Constitutional Hill

Hlophe

Where was Zille?

Sep 4th, 2009
by Pierre De Vos.
75 comments

Should Helen Zille have been part of the JSC committee who decided not to proceed to a full hearing in the matter between Judge President John Hlophe and the judges of the Constitutional Court? A clever and alert reader of this Blog thinks so – and I agree. This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court.

Section 178(k) of the Constitution states that “when considering matters relating to a specific High Court,” the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them, must form part of the JSC. The question is what would constitute “matters relating to a High Court”.

The Premier already forms part of the JSC when it decides on appointments for the High Court in his or her province, so the composition of the High Court is deemed to be “a matter relating to a High Court”. It seems to me that it follows by necessary implication that if the Premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge because it relates – at least potentially – to the composition of that High Court.

This conclusion is bolstered by section 178(5) which states that when the JSC “considers any matter except the appointment of a judge”, it must sit without the members of the National Assembly and the NCOP.  This section explicitly excludes party politicians (with the exception of the Minister of Justice) from taking part in a decision on whether a judge should be impeached or not. Because the Constitution uses the very specific words – “appointment of a judge” – in this section, but the far broader phrase – “matters relating to a High Court” – when it deals with the presence of a premier, the irresistible inference must be drawn that Zille should have taken part in the JSC disciplinary committee decision of last week.

Of course there is a very good reasons why the members of Parliament are excluded from sitting on such a body. If the JSC recommends impeachment, the National Assembly will have to consider the JSC recommendation and a judge can only be impeached if two thirds of the members of the National Assembly vote for impeachment. If the politicians had been part of the original JSC decision, they would in effect be called upon to decide on the same issue twice in two different fora and that would not be tenable.

The Premier on the other hand will not form part of any decision by the National Assembly on whether to impeach a judge, so the same concern does not arise.

Moreover, the Minister of Justice does sit on the disciplinary committee of the JSC to represent the interests of  the national government. The premier’s position mirrors that of the Minister as he or she must represent the interests of the province in decisions regarding the composition of the High Court in his or her province.

The same section also requires the Judge President or his or her designate to sit in the decision, but as Hlophe is deeply involved in the case he would not be able to sit in the hearing. Neither would anyone appointed by him be able to take up his or her seat, because there would of course be a reasonable apprehension of bias against anyone nominated by Hlophe. Hlophe would surely not nominate anyone he believes would decide the case against him?

(Alternatively, the Deputy Judge President who has acted as Judge President in the absence of Hlophe should have sat on the committee.)

Andiswa Ndoni, one of the JSC members nominated by President Zuma, has previously said that she believed Hlophe was innocent, but unlike Dumisa Ntsebeza who to his credit recused himself, she failed to recuse herself from the JSC decision on Hlophe, despite the clear conflict of interest. Moreover, one of the representatives of the advocates profession, Izak Smuts, who was supposed to replace Milton Seligson, did not take part in the decision as President Zuma has not yet signed his letter of appointment.

It therefore seems to me that the true majority of a properly and lawfully constituted JSC body may very well come to a different conclusion from the irrational and dangerous decision announced last week. Hlophe and the judges of the Constitutional Court may therefore still face the cross examination required to test their evidence. After such cross-examination, the JSC might even be persuaded to do its job and to make a finding on the credibility of the various complainants. Once such a finding is made and one or the other version is accepted, it would require the JSC to recommend impeachment of the individual(s) who have lied through their teeth – under oath nogal.

This matter is not over yet. Who knows, maybe the tarnished credibility of the JSC can still be saved and with it the integrity and the independence of our judiciary.

On acting “arbitrarily and capriciously”

Sep 3rd, 2009
by Pierre De Vos.
81 comments

It seems as if Judge President John Hlophe and the judges of the Constitutional Court are not off the hook yet. Just when Hlophe thought he had yet again (and against all legal odds) escaped impeachment, former Constitutional Court judge Johann Kriegler announced an intention to legally challenge the decision by the Judicial Services Commission (JSC) not to proceed with a misconduct probe against him.

Kriegler is seeking a legal remedy on behalf of a non-government body, Freedom Under Law (FUL), of which he is chairperson of the board of directors.

I have been wondering on what basis a decision of the JSC not to proceed with a full hearing could be reviewed and set aside. There seems to be ample grounds on which the decision could be reviewed in terms of the Promotion of Administrative Justice Act (PAJA).

The JSC is an organ of state, as it performs its functions in terms of the Constitution. Although its decisions regarding the appointment of judges are excluded from review in terms of PAJA, a decision regarding the impeachment of a judge is not excluded from review. Moreover, the decision not to proceed with the hearing against Hlophe may adversely affect the rights of everyone to have his or her legal dispute resolved in a fair public hearing before an independent and impartial  court.

In terms of PAJA, the decision of the JSC could therefore potentially be set aside because the JSC was biased or reasonably suspected of bias when it made the decision. Given the fact that the JSC was recently packed with pro-Hlophe supporters (for example, Andiswa Ndoni, President of the Black Lawyers Association, was recently appointed to the JSC by President Jacob Zuma and took part in the decision despite the fact that she had previously stated that Hlophe was innocent) a court may well take the view that the JSC was biased when it made its decision.

