The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.
The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.
The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution - that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.
The High Court thus found that:
Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.
The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.
The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.
The judgment poses some difficult questions.
First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.
This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.
The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.
Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?
Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?
But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.
And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?
Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.
The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.
Andiswa Ndoni is not the President of the Black Lawyers Association…its Nano Matlala.Zille or her emissaries could never have been objective in this matter.They would have had to recuse themselves.End of story
Manyova says:
April 20, 2010 at 10:34 am
I believe “End of story” is a translation of Mr Selebi’s famous words, “Finish en klaar”. I can just imagine how he regrets the use of those words.
But certainly the FUL [ judge Kriegler's] application now can’t continue. The JSC’s decision has been set aside. Finish en klaar. It can’t be set aside again. A set aside decision is gone. They can’t storm a windmill that is allready collapsed.
So all FUL’s work in the drafting of their application is now down the drain.
But maybe that’s what they wanted.
I have been wondering why their application has not yet been set down. Maybe it was their strategy.
So if the JSC now take the same irrational decision, the FUL guys still have their ammunition.
Some turbulent times ahead for the “dwarves” [to lend the expression from Politicsweb] at the JSC. But knowing the JSC, they’l f…. it up somehow.
Henri says:
April 20, 2010 at 11:18 am
I haven’t read the FUL application again, but if me memory serves me well, FUL is asking for more than just setting aside of the JSC decision.
FUL’s application can continue – it is in a different court (not bound by the cape high Court’s decision), on slightly different grounds and the judgment will obviously deal with issues this judgment did not deal with. The JSC would be well advised to wait-and-see first, not just jump-and-do.
Ad Chris:
Well at least that bit they can’t ask for again – not untill the [ possible] appeal by the JSC or Hlophe has succeeded at the SCA. So maybe all their work has not been in vain.
Just an [maybe unfair] aside: That judge Sharmin or Shamim Ebrahim – is it not she that appeared and tried several times before the JSC to get transferred to the KZN bench? From the FS Bench. But unsuccessful everytime…..
Hell Anonymouse, it can’t be. If one High Court set it aside, it’s set aside – in the whole country. Finish en klaar. The Cape decision doesn’t only apply in the Western Cape…
So FUL has nothing to set aside further. They can’t kill a dead horse.
http://www.news24.com/MyNews24/Letters/SA-a-farcical-country-20100420
Meanwhile, back at the ranch, racial tension is reaching fever pitch. Watch all the comments on that link.
Nobody trust any constitution anymore when one White family of three gets attacked by 15 Blacks???? Surely it’s not just simply ordinary “crime”?
The Courts have to stand steady in the face of the storm. They are the last defence against shirking of important duties in upholding a democracy. Thankfully the Hlophe decision appears to be having the desired effect:
http://www.iol.co.za/index.php?from=rss_Crime%20And%20Courts&set_id=1&click_id=15&art_id=nw20100420130328858C947789
Prof, in the Politicsweb blog, there is a statement by the Premier of the Western Cape, Helen Zille, concerning the outcome of an investigation of an alleged racist email allegedly issued by the acting municipal manager of Stellenbosch.
Please look at the matter of whether, politicians in executive positions in government, like President, Premier, etc, can use their government offices and resources to do party work.
The statement she Zille issued should not have come from the Premier but from the DA, and the DA could choose if they wanted it to come from the provincial leadership or national leadership. It makes clear party political cheap points, and thereafter, states issued by the Western Cape Premier’s Office.
Zille, and the DA, always pontificates about the blurring of party and state, and yet here she openly defies her constitutional duties to serve all the people of the Western Cape and not just her party. Membathisi Mdladlana was not in the Western Cape as the Minister of Labour, but as an ANC NEC member, and addressed the media in that capacity. This statement is issued by the Premier of the Western Cape, on behalf of the DA, for a DA-controlled municipality, I wonder who is guilty of spending/wasting tax-payers’ money? Zille certainly has some questions to answer!
