given my view of the legal profession described above, I might well have employed a slightly different tone on the Hlophe matter. I might well have tempered the outrage of many of my posts of the time. (This outrage, I must confess, was animated by a fierce loyalty towards, and support for, the institution of the Constitutional Court, whose judgments I often strongly disagree with but whose members I respect unconditionally.)

Which brings me to the recent judgment of Mabusa J in the North Gauteng High Court in the case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others.

What is not in dispute in this case is, first, that there are significant disputes of fact. Put more bluntly: either judge Hlophe lied or one or more of the Judges of the Constitutional Court lied to the JSC. Second, the JSC decided, before it was reconstituted after the 2009 election, that if the allegations against Judge President Hlophe were true (in other words, if the Constitutional Court judges were not lying) this would constitute gross misconduct that warrant impeachment. After the JSC was reconstituted it eventually decided not to proceed with an inquiry to try and establish whether it was Hlophe or one or more of the judges of the Constitutional Court who were lying because the evidence available to the JSC at that point did not provide conclusive proof either way.

What emerges from the judgment is that the JSC in effect decided that the evidence of the Constitutional Court judges (including Nkabinde and Jaftha JA) presented to the JSC was not of a sufficiently high calibre to support a prima facie case against Judge President Hlophe. At its most generous, one could argue that Mabusa J found that even if the evidence of Nkabinde and Jaftha were true (something disputed by Hlophe) there was not a clear enough case against the Judge President to prove gross misconduct.

In reviewing this decision, the High Court applied a rather old fashioned test familiar to lawyers who battled against apartheid state of emergency regulations, instead of a post-constitutional test in line with the requirements of the Rule of Law and constitutionally-enhanced rules of administrative justice. It asked whether the JSC had indeed “applied its mind” to the matter. The judgment states, correctly, that the court could not declare the JSC decision invalid merely because it disagreed with it or because it was unwise. But it seemed to throw the baby out with the bathwater. It failed to appreciate that in a constitutional state,  a court should review a decision by a constitutional body like the JSC applying a slightly more stringent test than merely asking whether the decision-makers applied their minds to the issue at hand. The Rule of Law – a founding principle of our Constitution – now requires this.

When dealing with the question of whether two members of the JSC should have recused themselves because they made statements in support of Hlophe in the months before the JSC decision was taken, the Court similarly applied a pre-constitutional standard and assumed that as long as the impugned members had given plausible explanations of why they would not have been biased, despite having made statements in support of Judge President Hlophe previously, that was the end of the matter.

This is not the constitutional era test for bias requiring recusal. In a constitutional state the test is whether a reasonable person, imbued with all the facts, might have had a reasonable apprehension that the particular members of the JSC were biased or not. The High Court failed to annunciate or apply this test.

Ironically – given the fact that Judge President Hlophe is said to be a champion of legal transformation — the judgment seems to rely on an apartheid-era style of legal reasoning to find against FUL. Those who support the transformation of the legal system — whether they are supporters of Judge President Hlophe or not — should therefore be concerned about the untransformed and conservative nature of the principles and style of reasoning relied on by the High Court to come to the conclusion it did.

But does this mean the judgment should be appealed? Given the racialised nature of the case and the damage already caused by the Hlophe affair to the judiciary, and given the possibility that Parliament would not impeach Hlophe even if the JSC recommended it, should we not perhaps let sleeping dogs lie? I am less enthusiastic about such an appeal going froward than I would have been a year ago. But on balance I would argue that in the interest of the transformation of the legal system, the highly problematic apartheid-style reasoning of the High Court should not go unchallenged.

Maybe those judges in of the Supreme Court of Appeal (SCA) in Bloemfontein – who in the past have not always embraced the transformative vision of the Constitution with the enthusiasm one would have wanted — may correct the legal misconceptions in this case so that the correct kind of legal reasoning could be applied the next time such a case comes before the High Courts.

It might well be that if the SCA sets aside the JSC decision, the JSC will revisit its decision and again decide not to proceed with an oral hearing. I would maintain that such a decision would be utterly irrational and damaging to the credibility of the judiciary but I would abide by such a decision if freshly made. But at least an appeal to the SCA would correct the deeply conservative and untransformed reasoning and application of outdated legal principles used by the High Court, which would be a good thing for the legal transformation of South Africa.

Surely both supporters of the JSC decision and those who — like FUL – would have liked to see the JSC actually making a finding on whether it was Hlophe JP or some judges of the Constitutional Court who were lying through their teeth, would agree that establishing a more progressive jurisprudence regarding the decision making standards employed by a constitutional body like the JSC is more important than the temporary setback for either Hlophe or some of the judges of the Constitutional Court that might result from this decision being overturned?

