If I was a judge on the Constitutional Court I would say a little prayer this morning that Judge President John Hlophe does not fire his legal team. This is the only conclusion I can draw after reading the absurd, repetitive, badly written and confused affidavit of the Judge President to the Johannesburg High Court in support of his latest application to stop the Judicial Services Commission (JSC) from entertaining the complaint by the Constitutional Court against him.
If Judge President Hlophe wrote the affidavit himself, I sure as hell hope I never have to appear in front of him because then he has only a tenuous grip on the law. If the affidavit was prepared by his legal team I will make very sure I never engage the services of these honourable gentlemen – even to get me off the hook for a parking ticket. I would be rather aggrieved to pay them for this shoddy work.
Stripped of the boilerplate submissions aimed at soliciting some sympathy from all and sundry, the application seems to ask the High Court to order two things:
First, it wants the High Court to issue an urgent interdict against the JSC to stop them from hearing the complaint against him until such time as the High Court had considered the merits of his case he is bringing.
Second he wants the High Court to make a declaratory order to the effect that the Constitutional Court when laying a complaint against him and making it public, had infringed on his rights to equality; to be presumed innocent until proven guilty, to human dignity; to “fair procedure” and “infringement of judicial office”. The heart of the matter seems to be the following argument:
I believe that it is important to resolve the question whether judges of the Constitutional Court sitting as a Court could decide unanimously or support a decision to unanimously file a complaint of judicial misconduct without affording me my right to a hearing. This I submit is the jurisdictional requirement for the Judicial Service Commission to assume its authority to deal with the complaint. If the Court acted unlawfully in lodging a complaint as a Court, then the Judicial Service Commission has no jurisdiction to inquire into a complaint that is unlawfully filed with it. If conversely the Court acted lawfully in lodging a complaint as a Court of law, then the Judicial Service Commission has jurisdiction to entertain the complaint.
In other words, he is arguing that if the High Court finds that his rights were violated by the Constitutional Court when they laid the complaint, the JSC could not hear the matter at all and would be permanently prevented from considering the complaint.
In the alternative the Judge President argues that:
If this Honourable Court should consider that it would be undesirable of it to enquire into the constitutional conduct of judges of the Constitutional Court acting as a Court in respect of the relief that I seek, I would ask that a referral be made to the Constitutional Court, differently constituted to consider its conduct in light of the submissions that I make. A position in which the judges of the Constitutional Court reconsider their decision to lodge a complaint against me as a Court would be unprecedented but would be justifiable in the public interest.
The argument seems to be that when the Constitutional Court laid the complaint, it acted as a court and should have afforded him an opportunity to be heard before making the complaint to the JSC. It therefore attempts to conflate the role of the Constitutional Court as complainants with its role as arbiters of a case. It thus ascribes to the Constitutional Court the role to be played by the JSC in the process. To my mind this seems so patently absurd that I would have been embarrassed on behalf of a second year law student for making such a basic mistake in confusing the complainant with the adjudicating body.
Just because judges lay a joint complaint it cannot miraculously transform them from complainants in a case to the judges sitting as a court. If that were to be the case no judge could ever lay a complaint against anyone without first giving them a fair hearing. It would mean where a judge is raped or sexually harassed, he or she would first have to give a fair hearing to the person he or she is accusing of rape or sexual harassment before laying a complaint with the police because, after all, he or she is a judge and is acting as a judge.
The complaints about the infringement of his other rights also seem unaware of Constitutional Court precedent on the matter of the rights of accused persons. In the 1997 Constitutional Court judgment of Sanderson v Attorney General, Eastern Cape Justice Johan Kriegler showed that he understood that it was inevitable that a presumption of innocence played a bigger role inside the court room than in the court of public opinion.
He pointed out that as soon as anyone was accused and/or charged it was unavoidable that the person would be prejudiced.
While the presumption will continue to operate in the context of the [court] process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused’s integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.
The Constitution, Justice Kriegler said, understood this and dealt with this problem in a pragmatic manner. What one had to ask was not whether a person suffered harm by being accused and charged – although the harm must be minimised it is inevitable. Hlophe and his lawyers obviously never read this case.
