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.
“If his denial is true, then Nkabinde is a liar, so would he be able to work with a colleague who is a liar?”
Conversely: “If his denial is false, then he is a liar, so would he be able to work with a colleague who knows that he is a liar?”
Prof: How is Frank Kroon involved? Weren’t only Jaftha and Nkabinde approached?
Kroon was an acting judge on the CC at the time the complaint was made so he is one of the judges against whom Hlophe lodged a counter complaint…..
Prof: How can a high court judge be appointed to the highest court in our country? Surely the JSC should only consider Appeal court judges by account of their experience and vast knowledge of the law…?
Pierre have you but considered that the JSC is possibly adopting a Truth and Reconciliation approach?The reality is that no one is going anywhere and the sooner all these parties have to learn to work together the better.By now we all know that there is not going to an adverse finding against John Hlophe by the JSC.In any event Parliament would never impeach him.I’ve always been in favour of a kiss and make up approach to this whole debacle.
Pierre De Vos // Jul 28, 2009 at 9:54 am
I see, but that’s stretching it a bit. If Kroon has to be excluded from appointment to the CC Bench just because he is one of the CC judges that laid a complaint against Hlophe JP, then surely the President should also not consider appointing any of the existing CC judges as Chief Justice? I know that the President does not operate in the same way as the JSC, but the same rationale ought to apply?
One more thing, if I read s 174(3) correctly, the next CJ and DCJ need not be appointed from the ranks of CC judges. So the President may appoint anyone in the place of Langa CJ when he retires, and he need not do the appointment from the list of 7 eventually presented by the JSC – as long as he ‘consults’ with the JSC, which is a very wide concept. So it might be a scenario of a Chief Justice being appointed from outside the list (and this person need not be an existing judge; or might be one that has not been recommended by the JSC – one that has escaped [or even flunked] the grilling by the JSC during the interviews), and the other three being appointed from the list. … As Bobby Kenedy reminded us in that Cape Town speech after JFK’s assasination: There is a Chinese curse that says: “May you live in interesting times!” … Interesting times indeed.
Pierre this should go as your quote of the week
“Well, whatever happens, the interviews in September will tell us more about the politics (and the ethics) of the JSC. I can’t wait.”
You and me both esp with “the usual suspects” Andiswa Ndoni, advocates Ishmael Semenya, Dumisa Ntsebeza and Vas Soni
In the past, the JSC excluded compromised judges. Now that Hlophe is a candidate, suddenly it included all compromised judges to make his inclusion seem fair.
That’s a great idea! I’ll sleep better at night knowing that not only can one compromised judge slip through the cracks, but all compromised judges can now slip through the cracks in order to accommodate him.
People, it’s time to wake up and smell the coffee. Our democracy is dead and so is our glorious Constitution.
Pierre, I am seriously beginning to think that you, like me are campaigning for Hlophe for your obssession with him can only mean one thing, id est that he ends up not only in the CC but being its CJ. You should notice that people you don’t are the ones we like and who end up in High positions like Zuma.
Mdu, I prefer to talk about substance and motivate my opinions with reasons. Naked emotions devoid of reason – while popular in SA – seems to me anti-ethical to the legal and constitutional enterprise. You seem to differ?
Prof & Garg
Please enlighten me, “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.”.
When did this happen and who were the “tainted” judges/nominees?
Mzo, a member of the JSC informed me about this “informal rule”. I checked in the JSC’s own prescribed procedures which does not mention this “rule” (hence it being “informal”). I recall lawyers not being recommended for appointment to the bench due to pending disciplinary action but for the moment cannot remember the names of said lawyers. I know the first time the now Judge President of KwaZulu Natal applied for that position no appointment was made after it emerged that there were complaints about the judge’s performance. Hope that assists.
Thanks Prof – one would have hoped that the Rule would be made formal. It only makes sense and it would have assisted them (the JSC) in the current Hlope matter because it is really unfortunate, I feel, that you would have a judge with such serious allegations against him being considered for a higher post – hence I have always held the view that Hlope JP should not be considered this time around!!
I guess the JSC’s reasoning for including all three judges would be that old story about presumption of innocence (I know it can be over-stretched).
Kevin, you say that you favour a kiss and make up approach. I would like to read your views as to why such an approach would be a good idea.
I have no doubt that you will have noted for yourself that there are material factual inconsistencies between (a) the account put forward by Hlophe and (b) the version which Nkabinde has given. And as many have already made out, this probably means that one of them has fibbed.
To me it seems that to advocate a kiss and make up approach runs contrary to the notion of accountability. If I have the right of that, my questions to you are: if this spat is simply swept under the rug, would the public be justified in concluding that judges may well not be held accountable for their indiscretions? And if so, could that sort of thing undermine public confidence in the courts?
Mzo I manged to find something here for you
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_1320137,00.html
Leigh,indeed the ’solution’ approach may seem to be getting cliched but in a difficult scenario where there is a significant body of opinion supporting both sides an adversarial approach can only make things worse.The greatest enemy of John Hlophe should by now understand and internalise that the political winds blow in his favour and this is a scenario not unique to South Africa.There are many who only a few months ago could not fathom Zuma as their President but now acknowledge him as such no matter how grudgingly and I have to lay it out that Hlophe is not going anywhere because the campaign against him has actually backfired and turned him into a martyr in political circles.So rather than having a polarised court of people who hate each other’s guts I prefer that they kiss and make up.Sesithimbele kinina is a polite phrase which can be used by a parent to the principal of his son’s school.I used it only the other day to encourage my niece’s teacher.Getting an adverse finding based on that is a hard sell.Its really a he-said,she-said affair and one does not get adverse findings on such shaky grounds.
Kevin, I agree with you that there is much pubic support for both sides. But I am not sure as to whether the adoption of an adversarial approach would make things worse.
Actually, it seems quite arguable to me that an adversarial approach could be desirable inasmuch as the adoption thereof may give the public the impression that the relevant decision-makers are not prepared to simply fold over just because the situation in question is uncomfortable. I would think that we could do with more decision-makers who refuse to meekly capitulate when confronted with a little tension.
I also question whether it is a good idea to equate Zuma and Hlophe. You are right insofar as many South Africans have to grudgingly countenance Zuma as president. But should we really advocate that Zuma can serve as some sort of precedent to the effect that questionable candidates for offices can simply be forgiven their indiscretions or have their controversial interactions conveniently forgotten? I do not think so. I think people should make noise when public officials betray public confidence. And if they find themselves in office despite their questionable histories, then they should have to brook greater scrutiny than their less questionale peers.
And is it necesssarily significantly problematic to have benches on which some of the judges hate each other? Having reason to dislike a brother or sister judge may make work uncomfortable – many have been there. But such discomfort is certainly not an uncommon human experience and it need not bear adversely upon the judges’ performances.
Kevin, you say its a “he-said she-said” affair.
But many charges of this general nature are like this. Suppose a judge solicits a bribe from me in chambers. He denies it. Does that mean the judge has de facto immunity?