More particularly an article and discussion on the duties and obligations of executive politicians in terms of the constitution and our laws will be very important.
@ Brett
It looks like they are about to loose the ones you have just returned.
http://www.timeslive.co.za/local/article412153.ece/Municipal-cops-lose-2575-guns
Donovan says:
April 20, 2010 at 14:22 pm
The investigation Zille ordered was as Premier of a province not as DA leader. Therefore she was entirely correct to release the statement in her capacity of Premier. Of course she is correct where she says that it should not be the taxpayer who must foot the bill, but those who released the false information.
@ Chris
I agree with your first two sentences. But what about information that is given to the Public Protector for investigation (using taxpayers’ money), and it is later found out that the information is false?
Henri says: April 20, 2010 at 11:49 am
“If one High Court set it aside, it’s set aside – in the whole country. Finish en klaar. The Cape decision doesn’t only apply in the Western Cape…
So FUL has nothing to set aside further. They can’t kill a dead horse.”
I agree with Henri. FUL is challenging the decision of the JSC (on whatever grounds the challenge is based) but that decision has now been set aside. Accordingly, there is nothing to challenge, be it on procedural or substantive grounds. So, unless there is an appeal (and it’s successful), FUL’s application cannot be proceded with.
On a different note, Prof, was the point about the JSC not being properly constituted not first raised by Hlophe JP in one of his Court challenges? If I recall, you actually ridiculed the argument before you endorsed it when it suited your desired outcome. Correct me if I’m wrong!!
Mzo is right. FUL’s challenge on the merits of the JSC’s decision is now moot — but it may be open to argue about costs.
More generally, one cannot but lament the CHC’s decision.
Let bygone be bygones, I say.
Sadly, the racist campaign against the finest judge in our history will now continue!
Simphiwe says:
April 20, 2010 at 14:51 pm
Perhaps I should have expressed myself in different term: Those responsible for fabricating the bogus emails should be held responsible.
i see there is no much response on this topic (hlophe), the reason being zuma is already a president and no much moral insetives to comment since nothing will change,we will, however see much public interest when the decision not to prosecute zuma is overturned by the courts,i will personally be glad since it will remind zuma who his friends are and who are not.
I can’t really comment on Hlophe, but I just take your word for it Prof, Fass’s deviant and possibly to some, entertaining humour, not withstanding.
I forget what blog I was commenting on a few days ago, but one response to my post was that those opposed to unconstitutional actions on the part of government individuals or bodies, should stop running to the courts and rather negotiate. My response was: what evidence is there that the government individuals and parties have ever been willing to sincerely negotiate.
I remain in conclusion, of the opinion that the only possible actions which can result in holding government to at least a semblance of Democracy, is via the courts, and I applaud the decision granted Zille this week re Hlophe.
What absolute immature nonsense to suggest that taking recourse to the courts is anything but the ONLY defense we have for Democracy in South Africa.
I would venture to predict that the ANC’s cynical misinterpretation of the constitution will launch a raft of court actions. What else have we in response to their hegemonic drive to total control? Thank God that we still have recourse to the courts. But for how long…
Perhaps Judge Hlophe should send Jeremy John Gauntlett to do his job at the said JSC hearing.
What is the constitutional-lity of this ????
http://gussilber.posterous.com/bloody-agent#
Love this track… malema at his best…
completely off topic
Mzo, you are correct that I wrote that Hlophe’s argument that the JSC was not properly constituted was not good in law. But there is a difference between the two cases. Hlophe argued that the Chief Justice was required to be present, that he had to recuse himself as a party to the complaint and that the JSC could therefore not hear the matter. As the CJ could not be replaced this would have meant the JSC could never hear a complaint if it was impossible for the CJ to be present. I thought this was absurd. In the case of the Premier and the JP the constitiution provides for an alternate to represent them. If it is impossible for alternates to represent them, then the JSC would be surely entitled to go ahead to consider the matter. In the latest case the problem was that the JSC did not even invite the Premier or an alternate for the JP.
