While I was out of the country, a report appeared in the newspaper suggesting that the Minister of Justice was on the point of brokering some sort of deal between Judge President John Hlophe and the judges of the Constitutional Court.
The alleged deal would require the Constitutional Court judges to drop their appeal against the legally absurd and factually incorrect decision of the High Court against them, while the complaint against Hlophe would be dispatched with in some innovative way – perhaps by getting Hlophe to retire with a golden handshake.
Such a deal would be bad for the legitimacy of the judiciary in general and the Constitutional Court in particular and if what I hear is correct, the Constitutional Court judges would have none of it. And rightly so.
It is imperative for our judiciary that the Supreme Court of Appeal (SCA) overturns the shockingly absurd decision of the High Court and vindicates the judges of the Constitutional Court. The decision was not only legally untenable it was also based on a factually incorrect premise.
It found that Hlophe’s rights were infringed by the judges of the Constitutional Court because they made the complaint against him public before formulating a comprehensive complaint against him. He thus stood accused without knowing what the charges were against him.
But on the day the story broke Hlophe was asked for comment and he knew EXACTLY what the complaint was, as he denied everything to the media saying to a reporter that the allegations were “utter rubbish” and that he had not approached anyone. As is his habit when accused of wrongdoing, this first statement made by Hlophe (before he spoke to his lawyers) was a bald faced lie.
It was only months later that he recovered his memory and admitted that he did indeed approach two judges of the Constitutional Court, that he did indeed try and convince them to decide the Zuma matter in a certain way, but that this was somehow not wrong. This is a bit like admitting to stealing but arguing that it was ok because people do it all the time.
So even on the facts before the court, the decision of the High Court could never stand and will be overturned on appeal. I think even Hlophe and his hapless lawyers must know that the chances of this happening is about 99.9%, so I assume they are the ones floating the rumours about a deal.
It is also imperative that the Judicial Services Commission (JSC) deals with the complaint by the judges against Hlophe forthwith and that it recommends that he be impeached. I am saying this not only because Hlophe has now been caught out lying several times, but also because even on Hlophe’s own version of events (which might or might not be completely truthful), he is a disgrace to the judicial profession and he cannot continue serving as a judicial officer in South Africa if there is to be any respect for the judiciary in this country.
I suspect Hlophe and his lawyers know this very well and that is why they have been trying to manufacture some sort of crisis. Anything to change the topic and not to talk about what actually happened. They are clearly trying to bully the other role players to try and ensure that the case against him never gets heard and the appeal is not dealt with.
But as the Constitutional Court judges point out in their papers before the Supreme Court of Appeal (SCA), the only constitutional crisis is of Hlophe’s own making. He has run to the courts with his absurd complaint in an attempt to change the topic and make people forget that even on his own version of events the Judge President tried to improperly influence judges of the highest court in the land to rule in a specific way in a politically loaded case.
The judges of the Constitutional Court point out in their papers that if the SCA decides in the Constitutional Court’s favour – which it surely must – the JP is free to appeal to the Constitutional Court, and then to ask for a recusal of the judges, in which case the decision of the SCA will stand. So, no crisis.
And besides, according to the CC judges, Hlophe brought this on himself because he chose to go the court route rather than leaving it to the JSC to decide.
For Hlophe JP now to complain that he would not get a fair hearing before the Constitutional Court should the present matter go on appeal, is analogous to the accused who threatened to physically attack the presiding judge and then complained that … the judge would be biased.
Ouch!
No, Hlophe has done enough damage to our democracy and to the judiciary and the sooner the JSC deals with him once and for all, the better. He is a disgrace to the legal profession and must be impeached. The sooner the better.
Letting him off the hook will further weaken respect for the Rule of Law as it will send a signal that some judges like Hlophe are above the law. This cannot be allowed to happen.
The sooner the JSC dispenses with Hlophe and the sooner he is impeached the better. And the sooner the SCA dispenses with the monstrosity that was the majority judgment in favour of Hlophe in the High Court the better. So, please Minister, please judges of the Constitutional Court: do not make a deal with this man.
Our Constitution and our democracy is too important to be held hostage by such a scoundrel.
And this is exactly why I love this blog.
“And the sooner the SCA dispenses with the monstrosity that was the majority judgment in favour of Hlophe in the High Court the better.”
“It is imperative for our judiciary that the Supreme Court of Appeal (SCA) overturns the shockingly absurd decision of the High Court and vindicates the judges of the Constitutional Court. The decision was not only legally untenable it was also based on a factually incorrect premise.”
Now compare that to the sanctimonious and pretentious:
“he is a disgrace to the judicial profession and he cannot continue serving as a judicial officer in South Africa if there is to be any respect for the judiciary in this country.”