Michael,the judge may not have de facto immunity but he certainly has a right to be presumed innocent until the contrary is proven.Many vociferous critics of John Hlophe have been quick to abdicate from fundamental legal principles such as that of presumption of innocence and the audi alteram partem.In that sense its quite hypocritical for people who tout themselves a s custodians of justice to apply it selectively.We should in a constitutional state be able acknowledge that even people we don’t like have rights.The condesceding tone used by some academics towards
the whole affair has offended the black people of this country who we must remember wield most of the political power which power is critical in resolving this matter.There has been a lack of acknowledgment that the ConCourt fudged the complaint against Hlophe whatever its merits or demerits.For almost three weeks they could not come up with a substantive complaint after issuing a hasty press statement.Come on now, thats amateurish to the core.They are internationally renowned jurists who should have known better.I am advocating a kiss and make up approach because the justice system will be the ultimate loser if judges apply energies on catfights instead protecting the constitution.It has also been established that the anti-Hlophe lobby has already lost.Why then can it not embrace civilisation and realise that its wiser to just get along in the famous words of Rodney King.
Kevin, I think its your (un)lucky day – depending on your view.
I think the adversarial approach should lead to Hlophe JP NOT being appointed to the CC (and if SA is lucky, he should resign). If the other(?) approach is taken it may be useful if there is no adverse finding on hlophe JP. He and the other JJs would be able to work together, but the level of trust may be largely diminished.
I like Leigh’s comments iro Zuma and Hlophe. they’re both slimy old men who I’d love to ship off to a pacific island BUT Hlophe should be held to a much higher std of accountability than Zuma (some would, understandably, disagree). We should remember that Hlophe is to be interviewed by a panel of people who supposedly know something about justice and the judiciary, Zuma was elected by the people. Maybe Hlophe should ask to use Zuma’s lawyers…
“Sesithembele kinina (you are our last hope)”, I have a problem with what you say about this, Kevin. the words can mean a lot, words are horrible things! We could have been a bit slack and said: WE RELY ON YOU.
post continues…
The real fun is not in the words alone but their context… Its a bit like saying, “Can I bum a fag?” (my friend came up with this). If you say it on a normal day then ok, if you’re in a gay club then it may be kinky. I doubt that Hlophe JP simply meant that the CC is the final arbiter on such matters. I’d believe that he was implying that the JJ were his final hope and making the matter go away and ensure that Zuma is a free and “innocent” man. Was there a need to say this phrase in any context to a Justice in chambers??? I doubt it. It can only be construed in one way and it ain’t good for Hlophe…
Kevin, I don’t have to presume his innocence. I am, mos, a mamber of the public… I may assume his guilt as I do the man who rapes my daughter, i don’t wait to be told what to feel or think. If the findings are in his favour then I will let him be in the eyes of the law yet still think him a dodgy man to have been in that position.
It Hlophe who’s not wanted us to hear his side so don’t blame us for not knowing quite what his story is…
nkululeko // Jul 29, 2009 at 8:09 am
“It Hlophe who’s not wanted us to hear his side so don’t blame us for not knowing quite what his story is…”
Thats really the crux of the matter he has not defended himself, what we have had is a lie which he told that he did not meet the 2 judges but then changed his tune and said he did meet them and all he has been doing is playing the race card. That is really the script of his movie that we have seen.
But we should deal with this matter at a later stage, right now im more interested in what is happening between the Media houses and JSC.
Because the JSC has already found there was a prima facie complaint, so why this new probe? to investigate if there is evidence of a complaint? It already investigated it some months back
Plus a few judges have already given evidence in public.
South africa has heard all the evidence from the one party, why the hell do you need a behind the door probe investigation into the matter when the evidence has already be given.
South africa is still yet to wait from the Hlophe side, so lets go with the hearing and see what Hlophe has to say esp towards the south africa public.
The media house will win the application to have this so called “investigation” public.
The reasons are these:
1)Hlophe has a pop idol band who have helped thrust this matter into the public ( they have shot themselfs in the foot there) and driving this politicly and to gain the support of black people across south africa by being the victims of racism
2)A High court judgement has already declared that the heaing into the Hlophe matter is in the publics interest.
3) becuase the BLA has publicly come into support of Hlophe there is now a new element of “Biasism” in the new make up of the JSC esp comments being publicly made by the new appointed JSC
4) all roads lead back to Zuma (Zuman Empire) given the fact that his charges were dodgedly dropped swept under the carpet. One can not trust any newly appointed member to the JSC or to the Judiciary itself
This is why it is extremely important that this is made public. The Judiciary as well as the JSC has a duty to be transparent as envisaged by the constitution.
One can argue Hlophe’s rights but one must remember Hlophe holds a public office
Kevin, no, the presumption of innocence applies only in the criminal context..
My point was that it does not make sense for the JSC not to pursue a matter because it is a “she-said-he said” question. I say that because the effect thereof would be that any and all alleged judicial corruption, where there are no witnesses to a particular conversation, would never be subject to full investigation. (To use a completely different example from the criminal law: many rape charges resolve to “he-said-she-said.” That makes proof very difficult. But is does not mean that one does not fully investigate.)
Your separate political reasons for dropping the case may be valid. I am not commenting upon them here.
The continuously bungling ANC, ag I mean JSC, seems not to have fumbled this one also – yet.
Lots of oohing and aahing about Ol’ Sloppy on the list according to the leaks. But who nominated Kollapen? Vide he and his HRC’s grovelling before Malema and the ANC in that hate speech complaint last year. If anyone on that leaked list would be suspected of “ruling party mindedness” it should be him. But regarding a CC post he is anyway totally out of his league. Only nuisance value on the list .
But in an open society all nominations should be released and interviewed.
Isn’t it a crying shame that those media groups have to go to court to have the Hlope investigation in public?!
Michael & Kevin
Here is another “he-said-he-said” story…..
http://www.thetimes.co.za/News/Article.aspx?id=1041241
Henri, I agree that it is a great shame that the media groups had to pursue an urgent application to get the JSC to do the right thing.
I do not know how accurately court proceedings are reported. But I read on Legalbrief a little earlier that a ground upon which the JSC has opposed the suit is that a public investigation would defeat the basic object thereof which according to it is to get the judges to speak freely.
Now I am all for effective fact finding exercises. But on the assumption that the press correctly stated the JSC’s basis for opposing the claim, it can be chalked up as unflattering to say the least. It is unflattering insofar as it seems to presuppose that the judges in question are (a) quite weak-kneed and (b) that they would be less than frank in order to spare themselves some blushes. I think we should have a little more faith in most of the judges. Being a judge calls for courage. So we could well be entitled to expect some from them.
Does anyone know how (or whether) the JSC challenged the view that this investigation should be open given that (a) it is already in the public domain and (b) the public has a clear interest therein?