]]> http://constitutionallyspeaking.co.za/should-freedom-under-law-appeal-the-hlophe-judgment/feed/ 22 http://constitutionallyspeaking.co.za/this-defamation-case-is-not-going-anywhere/ http://constitutionallyspeaking.co.za/this-defamation-case-is-not-going-anywhere/#comments Mon, 20 Dec 2010 07:03:37 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=3232 Arriving back from a snowed in Berlin, I made the mistake of buying the Sunday newspapers. Sadly I find the same depressing news stories and absurd debates dominating the newspapers as when I left.

Our President claims that he wants to sue Zapiro, South Africa’s leading cartoonist, because the cartoonist dared to comment on the President’s ”manipulation” of the justice system to escape his day in court. Remember the days when Jacob Zuma muttered darkly that once it was all over he would give his side of the story – something that never happened. To this day we have not had any explanation from President Zuma or anyone else in the ANC about why President Zuma got involved with a crook, took money from that crook and then did favours for that crook.

While the case was still pending against him, he often said that he would give his side of the story at some point. He never has. I suppose we can draw our own conclusions from that silence. All we know is that a guy got sentenced to 15 years in prison for bribing the President of South Africa. What we do not know is what the President’s explanation is for this.

In essence the President wants to sue Zapiro for commenting on something that is rather obviously true. Obviously a “political solution” was found for Zuma’s legal problems to allow him to become Preisdent without having to defend himself in court. One may argue that the political solution was best for the country – hey so far it has worked for that womanising, mafia loving, Prime Minister of Italy – but few people would argue that the system was not manipulated to stop the charges against President Zuma.

I continue to maintain that these defamation suits are never going to get to court. They are intended to intimidate – not to lead to any kind of legal resolution.

Surely our President cannot afford to go to court where he will have to explain how he got hold of secret tapes made by the intelligence services, tapes who – even in terms of existing legislation – are deemed secret and were illegally leaked to him or his lawyer who might very well have committed a criminal offence by taking possession of the tapes and then submitting them to the National Prosecuting Authority.

The fact that these tapes indicated that one of the people involved in the case against him was discussing the timing of charging him with hundreds of counts of fraud and corruption might have saved his bacon, but where did he obtain these tapes? Surely it was illegal to be in possession of the tapes, so either Zuma or his lawyer (or both) committed a criminal offence?

(And is it not rather rich that the Zuma administration has piloted the Protection of Infortmation Bill through Parliament in an effort to tighten up secrecy and to punish those who leak information and use such information when it was exactly such secret leaks that saved Zuma’s bacon? For these guys secrecy is a matter of life and death – unless it will allow oneself to escape prosecution for having been bribed by a crook.)

If the President actually went ahead with his claim that Zapiro defamed him, I would imagine Zapiro’s lawyers would want to argue that what was depicted in the cartoon was fair comment and was – in any case – not untrue. They would ask Zuma and his lawyers to provide all the facts about how these tapes were illegally obtained and would be cross-examined by serious lawyers about it. As we have seen from the Jackie Selebi and Glen Agliotti trials, cross-examination can be rather detrimental to those who have a habit of lying.

And can one imagine our President having to squirm under cross-examination while being asked about all that money given to him by Schabir Shaik and about the favours he did for Shaik after receiving the money and after having fallen into – what Judge Hillary Squires called a ”mutually beneficial symbiosis” – with Shaik?

The President would also have to answer questions about his appointed Menzi Simelane as the head of the National Prosecuting Authority – despite the fact that Simelane had exposed himself as a person who was willing and capable of misleading an Inquiry set up by Zuma’s predecessor.

No, this defamation case is never going to get to court. I can’t imagine Zuma subjecting himself to cross-examination again. The last time that happened he made sexists statements about not leaving a women aroused without having sex with her and also made himself the laughing stock of the chattering classes with his comment about taking a shower after having sex with an HIV positive woman in order to prevent HIV transmission. Under cross-examination one cannot giggle and change the topic: one actually has to answer questions being put to you.

(Of course the Judicial Service Commission (JSC) somehow does not believe that cross-examination would have exposed the lies of one or more of the parties in the Hlophe matter. But maybe that is being too kind to the JSC: they probably know full well that the party or parties who lied to them about the Hlophe matter would be destroyed under cross-examination, so there was no way that the JSC was ever going to allow that.)

Besides when a President sues a cartoonist he exposes himself to further ridicule and acts in a way that diminishes his own dignity. If the President goes ahead with his case he would be doing to himself exactly what he claims Zapiro did to him – demeaning himself by demonstrating that he is thin-skinned and intolerant of criticism and not a great democrat. If one wants to act in a presidential manner, one should not sue cartoonists: that just seems petty and narrow minded and makes one appear like a bully and an autocrat who believes that one is not a servant of the people but somehow, because of one’s position, beyond criticism and ridicule.

But like you or me or anyone else, in a democracy, a President is open to criticism and ridicule – especially when he does something worth criticising or ridiculing. What next? Julius Malema suing comedians for making jokes about his woodwork marks?