LOL. Ja-nee Pierre. Just like you I respect our judicial system and the constitution when it suits me.
Ozone, how about actually saying something instead of just quoting and leaving us to guess what you are on about.
Or is it this ” Hlope is an inncocent victim of a conspiracy by the CC judges, the neo colonialist white dominated legal profession and Thabo Mbeki to discredit the finest black jurist ever to grace a court in SA. All the allegations of impropriety are just smear tactics devoid of all truth. The man is a martyr for the cause of transformation and must be reinstated immediately so he can continue the good work”
Well?
We are watching:
• The Zuma corruption case.
• The Judge Hlophe case
• The arms deal
• The Shaik parole
• The recall of a sitting President
• The demise of the Scorpions
• The vote for expats
Someday the chickens will come home to roost …
Tony in Virginia // Mar 9, 2009 at 1:45 pm
To add to your points:
The CC judges telling a litigant (who happens to be a judge) that he was NOT entitled to approach Court to vindicate his rights (notwithstanding the express provisions of the Constitution which they are supposed to safeguard) but would have been better served by complaining to a body (the JSC), which by the way, does not have any powers on the issue the litigant took to Court.
Mzo – my understanding is that the CC was saying that Hlopes has every right to approach the CC, but that the likely result would be that the CC would need to recuse themselves in which case the SCA judgement would stand. Their point is rather that Hlopes is NOT entitled to demand that the whole thing be dropped because it could cause some imaginary crisis.
Mzo // Mar 9, 2009 at 3:19 pm
“The CC judges telling a litigant (who happens to be a judge) that he was NOT entitled to approach Court to vindicate his rights”
I really dont think that this is what the CC said. They are, however, suggesting that Hlope’s case is indefendable and his assertions are without merit.
William // Mar 9, 2009 at 4:17 pm
“They are, however, suggesting that Hlope’s case is indefendable and his assertions are without merit.”
I would expect them to say that otherwise what would be point in them going to Court? They have to believe that their case is stronger than that of the opponent – that’s what all litigants say. I argue exactly along those lines for my clients as well otherwise, I believe, I would be doing them a disservice!!
Peter // Mar 9, 2009 at 4:15 pm
“Their point is rather that Hlopes is NOT entitled to demand that the whole thing be dropped because it could cause some imaginary crisis.”
On the assumption that the quote by Prof above is correct (I also saw it in some newspapers but I have not seen the Heads of Argument), what the CC is clearly saying is that Hlope should not have taken the matter to the High Court but rather he should have left it with the JSC. Now that he decided to approach the HC, he cannot complain that the circumstances of this case will make it impossible for him to take the matter up to the highest court. On this reasoning, he was the author of his own misfortune.
I have a difficulty with this reasoning. Firstly, I remain of the view that the judges of the highest court in the land should have known that the manner in which they handled the whole complaint was highly improper. A first year law student would tell you that there is definitely something wrong with issuing essentially one document and calling it with different names – the one called a “complaint”, the other called “media statement”.
If the allegations against Hlope are true, I cannot understand why the CC judges would go and f###k the matter up procedurally, thus creating an exit window for an errant judge. They should simply have advised/encouraged/persuaded (whatever word you can think of) Nkabinde & Jafta to lay the complaint and everthing would have been fine. But, they had a problem. The two judges declared themselves “not the complaining judges”.
Secondly, they should have known (believing as they did that Hlope JP was guilty) that the JP would use every strategy possible to get himself out of the situation. Accordingly, they should have done everything in their power to ensure that the whole process is not tainted.
I think it’s fair to say the CC judges dropped the ball on this one and it is incredibly rich to hear them saying any constitutional crisis that might be created will be of Hlope’s making. What was he supposed to do? Surely it cannot seriously be suggested that he should not have approached Court when he felt that his rights were being infringed – a view he shares with at least 3 High Court judges. Any person who makes that suggestion cannot claim to correctly understand how a consitutional democracy works!!
Much said Prof!
We have this problem in South Africa – in addition to some very stupid people (mostly in cabinet, and in Oranje), we also have some very clever people.
These clever people tell stupid people (like Hlophe) that it is ok – they will use technicalities and obuscatory tactics to cloud the issue. And there is also the race card, along with the racist, neo-colonial, etc etc cards.
At the end of the day, this is what we’re facing:
1. There is a JP
2. There is the ConCourt
3. The JP actually admitted that he went to the ConCourt Justices and asked them to make a specific finding regarding an applicant before the ConCourt.
Ignoring the man’s rights (I think it is ok to do this, since he ignored the right of every bloody citizen to have a judiciary that has ethics and integrity, and the right of every bloody citizen to have office bearers uphold the Constitution, which includes a free of interference notion for the judiciary) – ignoring the man’s rights, please would anybody who thinks that purely on this basis the man deserves to stay a judge?