Leigh // Jul 29, 2009 at 11:55 am
Henri, I agree that it is a great shame that the media groups had to pursue an urgent application to get the JSC to do the right thing.
find the irony in there….? Ill give you a clue courts are done in p…..?
“Does anyone know how (or whether) the JSC challenged the view that this investigation should be open given that (a) it is already in the public domain and (b) the public has a clear interest therein?”
here you go leigh
The JSC believes initial inquiries should be closed to allow the parties to speak freely, and to prevent judges from being embarrassed by frivolous complaints.
Valli said the JSC was acting lawfully and in its best interests to avoid being “mired in squabbles” that question its processes.
He said the hearing would only be a committee of three people – advocate Marumo Moerane, advocate Ishmael Semenya and Gauteng Judge President Bernard Ngoepe – out of the 10-person complaints committee, and other JSC members.
There would be no cross examination, no legal evidence, the judges concerned would not be present and although legal representatives would be there, they would not be allowed to speak.
The three just wanted to know more about the matter as their only knowledge of it probably came from the media, and this was “not the most reliable information”.
The JSC was not refusing to do anything, or trying to prevent a hearing, or disobeying any order by not allowing an initial inquiry to be open, so it could not be accused of violating administrative justice rights or the constitution.
It was just trying to go about its work “with dignity and decorum”.
He rejected a submission that the media had a right to attend, saying: “They are not complainants, not witnesses, they are not any part of the complaint.”
He wanted to know if the media thought it should also be allowed to be party to a police investigation.
“It’s preposterous m’lord, absurd.”
He said the press liked to present itself as “protectors of everything”, but had its own bottom line to worry about, “especially when its printing presses are on the backfoot”.
He added: “It can also be very voyeuristic, it consists sometimes of people with the unenviable talent of turning serious debate into pornography and this is not what the JSC needs.”
Kevin, thank you for your posts but again you’re just wasting your energy here for any reason you proffer for Hlophe’s side get jettisoned because even the Prof. does not see the light despite my incessant persuasion. I on numerous occassion told them that the more they hate Hlophe the more favour he gains with us the majority, because lest we forget he audaciously and bravely exposed racists lawyers in an all-white male-cabinet of the DA-ruled Province of the Western Cape!
Mdu
“because lest we forget he audaciously and bravely exposed racists lawyers in an all-white male-cabinet of the DA-ruled Province of the Western Cape!”
You sure abou that?.
can you give me names of the racist white lawyers and the names of her all white male cabinet i bet the mayor of capetown is also white?
then you talk about “incessant persuasion” its more like misguided emotions. Mdu I respect but how you support hlophe is mind blowing but then again good for you
Leigh, Henri & Chris
The following is reported as having been said by Counsel for the JSC:
“He wanted to know if the media thought it should also be allowed to be party to a police investigation. “It’s preposterous m’lord, absurd.”
This made me think if the JSC does not perhaps have a point in holding the INVESTIGATION behind closed doors. I would really appreciate your comments on this point.
Has it escaped anyone (or have we just decided to ignore it) that Hlope JP, rather suprisingly (to me at least), has decided to abide by the Court’s decision?
I also read that the CC judges have once again gotten themselves in a mess by writing to the presiding judge, Malan J, and the JSC Counsel told them where to get off….interesting times indeed.
Mzo, it seems to me the issue is that ON THE PAPERS, there are fundamental differences between the versiojn by Hlophe and the version by the other judges. This led the JSC last year to decide to have a full hearing because only at such a hearing would the truth have the possibility of emerging. The High Court declared that part of the hearing that did happen was unlawful and ordered the JSC to start the hearing afresh. The JSC then purported to “revoke” the decision of last year to have a full hearing (without giving the parties a chance to respond, hence the questions posed by the CC) and went back to a subcommittee to decide whether a hearing was necessary at all. In a case like this where parties differ on what happened, an honest “investigation” will not yield new evidence as there is no “objective” evidence avaialble – only the versions by the various parties. What would the aim of an “investigation” then be”? One possibility is that the aim of such an “investigation” would be to put pressure on one or the other side to change their story so that the problem can go away. Given the fact that an “investigation” will not yield objective new evidence I think it is reasonable to wonder whether the aim of this “investigation” really is to get Nkabinde and Jaftha to agree that it might be possible that Hlophe never said some of the most damning things claimed by them (that he has national intelligence connections; that he will be chief justice; that people must secure their jobs, that the judges were “our last hope” etc). An “investigation” will then really be no less than an attempt to intimidate some of the witnesses.
Mdu I have a question for you
Hopefully you can make me better understand your country.
why is the western cape getting so much flack on racism? infact more flack than any other province in the country.
WP elected a female = thats good equality
she appoints an all male cabinet but is accused of racism and sexism but who are we “men” to judge a woman judgement or plans of action? becuase I really didnt hear to many females voicing how sexist zille is
then the whole racial issue on the judiciary started in the cape. The high court and a concourt probe and an emergency meeting by judges and judicial insitutions countrywide revealed that racial tension is limited to the Western Cape.
what is going on?
I understand the whole racial issue also started by a Western Cape judge who allegedly told his black colleagues that black people had ‘corruption in their genes’
if that was the case then why wasnt there a JSC hearing? why didnt those black colleagues speak out and lodged a complaint?
then there was the next racial slur John Hlophe “racially” abused a top white lawyer
but a complaint was lodged on that issue even still when the heads of the courts got together with the minister during that time, Hlophe makes an indirect admission that he gave cases to judges based on their “ability to transform”.
what is also ironic and well actually déjà vu ….do you remember the Mikro case?
well racism was used clearly for smoke and mirrors where Ebrahim Rasool was a party to the case, yes hlophe was friends with Rasool and they chatted nicely at cricket games esp about a white lawyer who would fuck it up
then Norman arendse is told to resign by the AFT well for basicly using transformation in a racist way.
Now all of that is just before we even get to the Oasis affair.
Basicly what im saying is there seems to be a pattern here and thats hlophe has played the race card so well that he is a professional infact he has his 5th DAN in race card karate, That most of the racial tensions have come from western cape. if hlophe was based in JHB instead of the WP well then JHB bar would then be viewed a racist.
Thanks Prof…..assuming your theory is correct, shouldn’t those questions posed by the CC be directed at the JSC itself and not the judge hearing this matter?
In view of the fact that Hlope JP is reported to have said he doesn’t really care if the INVESTIGATION is behind closed doors or not, I doubt that your theory (about this being an attempt to intimidate some witnesses) actually holds – unless of course Hlope JP also does not know the true intentions of the JSC. Surely if he knew, I would have expected him to oppose the public hearings because any intimidation of witnesses (if contemplated) would definitely be frustrated by the media.
Mzo, I think Hlophe’s position is slightly more nuanced. He is quoted as saying in his submission to court that he would abide by the courts decision. However, he launched an attack on the media and stated: “I will accordingly meet with the JSC to answer questions about the allegations against me, whether the meetings are open or whether they are closed. However, my duty does not extend to appearing before the media to answer allegations of wrongdoing. In my experience and view, the media coverage of these allegations against me has been unfair and most disparaging.” This seems to suggest he is in favour of the “investigation” being done far away from the media glare.