Section 6(2) of PAJA also states that a court can review a decision by the JSC not to proceed with a full hearing if the action was taken for an ulterior purpose or motive; because irrelevant considerations were taken into account or relevant considerations were not considered; because the decision was taken in bad faith; or because it was  taken arbitrarily or capriciously. (Oh, how I love that phrase “arbitrarily and capriciously”, which seems to describe rather accurately the way in which the JSC has recently acted.)

The same section also states that the decision of the JSC could be reviewed because it was not rationally connected to the information before the JSC or not rationally connected to the reasons given for it by the JSC. A decision of the JSC may also be set aside because it was so unreasonable that no reasonable person could have made that decision.

After studying the reasons given by the JSC for dropping the complaints against Hlophe and the judges of the Constitutional Court, it is difficult not to wonder whether the JSC decision does not meet several of these criteria. It is interesting that those who have defended the decision of the JSC have not done so with reference to the reasons given or to the applicable legal principles.

In this regard the view expressed today in Business Day by Prof David Unterhalter is of interest. He writes that the JSC had failed:

to reason properly so as to answer the only question it had to ask: whether Hlophe and the Constitutional Court had a case to meet. That should have been a relatively straightforward exercise, since, in the complaint against Hlophe, it was common ground that he had talked to judges Bess Nkabinde and Chris Jafta about the Zuma/ Thint cases while decisions in these cases were still pending. And as the minority found, the complaint against the Constitutional Court is closely bound up with these events. On Hlophe’s own version, he said the cases “had to be dealt with properly” and “sesithembele kinina”, meaning “you are our last hope”. What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.

The JSC was not required at this stage of the inquiry to determine the truth between the contested versions but only whether Hlophe had a case to meet. Rather than engage this inquiry, the majority of the JSC sought to decide whether, on disputed evidence, the case against Hlophe had been established, and decided it had not been because there was no direct evidence that Hlophe had said he desired a particular result. The case of the complainants rested upon the inferences that were to be drawn from other statements of Hlophe. It is rarely the case that an intention is spelt out in so many words. This is almost always something inferred from conduct and circumstance. The real question was whether the version of events given in evidence by Nkabinde and Jafta could have supported the inference that Hlophe did intend to influence the outcome of the cases before the Constitutional Court. If so, Hlophe was required to meet this case. But this question was not answered by the majority of the JSC because they insisted upon an entirely artificial standard of judgment: whether Hlophe had said in so many words how the Zuma cases were to be decided.

It would be interesting to hear a rational, legally cogent, and plausible defense of the JSC decision. So far those who have welcomed the decision have either uttered mealie-mouthed platitudes about moving on and putting this sorry saga behind us, or they have applauded the decision on the basis of emotional expressions of support for Hlophe without providing any answer to the criticism of the decision expressed by an array of lawyers and legal academics.

Maybe there are readers out there who are brave enough to take a stab at defending the decision from a legal perspective?

In any case, I am happy that this decision will now be taken on review. My view is not primarily based on a need to see a full hearing where all parties concerned would be subject to cross examination. It is rather based on the view that the JSC itself had acted in a way that was so preposterous, unreasonable and irrational (“arbitrarily and capriciously, if you will) that its very credibility (and with it the credibility of our judiciary) is at stake.

This is far bigger (and more important) than John Hlophe. It’s about constitutionalism and safeguarding an independent judiciary.

Hlophe: what happens now?

Aug 31st, 2009
by Pierre De Vos.
115 comments

Judge President John Hlophe will probably return to work on Monday before jetting off to Johannesburg at the end of the week to be interviewed for a position on the Constitutional Court. The media will focus heavily on his interview because the Judge President is the story that will sell newspapers. The suspense! The drama! The liberal (newspaper buying public’s) outrage! Will he or won’t he make it on to the list of JSC nominees sent to the President for appointment, they will ask.

To some degree this is inevitable, given the fact that for many different reasons (some sound, some deeply problematic) Judge President Hlophe excites passions in our fractured body politic that makes for great drama and suspense.

I am, of course, one of the individuals who feel that Hlophe is not fit for judicial service on any court (let alone the Constitutional Court) and have set out my extensive and cogent reasons for this on many occasions. I am, of course, also aware that not everyone shares my view. 

There are individuals on both sides of this debate who seem to have a messianic obsession with Hlophe (some would say I am one of them).

On the one hand there are those who have formed the firm belief (without providing the necessary evidence) that Hlophe is a victim of a racist conspiracy (by the black judges of the Constitutional Court) and that he should be appointed to the Highest Court because he is allegedly a champion of (racial) transformation, is allegedly a person deeply concerned about the plight of poor and marginalised South Africans (like the Joe Slovo settlers he ordered moved from their homes), a person with a brilliant legal mind (if a rather vague understanding of ethics and honesty).

On the other hand, some individuals (without even always realising it) see Hlophe as a symbol of what is wrong with ANC  governance in South Africa (with which some of them mean black-led governance) and view the way in which the JSC has now twice let Hlophe off the hook for conduct that might well have constituted “gross misconduct” (although we will now never know for certain) as a scandalous abdication of their legal and ethical obligations and an ominous sign of how our institutions have become infected with what Minister of Higher Education and SACP leader Blade Nzimande last week called a “narrow Africanist chauvinism”.