Following that, please would anybody who thinks this is fine (I’m guessing Spuy will be one of them) tell me if you would be prepared to go up against JZ in court with Hlpohe JP presiding?
I really do not see what the CC judges did in the Hlophe matter that was wrong. As the CC Heads of Argument to the SCA points out – referring to copious precedent – one does NOT have a right not to be reported for wrongdoing to a constitutionally created body (like the JSC). One also does NOT have a right to have such a report kept secret. Moreover the JSC Rules clearly state that when a complaint is heard as a general matter this will be done in public, so the media statement was not only acceptable, it was required to safeguard the integrity of the Constitutional Court and the judgment t was about to deliver in the Zuma case. The only way in which one could plausibly argue that the CC acted wrongly is if one argues (as Hlophe tried to do, but which was rejected by even the majority of the High Court) that the CC judges acted as a court and therefore had to afford Hlophe a hearing before they reported the matter. As they clearly have not acted as a court, there is no way one could argue Hlophe’s rights have been infringed.
The CC Heads of Argument also point out that the JSC is the constitutionally mandated body tasked with deciding on whether judges have acted in a way that constitutes gross misconduct. The High Court wrongly usurped the power of the JSC in this regard. They should never have entertained this frivolous case to start with and they should definitely NOT have found that the JSC is bound by their decision. I am sure the SCA will correct this mistake.
This whole case represents an attempt to change the subject and to try and turn the perpetrator – whom on HIS OWN version improperly tried to influence the judges of the CC – into the victim. We love victims in South Africa so if one did not care one bit for democracy or the judiciary this would be a sound strategy. It is also a deeply irresponsible and unethical strategy as it undermines respect for the judiciary and hence their independence. It might have been tactically sound, but was ethically abominable.
No one has been able to explain how laying a charge against a judge and making this public can be construed as infringing his rights. The CC merely made a statement of FACT. What is wrong with that. What they said in the media statement was true, so there is no infringement of Hlophe’s rights. Please.
The Big Slipper // Mar 9, 2009 at 6:48 pm
“The JP actually admitted that he went to the ConCourt Justices and asked them to make a specific finding regarding an applicant before the ConCourt”.
This is exactly the problem we have in SA, people choose the read what they want to read and not what is written in the documents. Hlope JP never made any such admission (that he asked CC judges to make a specific finding). All he admitted to was meeting with the judges in question.
Prof, your inability to see anything wrong with the conduct of the CC judges smacks of exactly what people like you always warn against: BLING LOYALTY. Pathetic really!!
So far, Mzo 3 Prof 0.
Mzo, perhaps you could enlighten us then as to what exactly they might have discussed during his “meeting”?
In any equation you need to consider all factors, not simply the ones that suit you, or the equation will not balance. SO – a bunch of VERY respected, senior justices, sitting on the highest legal instution in the land, make a complaint that Hlophe tried to influence them to find a in a certain manner regarding JZ. Hlophe admits that he met with the judges.
So, before you lecture on blind loyalty (I’m not exactly sure who I’m being blindly loyal to in any case), perhaps you could tell us what those facts equates to? Focus on my individual words if it makes you feel better – it still doesn’t change the set of facts and the inevitable conclusion. Unless the entire bench of the ConCourt is lying…is that your next argument?
PdV
“so the media statement was not only acceptable, it was required to safeguard the integrity of the Constitutional Court and the judgment t was about to deliver in the Zuma case.”
I think I have pointed out the problem with that statement on various occasions now. The fact that the CC judges felt that they had to resort to “whistle-blowing” tactics tells us they have no confidence in the due processes involving the JSC and therefore and by implication our judicial system. And if the CC feels that way why should the public have confidence in the judiciary then – especially as our constitutional experts often points out just how rubbish our high courts are when they do not agree with them.
Had the honrable and learned CC judges waited a week or so and have given Hlope a decent chance to respond through the official channels they could of course still have gone public if they felt it was necessary. So why did they in effect “bungle” the case by handing Hlope that convenient way out by choosing to rely on the media circus ? Was that a deliberate incompetence or another shit-smearing tactic ? It just smells like Bulelani Ngcuka to me.
Ozone Blue, I don’t think that you can draw any inference that the CC felt they had no credible complaint and so resorted to smear campaign tactics.
I honestly think that the lead actors genuinely perceived an attack on their integrity and, given the then recent attack on Moseneke, they over reacted.