Mzo // Jul 29, 2009 at 12:57 pm
you correct very interesting time,
my own view and to be honest i think this preliminary investigation or preliminary hearing is actually a waste of time and it does beg the question is there an ulterior motive? They must just have the hearing all the evidence is there, we just waiting for hlophe to start giving his views and evidence the JSC has his statement just let the cross examination begin…This is really stupid
“Has it escaped anyone (or have we just decided to ignore it) that Hlope JP, rather suprisingly (to me at least), has decided to abide by the Court’s decision?”
my only thought about that one is Hlophe is acting like a good boy now because he is after the CJ job and my conspiracy theory is the JSC is pumped with BLA members who are actually in support of Hlophe, so he does seem to come across as a bit relaxed now.
Mzo
this day is full of surprises for one im going to agree with you
“I doubt that your theory (about this being an attempt to intimidate some witnesses) actually holds – unless of course Hlope JP also does not know the true intentions of the JSC”
the only reason im going to agree with you is because of advocate Marumo Moerane I actually do trust him, he has proven to be independent and of sober mind
Prof,
If the quote is true, I personally see nothing wrong with it.
1. It must surely be correct that he owes the media no duty to apear infront of them; and
2. I think he is justified in compaining about the manner in which the media has reported on this matter.
But having expressed those feelings, he still confirms his willingness to appear, whether the investigations are held in public or not.
Whatever you think of the man (whi is well documented) surely you have to concede that his stance is definitely more commendable than that of the JSC that is vigorously defending the decision to have a private investigation!!
Mzo, I agree.
Chris, I will not pretend to have complete answers to your questions but what I observed whilst staying in Rondebosch for five years was unfathomable. Here, i.e Western Cape, you had Black people with European surnames, betraying the extent to which they were oppressed such that to get a job reserved for coloured people they had to pretend to be coloureds. Further here you get a pitch black coloured, like Benny McCarthy, who calls you a light skinned Black a “kaffir” and thinks they are better than you because they rank higher than you after whites, that is.But I think the most contributing factor to Cape Town being viewed as the most racist is that Blacks are a minority there who consequently lack political power to influence “progressive” policies as is the case in other provinces and so the pre 1994 status quo evolves to accommodate new SA at a snails pace. As a result most graduates from UCT, I know, detest working and staying in Cape Town.But that is my take on it.
Chris,
I am suprised myself. I actually agree with you that the INVESTIGATION seems to be a waste of time. I cannot think of any reason what it’s purpose will be – can they really come back and do a Mpse on us and tell us that no further hearing is necessary? Surely not, but this is SA, anything is possible.
Whilst I do not like the secrecy, but I think Adv Valli might actually have a point, the media has no business being involved in an INVESTIGATION. If, and it’s a big if, we do get to a hearing, then the media should be allowed.
Huhhhhh
Somebody is somewhere not telling the truth.
Didn’t the spokesman for the Jsc tell the media that an “investigation” will be held – by those three persons. And that they will interview or hear the versions of the main figures in the saga?
Now their advocate told the court there would be no witnesses and the judges concerned would not be present???
Are they changing their version after Zille and the media laid into them?
I’m perplexed and confused now.
“I think the most contributing factor to Cape Town being viewed as the most racist is that Blacks are a minority there who consequently lack political power to influence “progressive” policies as is the case in other provinces and so the pre 1994 status quo evolves to accommodate new SA at a snails pace.” – Mdu // Jul 29, 2009 at 2:01 pm
So, Mdu, what do we stand to do? Advocate questionable judges’ cause passionately? Transform aggressively instead of progressively? Has not one of the Western Cape policies sought progression in the community or local government? Can these policies perhaps be “progressive” without “black-influence” or “black-mijority”? What do you suggest?
The JSC is merely applying the Constitution in holding a preliminary hearing into the Hlope matter. This is mandated by section 178(6) of the Constitution. The last time i checked, our Constitution was the supreme law of the Republic. Which means, every legislation or conduct must comply with the Constitution. Now, are the media houses and other adcocates of the same position saying that they are above the Constitution, and must be given leeway to disregard the JSC and its processes which are protected by the Constitution?
I agree with Kevin Malunga in all his posts, maybe its because he lectured me Constitutional law along with other astute Professors .Thats not the issue, just mentioning this in passing.
The issue is that there is a tendency in RSA these days to selectively interpret the Constitution. Just as people accused of crime against humanity have rights, so is Hlope. The mere fact that there are accusations against an individual does not mean that that individual has by default, waived his constitutional rights, which seems to be what many are saying in their posts including Prof. To them if you accused of something, stuff your rights, you are guilty as charged!, despite the case being pending against you, and despite the potentially flimsy evidence presented by your accusers. As it has happened with Hlope. The words “sesithembele kini” may mean many things and do not on the application of the De villiers case and the R v Bloem case lead to one conclusion or inference. They could mean, you are the last court,and we are anxious to see what you decide in this difficult matter.
Henri
My guess is that the JSC has not changed its story, it’s the damn media that just fails to report correctly. Remember the “generally corrupt relationship” !!
Mdu
it is a complexing issue
“betraying the extent to which they were oppressed such that to get a job reserved for coloured people they had to pretend to be coloureds.”
coloureds are also the minority and have also suffered just lke black people have and do deserve a chance to represent, its so much more than a black and white racial issue, your country is diverse, black people as well as white people are going to have to adapt esp looking at law with muslims and so on to blind all cultures in.
but dont stress there are plenty of white people i know who hate capetown, i dont like capetown, christ have you seen how many hot girls are here in JHB?
@Mzo
I really do hope this isnt another Mpshe stunt
“but I think Adv Valli might actually have a point, the media has no business being involved in an INVESTIGATION”
Well one needs to look at what the JSC code has to say and i dont think, and you can correct me on this that an investigation must be done in private infact i think its silent on that.
but what is dangerous is this deleting out a previous decision by the JSC is beyond the power of the JSC’s new members.
What Im finding laughable is the statement that ,does the media think it should also be allowed to be party to a police investigation.
well we not dealing with a criminal investigation, this is more of an internial verbal dispute between judges, and judges are public office bearers. You cant even compare this to a police investigation.
but this is throwing a spaner in the works
“The three just wanted to know more about the matter as their only knowledge of it probably came from the media, and this was “not the most reliable information”.
Has the JSC lost the evidence in the previous hearing? that they have to rely on media now for information? is that there excuse to thave the investigation?
I think, its very important to respect the Constitution unequivocally and to apply it in the same manner where simialr situations arise. I’m saying this in light of Judge Griesel being interviwed by the JSC and also having pending complaints against him. The same applies to other judges who have complaints against them pending with the JSC. I dont hear prof and his blind supporters criticising this as they did with the Hlope matter.
