This story has just been posted on the web by Independent Newspapers.
Cape Judge President John Hlophe no longer faces the threat of impeachment.
Hours before the Judicial Service Commission is expected to announce its decision on the much-publicised dispute between Hlophe and the Constitutional Court, The Star has learnt that the JSC’s complaints committee has decided not to proceed with the gross misconduct complaint against Hlophe.
They have found that there is no prima facie case against Hlophe. The Judge President is expected to return to work on Monday, days before he will again face the JSC – this time as a nominee for a Constitutional Court position.
It is understood that the JSC complaints committee was closely split on its decision about the Hlophe matter, which is expected to be conveyed to Hlophe and the Constitutional Court at noon. It remains unclear whether Hlophe or the Concourt will be reprimanded over the conduct that led to the dispute.
Delays in the announcement of the decision, which was made nearly two weeks ago, are believed to have been the result of the minority’s insistence that its reasons for wanting the complaint against Hlophe to continue should be publicised.
The Constitutional Court had accused Hlophe of attempting to lobby two of its judges for pro-President Jacob Zuma rulings. He in turn accused the Concourt of violating his constitutional rights by publicising their complaint against him.
The complaints resulted in what Hlophe’s legal team referred to as a “”constitutional crisis”, although one of the Supreme Court of Appeal judges who sat on a Hlophe-related case referred to the debacle as no more than a “constitutional curiousity”.
Hlophe’s lawyer Barnabas Xulu this morning told The Star that his client was still waiting to hear the result of the JSC’s preliminary inquiry into the Concourt complaint against him, but stressed that the Concourt was also in the firing line over its conduct.
“People must not forget that there are two complaints here,” he said. It is understood that Hlophe’s complaint against the Concourt will also not be proceeding.
I will wait to comment until the official announcement.
Prof, if this is really true I would be very interested to see what the reasons for that finding are. I would have preferrred the parties involved to be cross-examined, but before I say a lot, let’s see what comes out from the JSC
Prof, I expected Hlophe to be a free man especially after the key witness, Jafta, said he did not think Hlophe tried to influence him in anyway and since he did not want to lay a comp-laint initially but was persuaded to do so by people with an axe to grind with Hlophe.
I guess, one has to ask what the meaning of prima facie is. When it comes to Zuma, Hlophe and all other ANC supporters and donors, it takes a different meaning.
Sandile Majali, I believe, has made (or will make) representations to that disgraced body of prosecutors. Only an idiot will guess incorrectly the outcome of those submissions.
Anyway, it expected that the JSC will do what Mpshe did for Zuma. To quote Nelson Mandela: “The criminals are investigated themselves.”
On the face of it this seems like another cover up, but perhaps this is a good thing, as he will now have to asnwer difficult questions posed by JSC members during the interview process, or am I wrong (Assuming of course that the interviewees will have the character to ask those questions)
The JSC (the Trojan horse with actually the ANC in it) is currently the greatest threat to the judiciary.
What is not widely understood, is that the JSC is but the glove (the mask) of the ANC. Here the post Polokwane ANC (disguised as the JSC through its newly constituted majority on the body) gave the CC (as pre Polokwane constituted) a public humiliation.
This is a “snotklap” in the face of the CC – especially its leaders. Apparently, according to the JSC, the CC cannot discern right from wrong even if it happens right in front of them (or, to them). So how must the general public trust the decisions of the CC?
Was there ever any doubt about this outcome?You all let emotions cloud the stark realities facing you with regard to flimsy evidence and the fact that a 2/3 majority would never be achieved let alone getting one ANC MP to vote for impeachment.I wish people could stop being so vindictive about this thing and move towards progress.Did you want the JSC to manufacture evidence and make Jafta more aggressive towards Hlophe!?A constitutional crisis is hopefully over.See the good in this.
Kevin, you and I hold to vastly different views here. You know that. I am sure you also appreciate that we can have a straightforward discussion about a topic as regards which we subscribe to very different positions without having to suffer the development of any ill regard between us.
You effectively recommend that we should overlook that at least one justice has lied. True, that is not how you frame your submission. But that is the view which nestles therein.
Let me ask you a straightforward question. And I hope that you will honour me with an equally straightforward answer.
Imagine for a moment that you are a poor litigant. You file suit in a matter in which much hangs in the balance for you. You have not the means to pursue an appeal and you only pressed the proceeding because you were reasonably given to believe that you had a very meritorious case.
My question is simply this: how would you feel if you had reasonable grounds to believe that the judge hearing this matter which is of such import to you may well have lied to (a) the JSC subcommitee and (b), the very public over which he will preside?
