Hlophe’s ad hominem attack smells of desperation

Hats of to the JP: he knows how to fight dirty. Thus, reading Judge President Hlophe’s response is an interesting exercise and presents a lesson to us all in how to rescue oneself from a rather awkward situation by attacking the accusers on even the most flimsiest of legal grounds.

So as expected, there it was sommer on the first page of Judge President John Hlophe’s response to the complaint filed by the Constitutional Court against him: there is a conspiracy against Judge Hlophe because of, gasp, his racism report. Hey it worked the last time around when he should have been impeached so why not trot out the ad hominem arguments again? Of course the fact that both the Chief Justice and the Deputy Chief Justice are black and have a long and proud record of fighting against racism is a bit of a bother and detracts from the veracity of this claim, but the JP is clever at manipulating facts for political gain.

His response therefore reads more like the rantings of a demagogue backed into a corner than like the considered and dignified defense of an innocent man.

A few preliminary remarks.

First, throughout his statement the JP seems (deliberately one hopes) confused about the rules of natural justice. He complains bitterly that the complainants had infringed his rights by not giving him a chance to give his side of the story before laying a complaint, thus conflating the complainant with the body charged with hearing the complaint. It’s a bit like a rape accused complaining that his rights to a fair trial were infringed because the complainant had not given him the chance to give his side of the story before running to the police to complain.

But any second year law student will be able to tell you that the rules of natural justice applies only before the body who must hear the complaint and that the Constitutional Court – as complainants in this matter – had no duty to hear his side of the story before laying a complaint. To suggest otherwise is to confuse the duties of the accuser with the duties of the body charged with hearing the complaint. If Judge Hlophe really believes this, he is rather dim-witted and has a dangerously uninformed understanding of human rights and the Constitution.

Second, the JP makes very serious unsubstantiated allegations against the Chief Justice, stating as fact that the Chief Justice had leaked the complaint to the media. Can he back this up? If not, why make this allegation? To my mind this is a rather callous but very devious and politically astute attempt to cloak himself in the mantle of victim so much the better to claim that – like Jacob Zuma – he is the victim of a conspiracy. It is also very unbecoming of a judge to make such wild allegations against the highest judicial officer in South Africa without an iota of proof and suggests he will do anything to defend himself.

Third, the Judge President is trying to divert attention from the charges against him, by putting the Constitutional Court in the dock. This he does by suggesting that it was up to the two judges approached to decide on whether an alleged attack on the integrity of the Constitutional Court should be addressed by the JSC or not. This deliberately misconstrues the nature and seriousness of the complaint against the Judge President.

The leadership of the Constitutional Court had a constitutional and legal duty to bring this complaint if in their opinion the allegations were of such a nature as to amount to gross misconduct on the part of the Judge President. They would have been criminally negligent if they had allowed the matter to rest merely because two judges of the Court lacked the necessary ethical wisdom to pursue the matter.

On the substance of his rebuttal I must say, I find the Judge President’s explanation for telling Judge Jafta that regarding the privilege issue in the Zuma case “you were our last or only hope”, rather unconvincing. In effect his defense is that Judge Jafta would not have been influenced by this statement so it could not have amounted to improper influence. But he does not deny telling Judge Jafta that he had to rule properly in this matter, merely that Judge Jafta had not objected to anything he said, so it had to be ok then.

But it is clearly inappropriate for a judge to have such a discussion about a pending case with another judge in a higher court. If he cannot see this, he is ethically even more challenged than I had thought.

The same goes for Judge President Hlophe’s explanation of his discussion with justice Nkabinde. He claims she had told him she was writing the note on privilege, contradicting the statement of the Constitutional Court, and admits to having put his case “forcefully” in favour of the Zuma position. Once again, if the JP cannot see that this kind of thing is deeply unprofessional and unethical he is really a morally blind man – even on his own version of the events.

On the mandate issue: am I the only one to find this explanation strained? Why would one use the word “mandate” to refer to the fact that one was asked to chair a meeting? I suppose it is possible, but it does not seem very convincing to me. If true it suggests that Nkabinde is rather slow and that she confused two very different things. Possible yes, but is it probable?

Interesting, there are significant differences between Judge President Hlophe’s version of events and the version of events ascribed to Justice Nkabinde by the Constitutional Court. One of the judges are therefore lying. Significantly, Justice Nkabinde has no reason to lie and does not have a history of telling lies. Judge President Hlophe does have a very significant interest in lying and does have a history of telling lies. Let us see if the JSC finds this as significant as I do.

For me the most disturbing part of the Hlophe response is the following:

It is very disturbing that a conversation conducted in chambers with other judges is now a judicial transgression which can legitimately  trigger the process under section 177 of the Constitution. I believe that Judges should be independent and impartial and obliged to pursue their duties without fear or favor. I believe that our judges have all these qualities, but between them, there must be an intellectual interaction that can only fortify the sense of independence. I do not think a judge should be over sensitive and shy away from hearing a robust view of a colleague but still maintain the independence of thought and intellect. To elevate judicial interaction of this nature to misconduct for impeachment purposes will weaken our judiciary.

What the Judge President seems to suggest is that it is perfectly fine for a judge of a lower court to visit judges of the Constitutional Court and then to try and convince them to decide a case in the way approved of by that judge. Not only does he suggest this is acceptable, but also that it is “disturbing” that others would think otherwise.

This is astounding stuff. It seems to me to come close to an admission of guilt on the part of the Judge President – even if he is so ethically challenged that he does not even realise it. If he cannot see that a judge should not forcefully discuss the outcome of a pending case with judges of another court, he is really, really misguided in a way that is beyond belief.

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