The truth of the matter is that there are severe racial scars which were inflicted by the past and present, and economic disparities which were ordained by mainly the apartheid past and present. These are intertwined to the whole genesis we face today. This is undercored by the sides and selective interpretations of the people have taken in the whole Hlope matter.
Do you think for instance it was coincidence that the SCA bench was composed as it was in the Hlope appeal. The result was a foregone conclusion to me and others. The same can be said of the composition of the bench in the Hlope matter in the South Gauteng High Court.
I think it is naive to think that Judges on the bench love each other and all get along so well. What i have noticed is that Judges keep to themselves and avoid certain Judges. Here i refer to both white and black Judges, keeping to themselves. Just as student from the rural areas keep to themselves at University, so are those who come from affluent families, and so are whites. excerpt for a selective few who mingle. this is of course based on my observations at Wits University, UJ, University of Natal and Pretoria University.
What happened to Zille trying by all means to discredit Zuma, is happening to the anti-Hlope brigade, things are back-firing. He is gunning more support than ever. I will say it again lets implement intergration as outlined by Biko, real intergration, not this feel good neo-liberal ninsense that populate all facets of RSA life.
…But once again, maybe as my girlfriend and @Mdu has said, we are wasting our time.
Skhokho
“I’m saying this in light of Judge Griesel being interviwed by the JSC and also having pending complaints against him. The same applies to other judges who have complaints against them pending with the JSC. I dont hear prof and his blind supporters criticising this as they did with the Hlope matter.”
If the above is true, then I would reall like to hear Prof’s comments, especially in light of the question I posed to him yesterday about the so-called “informal” rule. I hope I’m not going to get one of those “sophisticated explanations” that the complaint against Griesel is minor and does not compare to Hlope’s blah blah blah
Skhokho(you are good former student) and Mdu don’t stress we maybe wasting our time in trying to convince these bloggers but very realistic as to the outcomes.Criticism is an excellent feature of democracy and Prof de Vos should be encouraged to do this.However I believe that selective application of legal principles by individuals who claim to be progressives and liberals is a shame.We should in recognising our allegiance to constitutional values be willing to recognise the rights of even the most reprehensible individuals e.g Annanias Mathe.All I have seen is a cacophony of whingers who will not even embrace an outcome any less than the shaming of John Hlophe.If we were to ask Nelson Mandela how he thought this impasse should be resolved he would most probably say that the parties should talk,kiss and make up and take the country forward.What is so difficult for you guys to understand that?No,Michael I disagree the presumption of innocence is a global legal principle that goes beyond the realm of criminal law. If you were accused of plagiarism would you not be presumed innocent until proven otherwise by the UCT tribunal in charge of that?The JSC has played an excellent masterstroke at attempted reconciliation of warring parties.Embrace it and lets move forward.
And Nkululeko ditto on your analysis of “Sesithembele kinina”.Its as cliched as “See you soon” or “Take care of yourself”.
Skhokho Radebe
“What happened to Zille trying by all means to discredit Zuma”
isnt that the job of an opposition party? to discredit another party? just like you and the ANC discredits zillie and other oppostion parties? is it not a 2 way street? or are south africans not allowed to have an opinion anymore?
by the way just to keep you updated http://www.legalbrief.co.za/article.php?story=20090729084237278
Skhokho Radebe
with all do respect to you and your previous prof who taught you constitutional law,…that the postion of Chief justice is extremely important to the country, to deny that would mean you need to go back to law school.
Now you just admitted that Hlophe is gaining support and will be the next thief justice sorry i meant Chief justice ( slip of the tounge) that hlophe has his right to privacy?
excuse me? Since when is a chief justice private? and since when does hlophes rights out weigh the public of south africa’s rights? As south africa has the right to know about hlophe as he is the next inline to be Chief Justice as we are to believe, so there for public has a right to hear about the investigation and what is being discussed in this investigation and the hearing that will take place after the investigation.
what places Hlophe above judge Griesel my nizzel well for one I ant seeing a Justice for Griesel now do I? and a politcal assult of a judge to become CJ now do I?
and 2ndly ask your new BLA members on the JSC infact ask your new anc members on the JSC why they havnt interigated Judge Griesel
did you even bother to find out why the JSC couldnt be bothered with investigation Judge Griesel?
do you even know what the complaint is?
Thank you Advocate SK Malunga. On other matters, can we please maintain communication outside this blog?. My email is: sibusiso@yahoo.com. You can send me an email to confirm email and my request. Thanks again for the contribution you made to my education. It has paid off.
Will do but your e-mail ad bounced.E-mail me directly on the e-mail on the Wits website.
The hypocricy in SA never seizes to amaze me. I was reading the comments on the Times website on the story about SAA’s alleged use of the eff word.
Just like I expected, the comments again appear to be along racial lines. White fellows saying he didn’t do it (even though they probably still believe that Hlope said all those things about white judge and white Adv) and the black fellows saying he did it (even though they robably defended and wanted Hlope to be “presumed innocent”). Of course, none of these people actually know where the truth lies, but an opinion (a strong one at that) is formed purely on the basis of who the accused is and who the accusser is.
We still have a very long way to go in this country and those who believe that after only 15 years racism is a thing of the past and we should all pretend as if we are now all miraculously cleansed f our prejudices, they have another thing coming.
I honestly think that any contention to the effect that the parties to the spat in question should simply kiss and make up is guilty of one key oversight: something deeply objectionable has happened.
Here are a few of the possibilities: Hlophe sought to improperly influence two judges in a pending suit. Or, Hlophe’s conduct was thoroughly misconstrued – as unlikely a case as many might find that to be – and the justices of our highest court ran the unnecessary risk of bringing the judiciary into disrepute. And which ever way one cuts this business, it seems at least one of the judges is telling porkies.
So I find it very difficult to credit the view that we can simply move forward. Is it advisable to try to move forward with another very public and exceedingly suspicious occurence in the trunk? I would hope that the Mpshe business could be the exception rather than the expectation.
I meant SAA’s CEO
Mzo, I agree. Racism is still very much a fixture in our society.
@Kevin
why dont you try your swaping spit approach with israel and palistine? oh I forget that they tried that and that didnt work and now want a 2 party state, i dont think all the kissing in the world would solve that problem.
“than the shaming of John Hlophe.If we were to ask Nelson Mandela how he thought this impasse should be resolved he would most probably say that the parties should talk,kiss and make up and take the country forward.”
yes and undermining the judiciary by influencing judges can be now be settled with swapping spit? nice one!!!
come everyone lets hold hands and sing Kumbaya round a campfire. what an airy fairy bunch of BS to sort out the judicial independence.
@Michael, i cannot take higher than Kevin Malunga, my previous post and the Justice For Hlope has in their long nomination submission. But i will answer certain issues.
1. If Hlope were a white, Indian, Coloured person, i would still hold the same views. Would you still hold same views Michael?
