Comments on: Hlophe application should be laughed out of court

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By: lindelani maseko

lindelani maseko — Wed, 06 Aug 2008 12:17:22 +0000

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.

By: Ismail

Ismail — Fri, 01 Aug 2008 17:12:34 +0000

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.

By: Anonymouse

Anonymouse — Wed, 30 Jul 2008 16:17:53 +0000

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.

By: Mpho

Mpho — Tue, 29 Jul 2008 12:18:27 +0000

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.

By: shootemup

shootemup — Tue, 29 Jul 2008 12:03:36 +0000

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…

By: Bongs

Bongs — Mon, 28 Jul 2008 14:58:18 +0000

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!

By: Mpho

Mpho — Mon, 28 Jul 2008 14:15:19 +0000

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!

By: T

Mon, 28 Jul 2008 14:10:46 +0000

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.

By: Bongs

Bongs — Mon, 28 Jul 2008 14:08:30 +0000

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!