Cape Judge President John Hlophe’s lawyers wrote a letter to the Judicial Services Commission on March 27, accusing it of bias and raising several issues on the intended procedure to be used by the JSC. For the record I post here a list of the concerns. Judge for yourself whether these are valid or not:
* The absence of any protection for judicial independence,
* That the judges of the Constitutional Court did not formally lay a complaint against Hlophe after he allegedly approached two Constitutional Court Judges to influence them on a case regarding Jacob Zuma’s alleged involvement in the arms scandal,
* That the JSC remained silent when the complainants (the Constitutional Court judges), continued to deal with the content of their complaint against Hlophe in judicial proceedings,
* The Judges of the Constitutional Court issued court directions and invited the litigants in the matter,
* That the JSC took an adversarial position in litigation when Hlophe went to the courts to defend his constitutional rights (instead of remaining neutral),
* That the JSC took a posture denying Hlophe from processing his complaints quickly while they allegedly helped to fast track the resolution of the complaint when the judges of the Constitutional Court applied for leave to appeal,
* That the JSC proceeded to set dates for the hearing on the merits of the complaints, as if the outcome of the appeal by the Judges of the Constitutional Court to the SCA was already known to the JSC,
* That the JSC’s outlines of the areas of its inquiry are clearly one-sided and biased in favour of the Constitutional Court judges. (That the majority of the issues which were pertinent for Hlophe were not scheduled for consideration),
* That judges are under a duty to protect judicial independence when making complaints about other judges,
* That Justice Jafta revealed a part of the issues covered in a conversation with Hlophe, while at the same time making only partial disclosure of the information,
* That the JSC does not deal with the apparent contradiction in which the two judges are disavowing any intentions to be complainants or to make any further statements in the matter,
* That the JSC never sought clarification for the separate legal representation regarding this matter and the fact that lawyers who purport to represent all the judges are now speaking on their behalf, contrary to their stated position,
* That it is apparent that Judge Kate O’Regan played a significant part in developing, formalising and finalising the complaint, yet the JSC excluded her from the list of witnesses,
* That the JSC imposed on the parties its own ad hoc procedures and its own choice of the witnesses, without consulting Hlophe,
* Not all 13 Constitutional Court judges, who were identified as complainants, were chosen as witnesses, and Hlophe asks why certain judges were exempted from testifying,
* That the JSC has chosen Hlophe as a witness without consulting him,
* That the areas that the JSC had outlined for the investigation demonstrated clear bias.
If I was Judge Hlophe, and I was innocent, I would be pissed off that the JSC hearing is only taking place now, when it could have taken place earlier so I could clear my name and expose the Constitutional Court justices’ conspiracy. That Judge Hlophe seems to want to delay matters puzzles me. Whatever happened to “justice delayed, justice denied”?
Wow, this letter could be the closest any earthling has come to Vogon Poetry.
I disagree. Not Vogon. Klingon.
Is this a judge? Sounds more like a desperate teenager in front of a school’s PTA disciplinary hearing.
Please save us from this man, and relieve us South Africans from this incompetent, and corrupt excuse of a judge.
Go Hlopes, you good thing! This is entering into the realms of the bizarre, and all that is left to do is to egg him on further. Vuyani was a veritable bull in a china shop whilst he served as pension funds adjuducator, and the combo of him and slippery Hlopes running wild.. well, one can only sit back and marvel. Transformation, oh yes and how! transformation of our judiciary, and cause of transformation itself, into a smouldering wreck by the highway.
If Hlopes asks for an interdict, the judge should simply lean forward over the kansel and give him a sharp flattie snotklap in leui of judgement.
the point is judge Hlope, did you, or did you not, approach 2 constitutional court justices, inappropriately, in an attempt to influence their decision?
Now I understand why the right to legal representation includes the right to representation by a lawyer of your choice. It means that you choose certain lawyers at your peril.
To be fair, this is a summary, given by The Citizen, of the complaints.