2. You dont understand my post. I did not say RSA citizens have no rights to say anything. Those rights are not absolute, all rights in the Constitution are subject to section 36( the limitations clause). In addition, there is separation of powers, which amongst other things entails that the judiciary respect decisions taken by bodies such as the JSC in terms of the provisions that allow the JSC to take such decisions( ie section 178(6) and virsa versa. i see you chose to avoid dealing with my comment on these submissions.So freedom of expression is in itself subject to section 36 of the Constitution, and is subject to the principle embeded in the Constitution that your rights end where mine begin( That is why a person who is danger to the community cannot be allowed to gallavant about in the same neighbourhood where he poses danger). this is just a rough example, i’m aware that there are many examples that can explain it better.
3. Yes i agree generally about the job or purpose of an oppositio party. However, it should be within the Constitutional prescripts not beyond or above.
4. I agree that the position of the Chief Justice is important. But that does not mean we have the right to violate other citizens’ rights in the blind quest to promote or discredit other people who may be interested in it.
5. Hlope JP has never been convicted of theft, do you have the SAPS 69’s in you position that prove these ludicrous allegation? I dont think so. Then on what do you base your allegations? Isnt hlope and his supporters justified then in saying that the media has already found gross misconduct when the matter is still pending with the JSC? Including people like you.
6. Marx has said it better, that “politics is everything, and everything is politics” so the President will have final say in who is appointed Chief justice. I can bet that before he does that he would consult and be given the mandate to appoint X by the ANC structures.
7. I never said Hlope is above Griesel, i said why is Hlope treated differently from other judges who have complaints pending with the JSC.
8. I think on the issue of why Hlope JP case receives so wide coverage in the media all other Judges is amazing to me. but i understand that the media is owned by largely whites and so the agenda follows. Griesel is a Judge of the Cape High court, i would have though, the complaint against him is as newsworthy as that of Hlope.
9. Michael i think your paternalism has blinded your views, you cannot even come up with submissions that are supported by sections of the Constitution and case law, instead you let the media propaganda, your emotions and your preconceived ideas cloud your judgement. If you where Hlope JP, would you still hold the same emabarassing views?
10. I think hold that as long as you hold you denialist views that there is a need for transformation in the judiciary and other professions, and that there is a need to close the economic gap created by the past and the present, “hate will consume us all”
Pucker up, boys and girls…
Mr Malunga, I cannot agree that the TRC approach is a good one. One of the problems is that its a more political than legal (or judicial) solution to a problem in the judiciary.
The Zuma story was a political solution – which I detest – but this matter is quite different. Should the judges not rely on the law to solve their dispute?
Leigh has, correctly, pointed out that this should be dealt with in the “normal” fashion and hopefully with a bit of public access.
I have yet to find out who the shortlisted candidates are, I thought that’s what this is about.
So we’ve got a Zulu as Police Commissioner.
It tends to strengthen Ngcobo’s chances as CJ.
Any bets?
@Skhokho Radebe // Jul 29, 2009 at 4:24 pm
Radebe my name is chris not michael, so need to kiss me i forgive you
your questions
1st) yes I would if the person was white, coloured, pink, chines, vietnamise or even chucky cheese. Yes I would hold the same views, im not from your country so i do not hold the same fucked up perverted views some of you have on race
2) yes i do know that the JSC can determine its own precedure, well done but if you carry on readying about investigations the JSC is very silent on public or private investigations, so I really dont understand your point becuase it says nothing about private investigations so that means that a party can go to the high court to force a public investigation.
im not dealing with freedom of expression im talking about does the JSC and Hlophe’s rights out weigh the publics right to know. I say it does because of a previews high court ruling
go check it out.
3) good, then use that notion towards the anc then and hand Niehuus to the authorities so we can begin with his fraud charges
4) oh far from it it is in the public best interest to be fully aware of a compramised or tainted individual who wants to be cheif justice esp giving light that the Judiciary has been in one hell of a boxing match and is lossing its public support
5) I never accused him of thieft, what are you talking about?
6) oh god here we go another communist….dude this is the 21st century not 1950 we won the cold war man, we won it
7) well dont you think thats an issue you should rather take up with the JSC, they are full of your communist comrades
9) if I was Hlophe JP I would have treated my job with a bit more respect and help strengthen the institute
10) yes clearly, ask the strikers who is throwing garbage all over the streets but yet again thats the white mans fault isnt it??
on a personal note your fucked up and so is your prof, we dont need a kiss and make up approach what is need is strenghtening of institutes whith strong policies and implamented, what has been witnessed is the weakness of the JSC and the Judiciary but you want to have some fiaryland kiss and make up apporach is that code word for political solution now?
trust me you dont now me you wanna talk case law and constitution bring it on Ill rip you to shreds
but first start by giving me evidence of where it says the JSC must have its investigations in private
I think youve just proven your propaganda hey commie boy
Henri,
Yet another loss for DA – all their pleas to JZ not to make a political appointment fell in deaf ears. Whatever you feel for them , you gotta feel sorry for them though. The Polokwane Brigade is in motion and, it appears, there is no way of stopping it.
@Leigh
You know I share your views on the need for a fullblown hearing because it is quite clear that one or more of the judges involved in this whole saga has been lying to us. I would prefer it if we could have a fair hearing (procedurally and otherwise) so that we can establish who that judge/s is/are; allow the JSC to do its job and impose the appropriate sanction; and thereafter we can debate the finding (agree or disagree with it) but, RESPECT the outcome.
@Kevin et al
I share your views on the hypocricy but I disagree with your preference for any solution other than the one emanating from a full-blown hearing.
What is the complaint against Griesel all about?
Mzo.
im speechless, i kind of wanna cry….glad you have had the same views as me today.
Chris Mcdaniel // Jul 29, 2009 at 5:17 pm
Naturally, that must mean one of us has “come around”, as it were, and began to see the other’s point. I doubt it’s me (although I suspect you will argue the same thing)
If I had a blog of my own like Prof (damn, I still remain the “Currently Disadvantage Individual….hahaha) I would ask other bloggers to give their view on who’s views have changed?
The INVESTIGATION will be open to the public afterall….
http://www.thetimes.co.za/News/Article.aspx?id=1041573
..but no sooner after their “victory”, they carry a headline that is not only misleading, but clearly incorrect: “HLOPE LOSES FIGHT TO BLOCK THE MEDIA”…..and this is the same newspaper that had reported that Hlope was going to abide by the decision. The correct party that has lost therefore is the JSC, not Hlope!!
And the M&G, whilst carrying the correct headline goes on to report that “The JSC, SUPPORTED BY COUNSEL FOR HLOPHE, had sought to keep the hearings closed” (my emphasis).
Can someone teach these people how to correctly report on the events without feeding us incorrect information!!
Kevin, you write that “the presumption of innocence is a global legal principle that goes beyond the realm of criminal law.”
I challenge you to provide authority for this.
In Nel v Le Roux, 1996 (3) SA 562, para 5 ff, the CC rejected the claim that the fair trial rights under the Constitution (which includes the presumption of innocence), applies except except in a criminal prosecution.