If one happens to have been born with less melanin than fellow countrymen and women and one happens to agree with Nzimande (as I do) about the dangers of “African chauvinism”, it is rather difficult to express such an opinion, exactly because one would be grouped with the racists who yearn for the return of the “good old days of apartheid” and who see John Hlophe as a symbol of black incompetence and corruption. 

This reminds us that for most South Africans (of all races) there can only ever be two sides to a story: the ”white” side and the “black” side. Escaping that dichotomous logic seems rather difficult if not impossible to do. How do we escape this narrow and stultifying ”them” and “us” world, a world of hatred and fear, envy and arrogance, conspiracies and plots? 

This might come as a surprise to some readers, but I have come to wonder whether one way of trying to get beyond this corrosive, race-bating, stupidity, is not to shrug it off and laugh about it before moving on to real issues confronting ordinary South Africans. How many poor people who are worried whether they will have food on the table tonight, actually care about John Hlophe and the fools on the JSC?  

I am not saying that the question of who serves on the Constitutional Court does not indirectly affect poor people. Of course it does. So, by all means, let us talk about the qualities we think a person should possess to serve with distinction on our highest court. Let us put forward names of highly qualified, progressive individuals with impeccable integrity who may just make a small difference to the lives of ordinary South Africans.

But it would, perhaps, be wiser not to bestow legitimacy on either the “Africanist chauvinists” or the racists by focusing on the candidacy of one man: John Hlophe. There are four openings on the Constitutional Court and it is important that these openings are filled by progressive judges.

In this debate about who is progressive, who cares about the poor, who has integrity and wisdom, John Hlophe is an unwelcome side-show. If we look at the bigger picture, we must surely acknowledge that he really is not that important: just one tragic and deeply flawed guy whose struggles have allowed us to be side-tracked and to take our eye off the ball.

A sad day for our judiciary and the JSC

Aug 28th, 2009
by Pierre De Vos.
49 comments

In late medieval times, so it is claimed, theologians argued about how many angels can dance on the head of a pin. The majority of the disciplinary committee of the Judicial Services Commission (JSC) would have felt right at home amongst those theologians.

In their decision, handed down today, on why it would not proceed with a full hearing of the complaint of the Constitutional Court judges against Judge President John Hlophe, the JSC provides a stunning example of splitting hairs and drawing distinctions without any meaning in order to justify their decision not to proceed with a full inquiry.

The JSC found that because Judge Nkabinde (and Jaftha) had not “with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way” (in other words, in favour of Zuma) there would be no use in pursuing the matter. The judges have of course said – very consistently – that Hlophe had said that the case had to be decided “properly”. The JSC found as follows:

We also accept, for the purposes of our decisions, that in their conversations Hlophe JP in all probability said, among other things, that the Zuma/Thint matters must be decided properly; that privilege was an important element of the matters that were before the Court; that he used the word “mandate”; that he, like President Zuma (then President of the African National Congress) was persecuted; that there is no case against Zuma; that “sesithembele kinina”  – “we pin our hopes on you”; he believed that the issue of privilege was a very concerning one and had to be dealt with properly; he felt strongly about privilege and fair trial rights; that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege; that the Zuma/Thint cases was probably one of the most demanding of cases that the Court had dealt with given its important to the President of the ANC, Jacob Zuma and the ANC itself and the country. We also accept that his discussion with Jafta JA was robust…. [Nkabinde] has not with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way, in particular in favour of Mr Zuma. As pointed out above, when pertinently and expressly asked if Hlophe JP had said so, she was firm that he had not.

Because Nkabinde had not claimed that Hlophe had ever said the case must be decided in favour of Zuma, a hearing would not be necessary as there was no evidence that Hlophe had improperly tried to influence the judges to decide the case one way or another.

This distinction drawn by the JSC seems to me to be so absurd as to border on the irrational. It means that if a judge wants to improperly influence other judges he or she could get away with it as long as he or she never says the magic words: “Decide the case in favour of X.” He or she could say the case must be decided “properly”, and can argue what a “proper” decision would be, but this would not, according to the wise people at the JSC, constitute an attempt to influence the judge approached.

The JSC also accepted that there were “sharp disputes of fact between the different versions” given by Hlophe and the complainants. Nevertheless it found that these disputes were “not central or material to the validity of the respective complaints” and therefore a full hearing with cross examination would be of no use.

In this context the JSC found that:

[I]t is difficult to conclude that Hlophe JP acted with “wilful blindness,” “with the addition of a vituperative epithet”, “involving extreme departure from the standard of reasonable person which must demonstrate complete obtuseness of mind or total failure to take care” when he spoke to Nkabinde J and Jafta JA, which would be “gross misconduct” within the meaning of section 177 of the Constitution.

Although the JSC found that Hlophe had discussed the pending matters with two judges of that Court in matters in which he had not sat, it did not amount to gross misconduct. Rather it may merely have been “unwise, ill-considered, imprudent, not thought through”.

Judge Hlophe just simply did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved. Maybe it was an honest mistake?

