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.
I will wait for the submissions of JP’s lawyers to be available online because at the moment the only thing I can do is to attack your article…
Do the ConCourt and the JSC have respect for Hlope. Please answer me, before you start labelling Hlope unfit for the bench? who are you anyway?
Pierre, it would be interesting to get a copy of the Hlope submission. One thing I know is that whenever you sound like you are on the backfoot, something big must be cooking.
I wonder whether the papers for Hlophe JP have not been drawn up by lawyers the likes of lindelani maseko.
Oh no, please don’t say that, Mousie. Really, this Hlophe business is now turning into a nightmare! A … horror movie!
Prof
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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.
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What happened to the ‘ad paterum rule’?
From the onset I would like to admit that at a point in time, I admired Hlophe JP that was before his shenanigans (racism, oasis, Porsche car, improper conduct…). I remember when in Cape Town I saw the man dropping of his daughter at school, tears swelled in my eyes. There in front of me was the first African John Marshall. One could also conclude that it was also the other reason why one would choose to go to the University that produced such an intellectual. South Africa, I hold, is losing one of the greatest legal minds that ever graced the judicial bench (such as Didcott J and Kreigler J (read dissenting judgment in Hugo case)). One only has to read the judgment he gave in De Lille v Speaker of Parliament as an illustration of his intellect. Very few judgments could show such cogent legal judgment and astute. You need to read US Supreme court judgments as given by Scalia J to find an equivalent. It really troubles me how/why he turned out like this. With that said I therefore would like to recues my self from this debate.
@ Hlophe JP
Tell them it ain’t so Hlophe, tell them…please?!
Mqo, I like your initial stance of asking the Prof. about audi alteram partem, but your second posting seem to be backtracking?
Prof., given your admitted bias, why should we not read your article with extreme circumspection, good reasoning though I must say!
I do think that the matter would go to appeal at the Supreme Court of Appeal. The attitude of the Consitutional Court is that matters lodged with the CC must first be canvassed with the High Court to solicit the perspective of the high courts and the SCA.
Anyway the constitutional crisis of the the CC not being able to deal with the Hlope matter was authored by politically motivated action of the mob approach of the CC judges who sought to be complainants in a factual dispute to which they were privy except for the two litigants Jafta and Nkabinde.
I will parliament to simply vote against the impeachment if the JSC would simply fall for the spiteful position my learnt Prof.
This is a farce! It would not be resolved now.
Society seems divided on racial lines on this question.
Mqo, I am not a judge so am not bound by the rules of natural justice. But I try to be fair, so it is important to hear all sides of a story. But you see we HAVE now heard all sides of the story: in the submissions to the JSC, the papers to the high Court, the statements by legal representatives, and in the utterances of Hlophe after the news broke. After hearing all sides of the story, it is clear that: (1) Hlophe on several occasions over the past few years have contradicted himself (some people would call that lying); (2) On his own version of events Hlophe has approached two judges of the Constitutional Court and tried to convince them to decide a pending matter in a specific way; (3) Hlophe’s lawyer has issued a statement in which he personally attacked the judges of the CC and has suggested they are part of a plot to “get him”; (4) This has all plunged our judiciary (and our democracy) into a crisis.
These facts are not disputed. In my opinion they show that Hlophe is not fit for the bench. You may want to defend him and say all these things are acceptable but I would argue that you would then be succumbing to the soft bigotry of low expectations….
Pierre
I have two topic ideas:
1. Would you like to comment on the latest Zuma application?
Zuma is applying for Mbeki’s appeal to the concourt which he requested be postponed indefinitely be struck off the roll. I am a bit lost in translation as to the purpose and possible motives in all this.
www DOT thetimes DOT co DOT za/News/Article.aspx?id=873392
2. Zuma, Lekota and the constitution a long time coming
You have mentioned Zuma’s apparent disrespect for certain aspects of the constitution before, but here is another article showing that he has historically viewed the constitution as subordinate to the ANC.
politicsweb DOT co DOT za/politicsweb/view/politicsweb/en/page71619?oid=108130&sn=Detail
z // Oct 30, 2008 at 12:35 pm
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Thank you very much for that article Z. I am still dumb-founded, awe-struck, spell-bound, etc.