I think some of the issues raised are purely desperate (e.g point 3-6), some are best left for the actual hearing (e.g. the 2 contradicting statements – assuming the parties involved made it to the witness list) but some of them are well and truly genuine. I point out some that I think fall within the latter category:
“That the JSC imposed on the parties its own ad hoc procedures and its own choice of the witnesses, without consulting Hlophe”
“Not all 13 Constitutional Court judges, who were identified as complainants, were chosen as witnesses, and Hlophe asks why certain judges were exempted from testifying”
Unfortunately, I do not know what rules the JSC has “imposed” on the parties regarding procedure but it seems to me that there will clearly be something wrong if the JSC chooses who the witnesses will be and Hlope is not afforded an opportunity to cross-examine some of the people who appantly played a significant role in the laying of the complaint.
In any event, the CC judges have always maintained (and the High Court and the SCA has agreed with them, perhaps correctly so) that they acted as individuals and not as a Court, how then do you explain a situation where some of the “complainants” are actually not called upon to present their versions? Surely, the “accused” must be given an opportunity to test the evidence of everyone who has accused him!!
Mzo:
The subject of a disciplinary enquiry does not get to decide who will be a witness and who won’t. That is just silly.
A complainant does not have to be a witness. The facts may be known to people who are not complainants.
As to the procedure to be followed, if there are no established procedures the tribunal is obliged to formulate a set bearing in mind the fundamental tenets of natural justice. And Hlophe was consulted with respect to the procedure to be followed. He just chose not to respond.
The unusual-looking one is Hlophe being called as a witness himself. But this is not so odd. It isn’t a criminal hearing to he has no right to remain silent. And he of all of them should be able to say the most.
Hlophe is like a Cat .He has many lives .He like his mentor Jacob Zuma would survie this latest onslaught from the remnants of Apartheid
Ismail // Apr 2, 2009 at 3:45 pm
“And Hlophe was consulted with respect to the procedure to be followed. He just chose not to respond.”
Is this a fact?
If it is, it would mean that Hlope / his attorneys are lying when they say they were not consulted (assuming the report in the Citizen correctly captures the contents of the letter to the JSC). Somehow, I find that to be highly unlikely in view of the fact that they sent the letter to the very same JSC.
I hope your defence of the (alleged) approach taken by the JSC is not based on how you feel about Hlope (like I know most people in this blog will “explain” anything done against a person they do not like). I just think that an injustice is an injustice, regardless of the subject and that’s exactly why I am able to point out when Hlope is talking rubbish!!
“Slippery Hlophe”, Peter I love it.
Lobengula // Apr 2, 2009 at 4:30 pm
What a well thought out constructive piece of writing. I thoroughly enjoyed the middle section of your dissertation where you engage the readers in your philosophy that Zuma is Hlophe’s mentor.
In addition, your introduction with the whole ‘cat’ and ‘nine lives’ statement… I actually had to print out your comment and rewrite it four times to fully understand what you are saying.
If you are not already in the ANCYL, apply immediately!
Talk about defending the indefensible
Lobengula // Apr 2, 2009 at 4:30 pm
“Hlophe is like a Cat .He has many lives .He like his mentor Jacob Zuma would survie this latest onslaught from the remnants of Apartheid”
Hlope has done many things wrong; some down right criminal, some due to he arrogance and some due to pure inability. He walks and behaves like his from the elite and untouchable.
Don’t allow yourself to believe that Black people can do no wrong, and if they do wrong, white people must not point it out or should not be critical. There will be racists out there who are waiting to say ‘therewa’, but it does not excuse what is wrong. Their motives are irrelevant. This was brought on by Hlope himself.
There is untold suffering in this world and particularly in Africa by black people because of attitudes like yours.
Lobengula, are you saying the black judges on the JSC and the bench of the CC are remnants of Apartheid? I fail to see how that works?
Onslaught? Laying a complaint is an onslaught now?
Zuma is his mentor? Possibly explains why he doesn’t quite view things like independence of the judiciary and conflict of interest like the rest of us.