This decision, with respect, is utterly implausible. It will inevitably tarnish the image of all parties concerned. All the complainants (Hlophe and the judges of the Constitutional Court) will now have to continue sitting as judges despite the fact that we now know for a fact that one or more of them are pathological liars. The judge or judges who truthfully gave evidence to the JSC have been treated in a shocking manner as the JSC has decided not to make a finding about who is lying and who is speaking the truth, tarnishing the reputation of all involved.

That is why I cannot imagine that either Hlophe or the judges of the Constitutional Court would gloat about this decision as it leaves a dark cloud hanging over all of their heads. If anyone gloats about the decision it would strongly suggest that the gloating party or parties were liars and were just too happy to be let off the hook despite telling huge lies.

The JSC itself also comes out of this saga with its credibility in tatters. It drew a distinction where none existed to avoid a full hearing that could have exposed the lies of a sitting judge (or judges) and could have gotten rid of one or more bad apples on the bench. The fact that the JSC does not seem concerned about the fact that its decision condones scurrilous lies, suggests it does not have the ethical compass required to deal responsibly with matters like this.

All in all, it is a sad day for our judiciary and for the JSC. There are no winners here.

PS: The full decision of the JSC can be accessed on the “Seminar Room” page of this Blog

Hlophe a free man?

Aug 28th, 2009
by Pierre De Vos.
31 comments

This story has just been posted on the web by Independent Newspapers. 

Cape Judge President John Hlophe no longer faces the threat of impeachment.

Hours before the Judicial Service Commission is expected to announce its decision on the much-publicised dispute between Hlophe and the Constitutional Court, The Star has learnt that the JSC’s complaints committee  has decided not to proceed with the gross misconduct complaint against Hlophe.

They have found that there is no prima facie case against Hlophe. The Judge President is expected to return to work on Monday, days before he will again face the JSC – this time as a nominee for a Constitutional Court position.

It is understood that the JSC complaints committee was closely split on its decision about the Hlophe matter, which is expected to be conveyed to Hlophe and the Constitutional Court at noon. It remains unclear whether Hlophe or the Concourt will be reprimanded over the conduct that led to the dispute.

Delays in the announcement of the decision, which was made nearly two weeks ago, are believed to have been the result of the minority’s insistence that its reasons for wanting the complaint against Hlophe to continue should be publicised.

The Constitutional Court had accused Hlophe of attempting to lobby two of its judges for pro-President Jacob Zuma rulings. He in turn accused the Concourt of violating his constitutional rights by publicising their complaint against him.

The complaints resulted in what Hlophe’s legal team referred to as a “”constitutional crisis”, although one of the Supreme Court of Appeal judges who sat on a Hlophe-related case referred to the debacle as no more than a “constitutional curiousity”.

Hlophe’s lawyer Barnabas Xulu this morning told The Star that his client was still waiting to hear the result of the JSC’s preliminary inquiry into the Concourt complaint  against him, but stressed that the Concourt was also in the firing line over its conduct.

“People must not forget that there are two complaints here,” he said. It is understood that Hlophe’s complaint against the Concourt will also not be proceeding.

I will wait to comment until the official announcement.

No justice for black lesbians?

Aug 11th, 2009
by Pierre De Vos.
33 comments

Zoliswa Nkonyana was raped and murdered by a group of young men on 4 February 2006 in Khayelitsha because she was a lesbian. Although another young woman witnessed the attack, it is alleged that the witness had only been contacted by the Police after a journalist alerted police to her existence more than two weeks after the murder. (The investigating officer denied this. “I was getting round to taking a statement from her,” said Constable Geldenhuys.)

Now, Constable Geldenhuys might be correct, but in my own experience I would be surprised if the police in Kayelitsha had prioritised the murder of a lesbian. A few years ago when a lesbian was brutally attacked in Kayelitsha by a group of young men who lived down the road from her, nothing I did could convince the police to go and arrest the suspects. I even wrote letters to the MEC for Safety and Security and phoned the station commander and they all seemed singularly uninterested in the case. After all, this was only a few young boys “teaching a lesbian a good lesson.”

The suspects were known to the police. There were at least five witnesses. Yet, up to this very day no one has been arrested for that crime. As the police officer sent to investigate the incident told the victim: “But you are a lesbian, so why are you crying with the police.”

Of course, if the woman who was raped and murdered was not a black lesbian from Khayelitsha, but a young heterosexual blond foreigner, it is inconceivable that the police would not have bothered to have interviewed the witness more than two weeks after the crime occurred. In South Africa some lives are cheaper and more expendable than others, and if you are a black lesbian you better know that your life is not worth much – even in the new South Africa.

On Friday I took part in a protest march to protest the fact that three and a half years after the murder and more than twenty postponements later, the young men alleged to have raped and killed Zoliswa have not yet been tried. One of the demands of the organisers of the march was that the trial be moved from the Kyaelitsha magistrates court to the Cape High Court because a strong suspicion lingers that no justice will ever be dispensed for the murderers in the Kyaelitsha court.

When people talk about the transformation of the judiciary and our legal system they will not mention the name of Zoliswa or any of the other victims of serious crime who seldom seem to have even a modest chance of receiving at least a semblance of justice – merely because they had the misfortune to live or have been murdered in a poor black area of town or because they belonged to an unpopular group because of their sexual orientation, their race or their gender.