Sne
The Lekota/Zuma one was interesting since I was reading that very Lekota interview yesterday, but wasn’t familiar with the complete context and wanted to follow up on that. So I was quite happy to find that article today. I recently discovered http://www.omalley.co.za (source of the interview) after buying the book Shades of Difference. Information for the book can be found on that site.
The website has a huge collection of interviews with the big names in SA politics, many of them were interviewed almost yearly during the 90’s. He also has lots of historical documents, and chronologies etc.
Spot on Pierre – I just wonder how much lower he can stoop…
Z,
I just read the article. Wow! it makes me understand a lot of things much better.
Prof you say;
“I am not a judge so am not bound by the rules of natural justice. But I try to be fair, so it is important to hear all sides of a story.”
But you are arguing LEGAL principles with legal outcomes. You further go on use LEGAL points and arguments. I don’t get it, if a legal point is in favor of the judge( audi alteram partem) you dismiss it, but if its against the judge you use it against him. Lets not be selective or are you just trying to insult our intelligence. It’s a pity Khosi is not part of this debate, your skin will have been slaughtered with the points you
…made.
Since Lekota has been entered to this debate i would like to say something about that slimy politician. He was not elected in Polokwane and a fool, a person “ongabhadlanga” was elected President thereof. Lekota failed even to make it to the 80 member NEC. He is just doing all this because of hatred of some people in the leadership of the ANC and the mere fact that he no longer holds any position within the ANC. He is now trying to destroy the ANC because of people who will one of these days die. Zuma is on record as saying that he will be okay with one terms both as President of SA and of ANC. Now we are suddenly told about the freedom charter so much that its like its something new when the document is 58 years old. He never mentioned it in his 14 years in cabinet. They want to cling to power. They must go hang
Wake RSA and don’t vote for “political prostitutes”
Mqo
Did you read that article?
Mqo, I do not understand your point. Are you saying the audi alteram partem rule applies to fairly expressed opinions by lawyers? Do you means one must disregard the undisputed facts? Are you saying a legal academic – after hearing all sides of a story – may not express an opinion about the undisputed facts or make a value judgment based on those facts? Are you saying we should disregard the facts because Hlophe has not personally explained himself to us (although he has explained himself through the media and in legal papers)? Are you saying one may never have an opinion as a lawyer that differs from that handed down by a court or another tribunal? Are you saying that a lawyer cannot avise his or her client about whether he or she has a winnable case unless that lawyer has given the opponent the opportunity to make personal representations? On any of these interpretations it would be impossible for me (or any lawyer) to do my job. I trade in ideas and opinions within the discipline of law and the Constitution. I sure hope that I am fair and I do not jump to conclusions based on unproven rumours. I have listed the proven FACTS above on which I base my opinion. What more do you require? You seem to say that is not allowed to have opinions about the outcome of cases based on the law before a court has spoken. That seems deeply anti-intellectual, anti-academic and, well, plain wacky and unworkable. It is audi alteram partem gone completely mad.
Prof, please scann and post Hlophe JP’s papers!
@ Z
Yes I read the article.
I understand that that my response may be vague or is been misunderstood. Right though I am not in a position to response to your comments as I have to attend a conference been addressed by one Tendai Biti (MDC Secretary-General). I respectfully budge.
I am deeply concerned for the legal profession in this country. Judging by the type of responses on this blog I get the impression that certain people (apparently legally trained) are hell bent on a vengeful crusade – implying bias when it does not suit them, and spewing racist hatred. If these are the future candidates in the profession, I have very little hope for our democracy.
Lindelani, as one example, if he is a real person, must be a Malema wannabe. I have not yet come across someone so eagerly competing to be more idiotic than the ANCYL president.
BTW Prof, I think you are spot on. Firstly in stating that both sides’ positions are out in the public domain, and secondly for being able to unequivocally enter into a discourse about the merits or lack thereof. I am astounded at the naivete of some to question the apparent ‘bias’. If an academic were to always hedge his bets in the discourse, how will it be possible a) to further the discourse and b) flesh out the issues and c) further our education and knowledge. Taking sides in the discourse is not the same as blind following a political leader. What we have in the comments of some of the bloggers is a BUSH Doctrine – ‘ you are with us or against us’. We know where that led a great nation like the USA.