Which Justice would that be Leigh?
Harold, the identity of whatever justice I may have in mind is immaterial to my question – at least for the moment. But I would very much appreciate Kevin’s answer to the question which I have posed.
I would also ask other questions though. But these latter questions will be of an open nature and I would like to hear your answers to them as well if you would be willing.
The first question is: if it is fair to say that we are effectively being asked to overlook that at least one of the judges has lied, what impact might that have on public perception of both the JSC and the courts?
And secondly: if the JSC now claims that the facts do not disclose the possibility of gross misconduct, then what was wrong with the first determination before the change in membership to the effect that there was such a possibility?
Dumisani, I cannot agree more with you. The criminals are indeed investigating themselves. In fact I have no hope of independent judiciary under the new administration. It has championed the double standard that Prof de Vos raised in the previous post which is politically driven and well entrenched in our day-to-day life hardly a year since the new admin took over power.
The new admin can try to do things that will earn them credit in the eyes of the illiterate and hungry voters such as visiting municipalities unannounced and sleeping in shacks, but you do not built a house on a heap of sand. When the house cracks is often not the roof but the foundation. In this case how does one explain the dropping of the charges against the very head of the new admin, the questionable way in which the tapes used in the process reached his and/or his lawyers’ hands, the release of shaik, just to mention a few.
This new admin is now in control of all the pillars of power including the judiciary. Based on the above and if these cases are not being pursued earnestly (not ignoring the fact that some of these cases are being challenged by opposition parties, but I know it is a futile exercise) how do you expect them any institutional pillar of our democracy, judiciary in particular to dispense good and fair judicial service in an unbiased manner.
I for one did not and do not expect Hlophe case to continue. If it does I will be very surprised and will give credit where it’s due. And if lack of prima facie is indeed one of the primary reasons, one has to ask what this legal principle means when it comes to zuma, hlophe and the ANC. We Seem to have now entered George Owell’s animal farm where we are all equal yes, but some are more equal than others before the law.
Henri, it seems I am agreeing with you quite a bit these days. And no Mdu, no sycophancy here. I think Henri makes plain sense – and in much the same way that the British public made sense when they tuned their MP’s that the conduct which gave rise to the expenses scandal was right bollocks.
The JSC does present a threat. And we ought to be bold enough to call it as it appears. To substantiate this view, let me call attention to a disquieting pattern. For a start, the press had to launch an urgent application to compel the JSC to allow them a bit of access to the preliminary hearing. And let us not forget that that hearing revealed material factual discrepancies between versions tendered by different judges. Now it seems that despite those discrepancies, we are to be denied the chance to see those accounts tested.
A theory presents itself. This is the result the JSC had in mind. This result was envisioned at the outset. It wanted this result even if the preliminary proceeding disclosed irreconcilable factual inconsistancies. Only, if the preliminary bit was concealed from the public’s gaze, the JSC would have had a lot less to explain and would shelter more comfortably behind its usual brand of cack-handed reasoning.
In short, there cannot be public confidence in the JSC as an institution. From its anti-transparent behaviour to the daft and hopelessly irrelevant questions which one of its members posed at the judicial interviews, it has shown repeatedly that rather than being the shield that protects the judiciary from internal foes, it is the sword that would run it through. And as Henri bravely and correctly intimates: why not just let the ANC make all of the decisions and dispense with the institutional lackey that is the JSC?
Leigh,the law is an ass.As a poor litigant I would be very concerned if my judge was a liar.However I would be even more concerned if people had adverse findings against them without adequate proof or if I could be found guilty of something because a certain section of the population does not like me without adequate proof.Rapists are walking free because of a lack of evidence but would we rather convict an innocent suspect because the crime he is alleged to have committed is so heinous or should it be because we can prove it!?
I have said much in jest before but it was a poor attempt in order to soften the blow of what has transpired before our nation’s eyes these past months and more recently, days.
Just a quick side-track in that when your defence force members attempt to storm your seat of government, something is seriously amiss. While everyone is in the process of condemn them, please will you include the Service delivery protesters, Taxi industry, Doctors, and of course, Traditional leaders who all seem to have a gripe with government these days!
As you have seen in my previous posts I do not hold to the belief of the independence of the CC. There are many who will hold the notion that the manner they dealt with the Hlophe saga was ill-advised and maybe little clumsy. This would be absolutely false as these “pillars of society” are our country’s seat of REASON, so I dismiss that premise as NAÏVE.