The day the self-serving and self-interested so called champions of judicial transformation talk about the plight of people like Zoliswa, when they explain that the aim of the transformation of our legal system should be to get the police to seriously and vigorously investigate crimes – even if the victims are poor, black and homosexual – and for every court in South Africa – even those courts in poor black areas – to function efficiently and without the stench of corruption hanging over them, on that day I will take them seriously.

But until they talk about the real issues regarding the transformation of our legal system and focus on completely irrelevant but self-interested side-shows like whether John Hlophe should be Chief Justice, I will continue to dismiss them as self-serving charlatans who (ab)use “transformation” as an empty buzzword to advance their own interests and the interests of their elite friends in an attempt to corruptly “fix” the system to work towards their own advantage – the poor and the marginalised be damned.

If the Justice for Hlophe Alliance was serious about the transformation of the judiciary and our legal system, they would have been at the front of that march and the many others held over the past months to protest against the criminal way in which the police and the prosecutors have dealt with the murder of lesbians across South Africa. They would have issued angry statements (spelling mistakes and all) to condemn the homophobia, racism and sexism still entrenched in our legal system and would have demanded justice for Zoliswa and for others who like her, were murdered merely because they loved the wrong person and whose murderers have not been brought to book at least partly because from the police upwards the murder of a lesbian is not seen as a priority crime.

Of course much is wrong with our criminal justice system and Zoliswa is not the only victim of murder whose perpetrators have not been brought to book more than three years after the murder despite the availability of strong evidence. But the unpalatable fact is that if one is poor, if one is black and if – on top of that – one is a lesbian one is more likely to be killed in South Africa and one’s murder is more likely to be ignored.

That is the real injustice which people who throw that word around should shout and scream about. But real injustice usually happens to politically unconnected people, poor people, people who do not drive in Porche’s or own wine farms, people who could not do you favours when you happen to be in a fix and could not give you a job because they are well connected with politicians or slimy businessmen.

Ethics guidelines are so September 10

Aug 7th, 2009
by Pierre De Vos.
72 comments

Does any of the esteemed readers of this Blog have the email address of Judge President John Hlophe? I would really like to send him a copy of the Ethics Guidelines issued by the Chief Justice, the President of the SCA and the Judge Presidents of the various High Courts in South Africa in 2000. Pity one cannot send him a pair of reading glasses via email as well. He obviously needs them.

In today’s Mail & Guardian Hlophe contravenes several of these Guidelines which he is supposed to uphold. First, Hlophe comments on a pending case  by stating that he believes Jacob Zuma was innocent despite the fact that an application to declare the dropping of charges against President Zuma is still pending and there is therefore still a possibility that Zuma may be tried.

(This is also quite a shocking statement for a judge to make as he – like the rest of us – had not heard any of the evidence and cannot possibly know whether President Zuma is guilty of any crime or not. He has therefore prejudged a case – a cardinal sin for any judge to make.)

Hlophe then attacks sitting judges and another branch of the judiciary by saying that there was a political conspiracy  against him and that this conspiracy was led by Chief Justice Pius Langa and his deputy Dikgang Moseneke. This “conspiracy”, he claims, took shape the moment Hlophe made it clear that his colours were firmly nailed to the Zuma mast. He provides no evidence of this “conspiracy”.

(The scandalous double standard here is, of course, nothing less than we would expect of the Judge President. Hlophe himself has been fighting a long legal battle against the Constitutional Court judges because he claims they denigrated him and infringed his right to dignity by laying a complaint against him and making this public without immediately providing the necessary proof. This suggests that Hlophe does not think others have the same rights he claims are applicable to himself.)

He is also quoted as saying that Langa was serving “other political forces” when he laid a charge against Hlophe. “The old man should have stayed out of it and waited to retire,” he is quoted as saying. He then proceeds to attack the integrity and legitimacy of our highest court, saying that the Constitutional Court justices – which he calls “green ropes; white justice” – had “sold out” and that he would refuse to shake the hand of the Chief Justice because “I am not going to shake a white man’s hand.” (So much for respect of our Constitution which prohibits discrimination on the basis of race!)

These scandalous utterances are in clear contravention of the Ethics Guidelines. Guideline 31, for example, states:

Save in the discharge of judicial office, a judge should refrain from commenting on the merits of any case pending before that judge or in any other court. Unless necessary for or in judicial proceedings, a judge should refrain from public criticism of another judge or branch of the judiciary.

Guideline 32 states:

A judge ought to refrain from action which may be construed as a device to stifle legitimate criticism of that judge or any other judge.

Guideline 33 states:

A judge… should refrain from expressing views in a manner which may undermine the standing and integrity of the judiciary.

Hlophe also  punts himself for Chief Justice, saying that appointing Justice Sandile Ngcobo as Chief Justice as a “stop-gap” Chief Justice would give Zuma’s enemies a chance to regroup. “I may get killed – I am not bullet-proof,” he is quoted as saying. This is in violation of Guideline 18 which states:

A judge should in respect of judicial activity refrain from any conduct that may be interpreted as personal advancement.