The alternative request to have a differently constituted Constitutional Court hear the case was also made without seemingly being aware of the judgment of the Constitutional Court in the SARFU case where Louis Luyt made an application for the recusal of five justices of the Court. There the Court stated:
This Court sits en banc and all of its available members are expected to sit in every case. Its quorum is eight of its members. If the five judges were to have recused themselves the quorum would have been broken and the appeal would not have been able to proceed.
What he is asking is therefore not possible. He should have known this or his lawyers should have known this before displaying such an embarrassing ignorance of the law.
This application has all the appearances of a desperate attempt by a man who knows he is in big trouble on the facts and on the law. I would not be surprised if his application is dismissed with cost.
The copy on the mg website is unsigned, so maybe the filed one was properly proofread!
See par. 5 which refers to “[t]he second to fourteen respondents” [sic].
And in paragraphs 53 and 55 respectively the learned JP refers to “my respectful submission that my bill of rights cannot be sacrificed…” and “…unjustifiably violated my bill of rights..”
And in several sentences it seems, from the context, that the term “JSC” has been left out, making the sentence nonsensical.
The whole thing is based theron that the CC when laying the complaint acted as a court, properly so. And should have given him a hearing beforehand.
Ag eish…..
Even if correct it cannot result in the JSC not proceeding to hear him. It’s a non sequitur.
Should be dismissed with punitive costs if you ask me.
I think Pierre you are missing the point. Your first quote has nothing to do with violation of rights, as you conclude immediately after the quote. The way I read it, he is simply asking the WLD to decide whether the ConCourt, acting as a Court – and not as individual judges, could lawfully and properly be the complainants before the JSC. He takes the view that the JSC cannot decide this jurisdictional issue as it is not a Court (which would ordinarily decide this point in limine), hence the request that this application be heard by the WLD before the JSC can sit. Now, whether there is any merit in this submission is something that will be determined by the presiding judge.
I personally think there is merit to the argument and if the court agrees with the JP that it was improper for the CC to lodge the complaint ‘as a Court’, then the JSC cannot hear the complaint in its current form. There will of course be nothing wrong with the “proper” complainants later lodging a complaint. Pity they don’t seem so eager to do it!!
Likewise, I can find no justification for your conclusion that Hlope (in your 2nd quote) is confusing the role of the ConCourt (as complainants) with that of the JSC. The way I read the submission you’ve quoted is that Hlope is saying if the WLD feels that they can’t decide on an issue involving the conduct of the CC judges, then the WLD should refer the matter to a differently constituted CC. Maybe I do fall in the “Hlope” camp because I can see nothing absurd about this submission. Your reference to the SARFU case does not take this matter any further because that case is clearly distinguishable.
I would expect Hlope’s response to the potential problem created by a proposal for a differently constituted Court to be that the CC is the author of its own misfortune. Had they not transformed themselves and allowed only the 2 judges to complain, then the principles laid down in the SARFU judgment would have been most applicable.
I must say though that I’m also struggling to see how a “differently constituted court” would change anything (hence in my view the WLD will have to decide on this application). At the end of the day, it would still be the ConCourt, who are, as matters presently stand, the complainants against the JP. In other words, whoever sits there will become the complainant (the Court)- otherwise the likes of Sachs would not have been part of the current complainant (the Court) as he was reportedly not around at the time.
It’s exciting stuff. I bet not even our world acclaimed foresaw something like this!!
But Mzo,
The JSC only act in terms of s. 178[5]. They may advise the government on “any” matter relating to the judiciary. So they can get their information on which they react from anywhere. From the tooth fairy or the butler. From whence they get their info setting their process in motion can’t matter – as long as thereafter they adhere to principles of natural justice.
I further wonder about the CC’s locus standi – can it be cited at all?? Is it an entity capable of suing and being sued. Shouldn’t the Minister of Justice been sued? So that no order can be issued by the WLD against it?