I understand Hlophe to have asked them to apologise for making the Press Statement claiming that they had been approached, compromised and that a complaint had gone to the JSC. As they had not made a complaint, the two Justices “approached” had even written subsequently to the JSC to say that they were NOT the complainants, and the CC asked for additional time to frame their complaint, I think they should just have apologised to the man and then gotten on with their complaint and allowed the JSC to see whether they would swallow Hlophe’s defence.
Their failure to admit to being too stressed by the events to see clearly is resulting in the hyperbolic statements from Pierre about the High Court judgement (which I thought was quite fair) and his insistence that the CC could never get it wrong.
Mzo, read the Hlope submission again. He admits that he approached the two justices. He admits that he spoke about the Zuma case and that he expressed strong views about how that case has to be decided. He admits that he told one of the justices that “you are our last hope”. He admits telling the justices that there is no case against Zuma. So, he admits that he tried to argue with them about how they had to decide a case. Really, read his submission, it is there black on white. Such an interference was clearly shockingly inappropriate and constitutes gross misconduct. Unless, of course you live in another ethical universe where such unethical behaviour is condoned….
ozoneblue, two points. As the CC judges point out, they had a duty to safeguard the integrity of the CC and they would have had to inform the parties of the approach and that they were laying a charge otherwise the integrity of the CC would have been tainted. What would have happened if they kept it quiet and it then came out later? People like you would have screamed blue murder. They had no choice. Second, nothing, I repeat NOTHING, turns on this in any case as everything would have come out as the JSC process is a public process and Hlophe in any case knew exactly what he was being charged with and was quick to deny everything (which turned out to be a lie). There was NO infringement of his rights, PLEASE. I cannot see how one can infringe another persons right by making public that one has laid a complaint against that person. Nowhere in the democratic world is there such a principle and it was invented by Hlophe and the Zuma crowd to try and discredit the CC judges. It is a complete and absurd red herring..
Pierre, Pierre, Pierre. They could have faxed the accusations to Hlope or deliver it by registered mail so that he could not claim that he knew nothing about it, they could have lodged a complain to the JSC and they could have waited one week with out jeopardizing the integrity of the CC AND they could have then acted from a moral high ground if they were dissatisfied by Hlope and the JSC response.
Pierre – if you have problem with a colleague at your university perhaps subtly or not so subtly asking you to cheat/ or “help” a struggling student and remember Hlope is/was after all their colleague, is the first thing you do to run to the media … or do your institution have more recognized mechanism for dealing with that ?
hmmm. oh what please don’t answer that I guess you would be the last one to want to miss out on a photo opportunity.
ozoneblue // Mar 9, 2009 at 11:28 pm
You got a very short term memory and very incorrect
“The fact that the CC judges felt that they had to resort to “whistle-blowing” tactics tells us they have no confidence in the due processes involving the JSC”
The CC judges had a meeting with the JSC infact its the other way round the Judge Pius Langa called a meeting with the CC judges TELLING them to make a media statement. IT WAS THE JSC recommendation to make the media statement…..do you understand now?
then you say:
They could have faxed the accusations to Hlope or deliver it by registered mail
which infact Judge Pius Langa did before the media statement was made…..once again hello????
Mzo // Mar 9, 2009 at 7:46 pm
“This is exactly the problem we have in SA, people choose the read what they want to read and not what is written in the documents. Hlope JP never made any such admission ”
Yeh i agree you are the problem cos you seem to ONLY choose to read what you want and not LOOK at all the FACTS:
FACT: Chris Jafta and Bess Nkabinde had a meeting with Pius langa and and made a joint statement to the JSC about what HLophe said to them and tried to improperly influence them. But unfortunitly we are still yet to here this statement in a court of law because Hlophe is to busy playing the victim card and side tracking the real issue.
oh what was that:
Pierre 3
Ozoneblue 0
MZO 0
you guys are getting your ass kicked
The Big Slipper // Mar 9, 2009 at 8:20 pm
Like so many other people, you fail to correctly understand my view on the issue at hand. Let me spell it out for you:
1. The matter currently before the Court has nothing to do with the merits of the complaint or what did or did not happen in those meetings. Accordingly, the issue of who you believe or not is neither here nor there. The Court is simply concerned about the MANNER in which the complaint was handled. Get your mind around that and perhaps we can get somewhere!
2. On the issue of the merits, I have said it so many times in this blog that this is the issue that must be left to the JSC to decide. I strongly believe that Hlope JP has a lot of questions that he needs to answer. Likewise, I think the CC judges, particularly, Nkabinde, Jafta, Langa and Moseneke also have a lot of explaining to do. If it is found that Hlope JP is guilty as charged, I would be the first one to say he needs to be punished appropriately.