Of course we all know that Hlophe previously scandalously breached Guidelines 2 and 23 when he took money from Oasis, lied about it and then gave permission for Oasis to sue a fellow judge. Guideline 2 states  that: “A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office. A judge should therefore never act improperly or disgracefully.” This means, says the guidelines that a judge should behave in a proper manner and should refrain from any act that can affect the trust in or respect for the judiciary.

Guideline 23 states: “A judge should not directly or indirectly accept any gift, advantage or privilege that can reasonably be perceived as being intended to influence the judge in the performance of judicial duties or serve as a reward therefor.”

Maybe somewhere in South Africa there is still someone who honestly believes Judge President Hlophe is a man of integrity and honesty and that his “mere” breach of a litany of ethics guidelines should not disqualify him from holding judicial office. Maybe there is also someone out there who believes PW Botha was a charming misunderstood philanthropist. Maybe, somewhere out there someone still believes Bill Clinton did not have sex with “that woman, Miss Lewinsky”. There is no accounting for the moral failings and blindness of some of our fellow citizens.

I for one would not buy a second hand car from this man. He is a disgrace and an embarrasment to all South Africans and to himself. If he had any pride and respect for himself and others, and any respect for our democracy, he would resign as a judge and take up a political appointment. His skills as an ethically challenged and dishonest man might come in more handy and will be better appreciated in either the legislature or the executive.

Can the judges of the Constitutional Court be impeached?

Jul 30th, 2009
by Pierre De Vos.
46 comments

A little noted decision made by the (newly constituted) complaints committee of the Judicial Services Commission (JSC) on 22 July 2009 casts a new light (is this possible?) on the question of whether either Judge President John Hlophe or the judges of the Constitutional Court who made the complaint against him, should be impeached. It reads:

The Commission decided, in terms of Rule 3.1 of the Rules Governing Complaints and Enquiries, that the allegations made in the Complaint and Counter Complaint, if established, would amount to gross misconduct.

Previously it was unclear whether the complaints committee of the JSC believed that the allegations by either side, if established, would constitute gross misconduct warranting impeachment. Now we know if the JSC agrees with either side, it will reccommend impeachment of one (or more) judges.

The heart of the allegation by the Constitutional Court judges is that Judge President Hlophe: (i) visited the chambers of justice Jaftha (“without invitation”) and Nkabinde at the Constitutional Court; (ii) without invitation raised the matter of the Zuma/Thint cases that had been heard by the court; and (iii) in the course of that invitation sought improperly to persuade (no split infinitives for the CC!) the two judges to decide the Zuma/Thint cases in a manner favourable to Mr Zuma.

In support of these allegations the Constitutional Court judges claimed that Hlophe had told Nkabinde that “he had a mandate”; told her the issue of privilege in the Zuma/Thint cases had to be decided “properly”; told her that he was politically well-connected and had connections with the national intelligence, that some people would lose their positions after the election and that he had outgrown the High Court and was going to make himself available for a position on the Constitutional Court. Nkabinde also alleges that Hlophe told her that if the points raised by Zuma’s counsel were to be sustained there would be no case against the President of the ANC.

Jafhta claimed that Hlophe had told him the case against Zuma had to be looked at properly and that you are our last hope (“Sesithembele kinina”) and that Jaftha had gained the impression that Hlophe wished for a particular result. Jaftha, so it is alleged considered the approach serious and was part of an attempt aimed at interfering with the independent exercise of a judicial function. Both judges claimed that they had considered the approach improper.

In his response Hlophe admitted that he had raised the Zuma/Thint matter with Jaftha, that he had said the matter of priviledge had to be dealt with “properly”, and that “sesithembele kinina”, but denied that it was ever intended to convey to Jaftha that he meant a positive finding on the Zumal Thint matter. He also claimed that Jaftha did not show signs of veing uncomfortable during the discussion.

He also admitted that he raised the Zuma/Thint matter with Nkabinde when he met her a few weeks later and that he had expressed my very strong views on it, but at no point did he think that she was uncomfortable about the discussion. He denied saying that he had connections with national intelligence or that some people would lose their jobs after the election.

From this summary two things emerge. First, either Judge President Hlophe or Justice Nkabinde lied in their statements to the JSC. Second, the judges have a fundamentally different interpretation of the meetings, with Jaftha and Nkabinde claiming that they interpreted the meetings as an improper attempt to influence them, while Hlophe claims he did not seek in any way to influence them. The most damning claims by Nkabinde is denied by Hlophe.

If one takes these disputed facts off the table, either interpretation is plausible (although, to my mind, the interpretation of Jaftha and Nkabinde is more probable). However, if one believes Nkabinde’s version, it is difficult not to come to the conclusion that Hlophe tried to improperly influence her. One question to be asked is whether Hlophe’s history of telling untruths should be held against him when deciding who to believe. Another is whether it should be significant that Hlophe denied only the most damning aspects of the allegations made against him.

The JSC can, of course, decide that even on Nkabinde’s version it is impossible to say whether the Judge President imporperly tried to influence the judges of the Constitutional Court and could decide not to proceed with the matter. But such a course of action would mean that the JSC would be allowing either Nkabinde or Hlophe (depending of whom one believes) to continue serving as a judge despite telling blatant lies to the JSC. Surely this would be an untenable situation?