Pierre, thanks very much for attaching Hlophe JP’s affidavit to your post. However, I doubt if you read it carefully before unleashing your criticism against Hlophe JP and his legal team. In pargraphs 53 and 54 Hlophe JP makes it very clear that the Con Court will not be able to adjudicate on the alleged violation of his constitutional rights should this matter end up before it. He even rules out a possibility of his matter being heard by judges of equivalent status from other countries for our Constitution does not allow such. However, he goes on to submit that this is as a result of the Con Court judges submitting a complaint as a court. If my memory does not betray me it is CJ who stated that the complaint against Hlophe JP was made by the judges of the Con Court as a COURT. The point made by Hlophe JP (which should be simple enough for proffessors of law to understand) is that before lodging a complaint as a court, the Con Court judges, as final arbiters on constitutional issues, should have first asked themselves who would eventually adjudicate a matter where Hlophe JP is alleging infringement of his constitutional rights emanating from the complaint lodged by the judges as a court and publishing same before affording him a hearing (The possibility of such a challenge should have been anticipated by these eminent men and women). In short, the constitutional crisis that is likely to result is not the making of Hlophe JP – but the Con Court by transforming itself into a complainant. Even if Hlophe JP’s application is dismissed, as Pierre boldy predicts, Hlophe JP has a constitutional right to appeal up to the Constitutional Court. In that case who is going to sit in such a matter?
It escapes me why would Pierre state “What he is asking is therefore not possible. He should have known this or his lawyers should have known this before displaying such an embarrassing ignorance of the law.”
The above is just an indication of how ill-conceived was CJ’s decision to lodge a complaint against Hlophe JP as a court. Hlophe JP correctly suggests that the ‘complainant judges’ should have been advised to lodge the complaint as individual judges. However this would have been impossible because they had already indicated their reluctance to do so. The only solution open to CJ and DCJ was to transform the whole Con Court into a complainant thereby unwittingly creating the imminent constitutional crisis!
If anything, the case Pierre refers to supports Hlophe JP’s submission that the Con Court violated his right to be presumed innocent. If lay persons and the public at large pay lip service to the presumption of innocence by ‘convicting’ the accused based on one-sided stories they hear in the media – they can be forgiven for their ignorance of law. But if such is done by those Honourable men and women entrusted with upholding the fundamental rights enshrined in the Constitution – I become very worried. If one reads the Con Court’s complaint, as encapsulated in the press statement and amplified later by CJ’s statement – it is very clear that in the eyes and minds of the Con Court judges Hlophe JP is guilty of attempting to improperly influence the two judges! Remarkably, this far reaching conclusion is based on one side of the story. Even if the judges were not legally obliged to hear Hlophe JP before lodging their complaint with JSC (let alone telling the whole world about same), they were morally obliged to embrace the presumption of innocence and comply with the audi alteram partem rule – unless some ulterior motive was at play!
Bongs, I share your sentiments. Once again, our beloved Prof seems to have allowed his views of the JP (and his blind faith in the ability of the CC judges to address issues) cloud his reading of the JP’s affidavit. Just as he is concerned about the JP and/or his lawyers’ understanding of the law, I am similarly concerned about the students of the Prof whose interpretatin of court documents is so defective.
We must all be reminded though that everything that I am saying is very different from saying the JP is innocent of the ‘charge’ against him. I personally think that there are some questions that need to be answered by the JP, Nkabinde, Jafta, the CJ, the DCJ and the Acting DCJ. This is exactly why I my heart bleeds when it increasingly becomes a real possibility that we may never get to hear these answers, at least not anytime soon.
Mzo, just how easy would it be for the CC Complaint to be withdrawn and then re-instigated by only the 2 Justices? And if it was withdrawn, then would Hlophe’s counter-complaint succeed I wonder?
Pierre, as others have said, it was the Justices themselves who said they were making the complaint as “a Court” so therefore SARFU cannot possibly apply. If I remember correctly, in that case the accusation was that one party to the dispute had appointed the Adjudicator. In this case one of the parties IS the adjudicator. Quite a separate thing, whether we agree that it is the Court or each of the Justices acting together as the Complainant.