Chris, please go and read the statement. Of course, the Premier should announce the outcome of the investigation, and challenges, recommendations found therein. At all times government, even politicians in the executive (different to the legislative arm) have to strive to being as neutral as possible. However, a party political statement coming from the Premier on behalf of her political party from her office of the Premier is incorrect. Zille could have issued the party political statements as leader of the DA, or the provincial leader of the DA could have reacted to the outcome of the investigation raising those party political matters.
Pierre De Vos says: April 21, 2010 at 9:30 am
Thanks Prof. I do, however, anticipate yet another problem: how is the JSC going to deal with the problem you highlighted regarding Section 178(1)(k)?
It seems to me that the words are clear enough that the JP and the Premier will have to do the designation themselves. Now, surely there’ll be nothing stopping Madam Zille from disignating someone from her own party (to circumvent the JP’s claims that she is biased) who will do exactly what she would have done if she was sitting at the hearing. Similarly, there will be nothing to stop the JP designating any other judge whom he believes will side by him – I can see nothing in the section that requires him to designate the DJP if he does not want to.
The CJ will also not be involved in the deliberations right? He is the “complainant” afterall…..looks like we are back where we started and I’m wondering if our judiciary really needs this!!
mzo said:The CJ will also not be involved in the deliberations right? He is the “complainant” afterall…..looks like we are back where we started and I’m wondering if our judiciary really needs this!!
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I am with you on this one. The judiciary does not need all this. Zille might be right by challenging the JSC, but what were her reasons? The JSC was wrong not to go ahead with a hearing, but what were their reasons? Now we are caught with a situation where all (or most) of those involved in the matter are tainted one way or another. We are then being told that justice will prevail. It is impossible. No matter how the matter is now handled. The only victim in this matter is the justice system.
One Question Prof: If the Premier and the Judge President were not present on other matters that were handled by the JSC will these have to revisited too.
One Question Prof: If the Premier and the Judge President were not present on other matters that were handled by the JSC will these too have to be revisited.
Thomas, what a good and relevant question.
This is just an attempt to unscramble the egg. I agree with Thomas, JUSTICE SYSTEM will be the losser in this matter. While we are at it, lets have hearings on Hlophe JP Racism Report, Nicholson Judgement, Arms deal, Dropping of Zuma charges etc. Where do you draw the line?
Thomas and Gwebecimele are right.
Stop the resurgence of RACIST HLOPHEPHOBIA!
Let bygones be bygones. Some things are best swept under the rug.
Hlophe JP has a brilliant career ahead of him.
We cannot afford NOT to have this first class jurist ASAP on the CC!
Thanks.
Thomas says:
April 21, 2010 at 12:06 pm
My understanding is that the Premier and the JP have to be present when matters relating to judges in their particular province are being considered.
“178 Judicial Service Commission
“(k) when considering matters relating to a specific High Court, the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them.”
So both Permier Zille and Hlophe JP!
I have read the judgment (by Rones and Ebrahim JJ). It is sound in all respects and I doubt if any Court would arrive at ad different conclusion.
Advocate Malunga should be a bit embarrassed for assuming that this was Traverso DJP’s judgment. The fact that a judgment is handed down by a particular judge does not necessarily mean that it is that particular judge’s judgment – Malunga should know this! In his first radio interview just after the judgment was covered in the media Malunga stated that he was not suprised by Traverso’s judgment because of the acrimonious relationship between Hlophe JP and her. I think Malunga should apologise to Traverso DJP.
@ Bongs
I think what Dr Malunga may have meant was that the decision was that of a “non-African” judge.
Dr Malunga knows that an African judge, animated always by the principle of UBUNTU, would have rejected the RACIST holding of R v Schierhout (1921), that administrative panels must be properly constituted in order for their decisions to be valid.