And what about Hlophe’s counter complaint? The JSC decision means that if it finds that Hlophe’s allegations against the Constitutional Court judges are true, the judges of the Constitutional Court will have to be impeached. Hlophe alleged that:

  • The judges of the Constitutional Court have undermined the Constitution by making a public statement in which they seek to activate a procedure for his removal for alleged improper conduct before properly filing a complaint with the Judicial Services Commission in terms of section 177 of the Constitution;
  • The judges of the Constitutional Court have violated his right to dignity (section 10 of the Constitution) right to privacy (section 14 of the Constitution) right to equality (section 9 of the Constitution), right to procedural fairness (section 33 of the Constitution); right to access courts (section 34 of the Constitution);
  • The conduct of the judges of the Constitutional Court failed to adopt a procedure that has upholds [sic] the democratic values of human dignity, equality and freedom; section 7(1) of the Constitution;
  • The conduct of the judges of the Constitutional Court failed to respect, protect, promote and fulfil the rights in the Bill of Rights;
  • The judges of the Constitutional Court failed to adopt a procedure that is fair in that even as Hlophe filed this complaint he did not have a complaint from the judges of the Constitutional Court.

Nine judges of the Supreme Court of Appeal have in effect dismissed this complaint. Is the JSC bound by the SCA decision? If not, can it impeach the judges of the Constitutional Court? If it is bound by the SCA judgment, does this complaint contain anything not canvassed in the SCA ruling?

It would be a relief when this whole saga is over and we can all go back to consentrating on important issues around good governance and the protection and promotion of human rights. Meanwhile the JSC has its work cut out for it.

Con Court “shortlist” avoids tough questions

Jul 28th, 2009
by Pierre De Vos.
101 comments

News that 23 of the 27 nominated candidates for the four openings on the Constitutional Court were short-listed by the Judicial Services Commission (JSC) and will be interviewed in early September suggests that the JSC decided to avoid the tough questions  on this matter until after the completion of the interviews. In the past the JSC has applied an informal rule that it would not consider anyone for appointment or elevation to a higher bench if serious charges of misconduct were pending against the nominee.

This practice has not been followed in the present round. Both Judge President John Hlophe and Judges Frank Kroon and Chris Jaftha (who were acting on the Constitutional Court when Hlophe allegedly tried to interfere with one of its decisions) have been short-listed for interviews – despite the fact that charges of misconduct relating to the Constitutional Court complaint are still pending against all three.

One could argue that in order for the JSC to act in a fair manner, it either had to include all three men on the short-list or exclude all three from consideration. In the circumstances it was probably the correct decision to include the three along with a wide array of other credible and not so credible candidates. It is clear that the real debate within the JSC will only happen during and right after the interviews when the list of seven names are drawn up for presentation to the President. (The President will have to choose four names from this list of seven.)

In April this year the JSC stated that it took into account a variety of factors when drawing up a short-list and when selecting suitable candidates for appointment. These include but are not limited to:

the recommendation of the Judge President [or one assumes the President of the SCA and Chief Justice when appointments are considered to the SCA and the Con Court respectively]; the need to fulfill the constitutional mandate of the JSC to ensure transformation of the Bench so as to reflect the ethnic and gender composition of the population; the particular judicial needs of the division concerned; the candidate’s age and range of expertise, including whether he/she has served as an acting judge in the division concerned, or at all; and the relative merits and strenghts of the various candidates in relation to one another.

In any event, the interviews in September will present special challenges to the JSC and to the judges involved.

If the subcommittee which was formed last week to decide (for a second time!) whether the complaint against Hlophe by the Constitutional Court judges are serious enough to proceed to a full hearing, decides to “kick for touch” and finds in favour of Hlophe, it will expose Hlophe to vigorous questioning by JSC members – in public – on this very question because the matter will then not be sub judice anymore. An early “victory” for Hlophe may therefore backfire because it will expose him to serious questioning on his lack of understanding of judicial ethics.

Why, a JSC member might ask, did he tell a Cape Radio station that he never approached any judge of the Constitutional Court, only to admit in his submission to the JSC that he did indeed approach both Jaftha and Nkabinde? Was this a lie or does he just have an extraordinary bad memory? What did he mean when he told Chris Jaftha “Sesithembele kinina (you are our last hope)”? How would he work with a colleague (Bess Nkabinde) who had claimed Hlophe  had told her that “he was politically well connected” and was “connected to members of National Intelligence” – a claim Hlophe has denied? If his denial is true, then Nkabinde is a liar, so would he be able to work with a colleague who is a liar?

If the JSC sub-committee decides to proceed again to a full hearing, Hlophe will be spared extremely awkward questions about the Constitutional Court complaint, but he will still face serious questions about his unethical behaviour in the Oasis matter. Why did he lie about receiving “out of pocket expenses” from Oasis when he was in fact on a retainer of R10 000 per month? Why did he grant permission to Oasis to sue a fellow judge after Oasis increased payments to him? Why did he not recuse himself? How can it be true that he received permission from Minister Dullah Omar to receive money from Oasis when Omar stopped being the Minister of Justice 18 months before Hlophe started receiving any money from Oasis?