Bongs, I think your comment is very well structured and convincing, except for your parting shot “unless some ulterior motive was at play!” I think that the Justices over-reacted in their response (not in the complaint, but the method of structuring the complaint) because of a sense of imminent attack. I think as lawyers, if we value our legal system, we should be addressing this problem with people issuing threats and such towards our Judiciary (aren’t we all, after all, officers of the court) and encourage everyone to make their attacks on abuse of process, political bias, NWO and the like within the courts on properly drafted papers.
I see the faults of the Constitutional Court in lodging this complaint in the way they did. But I am not going to condemn the victim for how it acted under attack. And by attack I am looking far wider than the JP’s approach of a few Justices, as the JSC hasn’t decided how to categorise that.
But just to clarify, I’d have been far happier if:
1. The CC had apologised at the beginning for going public, and so stopped the counter-claim in its tracks and
2. the two Justices made the Referal themselves!
(ps there’s a thought? Could Jafta make a referal to the JSC for clarity on whether Hlophe’s approach was improper? That would take the pressure off him, wouldn’t it?)
I advise everyone who commented here to read the affidavit carefully. Such a reading will show:
(1) In paragraph 16 of the affidavit Hlophe JP, he asks that if the WLD feels it is “undesirable” to hear the matter, they should refer the matter to a “differently constituted” CC. In paragraph 54 he agrees, however, that this would not be possible. Thus an embarrassing contradiction in the papers. In SARFU the CC explained that if 5 judges were to recuse themselves the CC would not have a quorum and it would become impossible to hear the case as the Constitution only provides for the appointment of acting judges where there is a vacancy in the Court or a judge is absent (due to having taken a sabbatical, for example). Hlophe’s request to the WLD in paragraph 16 is thus not possible.
(2) The heart of the application is that when the CC acts as a court in a non-adjudicating manner (lodging complaints with the JSC; deciding to sell their computers; or entering into an agreement to clean the court) they are bound by the Bill of Rights in exactly the same manner as if they sat as a court adjudicating a case. They should therefore have given him a hearing and should not have published the complaint because this breached the various rights listed. Their “failure” in this regard constitute a “flagrant breach” of his rights. They therefore acted unlawfully. A complaint lodged unlawfully cannot be entertained by the JSC. The JSC must therefore be prohibited from hearing the complaint.
(3) The absurdity and circularity of the argument in (2) above is quite obvious. When the CC lodged a complaint it did not act as an adjudicator of any matter – it merely lodged a complaint to be decided by another body. It’s decision to lodge a complaint is not a “finding” of any sort – certainly not a finding that is legally binding on anyone. They therefore did not act as as a “court” as envisaged by the various provisions of the Constitution quoted in the affidavit. To hold otherwise would lead to bizarre consequences. It would mean that whenever the CC makes a decision of a non-judicial nature it would be bound by the Bill of Rights as if they have acted as an adjudicator. If they sold their old computers and the buyer failed to pay, for example, they would then not be allowed to write a letter of demand and, god forbid, allow this to become public because the person owing the money would have a right to a fair hearing and would be able to claim that his or her rights to privacy and dignity had been infringed by the CC making an allegation against them. The affidavit thus conflates the role of the complainant (CC) and that of the adjudicator (JSC). The comments above similarly assumes that the decision by the CC to complain as a court is a judgment on the merits of the case. It clearly is not. The JSC must decide on the merits of the case. The Constitution does not allow the CC to be involved in the adjudication of a complaint against a judge and the CC did not purport to adjudicate the complaint. It merely decided that a complaint must be laid. It has a right and a duty to do so, just as it has a right and a duty to demand that the person who bought their computers must please pay for them. To argue that the CC should have respected the right of Hlophe to be presumed innocent until guilty is to argue that the CC – and not the JSC – is the constitutional body tasked to hear complaints against judges. I cannot find any such provision in the Constitution because there is no such provision.