3. As for your statement: “Unless the entire bench of the ConCourt is lying”, that, to me, is exactly the problem. The “entire bench” does not know what transpired, save for what they were told by the two judges. The fact of the matter, Prof’s sensationalism notwithstanding, is that the rest of the judges heard a story from one side, the very same side that inexplicably declared that they had no intentions of laying a complaint – a stance they aparently abandoned when the “proper complaint / further particulars thereof” was lodged with the JSC. Question one needs to ask, could it be that Jafta & Nkabinde also saw the discussion in the same light as Hlope apparently did, as nothing more than just a discussion between two judges?
I do not know the answer on the merits of the complaint but I do know that the MANNER in which the complaint was handled is not one that you would expect from judges who are adopting a moral high ground.
Mzo // Mar 10, 2009 at 8:31 am
Now we getting somewhere thats alittle bit better and i can agree with most of what you said esp section 2
but this whole situation was caused by Hlophe and brought it on himself to go to the courts when the matter should have been taking up at the JSC….agreeing with what Pierre is saying that there actually is no crises to the conscourt but Hlophe trying in vain to create this tension or fake crises
another thing is the JSC told the CC judges to make the media statement, what Hlophe is doing and what you are doing is simply shooting the messenger. It is a known fact the Langa told the CC to make a media statement in place of him, while Langa prapers a statement for Hlophe about the complaint before the media came out.
ozoneblue, I am not sure what you are on about: the CC DID fax the complaint to Hlophe before making it public (that is why Hlophe knew what the complaint was against him when first asked by journalists!).
Second, your example does not hold water as in my case I would not have been the highest court in the land whose integrity, impartiality and independence depends on what the public out there thinks of me. The approach by Hlophe was an attack on the independence, impartiality and integrity of the CC as a whole. The only way to deal with it was to lay a complaint and THEN to make it public so that there could be no rumours or confusion about the integrity of the Court.
Third, no one has yet explained to me what was the problem with making public the truth, namely that the CC had laid a complaint against the JP with the JSC. The CC judges merely informed us about something that was objectively true. Example: if I happen to bump into the JP and we get into an argument which results in an assault. I then go to the police and lay a charge of assault against the JP. Then I phone my friends in the media to report to them that I have laid a charge of assault against the JP. In your view I would be doing something wrong. But we do not life in North Korea and I would have every right to inform the media about something that is FACTUALLY TRUE, namely that I have laid a charge against the JP. What is wrong with that? Well, NOTHING. Or are you saying that the judges had no right to report the FACTUAL TRUTH to the media? If so, Why not?
Pierre De Vos // Mar 9, 2009 at 7:07 pm
“…on HIS OWN version (he) improperly tried to influence the judges of the CC”
Prof, if you were making this submission in Court you would be chastised for misleading the Court! There is no factual basis for your submission and you know it! This is what you are allowed to say though: “Based on the factual admissions made by Hlophe JP in his affidavit, I submit that he attempted to improperly influence the judges of the ConCourt…”
Your students, who aspire to be Trengoves of tomorrow, would appreciate to be told at this early stage that it is unethical to mislead the Court by making factually incorrect submissions!
Pierre De Vos @ 9:05 am
Well – if it is in fact true that the JSC instructed the CC judges to make their charges public after they followed the proper channels as chris is asserting – then my entire argument holds no water.
So – the question is then begging what are the high court on about when they say that they have problems with proper procedures not being followed ? Perhaps they were also bribed by that evil Shaik family ?
Chris
Where do you get this info that the JSC asked Langa to publish the statement? As far as I know, even if they wanted to (on its own, a very strange thing to so) they could not have because our beloved CJ had already seen if fit to publish the statement anyway – probably even before they were able to go through it.
The fact that Prof does not even correct this misinformation is telling. I
Yes, Chris is wrong. The JSC did not instruct the CC judges to go public. It was a collective decision of the thirteen judges and the reasons for this decision is fully canvassed in their Heads of Argument submitted to the SCA. There the point is made that as the approach was seen as threatening the integrity and thus also the independence of the CC it had no choice but to make public what would have become public in any case. Point is, this remains a non-issue. No one has been able to explain to me why it was wrong to go public. As Heads of Argument point out, the CC judges merely informed the media of an objective truth, namely that it had lodged a complaint against the JP. Now the judges are lambasted for making a statement of fact. Why this is a problem is beyond my comprehension.
Prof
Personally, I think the biggest problem is that what the CC sent to the JSC cannot, objectively, be regarded as a complaint. C’mon now Prof, that was exactly the same statement as the media statement. It did not even say who the two judges were. Surely if this was a real complaint, Hlope JP should have, at the very least, been informed of what case he had to meet. You would expect the CC judges to at least know that much.