Lobengula, try and put one clever thought into the universe today – preferably on this blog. It will make my day.
Lobengula, the poor people in informal settlements will be a bit shocked to hear that Zuma is Hlophe’s mentor. You should arert them immediately so they do no vote for the ANC who they might have thought is pro-poor before you let the cat out of the bag (pun intended).
I take exception when you draw President Zuma into Hlophe s mess without reasoning, or atleast some mature logic, rather than your usual cheap sarcasm. Anyway, Prof, you must have heared that My President has said you Afrikaaners are Africans in a true sense of the word among the white groupings in South Africa. Now, that White-Broad-Church led by your Major, H Z, is crying ” constitutional breach, citing the preamble of the constitution which says South Africa belongs to all who live in it. As a Cönstitutional expert, how do you react?
Can somebody educate me here, I know I m off this topic, but I really wana know: Who exactly qualifies to be called Afrikaaner? Is it anyone who is white & speaking Afrikaans as a mother tongue?
Spuy do you and Lobengula work in tandem or was your comment re Zuma aimed at him/her/it?
We all know that your Prez knows everything and you unflinchingly obey and him and accept all he says as gospel. So how about having some white Africans over for a braai some time soon. They’ll probably all be voting ANC after Mr Z’s latest gambit.
So, spoiler, you do agree that this was factual and yet electioneering (his statements I mean!) ? It is aftall election time, duh!
Mzo // Apr 2, 2009 at 3:03 pm
What I have also heard is that the JSC has directed that cross-examination of witnesses will be done via the chairperson. If this is true, it is a clear indication that witnesses are being protected from the rigours of cross-examination proper. Why would seasoned lawyers require protection as if they were minors testifying in a rape case?
My point exactly Bongs. It looks like the extension of what Langa did, denying the other CC judges an opportunity to question Jafta and Nkabinde on a flimsy excuse that the matter was sensitive….how the rest of them allowed a situation where they were then transformed to be complainants without having had an opportunity to ask any questions (which they surely must have had, otherwise they wouldn’t be sitting as CC judges) is truly beyond me.
I’ll say it again, if it is the truth we all want, open up the process – I tell you, a lot of reputations will be tainted, not just Hlope’s!!
Mzo: at its meeting on 5 July 2008 the JSC decided that, because “of the conflicts of facts on the papers”, it would appoint a subcommittee to perform the role of an “evidence gathering” or “investigative” body, and would hear evidence from the parties. Hlophe was told this and asked to attend to give evidence. This is why he complains of being called as a witness. Bizos made the point yesterday to Ngalwana that Hlophe was told this, has known since then, and has made no attempt until now to talk about procedure. Ngalwana’s response was that he required time to consult.
I don’t dislike Hlophe and he has at various points handed down the odd OK judgment. He is also a courteous man (when he is not calling people ‘pieces of white shit’) who is more willing to assist practitioners and litigants than, say, Gerald Friedman was.
But he is hubristic and intemperate. If I was choosing a JP (or puisne judge or, for that matter, magistrate) I would rather have someone who was not those things.
But this isn’t about his personality, it is about whether he is an attempted subverter of the course of justice and a liar.
Without his version it looks rather like he is, but things always look that way until one hears the other side. Hence the maxim. We must of course suspend judgment until he has given his version.
But not forever. If he continues to delay delay delay it would be unfair on us to expect us to suspend judgement forever.
He is being given a chance to have his say and he must now use it. If he does not we have no choice but to assume that he has nothing substantive to say with regard to the complaint levelled against him.
I am glad that he has ditched Dumisa who is, I am afraid, capable of taking perfectly good cases and filing them in the woodchipper. Ngalwana, though junior, is OK as an advocate. He has his ambitions and has a liking for making waves rather than arguments, which is not ideal, but he is a huge step up from Dumisa.
If I were Hlophe I would retain someone like Geoff Budlender. Nothing wrong with his credentials, excellent advocate and – crucially – a clearly humble and temperate man who benches listen to.