Of course, everyone subject to disciplinary proceedings of any kind is entitled to fair procedure. But, as far as I know, that does not include the presumption of innocence.
Michael
In a disciplinary hearing, is it possible at all to have a fair procedure whithout being presumed innocent?
The french presume guilt [in criminal trials, that is]..it’s been working for them for a long long time…i’m not sure if a disciplinary hearing would work on the same principle there….surely, if someone were to be accused [criminal trial or disciplinary hearing], one would have to prove the accused’s guilt/fault?
….or must we assume that [in a disciplinary hearing in SA] the accused bears the onus of guilt to discharge?
either way, Mzo, fair procedure will depend on more than the presumption of guilt/innocence
Mzo, I have defended many disciplinary matters. And I have never invoked any “presumption of innocence.”
Many people, and most of the press, just do not understand the special role of the presumption of innocence in specifically the criminal process.
Read Nel v Le Roux.
Micheal, is this what you referred to:
Nel v Le Roux:
“the right of an accused person to be presumed innocent – the Court found that an examinee was not an accused person for the purposes of the right to a fair trial, but that the examinee was nonetheless entitled under the Constitution to have the proceedings conducted with procedural fairness”?
Mzo, I assume you have not read the submission of Hlope (neither have I). But the same Times report you refer to includes a link to another article which seems to suggest you are wrong about Hlophe’s position. It states: “Western Cape Judge President John Hlophe is opposing a court bid by the media to force the Judicial Service Commission to open its preliminary investigation into his alleged misconduct to the public, his lawyer said yesterday. Advocate Barnabas Xulu said that to open the commission’s hearings to the public would violate his client’s rights. “You don’t publicly investigate when you are dealing with a judge,” he said.”
Henri, with respect, your comment on the appointment of Cele as Police Commissioner is so spectacularly stupid that I can only congratulate you for having the foresight to use a pseudonym. Zuma has appointed Gill Marcus as Reserve Bank Governor, Pravin Gordon as Finance Minister, and Anwar Dramat as the head of the Hawks. As far as I can tell none of these appointees are Zulu. Playing the ethnic card really does not contribute in any way to the debate and makes you no better than the good people at the Justice for Hlophe Alliance.
I agree with everyone here who says that Hlophe must be afforded a fair hearing, a hearing in which an attempt is made to get to the truth of this matter regarding his alleged interference with the CC. I note, however, that none of the people defending Hlophe’s right to be presumed innocent and to get a fair hearing has attacked those who have labeled me (without any hearing – fair or otherwise) a White Supremacists and a racist. A double standard, perhaps?
Skhokho Radebe, I find your understanding on the application of s 36 is a bit wanting. S 36 applies only to “laws of general application” so a person’s rights to free speech can justifiably be limited by a law of general application, but not by the whims of an official or a quasi judicial body like the JSC. Perhaps you were thinking of section 8(3)(b) which states that – “When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36 (1)”? If the latter, which rules of the common law did you have in mind? Perhaps our contempt of court rules? But they do not apply to the JSC as the JSC is not a court. In any case, even if the JSC was a court and the contempt of court rules of the common law applied, your contention is not sustainable – otherwise academics would not have anything to write about in law journals where they often vigorously criticise the decisions of our various courts. It is part of holding the courts accountable. The JSC, surely, is similarly accountable. In any case, I did not see you criticise Hlophe and his supporters when they said the JSC operated like a Kangaroo Court and hurled insults at the JSC members, so it is difficult not to conclude that you are guilty of the most obvious double standard.
Mzo – Hlope’s lawyer did say that Hlope was opposing the court bid – doesn’t that mean he had thus enjoined the JSC in opposing the application and thus could also be seen to have “lost” as a result of the judgement?
I think the judgement is great – these judge positions are all juicy jobs that consume the wealth of hardworking citizens (hopefully whilst adding value to the rule of law). We, the average taxpayer, are the employer in this situation and have every right to sit in on the proceedings. We are all grownups here.
Whilst the Sunday Times and Weekly Wail (and Pierre) might get a bit hysterical about proceedings, the TV and radio stations will generally provide “balanced” coverage to allow the average citizen to make up his mind about the validity of proceedings, and empower him to make if voice heard if he is unhappy. A big reality morality survivor TV soapie could put a much needed spotlight back onto moral regeneration. I don’t see whats not to like if we are serious about real democracy. If Hlope feels it would impugn his dignity too much to be cross-questioned in public – remember the grilling that some applicants received recently – he is free to decide not to stand for these public offices.
I forgot for a moment that these were disciplinary hearings and not simply an interview for a CC post – although in reality they are the same thing – I am wrong to say he could just walk away – he would have to resign to dodge the public grilling.
I must admit that my opinion might change were I to be the one hauled before my own profession’s disciplinary comittee for some misdemenour or oversight, but then my job is not a directly publicly funded one.
Peter, what planet are you living on?
The “average citizen” does not have a TV.
And of those that do, perhaps 97% would sooner watch daytime soaps than tedious, largely incomprehensible JSC sparring matches.
Pierre De Vos // Jul 29, 2009 at 9:10 pm
Prof, with respect, you have to admit that the reporting just leaves so much to be desired. You would know that it is not possible to OPPOSE and application and still ABIDE by the Court’s decision. It’s one or the other. The fact that the newspaper in the same article purports to quote quote Hlope’s lawyers doing both just confirms my view about our media, particularly our print media. Either Xulu was talking after drinking whatever Motata J is said thave been drnking before bumping his car against the wall or the media just got it wrong. On the evidence of past experiences, I suspect the latter.
In any event, you cannot expect me to believe the newspapers by referring me to another article by a newspaper, it’s like convincing me about Christianity by referring me to the Bible when I’ve already told you that I do not believe in it.
The fact that only the JSC was ordered to pay the costs should convince you that Hlope JP (for once – in your eyes) did the right thing – he did not oppose the application. Accepting that point will not lead me to believe that you have joined the Hlope Alliance – I promise you!!
Pierre De Vos // Jul 29, 2009 at 9:20 pm
Prof, you disappoint me sometimes. Assuming those people you are accusing of double-standards really wanted to give you a fair hearing and presumed you innocent and all that, exactly where would that hearing be – who would chair it?
Fact of the matter Prof is that I personally don’t believe that you deserve that fair hearing, damn even an unfair one at that, in respect of what you are complaining about. Similarly, Hlope does not deserve any hearing, fair or otherwise, in respect of your allegation / accusation that he is anti-poor. There are those allegation that call for a fair hearing, presumption of innocence etc and there are those that do not – you of all people should know this!!
The media should watch those enigmatic “proceedings” of the JSC committee re Hlope today. If anyone of the judges concerned pitches to give evidence [ or whatever], then they lied to the court, through their counsel, by arguing that none of the judges concerned would even be present.