In my view, that is exactly the problem: objectively, there was no complaint when the media statement was issued on 30 May – that complaint only came more than 10 days late!!
Prof
Where can I find the Constitutional Court’s Heads of Argument
“I really do not see what the CC judges did in the Hlophe matter that was wrong.”
I almost see the argument developing along a “hue and cry” type line, which I am worried about for obvious reasons. The CC is our highest court. We must respect their judgement and wisdom. How can we do this if they can’t just admit that they jumped the gun, faxed out a press release at the same time as they advised the JP they were cross with that he was subjected to a (as yet not submitted) JSC complaint against him……….
Pierre, if Zuma faxed off a Press Release saying that he had laid a charge against you for child molestation at the same time as he faxed it to you, and rather than a sworn statement, he faxed the Press Release to SAPS, you would be livid! Why? Because it is bad form. It could be defamatory (SAPS hadn’t even begun investigating, never mind the court finding you guilty, yet the whole country would hear Zuma’s side of the story). Does it matter than there is no actual law specifically saying that this course of action on Zuma’s part would be wrong? Are we not constantly trying to carve ways through our constitutional law to show that convicted fraudsters can’t take up Parliamentary seats if they have a suspended sentence? That a sitting President can’t pardon himself? All the other arguments you put forward without positivist black letter law being in existence?
Why the shift in emphasis now?
There is another facet to this whole saga that has not been discussed much. This is that the Constitution is faulty in how these complaints against judges should be finalised.
The JSC must handle a complaint in an objective legal manner, with due regard to process and standards of evidence (presumably the civil test of “balance of probabilities”), and then reach a finding, and recommend a course of action. A recommendation to impeach must therefore be reached according to objective criteria and standards, and must relate to wrongdoing in terms of law.
Then, …then, it goes to Parliament! After a legal process (conducted according to judicial standards), the whole matter is made subject to a POLITICAL process! There is no requirement to adhere to legality (in relation to the substance of the complaint) or even rationality. A simple majority of parliamentarians, driven by party-political considerations, can override findings of fact and law, and not have to account for explain their decision.
By the way, does anyone know when the JSC might hear the matter (specifically, in relation to the tming of the elections)?
no not wrong really
Langa CJ did note that as chairperson of the JSC it would not be appropriate for him to issue a media statement. It was also greed that Langa CJ would call Hlophe JP and inform him of the complaint; that the complaint would be sent to Hlophe JP and thereafter would be lodged with the JSC. It was agreed that thereafter the media statement would be issued.
langa is the Chair person of the JSC
The 2006 Judicial Service Commission Amendment Bill.
The 2006 Bill tasked the Judicial Service Commission (JSC) with appointing a sub-committee termed a Judicial Conduct Committee (JCC), the responsibility of which was to advise the Chief Justice on ethics, to compile a code of judicial conduct, consider and dispose of complaints and maintain a register of financial interests of judges. The latter amendment was necessary as no formal disclosure requirements existed, a necessary instrument to ensure transparency and to promote efficiency through the exposure and deterrence of conflicts of interest.
once again the JSC amendment bill gives the Chief Justice of the JSC powers to order the CC judges to make a media statment on hlophe
There clearly was a complaint lodged, and only then was it made public. These are the proven facts. The only plausible argument would be that the initial complaint lacked detail and that this was detrimental to Hlophe as he could not defend himself. But there are two reasons why this is an untenable view. First, on the facts before us this argument is untenable as on the very day this was made public Hlophe DID defend himself, stating that the allegations were rubbish and that he had not approached anyone (later he had to admit that he did indeed approach the two justices….).Second, if the logic of the CC detractors are followed it would mean one would not be able to make public the objective fact that one had lodged a complaint against anyone (or laid a charge against them) until one has constructed a full case against the accused. But read the Heads of Argument of the CC where it quotes copious case law which have established that no one has the right not to be accused and that the right to a fair hearing does not kick in at such an early stage of a process. As the CC heads point out, to hold otherwise would be to confuse the decision to lay a complaint with the adjudication of that complaint. The only reason we are arguing about it, is because this red-herring was raised by Hlophe to detract attention from the real issue, namely that he had approached justices of the CC and that he had forcefully engaged them on a pending case….. It is a classic tactic of the guilty.
Pierre De Vos @ 10:33 am
“The JSC did not instruct the CC judges to go public. It was a collective decision of the thirteen judges and the reasons for this decision is fully canvassed in their Heads of Argument submitted to the SCA. There the point is made that as the approach was seen as threatening the integrity and thus also the independence of the CC it had no choice but to make public what would have become public in any case.”