Mzo:
Not picking on you, just that your comments catch my eye! I hope you take it in that spirit.
“My point exactly Bongs. It looks like the extension of what Langa did, denying the other CC judges an opportunity to question Jafta and Nkabinde on a flimsy excuse that the matter was sensitive….how the rest of them allowed a situation where they were then transformed to be complainants without having had an opportunity to ask any questions (which they surely must have had, otherwise they wouldn’t be sitting as CC judges) is truly beyond me.”
It is easy to understand. They wanted the matter investigated. The JSC is the copy tasked with such investigations, so they referred it to the JSC. Just like when I make a complaint at the police station. I have my suspicions, but I don’t have the right to investigate them, so I aks the police to do so.
“I’ll say it again, if it is the truth we all want, open up the process”
That really requires Hlophe’s presence and for him to stop trying to stop the process.
“I tell you, a lot of reputations will be tainted, not just Hlope’s!!”
I’m not sure who you mean. Who do you mean?
Ismail
“It is easy to understand. They wanted the matter investigated. The JSC is the copy tasked with such investigations, so they referred it to the JSC. Just like when I make a complaint at the police station. I have my suspicions, but I don’t have the right to investigate them, so I aks the police to do so.”.
I am afraid, this does not hold water. If Langa and Moseneke (who heard the story from the horses’ mouth, as it were) wanted the rest of the CC judges to be complainants, how could Langa then decide to prevent those very same “complainants” from asking questions from Jafta and Nkabinde. In truth, those judges who never heard the story from Jafta & Nkabinde but through Langa are no different from me and you because we have also just heard the story from Langa. However, that hardly qualifies me to be the “complainant” in the matter.
“That really requires Hlophe’s presence and for him to stop trying to stop the process”.
I agree, Hlope needs to appear and give his version. However, even Hlope is allowed to be sick and you can understand his reluctance to submit himself to this process which appears to be designed to protect certain people who are involved in this matter from being cross-examined. All the CC judges, individually, are the complainants. In my mind, it should follow that those complainants should “take the stand”, present their version and be cross-examined thereon.
Ismail
“at its meeting on 5 July 2008 the JSC decided that, because “of the conflicts of facts on the papers”, it would appoint a subcommittee to perform the role of an “evidence gathering” or “investigative” body, and would hear evidence FROM THE PARTIES” (my emphasis).
This is exactly my point, THE PARTIES include ALL the complainants and the respondent. Or is my understanding of the language incorrect?
Mzo: it says ‘evidence FROM the parties’, not evidence OF the parties.
There is a difference between whose case it is and whose evidence is called to make that case. If I sue you for having defamed me I am a party (the plaintiff). But if my sister heard the defaming remark (and I did not) then it is her evidence that is called, not mine.
Ismail
I think you are clutching at straws but I enjoy the debate anyway. Perhaps let’s agree to disagree. I think the person who is accused should be afforded an opportunity to choose if s/he wants to question all those who’ve lodged a complaint against him, you seem to hold a different view. Let’s leave it at that!!
Having watched Hlope and JZ stretching our jurisprudence recently, I would not be suprised if Hlope is already laying a foundation to review an adverse decision of the JSC…HAHAHA
Mzo:
“In my mind, it should follow that those complainants should “take the stand”, present their version and be cross-examined thereon.”
If you and I shared a flat and someone pinched our radio, but only I saw it, why would you need to give evidence? The fact that you saw nothing and had no evidence to give doesn’t mean the radio hasn’t been pinched of course – so you are still a complainant. It just means that your evidence is superfluous and you need not be a witness.
Hlophe is allowed to be sick. I wish him a speedy recovery! (By tomorrow would be nice.)
Mzo: Your last message crossed with mine. Quite right! Let’s have a good (and in Hlophe’s case healthy) weekend. Over and out.
Bongs, I think I agree. On the one hand these are judges and destroying them under cross examination may not be good for the judiciary. On the other, if one wants to get to the truth some form of cross-examination might well be required. Is there not a middle way?