And if none of those judges are present one wonders what they’re gonna do – just having tea together?
all I can add to this is let the games begin….I understand the investigations starts later today.
I am curious to see how this investigation plays out and if the 3 investigators will have a judgement vote whether to persue an actual hearing or not.
Im glad its out in the public and its a victory for the public.
@Skhokho Radebe
Im afriad you have lost this debate and have been found wanting.
Mzo, you may be sure that any “white” person who persisted in mis-spelling the JP’s name as you do would be accused of a racist disgard for “African” names.
Mzo, I would agree with the views you expressed in your post dated July 29 at 5:05pm.
Yes we should respect the decision – even if we end up wholeheartedly disagreeing with it.
But what I like most about your post is that you explicitly endorse the view that we can debate the decision. That is, no decision making body is above fair reproach.
Michael // Jul 30, 2009 at 9:35 am
Michael, that may be so but I’ve seen a lot of that in this blog (not necessarily with the JP’s name) without the accusation you are talking about. I think you are going a bit overboard.
In any event, being familiar as I am with the Hlope surname (with or without the “h”) I can tell you that no one can reasonably be worked up by the use / failure to use “h”. It’s something that has become prevalent in the Nguni surnames for some people to use / lose the “h”. For example, you would find a Mrubata whereas the proper spelling in in fact “Mrhubata”. Not a big deal really!!
Mzo, I must of course defer to your linguistic knowledge .
You say that it is “not a big deal”. But theJP in his “racism” report was quite willing to invoke items that were equally not “big deals” to demonstrate racism. Depending upon one’s level of sensitivity, many objectively trivial matters can readily be interpreted as manifesting racism.
Michael,
In my previous post I used the word “reasonably”. It was on purpose.
Michael,
I will concede though that with the issues of racism so prevalent in our society, I do not know if the established principles relating to the test as to what is reasonable or not will be of any help. In my view, very few people in SA (if any) are capable of being reasonable when it comes to issues of racism.
Student, yes, the passage you quoted from Nel v Le Roux is what I was referring to.
I just wish Kevin would take up my challenge regarding what he views as the “global” reach of the presumption of innocence.
Mzo
This is quite random but I think that a surname should be spelt as the person does. Generally, Zulu does have the “h” on the softer sounds like: phela by comparison to ngempela. You have not been spelling it correctly and that is that. Maybe my defence is because of the spelling of my own surname (not the conventional spelling).
I doubt this is really racist but being sloppy.
Skhokho said something about racism at universities suggesting that hanging with people of one’s own race is racist. I hink people go for that which is most similar to them. It may be race, socio-econimic class, res, types of schools or the schools themselves. much like at my high school where the separeation was less on race than who was or was not a border.
Michael,I never run from a fight:-)You’re absolutely right that the doctrine of presumption of innocence in its pure semantic form largely belongs to the realm of criminal procedure.However this being essentially an administrative tribunal it has to follow the tenets of substantive and procedural due process which essentially entail presuming someone innocent until the contrary is proven.
Kevin, I think that the use of the term ‘presumption of innocence’ has given rise to unnecessary confusion.
It seems to be a widely recognised principle that the party which makes an allegation is generally saddled with the task of establishing it. Only then would the party against whom the averment was made be called upon to answer.
So if if you mean to advance that Hlophe presently faces mere allegations which have yet to be tested and proved, then I agree. That is, he has not incurred liability.
But as Michael has consistently stressed – and which you correctly conceded in your post dated July 31 at 8:55pm – the term ‘presumption of innocence’ is best confined to criminal law contexts.
Kevin, I am glad you have taken up the challenge.
Like Leigh, I must disagree with your dismal of the presumption of innocence as “semantic.” If you read Nel v Le Roux you will see that it has practical implications that give an accused special rights in a criminal trial, over and above those in administrative settings.
One implication of the presumption of innocence is that the accused cannot be compelled to testify, and her silence cannot be the basis for an adverse inference.
But that does not apply in administrative proceedings. There is nothing to stop the tribunal in a disciplinary context from taking silence into account.
More generally the absence of a presumption of innocence in non-criminal proceedings gives license for the relaxation of various procedural safeguards.
I offer that as yet another rebuttal of you treatment of the presumption of innocence as “semantic.”
Kevin Sifiso Malunga // Jul 31, 2009 at 9:38 am
kevin Ill come out in your defence on this one, you are actually correct.
I saw you on SABC news last night, you stuttted alittle but im sure you were nervious tv shy
but what you failed to tell the public in hlophes matter that the standard of proof in disciplinary cases is by a preponderance of the evidence. You dont need emails fax’s or sms to prove his guilt even though that would help but there is a phone call so keep that in mind
Preponderance of evidence:
1)Falsehoods to justify His improper behavior.
2)By a preponderance, Improper ex parte communications.
3)Allowing social or other relationships to influence an outcome in a criminal case
4)Attempted retaliation
5)Race and racism
start with those Kevin
and then Ill show that hlophe should be impeached not only of undue influence but perjury and bringing the judiciary indisrepute in the years as acting as a judge. I look for to his defamation case.
Ah Chris you try thinking while you talk on a live broadcast…I do lots of that TV stuff actually:-)Indeed you are right about the notion of a preponderance of evidence but you must remember that it entails that there is greater weight of evidence for the trier of fact (e.g the JSC) to decide in favour of one side or the other.So this is where my prediction of this case being thrown out partly comes from.And in that context I disagree with Michael that procedural safeguards are relaxed.South Africa’s administrative law is clothed by the constitution and the values in both laws are inseparable and cannot be diluted to suit your personal desires for this particular case Mike.
Kevin Sifiso Malunga // Jul 31, 2009 at 3:37 pm
Kevin much respect you did ok
but yes lets wait and see what happens
Kevin, with respect, I don’t think you are taking our debate very seriously. You cannot get away with a vague assertion that administrative law is “clothed with the constitution,” and refuse to engage with the case law or the text.
Please explain to me how you interpret Nel v Le Roux.
Re the text, please note that:
1. S. 35 (3) provides that the right to be presumed innocent, and a panoply of other rights attach to accused persons AS A MATTER OF CRIMINAL LAW.
2. S. 33 provided no such thing.
I challenge you to provide a single authority to the effect that the panoply of criminal accused’s rights apply in the admin. context.
Sorry Mike I have not had access to case law today.I’m not at all being flippant.I will fire back on Monday or before that.I do however express a deep seated concern that you believe that the subject of an administrative tribunal has diminished rights.
Kevin, I have defended a number of cases in administrative disciplinary hearings, and I have often wished that I could credibly make the argument that my clients can claim the benefit of the presumption of innocence and other criminal rights.
I would be very grateful indeed if you could give me authority to that effect.
You may wish to look at Mureinik’s famous article in the SALJ arguing that students in disciplinary hearings should enjoy audi rights. (Hlophe JP has cited this article several times in his own writings.) I do not believe either of them has ever gone so far as to argue that s. 35 type rights apply in the admin context.