They had plenty of choice. There was absolutely no crises as I have pointed out they could have followed prescribed procedure and have maintained the option to “blow the whistle” if they were not satisfied that the JSC would address the problem in a fair and transparent way. The fact that such a JSC instituted hearing/investigation would have been made public “anyway” is totally irrelevant and immaterial because that would in any case have addressed your hypocritical, bleeding heart concerns with the “integrity of the CC”.
Which goes back ti the bottom line. Why does the CC have no confidence in the JSC ?
ozoneblue // Mar 10, 2009 at 12:07 pm
im sorry the whole lot of you are missing the plot here, CC judges are just the messengers, they are given an instruction by LANGA CJ to make the complaint public, Langa is the chair person of the JSC .he knows full well what the procedures are and what to and how to respond insituations like this as the JCC helped him compile a code of ETHICS esp on matters like this…….if anyone is to blame for going to the media about this it is LANGA!!! not the CC judges are they were following out instructions, and this is besides the god damn point, the point is a JP was found influencing two junior judges, there are witness’s there are statments stop beating round the bush on crap
Chris
Debating this issue with you is clealry not going to assit because you have no clue that in issuing the statement, Langa was not acting in his capacity as the JSC Chair but as a CC judge – as one of the so-called complainants.
The less said about your statement: “JP was found influencing two junior judges, there are witness’s”, the better. There has been no FINDING yet and there are no WITNESSES, even on the CC’s version.
I repeat, if Hlope JP is subsequently FOUND to have done wrong, he must face the music. However, that cannot give the CC judges (as complainants) the right to infringe his rights and he Hlope fees that his rights have been infringed, he has every right to approach Court like every other citizen would do. Why should he be treated differently?
Mzo // Mar 10, 2009 at 12:57 pm
“Langa was not acting in his capacity as the JSC Chair but as a CC judge”
Oh how convenient for you, really then explain why Chris Jafta and Bess Nkabinde went first to Mokgoro J who then advised Nkabinde J to report the matter to Langa CJ? since Langa is acting in his capacity as a CC judge? then why bother go to him to make the report?
hmmm lets see what happens next Mokgoro goes to see who about this…..O’Regan ADCJ then who does o”regan go and see? …..Moseneke DCJ
lets see what does DCJ stand for? Deputy Chief Justice what does ADCJ…..maybe that stands for Acting Deputy Chief Justice
well lets have a look here we have a CJ and DCJ and ADCJ…what do all of these people have in common…oh my they are part of the JSC.
So clearly AJ’s know who to report to and who JP know who to report to when it and ACDJ and DCJ know who to report to when comes to ethical situations.
So please dont come with this B.S that Langa was not acting in his capacity as a CJ JSE….he has a constitutional mandate enforced by the JSC act and amendment bills to act in his capacity as a CJ of the JSC and to handle an ethical crises, not when it suits you to make a bassless argument! then called a meeting with the CC judges about the situation of HLophe who then he instructed to report this to the media, once again acting in his capacity as a CJ of the JSC he is entitled to do that and thats what he did.
Really no witness’s what would you call Chris Jafta and Bess Nkabinde and Mokgoro? are these people just a figment of our imaginations?
i mean really….
now this,
I repeat, if Hlope JP is subsequently FOUND to have done wrong, he must face the music
well it reported he has been found wrong but tell him to stop playing a little childish game and face the music
Chris
You are hopeless!!
Mzo
no my man you clearly lost the plot
“I am the Chief Justice of South Africa. This statement is made in my capacity as Chief Justice and as the head of the Constitutional Court”
IN MY CAPACITY AS CHEIF JUSTICE not in my capacity as a CC judge
“STATEMENT IN SUPPORT OF COMPLAINT TO THE JUDICIAL SERVICE COMMISSION BY THE JUDGES OF THE
CONSTITUTIONAL COURT MADE ON 30 MAY 2008″
in support!!!
You really dont seem to know what the powers of a chief justice is do you?
let me help you
As the chief executive of the third branch of government, the Chief Justice wields enormous power over the development and implementation of ethical mandates
the Chief Justice presides over the JSC….once again you guys are shooting the messengers the CC judges if you want to blame someone about releasing the statement to the media it came from Langa who instructed the CC judges.
so if want to blame the question the integrity and credibility then it would be the Chief Justice, who presides over the JSC, once again who presides over the JSC
dude catch a wake up
Chris Mcdaniel // Mar 10, 2009 at 2:25 pm
If all that you claim were the case, why is Langa CJ recusing himself from the JSC panel?
And your language and approach is very disagreeable.
Mpho
“If all that you claim were the case”
No these are the facts I pointed them out to you so it is the case not “were” the case, this isnt hypothetical, this actually did happen, how you denying this is mind blowing but i can understand cos if have to agree with me you would have to agree with the fact the high court judgement was wrong.