So I hope that firstly, we can have robust debate without the CHILDISH RUBBISH that is being spewed out by the likes of Lindelani, and secondly agree to deal with ideas and opinions with better ideas and opinions.
In that regard, the comments as spoken by C Lewis must be seen in its context of furthering the debate on the preserving the integrity, honour and quality of the legal profession and especially the bench. Some of the comments may be politically incorrect in our race sensitive environment, but in the end the sentiment is an early warning to stop the rot before we regret it later.
Lindelani
Is real, an admitted young attorney. I can vouch for it, having contacted the appropriate legal fraternity.
If lindelani is an example of the legal fraternity we are in more trouble than I realised.
Dear Bloggers just to get off point; I have just come from a very lively and entertaining public debate with Tendai Biti, Secretary General of the M.D.C., having graced us for the Wolphe Memorial Lecture at U.K.Z.N. If that is the future of Zimbabwe I would here forth would like to declare that I am a proud ZIMBABWEAN. Everything was laid bare as to why the MDC signed the (bad) deal and their strategy.
The most entertaining comments he made were in reference to Thabo Mbeki, shocking the majority of South Africans in audience on his role in protecting Mugabe juxtaposing his policy of quiet diplomacy and his other African policies disgusted and dismayed the majority of South Africans in attendance on how they allowed such a person to be a President. I would have liked to relate to you his points of view, arguments and illustrations, but I realise that it’s inappropriate as the article above has more or less nothing to do with such. However I leave you with an example he gave when one ANC Youth member posed the question on why the MDC is perceived as a Western inspired party. He, inter alia, gave the example that they exists a generation gap and misunderstanding of the world of today and the world of yesterday in which various leaders, peoples and Africa academics view the world. If for instance you shout ‘mouse’ to Mugabe/Mbeki, their thoughts will be based on the kitchen ‘mouse’ that must be poisoned, on the other hand the later generation ( US! ) will think of a PC first.
My apologies Prof but I could not control myself.
Mqo,
You must tell it all not your selective argument bites about our – Zimbabwe.
Mbeki is a sophisticated intellectual who knows the real mouse and the IT instrument including its use.
We are prepared to learn and talk about your beloved mother or fatherland. Regurgitate facts of event and let us engage.
We hear that Zanu PF has resuscitated in the rural landscape from the lull occassioned by the loss of national and presidential elections. It that true?
We love the MDC but it seems the politicians climax when they see a TV Camera.
WHat is a fuss about allocation of power. This uncompromising quasi-leaders are punishing our people.
Mqo tell us more, I am provoking you. It sems it has been very invigorating!
As for for Mugabe for heaven sake what does he think he would contribute at his age ?
I find it very sad that Zimbabweans should lbame Mbeki instead of resolving their own problems in Zimbabwe.
All we are required is to give fellow africans refuge but to descent to zimbabwe to solve their political stalemate.
I gather during negotiations of the failed Deal they deadlocked on accomodation and booze. How true is this?
The answer tof Speaker to the unlively question of YL member was equally simplistic.
Mqo
z
The article comparing Terror and JZ. I fail to see how JZ’s comments re: Terror and the Free State can be said to be elevating the ANC above the Constitution. The Constitution is deliberately silent on how parties conduct their own internal affairs. Whilst I agree that this central collectivist (anal) attitude of JZ’s is not one which would attract free-thinking managers, it is nevertheless a perfectly valid way for a party to conduct itself if central collectivism is the method by which it has set itself up.
If another party allows it’s elected Heads to hire and fire as they like, cool! But the ANC can hardly be said to be acting outwith the Constitution if they do not give such free reign to their Mayoral candidates.
Mpho
“I fail to see how JZ’s comments re: Terror and the Free State can be said to be elevating the ANC above the Constitution.”
According to the article and some news reports JZ allegedly said this: “I said then that the ANC is more important than even the Constitution of the country.”
So he was alleged to have said it directly. Thus the burden moves to JZ’s defense to explain that what he said was not what he meant, because of context or mistranslation (from Zulu) or some other reasoning. So I don’t understand how you fail too see how this “can” be construed that way.