My understanding is that Judge Jafta was one of the justices who were allegedly approached by the JP to “debate” the Zuma matter before them and it was on his word that the CC laid a complaint with the JSC against the JP for misconduct. When testify before the Commission he seemed to retract a little and says he personally didn’t feel the JP had tried to influence him. Now this for me is very confusing. If he then didn’t see anything wrong with the conversation he apparently had with the JP, why then did he tag along with this circus show? And by what authority did the CC feel empowered enough to take the issue up collectively? Unfortunately the correct person, being Judge Jafta, should have been impeached and made to answer for “crying wolf”.
This was plain and simple a cunning and opportunist attempt by the CC to discredit a peer who in their opinion did not fit the criteria to serve in our highest court. It seriously backfired and now plan B would be to discredit the JSC. I will agree that the JSC has shown itself to be somewhat inept and should be asked why has the Hlophe matter taken all their time when other cases of misconduct are still pending. But I do not think they should be slandered to protect, in my humble opinion, a bastion of hypocrites.
Sorry for spoiling the debate herein but I could not resist.
A very interesting split in the Concourt judgment;
http://www.saflii.org/za/cases/ZACC/2009/24.html
Kevin, thank you for your response. And doubly thanks for your direct answer. Please feel free to inform me if you suspect that my post here discloses (a) any unfairness or (b) any attempt at deflection.
You seem to say that you would be concerned if people had to suffer adverse holdings premised on feeble evidence. Now even though I side with Michael insofar as I too think that the proper context for the presumption of innocence is the criminal law, I will respectfully concede that it would reflect very badly on civil society if we were to countenance people (whomever they may be) being publically – even if not legally – condemned on weak bases.
But would you agree that some reasonable suspicions are bound to flare if, given that one of the judges must have lied, the versions are not tested? And if so, would you agree that that bodes ill for the JSC and the judiciary’s images.
So public confidence in state organs are weaning on the whole. A couple of surveys will not give a correct picture, but seeing Police having to shoot on South African citizens at almost every turn these days is a Nikon taken one.
Man is a credulous animal, and must believe something; in the absence of good grounds for belief, he will be satisfied with bad ones.
I understood that Hlope had a serious case to answer just on his own version of events, regardless of the testimony of Nkabinde and Jafta (whose testimony I thought was incriminating even in spite of his horrible weaselling). It will be interesting to read what the JSC members with a bit of integrity have to say.
I am concerned that Hlope seems to be popular simply and only because he is perceived as someone who stands up to whitey – as if nothing else matters? – see this morning’s MG comment by Andile Mngxitama as a prime example.
Kevin, your points may be well taken as a political matter.
But I am still curious as to whether you have any authority, whether domestic or foreign, for your point that the presumption of innocence applies outside the criminal context.
I ask this not just in the spirit of debate, but also because, having done a fair amount of work on the defense side in disciplinary proceedings, I would love to be able to cite any authority you can produce.
Michael, you know that no such authority “officially” exists. As soon as you step into and outside the arena of a legal proceedings, of any nature, you are tainted with either presumptions: innocence and guilt. And the severity of the effects of this “authority” can at times be more damaging than anything a court, tribunal or disciplinary proceedings can hand down.
@Kevin Malunga, i concur! I think justice was done in the Hlope matter. It seems that people have this vendetta against Hlope for being who he is, which is a threat to the comforts that the old boys’ club in the legal profession has enjoyed for decades.
I have seen no one apply the rules of evidence to convince me otherwise that Hlope JP is guilty of any misconduct, instead people rely on the media reports and misguided emotions fuelled by the media and the self-imposed experts. Lets apply the well-known test in civil proceedings or proceedings of this kind, the Plascon-Evans test, in which the court held that where there is a dispute of facts between the parties, the court will take the evidence adduced by the respondent and the concessions made by the applicant. Yes, i know, these are not court proceedings but fair procedure still applies, in that one cannot find misconduct based on well embarrassing evidence by Justices, the fact that they are justices does not mean that they can never be mistaken or be liers.
Lets take Nkabinde’s evidence for instance, how was she going to prove that Hlope has links to the NIA? , how was she going to prove that Hlope said that he carried a mandate?, how was she going to prove that Hlope knew of the rule that judges of the concourt do not discuss cases with judges from other courts? how was she going to prove that Hlope said she must rule one way or the other?, How many times did Hlope call her? What was the conversation about? i can go on and on.
Essentially, shame on Nkabinde J and her goons for trying to get rid of Hlope or being used in the vendetta that has been driven against Hlope.
This case was going to end in tears for both Nkabinde and Jafta, had we gone to cross-examination. They should thank the JSC for salvaging what is left of their credibility.