“Langa CJ recusing himself from the JSC panel”
Um lets think abit here, since he has recursed himself from the “CHAIR” goes to show the honour and intigrity of the man as he is in “SUPPORT” and also laid a comlaint with the CC judges, how objective would it be if an investigation took place and Hlphe was callled up towards the JSC and Langa being chair of the JSC? Hlophe would cry foul wouldnt he?
The head of the JSC the man who presides over the JSC told the CC judges to make a media statement…YES or NO?
Christ Langa has done crap loads of lectures on ‘Judicial and Legal Professional Ethics as well as with the JCC implementing this in the judical system.
The guy knows what the procedures are when it comes to complaints!
Procedures were followed thats why the high court is wrong and procedures are still being followed as you kindly pointed out about Langa recusing himself to not only show you and me but the entire country that the Judicial institute is acting with a sober mind…..as we and you know what a cry baby Hlophe is
Mpho @ 11:00 pm
Stop feeding the troll Mpho. Pierre has directly contradicted his lies. CJ didn’t act on behalf of the JSC according to any established protocol when he prematurely ran to the media.
ozoneblue // Mar 11, 2009 at 9:02 am
“CJ didn’t act on behalf of the JSC”
Really where’s your evidence?
please go put on some make up retard
its a legal first today
Nine justices of the Supreme Court of Appeal will sit to decide whether or not the Constitional Court had impaired Judge John Hlophe’s dignity by publicly stating that he had tried to interfere in a case involving Jacob Zuma.
http://www.saelections.co.za/articles/1780/sca-to-hear-hlophe-case
and a little justice i think from my side on dignity and tarnished reputation
University of Florida US law professor who served as an acting judge in the Cape High Court,has been granted to sue Hlophe for defamation of R6-million.
what goes around come around
Just an update
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=nw20090323181823884C797087
“The Supreme Court of Appeal on Monday reserved judgment in an attempt by the Constitutional Court to appeal a high court ruling in favour of Cape Judge President John Hlophe.”
What im finding to be rather cheeky tho is the….
“Junior legal counsel for Hlophe, Thabani Masuku, told the SCA that the release of the media statement was a “highly irregular act” for members of the judiciary”
“It’s our submission that when judges speak to the public they must have a regard for the impact of what they about to say.”
lol i dont know about you but I find that rather rich and arrogent….firstly approaching Justice Bess Nkabinde and Acting Justice Chris Jafta without invitation is a “highly Irregular act” without having regard for the impact it might cause….i mean ello??
According to Legalbrief Today, Ntsebeza and his Junior, Masuku, were not only grilled, but routed by the SCA judges. Bongs – remember the score?
Anonymouse,
I love it
“Judge Robert Nugent asked advocate Dumisa Ntsebeza SC, for Judge Hlophe, for any authority “anywhere in the world” that stated that there must be an investigation before a complaint is made”
“None was offered and Ntsebeza eventually conceded that there was no basis for arguing that the complaint itself was unlawful.”
is it just me or is Hlophe trying to wing this? there seems to be no game plan….this is extremely shloophe
Chris – I agree. Unlike his earlier shows of flair before the Ginwalla Commission, Dumisa Ntsebeza got so stressed up during his grilling in the SCA, he requested an adjournment first and, later, he requested the Court’s indulgence so that his junior, Masuku, could take over.
Chris it’s really motivational the insight you gained into SA law. I believe you tought those guys a lesson and I must admit, me too. Thanks
friend thanks for that
but im gonna blow ur minds here, funny enough, florida had something similer
before you read the link bear in mind the US basis its code of judicial ethics on Canon law and basicaly:
The canon says that judges assessments can be made to the public.
one can read the full judgement by the SCA on Judge Barns, the difference here is where Barns erred was not follwing the right channels first but rather made ” so called public attacks instead” to get attention to the problem he faced with other judges and inviting 3rd parties. attacks is th key word and not complaint
http://www.victimsoflaw.net/FL_JudgeBarnes.htm
Now what I want you to bare in mind
Judicial Qualifications Commission (JQC which is similer to the JSC)
“The strident and harsh manner of attack embraced by Judge Barnes combined with his choice of a public forum to attack particular judges and their practices clearly separates this case from legitimate attempts to improve the law,” the justices wrote in an unsigned unanimous opinion.”
after reading that and comparing to judge hlophe one can easily see publishing a complaint is not unlawful, attcking judges in the public domain is unlawful.
hlophe wasnt attacked but a complaint was aired
esp in the promation of legitimate attempts to improve the law or the system, which the CC judges of south africa has done by promoting the values of the ethics of judiciary by issuing a complaint with the JSC and the public in order to enforce public confidence!
I rest my case.