How low can you go?

It is most gratifying to note that Judge President John Hlophe has recovered from the terrible illness that prevented him from appearing before the Judicial Services Commission to answer the charges of gross misconduct brought against him by the judges of the Constitutional Court. He has clearly now recovered sufficiently to have consulted with his lawyers in order to prepare papers for an appeal of the SCA judgments against him to the Constitutional Court- all in an attempt to conjure up a “constitutional crisis”.

Having perused the founding affidavit prepared by his lawyer, Lister Nuku, in this appeal, I also have to say that the Judge President and his lawyers are definitely getting better at arguing this case and have prepared a relatively coherent – if not legally particularly plausible – document. However, the intentions lurking in this document are deeply troubling and reflects very poorly on the integrity of the Judge President and his lawyers.

Legally, the application is dead in the water. The first big problem for Hlophe is that both the High Court and the Supreme Court of Appeal  (SCA) found that the judges had not acted “as a court” when they lodged the complaint and made this complaint public. Hlophe’s own lawyer actually conceded this point before the SCA, so one would have thought this would be the end of any plausible case.

The affidavit tries to fudge this issue by purporting to invent a new concept, claiming the judges acted not as “a court” but “as an institution” and, later, “as an institution of Judges”. It then asserts that because the judges acted “as an institution” they were bound by section 8(1) of the Constitution which states that: “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state”.

It is not clear what the difference might be between judges acting “as a court” and acting “as an institution of Judges”, but it seems to me even where judges act “as an institution of Judges” it would be pretty hard to argue with a straight face that although this is different from acting “as a court”, the judges were nevertheless bound by the Bill of Rights because they acted as “the judiciary”. If they did not act as a body adjudicating a case (thus not as “a court”), they could not be said to have acted as the judiciary and could not be directly bound by the Bill of Rights.

The problem Hlophe and his lawyers have is that when the judges of the Constitutional Court lodged a complaint, they did not make a finding about the guilt or innocence of Hlophe and therefore did not exercise a judicial function. They have consistently pointed out that constitutionally it is the JSC who has the power to make a finding on the guilt or innocence of Hlophe and that they could therefore not possibly have acted “as a court” – nor could they have exercised a judicial function when they lodged the complaint – and that they therefore had no duty to give Hlophe a hearing before lodging the complaint. To hold otherwise would be to conflate the lodging of a complaint with the adjudication of the complaint – something that even most second year law students would not do.

The affidavit also challenges the finding of the SCA that if Hlophe’s right to dignity had been infringed, he should have brought a defamation claim against the judges to vindicate his rights. The SCA argument was based on the fact that in order to establish whether Hlophe’s right to dignity had been infringed, one would have to determine whether the allegations were true or not. One does not infringe a person’s dignity by making allegations against someone that are both true and in the public interest to make public. If the allegations against Hlophe were true, there could not possibly be an infringement of his rights.

Hlophe’s lawyer, astonishingly, argues that it is irrelevant whether the allegations against him were true or not. Even where judges of a higher court lodged a complaint against a lower court judge like Hlophe (ostentatiously and self-importantly referred to as a “senior judge”) and that judge was in fact guilty of the gross misconduct complained of, it would constitute an infringement of the lower court judge’s dignity if that fact was made public.

Moreover, Hlophe’s lawyer fails to mention – let alone address – the many decisions of the Constitutional Court which state that where rights can be vindicated via the legislation or the common law that gives effect to a particular right, one must rely on the legislation or common law and cannot invoke the right directly. That is exactly why the SCA found that if Hlophe felt that his right to dignity had been infringed, he had to rely on the law of defamation, which provides a common law remedy for an infringement of his dignity.

But Hlophe could not afford to do so because he would only be successful with such a claim in terms of the law of defamation if the allegations against him were not actually true. And if there is one thing Hlophe cannot afford, it is for a court or any other body actually to consider the truth of the allegations of gross misconduct against him.

Most problematic is that the application clearly envisages that this case can never be heard by the Constitutional Court.  With a certain glee it is then asserted that this would constitute a constitutional crisis. Hlophe’s lawyer does not propose any solution to this problem, merely arguing rather unconvincingly that Hlophe’s rights will be infringed if his case is not heard by the Constitutional Court. This confuses two things: one is a right to appeal to the Constitutional Court (which is guaranteed by the Constitution) and the right to actually have your case heard by the Constitutional Court (which is nowhere to be found in the Constitution).

The sole aim of this application is to conjure up a “crisis” in order to detract attention from the serious charges of gross misconduct against Hlophe. Hlophe is in very deep trouble regarding the merits of the complaint against him because even on his own version of events he acted in a shockingly unethical manner. This is why he has to fabricate a crisis in an attempt to try and avoid any mention of the merits of the case. This strategy constitutes a selfish and destructive attack on the integrity of the judiciary and reflects very badly on the integrity of Hlophe and his lawyers.

But hey, why worry about the integrity of our constitution and the institutions created by it when one own’s survival is at stake?

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