Now, the JSC has decided, in accordance with its mandate, can we please acceppt it and move on to the important issue of transformation in the legal profession.
the whole bangshoot available here – http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=iol1251463687809H412
Seeing alll these erudite postings, consider this a comment from the peanut gallery. In our hearts I expect that most of us felt, juggling hindsight from these past years, that our questionably honorable Judge President was indeed going to escape censor? Just a thought along the line of leopards not changing their spots, how likely is it that Hllope will not entangle himself in further questionable activities and eventually drown himself.
Old wisdom says: be careful what you want, you might just get it.
The JSC is simply a reflection of where we find ourselves, not so much Animal farm, more to my thought, Lord of the Flies.
The learned JSC members doesn’t seem to even understand the meaning of “improper conduct”. Seemingly Hlope’s DISCUSSION of the case, with more than one Judge (which they found strange in their professional capacities), is all above board.
Just because the JSC claim “inferences” doesn’t mean that there are NO FACTS. Frankly they are crystal clear, shouting out to be seen, yet blatantly being ignored.
The SUBSTANCE of the original JSC complaint has very conveniently gone missing. Houdini would have been proud!
Similarly, the JSC is now basically saying that the Constitutional Court Judges are INCOMPETENT: they lodged a HIGH PROFILE complaint against a Judge President without the complaint having ANY substance ─ if it had substance we wouldn’t be now having this discussion.
Let me guess: we should also CONTINUE to TRUST our legal fraternity, while of course accepting their high fees, as THEY KNOW THE LAW?
The JSC Ruling makes a mockery of Justice.
So much for Justice.
Sirjay, you may be more correct than you know. Hlophe presently faces a defamation suit which was pressed by Professor Nagan. And the basis of that claim seems convincing enough for Hlophe to give earnest thought to a settlement. But I would love to see the case run. And incidentally, could it be that in a several months we will be asking the following question: is there a basis for a allegation of gross judicial misconduct where a judge is found liable of making defamatory remarks of another judge? Quite possibly I think.
By the way, I also think your new site is fabulous and enjoyed re-reading the Constitution.
Harold, perhaps you are not aware that the presumption of innocence has a very specific technical meaning. It has implications regarding discovery, evidence, standard of proof, etc. (I can offer citations if you like.)
If one is merely asserting that, as in all litigation, civil, criminal or administrative, he who asserts must prove – which of course is normally true, outside of the reverse onus setting — one would not normally use the technical term “presumption of innocence.”
@Michael Osborne and Kevin Malunga. I have found some cases that may answer your questions. First is a case from the Labour Court of RSA, the citation is : Avril Elizabeth Home For the Mentally Handicapped v CCMA and Others [2006] 9 BLLR 833 (LC) ; [2006] JOL 17623 (LC) in which the court held amongst other things that the standard of proof in discplinary proceedings is on a balance of probabilities, and a fair procedure must be followed in the stages leading to the hearing itself.
The other cases, are from the US. They are: to be found in the Employee Responsibilities and Rights Journal, Vol 2 No 3, 1989. The cases are Cleveland Board of Educators v James Loudermill, 1985. the last one is Parma Board of Education v Richard Donnelly). i have personally googled them and found them. I hope they will help in answering your many questions.
It is a great day for Justice for Hlophe Alliance, the outcome vindicate us and we are also looking for to Judge Hlophe’s leadership. Now we have to make sure that judiciary is transformed, judiciary is independent and free South Africa from racists.
I must say that the account of Judge Jafta’s testimony doesn’t leave me with the feeling that he now thinks that Hlope was not trying to influence him. He makes it very clear that Hlope was trying to influence him – albeit that it took the visit by Hlope to Nkambinde to confirm this in his mind. I think that many of us have been unduly harsh on J Jafta in this regard. In particular, the impression I got from the media was that he had completely flip flopped.
Ok – Jafta’s second round of testimony definitely softened his initial testimony.
However, this part of the judgement is inexpliciable and could almost have been written by Hlope himself –
“The ONLY reason why he (Jafta), a month later, thought that Hlophe JP had been trying to influence him improperly was because of what Nkabinde J had said in her report to him concerning Hlophe JP’s visit to her.”
The reason is that what Nkabinda said reinforced his feelings about his own visitation by Hlope.
I must say that I am happy with the transparency of the whole process, even though I disagree with the outcome. I think the various testimonies refelect upon Hlope very badly and hopefully his CC ambitions are now dead in the water. Unfortunately he continues as CJ….?
Also interesting to hear Hlope dissing “whites” once again – something about how his white colleagues don’t see things the same way. Those pesky white pieces of shit….