In terms of section 11 of the Regulation of Gatherings Act 205 of 1993, the organisers of the protest march or demonstration could be held vicariously liable for the damage done by the marchers or demonstrators. This means that even if organisers of a protest march or demonstration took steps to prevent the destruction of property, the organisation may nevertheless be sued for the damages that occurred because of a riot that ensues.

The organisation will be liable unless it could prove that it did not permit or connive in the riot; and that the riot did not fall within the scope and objectives of the march or demonstration and was not reasonably foreseeable; and that it took all reasonable steps to prevent the riot. In Garvis and Others v South African Transport and Allied Workers Union and Another the Cape High Court had to decide whether the underlined provision did not unfairly limit the right in section 17 of the Bill of Rights of everyone peacefully and unarmed to assemble, to demonstrate, to picket and to present petitions.

It was argued in court that  if an organisation was always going to be held liable for damages that occur during a march or demonstration unless it could prove that the riot was not reasonably foreseeable, it would have a chilling effect on the right as guaranteed in section 17. Was it not unfair to hold an organisation financially liable for damage resulting from a riot even where it took all reasonable measures to prevent that riot from occurring? Would it not stop holding demonstrations and marches for fear of having to pay millions of Rand in damages to claimants whose property had been destroyed?

The High Court, in a neatly argued judgment by Hlophe JP, found that section 11 of the Act was indeed constitutionally valid. This was first because it did not infringe on the right to assemble and demonstrate peacefully. Where a gathering is not peaceful, the organisers or trade unions who had organised the gathering can therefore not rely on section 17 for protection as they had not organised a peaceful event.

Second, the Court argued that there was no evidence that the section actually had a chilling effect on organisations such as SATAWU from organising marches and demonstrations. Although it was aware of these provisions, it nevertheless held several marches and demonstrations, which showed that the section had not dissauded organisations from holding demonstrations and marches.

Even if this was wrong, argued the court, the limitation of the section would be justified by the limitations clause. The purpose of this section was rather important as it was aimed at protecting the rights to dignity, to be free from all forms of violence and the right not to be arbitrarily deprived of property.

It was also aimed at promoting order and the rule of law and to deter mob violence. Moreover, it would be rather difficult to achieve these goals without holding organisations vicariously liable for damages that could reasonably have been foreseen as it would be almost impossible to identify and sue individual marchers or demonstrators. During a riot few people are actually arrested and caught red handed destroying property.

In this case, it was therefore possible for those people who had suffered damages after SATAWU workers went on the rampage to claim from the Union as they should reasonably have foreseen that a riot would break out, given the volatile situation which existed at the time. Although the Union took reasonable steps to try and prevent workers from trashing the city of Cape Town, they should have foreseen that a riot could break out and should therefore be held liable for the damage cause by the mayhem.

For most people who posess any kind of property, this outcome would seem rather satisfying. One might well argue – as Hlophe JP did – that a march or demonstration that turns violent and which leads to the wanton destruction of property are not protected at all by the right to peaceful assembly – ever. No one has the right to organise a demonstration or a protest march knowing full well that it might turn ugly and that one’s members might go on a rampage. I agree with this view.

But what happens if the riot is not caused by one’s own members but by those opposed to the organisation who has organised the demonstration or the march? What happens if I belong to an organisation who wishes to hold a peaceful march through the streets of Ventersburg on the day on which Eugene Terreblanche’s alleged murderers appear in court to show support for the accused. I might know that members of the AWB would not be happy to hear that 5000 people are going to demonstrate – completely peacefully - outside the court, holding up placards that suggest that Terreblanche was the real murderer and calling for a banning of the AWB.

I might reasonably foresee that AWB members would not want that march to continue and that its members might provoke the 5000 peaceful marchers and would try and start a riot. My organisation would therefore potentially be held liable for any damaged caused by the ensuing riot. But is this fair and does it not make my right to peaceful assembly contingent on the acceptability of the message I wish to convey during the protest march or assembly? Should my organisation be punished because its message might provoke others to riot and to smash up the streets? Would this not constitute a rather fundamental limitation on the right to protest peacefully because it makes the exercise of my right contingent on the tolerance shown by others?

This seems like a difficult question, but I suspect that the Act as it now reads places too severe a restriction on the right to assemble peacefully. To demonstrate peacefully is one of the most important rights underpinning our democracy and limiting that right should be allowed in only very restricted situations. What is needed, perhaps, is to read words into this section which limits the vicarious liability of an organisation to those cases where the riot was started by members of one’s own organisation and where the damage was actually done by them.

Otherwise, our right to assemble peacefully could be held to ransom by the whims of intolerant members of the public of competing organisations who would wish to stop one from expression one’s views.

It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.

Oh, how I miss our very own Tweedledum and Tweedledee!

Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.

Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.

The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.

The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?

I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.

In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.

Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.

In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.

One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.

So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.

When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.

But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.

When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.

Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.