(4) Even if it could be somehow assumed that the CC breached the JP’s rights by lodging a complaint without affording the JP a hearing (and absurd assumption on its face), the JSC STILL has a constitutional duty to deal with the complaint before it. It has no choice in the matter as it is bound by the Constitution in this regard. The remedy sought by the JP is therefore a request to the WLD to prohibit the JSC from fulfilling its constitutional mandate. The WLD clearly does not have the jurisdiction to make such an order. Remember, the application is not geared towards PREVENTING the breach of any rights. It is to stop the JSC from doing its job AFTER an alleged breached of rights.
Bongs, in other words, people (like JP’s) may go and try to influence Con Court judges, perhaps even succeed, and get off Scott-free, because the Constitution does not allow challenges of the JSC’s decision to go to the Con Court constituted of different judges? Nonsense, ad hoc ‘acting’ appointments can most certainly be made, no? Furthermore, the Constitution does not allow judicial challenges of the JSC’s decisions. Surely no-one may challenge the JSC’s decision not to short-list him/her for appointment as a judge? Surely no-one may challenge the JSC’s decision to recommend impeachment? In the end, Parliament will be the ‘court’ that decides as ‘court of final instance’ whether impeachment must happen or not (the safety-valve being the required two third majority), thereafter the President must fire the judge, and no court can intervene.
The hyphothetical legal question confronting the legal minds is “in the event of trenching of fundamental consitutional human rights and common law doctrine in the westrling of this vexed matter by the CC, as a complainant and/or the JSC, is such tragessions not justiciable?
I will clearly call this a constitutional crisis. There must be a platform to deal with constitutional disputes which is the court of law inclisive of the CC. The CC and JSC are also subservient to the laws of the land especially the Constitution.
I imagine a moment when biased Commissioners are intching to tackle their pray and an affected party elects to seek protection of the courts. Do you say the law momentarily ceases to operate and the legal routes reach a dead-end.
What happens is in a meeting of judges they conclude that the version of a party is untrue as compainants( the CC as a complainant) at the JSC, the same CC judges can now adjuducate the matter as neutral arbiter of facts and the law. They now become judges in theie own cause.
You may be a great scholar, yet your thoughts appear not greatly polished on this score. The fact that the judges have concluded as a matter of fact that Hlope has acted inappropriately in a quaest to influence the two judges is of important significance. They cannot be objective to adjudicate upon any constitutional dispute put at the door of the CC.
This is a farce, a constitutional crisis. Anyway this thing seems to have transluscent political undertones.
Pierre , may you comment Sir!
That my poor take “great scholars” !
Ishmael Malale
Excuse the typos.
With respect Prof, you are now clutching at straws instead of doing an honourable thing and acknowledge your hasty conclusion that Hlophe JP and his legal advisors were not aware that what they are asking for is impossible – (”He should have known this or his lawyers should have known this before displaying such an embarrassing ignorance of the law”). Now after reading paragraphs 53 and 54 and realizing that actually Hlophe JP is not so ignorant of the law you seem to be saying that Hlophe JP is contradicting himself by asking for something he knows is impossible to get! Clearly you are now shifting goalposts. Just to illustrate Hlophe JP’s awareness – he submits that his constitutional rights should not be sacrificed at the altar of avoiding constitutional crisis created by the Con Court itself.
Prof,with respect the analogies that you are harping on are misplaced. The administrative functions of the Con Court are not performed by all judges of the Con Court as a COURT but by who ever is assigned toperform such functions on behalf of the court. It is absurd to insinuate that when the Con Court rents a building the lease agreement will be signed by all judges of the court as a COURT! The most common instance (I dare say only instance) where judges of the court assemble as a COURT is when they are carrying out their function of adjudicating cases.
(continuing) By no means am I suggesting that the Con Court was ‘adjudicating’ a matter when they took a decision to lodge a complaint against Hlophe JP. It is CJ, with respect, who confused the public by stating that they were acting in concert as a COURT instead of at least saying the two judges are laying a complaint and in that regard they are supported by all their colleagues in the Con Court. Even if it was not a judgment but a complaint – who can gainsay the Con Court judges once they have unanimously come to a conclusion that Hlophe JP is ‘guilty’ of improper conduct and has violated the Constitution by attempting to improperly influence one of their own? – remember that the Con Court has a final say on Constitutional matters.
