Curiouser and curiouser

Lawyers for Judge President John Hlophe today filed papers opposing the request by the 13 judges of the Constitutional Court for leave to appeal to the Supreme Court of Appeal (SCA) against the majority judgment of the High Court which found that the judges breached the Judge President’s constitutional rights. The papers (not yet available online) make for interesting reading indeed.

In arguing that a higher court would not reasonably come to a different conclusion from the majority in the High Court, (despite the fact that two of the five judges in the High Court disagreed with the majority) the papers bristle with indignation on behalf the majority judges. It states variously that submissions of the Constitutional Court lawyers “borders on contempt for this court and displays astonishing arrogance”, is “considerably contemptuous” (whatever that may mean), and “evince astonishing arrogance”.

A Freudian may have something to say about the slip showing here: meisie, so thin skinned, so easily offended!  Obviously, the people involved in the drafting of these papers are not very confident in their own abilities and are projecting this onto the judge who authored the majority opinion. Obviously  this is not a crew who has internalised the writings of Steve Biko.

But this might, of course, also be part of a political game and these outburst might be aimed at stirring up  resentment and a sense of grievance in the majority so that Mojapelo J, too, would be so upset by the “arrogance” of the Constitutional Court that he would be prepared to ignore legal precedent (as Hlophe himself did in the New Clicks judgment) and refuse to grant leave to appeal to the SCA.

From a legal perspective the most interesting move in these papers is the argument that leave to appeal  to the SCA should be refused because the appropriate court to deal with this matter is the Constitutional Court.  It also then seeks leave to cross appeal some aspects of the judgment to the Constitutional Court, or alternatively to the SCA.

I am not sure, to put it mildly, that the High Court can direct that appelants  appeal to a different court than the one to which they wish to appeal to – even under the guise of granting leave for a cross appeal by the respondent. But I am sure that the High Court cannot grant direct access to a respondent to the Constitutional Court for an appeal – only the Constitutional Court can do so if it believes it to be in the interest of justice. I would therefore argue that it is for the appellants to decide whether they want to appeal to the SCA or the Constitutional Court and that the High Court should not have a say in this.

In any event, an appeal to the Constitutional Court is out of the question because the judges of the Constitutional Court are parties to this matter and they cannot hear their own case, because of the maxim nemo iudex in sua causa (one cannot be a judge in ones own cause – finally my first year Latin comes in handy!).

The Constitution makes it clear that the Constitutional Court consists of the Chief Justice of South Africa, the Deputy Chief Justice and nine other judges and that there has to be eight judges to hear a case. It also stipulates that the President may only appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointment must be made on the recommendation of the Minister of Justice acting with the concurrence of the Chief Justice.

This means that where all eleven judges recuse themselves it would not be possible to appoint eleven acting judges to the Constitutional Court as a recusal by all eleven judges would not create a vacancy, nor would the judges be “absent”. They would be sitting in their offices working on their other cases, and would just have decided that it was inappropriate to hear the case.

In any event, even if this section was interpreted by Mojapelo J with the same dexterity and disregard for the obvious meaning of the words and the facts than in his original judgment (Carol Lewis eat your heart out, this so called affirmative action appointment demonstrated here that he possessed the skill and experience to craft a legal argument in favour of what seemed like an absolutely unwinnable case) it would not make a difference as even eleven acting judges would be tainted and would not be able to hear the case because the Chief Justice – a party to the case – would have had a hand in their appointment.

I have said some nasty things about Hlophe J and his legal counsel, but I am prepared to assume that even they are well aware of these provisions of the Constitution and do not really think their case will ever be heard by the Constitutional Court. Why would they then claim to want to appeal directly to the Constitutional Court?

I would think that the Hlophe team is hoping that Mojapelo would be persuaded to go on another judicial frolic by ordering the judges of the Constitutional Court to appeal to themselves, thus creating a constitutional mess of the  highest order and sommer embarrassing the judges of the Constitutional Court at the same time. Such a move would also require the Constitutional Court’s legal team to approach the SCA for leave to appeal to that court and this could waste valuable time (every month that the JSC cannot hear the case is a month in which Hlophe J receives a salary) and could strengthen Hlophe’s hand in case he wishes to cut a deal with the Minister of Justice to allow him to resign with the retention of full benefits.

For readers of this Blog it must be obvious that I have chosen sides in this particular matter and is not “objective” (if there can be such a thing) in this fight. Yes, I am on the side of the Constitutional Court, not only because  it is as clear as day that even on Hlophe’s own version of events he should be impeached, but also because I passionately believe that no one person is more important than our democratic institutions and that principle and decency should not be  sacrificed on the altar of short term political expediency.

Reading these papers, I cannot help but be confirmed in my support for the judges of the Constitutional Court. I am awaiting a cogent argument from someone to convince me that I have not chosen the goodies over the baddies in this fight, as it is clear from these papers that Hlope and his legal team have no respect for the Constitution and for the judiciary and will do anything to win the fight – even if it would mean destroying the judiciary. Just one more reason why the JSC should deal with Hlophe as soon as possible. South Africa cannot afford to have this unscrupolous man on the bench.

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