But the hearings may not only be bad news for Hlophe. The JSC members sitting on the disciplinary committee will have to take extraordinary care not to act in any way that would create a reasonable apprehension of bias on their part. If these JSC members grill Hlophe too vigorously, he may well ask such members to recuse themselves from the panel considering the complaint against him and this may swing the balance of forces on the JSC in his favour.

In any event, the short-list of 23 names suggests that there are relatively good candidates – candidates who have not lied, have not engaged in unethical conduct, candidates who are deeply committed to transformation – from which the JSC could choose when it prepares a list for consideration by the President.

I suspect the front-runners include SCA judges Azar Cachalia, Mandisa Maya and Belinda van Heerden and High Court judge Leona Theron. Personally I would not mind having a judge on the court who has read his Marx (Karl, that is, not Groucho), so I would be thrilled if Judge Dennis Davis was appointed as well. Given the fact that the complaint between the Constitutional Court and Hlophe has not been dealt with yet, I do not think that it would be wise to appoint either Hlophe or Kroon and Jaftha.

Well, whatever happens, the interviews in September will tell us more about the politics (and the ethics) of the JSC. I can’t wait.

“Nomination” of Hlophe is an insult to our President

Jul 15th, 2009
by Pierre De Vos.
64 comments

The (ironically named) Justice For Hlophe Alliance has issued a press statement claiming that they have “nominated” Judge President John Hlophe for the position of Chief Justice. This is a bit like me issuing a press statement claiming that I have nominated Evita Bezuidenhout, Steve Biko or Michael Jacskon for the position of Pope: it might make headlines, but it is utterly irrelevant to what happens in the Vatican when the Cardinals appoint a new Pope.

The problem is that nominations are not invited for the position of Chief Justice and no one can legally nominate anyone for that position. Regardless of what one might think about the possible merit of appointing an ethically challenged man with a precarious relationship with the truth to the head of our judiciary, our Constitution is rather clear about vesting the power to appoint the Chief Justice solely in the President.

Section 174(3) of the Constitution states that:

The President as head of the national executive, after consulting the Judicial Service Commission and the leader of parties represented in the National Assembly, appoints the Chief Justice and the Deputy Chief Justice and, after consulting the Judicial Service Commission, appoints the President and Deputy President of the Supreme Court of Appeal.

This means that it is for the President and the President alone to decide who he wishes to appoint as Chief Justice, completely independent of any nomination process. No one – I repeat, no one – can be nominated for this position. Unlike ordinary judges who must be nominated, then interviewed by the Judicial Services Commission (JSC) and then recommended by them for appointment by the President, the President has a final and absolute discretion to appoint the Chief Justice.

Once the President has an idea of who he wants to appoint, he must consult the JSC and the leaders of opposition parties in Parliament to hear how they feel about the candidate (or candidates) he has in mind, but even if they are all opposed to his preferred nominee, he may still go ahead and appoint his chosen candidate.

Of course, it would be great if the President’s choice submitted himself or herself to an interview with the JSC – as Chief Justice Langa did before his appointment – because it will demonstrate a respect for our Constitution and the institutions created by it. It would serve as an example to others as it would display the appropriate deference to the JSC.

But even if the President’s choice shows a contempt for our Constitution and for ordinary voters and refuses to be interviewed by the JSC, there will not be much the rest of us (including the JSC) can do about it. As long as the President’s preferred candidate is an “appropriately qualified woman or man who is a fit and proper person” and as long as that person is a South African citizen, the President may go ahead and appoint the person of his choice as Chief Justice.

If one assumes that some lawyers are behind this group, it is therefore rather perplexing that the people from the Justice for Hlophe Alliance seems to be blissfully unaware of this rather obvious fact. Maybe they were out of the country when then President Thabo Mbeki appointed Chief Justice Pius Langa, or maybe they forgot how the process unfolded the last time around. But even then, why did they not check the Constitution before pulling this publicity stunt? In any case, it is rather embarrassing that they do not seem to know how our Chief Justice is appointed – seeing that it is rather a basic fact known to almost every second year law student (well, at least those who pass Constitutional Law).

It is of course true that the President’s preferred candidate need not have served on the Constitutional Court (or any other court for that matter) to be eligible for appointment. The President can appoint the Head Magistrate of Pofadder (but not Evita Bezuidenhout or Michael Jackson) as Chief Justice if he wants to.

If one assumes that Judge President Hlophe is indeed a “fit and proper person”, he can be appointed as Chief Justice, but a “nomination” is improper as it might create the impression that those doing the “nomination” are trying to unduly influence the President in exercising his constitutionally mandated discretion. This publicity stunt is therefore an insult to our President because it suggests that he is too stupid or uninformed to make up his own mind about who he wishes to appoint and must be “guided” by a legally bogus “nomination”.

This seems like a slap in the face of President Zuma and if I was him I would be thoroughly miffed by this move. In due course he will make up his own mind about who to appoint – regardless of any bogus “nomination”. When that happens, we can of course debate the merits of his choice and praise or criticise it. Before that, it is best we refrain from promoting any candidate for the position of Chief Justice, lest we create the impression that we think our President is not up to the task of appointing a Chief Justice – a task entrusted to him by the Constitution.

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