Lest I be misunderstood, I am not pronouncing on guilt or innocence of Hlophe JP – that is the sole prerogative of the JSC when and if such a matter is properly referred to it. My training in law does not allow me to be as bold as the learned Prof who has already publicly convicted Hlophe JP. The area of law in which I practice procedural fairness is held in high esteem.
Neither am I pronouncing on the prospects of Hlophe JP’s application – all that I am against is the distortion of the contents of his affidavit and the unwarranted criticism of Holphe JP’s knowledge of law and those who advise him.
By no means am I suggesting that the Con Court was ‘adjudicating’ a matter when they took a decision to lodge a complaint against Hlophe JP. It is CJ, with respect, who confused the public by stating that they were acting in concert as a COURT instead of at least saying the two judges are laying a complaint and in that regard they are supported by all their colleagues in the Con Court. Even if it was not a judgment but a complaint – who can gainsay the Con Court judges once they have unanimously come to a conclusion that Hlophe JP is ‘guilty’ of improper conduct and has violated the Constitution by attempting to improperly influence one of their own? – remember that the Con Court has a final say on Constitutional matters.
Lest I be misunderstood, I am not pronouncing on guilt or innocence of Hlophe JP – that is the sole prerogative of the JSC when and if such a matter is properly referred to it. My training in law does not allow me to be as bold as the learned Prof who has already publicly convicted Hlophe JP. The area of law in which I practice procedural fairness is held in high esteem.
Neither am I pronouncing on the prospects of Hlophe JP’s application – all that I am against is the distortion of the contents of his affidavit and the unwarranted criticism of Holphe JP’s knowledge of law and those who advise him.
Apologies for posting same comment twice!
Bongs, so you agree there is a contradiction in the affidavit between par 16 and 54? If not, how do you square those two things? If yes, is it not embarrassing as I said?
The CC made a decision to lay a complaint as court. You seem to agree with the affidavit that they should have given the JP a hearing before making this decision but you also agree that they did not act as adjudicators when they made this decision and thus did not function as a court as understood by the Constitution. This seems like a contradiction. It is based on the tenuous assumption that it would be impossible for the JSC to second guess the CC. This is an insult to the JSC and this argument undermines the constitutional institution (JSC) because it says they would take their orders from the CC and would not be able to come to an independent decision on the matter. I find this line of reasoning absurd, disrespectful of the Constitution and dangerous. You do not. I think we will have to agree to disagree.
Prof,I agree – lets agree to disagree!
I have just finished reading your nemesis, Paul Ngobeni’s submissions to the JSC wherein he argues against the public hearing of Hlophe JP’s matter. I found his submissions well researched and quite persuasive to an open mind which has not been poisoned by prejudice against JP. In arguing that the Concourt did violate JP’s right to be presumed innocent and that the Concourt should not have published their complaint against JP- Ngobeni qoutes extensively from comparative foreign jurisprudence. As much as some of the foreign cases he refers to are to do with how the JSC should handle the matter once it has been referred to it, there are persuasive cases that deal with the initial stage of the complaint and how it should or should not be handled at that stage.
What I found most illuminating in Ngobeni’s submission is his discussion of the judgment of Conteh CJ of the Supreme Court of Belize (http://www.belizelaw.org/judgements/no_65_of_2001.html.) on pages 37 to 41 and guidelines on “Judicial Ethics in South Africa” on pages 47 to 48.
I could not resist the temptation of qouting the following in full:
“However, the learned judge made the following observations which make clear the egregious nature of the Concourt judges’ violations. He stated (at 795B-E):
‘The Judiciary and the magistracy in my view can only prosecute their functions where there exists respect, honesty, self-discipline and to some extent restraint when colleagues deal with each other. When a debate is thrown into the public eye and not discussed (sic) amongst themselves, it exhibits a high degree of indiscipline. It is a well-known convention of our courts that judicial officers speak in court and as such only in court. They are not there to defend their liberty or even go to the extent of debating their decisions or misunderstandings in public. The impression I gathered from the pleadings before me as well as the newspaper cuttings attached to the pleadings only illustrate the ‘chaotic’ situation which exists in the magistrate’s office in Pretoria.’
Sadly, the learned judge could never have predicted that his observations about the “chaotic” situation in the Pretoria Magistracy would later be replicated in the nation’s highest court, the constitutional court! He could never have imagined that his lamentations about the lack of “respect, honesty, self-discipline and to some extent restraint when colleagues deal with each other” would be an indictment of the despicable manner in which his colleagues on the constitutional court dealt with Judge President John Mandlakayise Hlophe. He could never in his wildest imagination have fathomed that his observations that “when a debate[about judicial misconduct] is thrown into the public eye and not discussed (sic) amongst themselves, it exhibits a high degree of indiscipline” would apply with equal force to the 11 judges of the constitutional court in the entire Hlophe saga. He could never have known that the judges on our highest would flagrantly violate the “well-known convention of our courts that judicial officers speak in court and as such only in court” and that the said judges would choose to unleash a lynch-mob on a supposedly valued colleague. He certainly had no clue that the cult of celebrity would assert itself in the constitutional court and that the guardians of our human rights enshrined in our constitution would issue misleading and prejudicial press statements “or even go to the
19
extent of debating their decisions or misunderstandings in public” all in a calculated effort to increase public condemnation and pressure on Judge President Hlophe. He could not in a million years have guessed that the judges of our nation’s highest court would exhibit “a high degree of indiscipline” and unprincipled judicial decision-making by extolling the virtues of foreign jurisprudence or case-law when it suited them and then flagrantly ignoring the very hallowed principles such as confidentiality observed in these foreign nations when dealing with Judge Hlophe’s case.”
There may well be other compelling arguments against Ngobeni’s submissions. I am certain Prof will enlighten us if he has equally (or even better) researched and authoritative arguments that will make Ngobeni eat a humble pie!
Bongs, where can I get a copy of the Ngobeni submission? Would love to read the wise one’s words.
Prof, I found it in Friends for Zuma website under documents.
Bongs – No wonder – that’s the only place where trash like that will ever be published
Anonymouse, without presenting counter arguments, it does not help to label Ngobeni’s submission as trash!
Pierre it is the Department of Justice that sells and buys the Court’s computer equipment, hires the staff and purchases the cleaning equipment. It is not the Justices acting as “the Court”. Section 167 says what they can do “as a Court.” There are no extra-Judical powers. As was pointed out, the Constitutional problem is of the Court’s own making.
Pierre, you trying to lock Bongs into a tight argument on the point you want to tie him to does not take the pressure off the Court. They should not have lodged a Complaint “as a Court”. The approached Justices should have lodged a Complaint, with the backing of their colleagues. Whether Hlophe has an inconsistency in paragraph whatever is irrelevant to this simple point.
But Bongs, you see where I agree with you. Where I have to take a step back from looking critically at the Con Court is when I am contextualising this particular matter – which I am sure NO comparable international authority exists on – is the fact that the President of the ANC has several cases before the Court the decision of which could have a bearing on whether or not he becomes the Head of the Executive next year, that the ANC NEC had publicly condemned the DCJ for remarks made at his private party which were in defence of the Constitutional Order, that a public smear campaign appeared in the offing (subsequently occurred) with senior political figures attacking the judiciary, and that one of the approached Justices stated to them that Hlophe had claimed to have a “mandate.”
I can understand their over-reaction and allow the Con Court a chance to rectify their mistake.
But Pierre I can’t pretend that they didn’t make it!
And Pierre, Anonymous, anyone, how DO you get around the fact that the JSC is a Constitutionally mandated body and so the Con Court has the final say on any matter relating to it? If Hlophe goes down, and Hlophe takes the matter to Court for Judicial Review WHO CAN HEAR THE ULTIMATE APPEAL? Don’t tell me no one because the Bill of Rights says he has the right for his case to be heard in a Court of Law.
Mpho, thanks for your support. What gets my blood boiling is that Prof’s prejudice against Hlophe, Zuma and Ngobeni deprives us of his objective constitutional analysis of the issues being debated – it is so obvious that the concourt judges ‘got carried away’ in the manner they handled the complaint against Hlophe JP. By their gullibility they may have given Hlophe JP an unassailable technical argument!
Mpho your last paragraph is spot on. This is the only argument that has been troubling me. If indeed Hlophe misses and appeal to the concourt who will hear him?The two judges should have filed the compliant instead to the 11 judges. But no they where pushed to even sign thier names on the complaint. what if they withdraw is it late no, hope not.
And Bongs THAT is the worry. We want great Judges, not judges who get off on technicalities. So I’d really like if the equally great minds that contribute here started considering ways the problem can be rectified, rather than shouting down anyone who dares suggest that Langa might have put a foot wrong!
Mpho, I have thought about that vexing question but could not come up with a plausible solution. Perhaps we can borrow from labour law principles. When a dismissed employee is found to have been dismissed unfairly because a correct procedure was not followed, that employee is not entitled to reinstatement (if the dismissal is substantively fair) but monetary compensation only. Applying this principle to our case study – an unconditional admission and apology that the lodging of the complaint including publication thereof was not procedurally correct and an award of monetary compensation (damages) to JP may cure the procedural defect paving the way for determination on substantive issues! I know I am being gullible myself!
Great analyis. I fervently hope that the JSC is given the opportunity to do its thing sooner rather than later.
To Mpho and Bongs – wait for the outcome of the JP’s misguided application to the WLD. The outcome will be much as the Prof has predicted. Dismissed with costs – the CC will be found to have acted properly and the JSC will do its thing after more of the tax payers money has been wasted…
It would be nice to see lawyers (and judges) debate the merits rather than focus on technicalities. I wonder if JZ has started a trend…
Mouse, why do you say this:
“Surely no-one may challenge the JSC’s decision not to short-list him/her for appointment as a judge? Surely no-one may challenge the JSC’s decision to recommend impeachment?”
Surely if the JSC did something wrong (lets say they were improperly constituted when they made a decision) why would it not be reviewable? I thought Political Question Doctrine doesn’t exist now.
Mpho – If that was possible (e.g., that a person properly nominated and qualified for judicial appointment, but who has not been short-listed [or interviewed, but not recommended], may take the decision of the JSC on review), then we would have had many such review applications during the past few years. The Constitution simply states that the JSC must recommend persons for judicial appointment and, in the case of puny judges (as opposed to the CJ, DCJ, PSCA, DPSCA and CC judges), the President ‘must’ appoint those recommended as judges. I do not see any possibility of review there or, if possible, any posibility of a successful application. Only the JSC may recommend impeachment to Parliament, and no court may do so in terms of the Constitution; and, the two third majority requirement serves as a safety valve (review if you want) against arbitrary recomendations by the JSC, and, once such a resolution is adopted, the President ‘must’ remove such a judge from office, and no court may order otherwise. That is why the CC referred the Hlophe matter to the JSC, otherwise it could just as well have dealt with the matter all by itself. I think the only possibility of review in such a case would be if the constitutional requirements and rules of natural justice have ot been followed in the process. Otherwise, any attempt to do so would be dead in the water.
Pierre
I think that Hlophe drafted it. Textually, this affidavit reads the same as the racism report.
Ntsebeza may have seen it before it went out, but there is no sign that he settled it.
Thanks for grappling with it.
Pierre,
“Hlophe application should be laughed out of court”.
Are you telling us (poisoning us) or question (objective)? please advise.
Pierre, I believe if you wanted to impose an objective topic for discussion you were suppose to put a question mark and let us debate same.
But now coz you fail to be objective you telling us that the we should laugh at his application.
Please answer me until when should you forcefeed us with your poisonous opinion Mr so-called professor?
If you really want our input on so-called articles published on this blog please try to be objective.
Coz most of us are losing appetite to lay comments on this blog.
[...] wonder I argued a few weeks back that the Judge President’s legal team was not up to the task. As Marcus pointed out today, it [...]