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?
How low can you go…
Zuma supporters, as opposed to ANC supporters, does the phrase above not ring the bell?
My wild (and intelligent) guess is that during his sickness, Hlophe and his team and other sympathizers have been planning this strategy. They already know who is going to preside over this case, and that person (or persons) will do another ‘Mpshe’ on Hlophe. This time this ‘Mpshe’ will clear Hlophe so that he is eligible for an even higher position.
That is my theory and I will stick to it until proven incorrect.
“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.”
Why so?
I see it’s ‘Hlophe time’ once more. Oh, well, back to the grindstone …
Tony, your theory has a great deal of merit. And what will that “even higher position” be? One guess only.
It will not be long before some important politician wades into this in order to make it go away. And if this came to pass it would futher erode the rule of law. Remember this saga has political roots. As it stands, Hlope needs a miracle to get him out of this, someone who can walk on water. In a few weeks … it’ll come.
Prof, being a legal scholar – you seem uninteresting like some in the opposition politics! You should always be excited when the boys play around with law (while of course trying to defend themselves seriously in the process). But to me this is exciting. Not only does this strengthen and enhances our institutions but also subject our laws and the very “holy” constitution through continous robust scruitiny. We do need these complex cases, e.g review appl by the DA etc, also to establish precedents, or is it caselaws? whatever!
While the legal fraternity can pontificate over the legal complications, by my understanding there is a much bigger hurdle ahead. Removal of a judge needs to be approved in parliament. And who appoints Constitutional Court judges?
Some spin about the brave patriot Hlope who was prepared to stand up for justice, now vindicated by the innocence of Jacob Zuma, and tah dah!
Mission accomplished.
Clara et Tony – The ‘higher position’ could only be CJ, since DCJ and PSCA would be way too close to JP for Johnnieboy. (Tip- The ‘-boy’ is not intended to have a racial connotation – but rather to have a ring of colloquialism.) Problem is – even if the CC is restructured with 11 acting CC justices (from which the Full Bench of the SCA and the current 11 in the CC – coudl one exclude the AJ’s that were not part of the case against him? – are to be excluded), even a recommended impeachment before Parliament will never succeed with the ANC’s majority there, with JZ as its leader (remember that the thing started with the Zuma case!). Unfortunately, with hindsight of what happened in the recent elections, I must class all ANC MP’s (who will probably not have the luxury of a secret ballot in case of impeachment) as people who do not know how to separate party from state – and how to recognize when the rule of law is more important than politics. Remember – for impeachment to succeed would require at least a 2/3 majority vote in both houses – and the minority parties could not garner that kind of support on an issue like this. So – what happens with/in the Hlophe appeal is just an academic exercise – where the rule of law is destined to lose.
Yes, it’s blatantly obvious that Hlope’s strategic bout of influenza was designed to buy him some time. Say, enough time to last until a Jake ‘the Take’ Zuma presidency? After all, Hlope is accused of trying to convince judges to think of their futures. Clearly, Hlope has.
back from the death, is good to see that the blog are still going strong(very relevant and intelectually stimulating information) right at your finger tips or kanjani. As much as i have pick up a lot of frivilous arguments, ag what do i know ngi hlala emkhukweni(stay in a shack) but one thing i know is that how do repair a car if you are not a machenic beter even you will find that some guys specialises in for instance in opel, toyota, etc so i take it were are all constitutionalist and can then take it from there. Inconclusion i think the Hlope legal team and the previous one he had pionts to the fact that we are in dire need of constitutional lawyers. mocha
“Jake the Take”? Don’t you mean “Jake the Flake”?
Well, Jake did Take that 500k per year bribe from Thint. Flake works for me too. Anything but Dr Zuma. You can’t be a doctor without high school, a basic degree and considerable post grad behind your name.
Prof, I am sorry to be “out of order comrade”. But please make some time in the near future to discuss or ‘disect’ in detail the relationship between the Labour movement and the ruling Party (Cosatu&ANC) vs advantages and disadvantages thereof. I am told COSATU will soon be calling for an INDABA on this topic. Remember COSATU still has a ” One Country, One Federation” vision to realise, and to do that, Fedusa and Nactu (now SACOTU), which are politically non aligned, have to come on board. Pls Prof.
Spuy says: “Please Prof”?
I actually like that.
Spuy – I see that already Cosatu and SACP are voicing their expectations to be prominently included in a Zuma Cabinet (for the role they played in ANC’s R200 Mil camaign), whilst top ANC voices say that there is no room for a more leftist viewpoint in govt. What will JZ do? Accept a bribe?
Of course JZ will accept a bribe. The biggest one. It’s our saving grace that he would.
Ironically Garg you may be right with that last point.
Good old Hlophe…I’ve always said, in life, presentation and timing are everything. In this case, it seems like timing is the crux of the issue. Presuming the JSC do find him guilty (which, according to his own admission he is), we will get to watch the ruling party ride roughshod over the rule of law – again. After all, which ruling party wouldn’t want a judge who is so fervently on their side that he’d abandon all sense of legality and ethics in order to serve their ends?
If the JSC doesn’t find him guilty, we’re still screwed, because based on Hlophe’s own admissions, as well as his dubious manouvering to avoid any sort of hearing whatsoever and past record of somewhat blatant lapses in ethical judgement, he seems very very guilty to say the least. So the JSC still has its credibility undermined.
Until the average man on the street realises that things like this directly impact each and every person, we’ll continue to get the government we deserve – that bunch of corrupt, nepotistic, self-serving fat cats who are currently sitting in government benches in parliment.
This dignity thing is beginning to bother me. Could it not be argued that it was Hlophe who initially infringed upon the dignity of those two Constitutional Court judges when he asked them to rule in favour of his favourite politician? After all, Hlophe suggested to them to do something that wasn’t in their job description, which may in turn be construed as undignified behaviour on the part of Hlophe. How can he then expect others to respect his own dignity?
It is difficult to precisely define the concept of ‘dignity’. Some, like ethics professor Udo Schuklenk, argue that it is meaningless, but our Bill of Rights would have it otherwise. Maybe this concept should be revisited.
Clara, I have asked many people, and have yet to get a clear explanation of what “dignity” actually means.
This dilemma has horns:
*** Either, it is a fuzzy-wuzzy “ubuntu”- type thing. (In which case it means more or less whatever you want it to mean.)
*** Or, it is an impossibly obscure Kantian categorical imperative ding-in-itself.. Perhaps this would just “ubuntu,” dressed up in the finery of German metaphysics.
Maybe Pierre can explain?
***
PS: Pierre, you have made a very bad mistake, There is NO “t” in “respek”!
I would have though this matter is subjudice. The so-called professor must have forgotten what subjudice means. I think he must look-up the word and its application.
You are always running hearings in the court of public opinion. S v Makwanyana was clear on this matter. ie that if courts were to listen to the community, then there would be no need for courts, or for the Concourt. I think your conduct in this regard undermines our judiciary in that the community makes up its mind before the court has delivered its order or heard any submissions on the matter. How then can the general public have confidence in our judiciary when you have fed them your opinion on the matter, which is sometimes disrespectful of members of the judiciary( eg your disagreement that Hlope JP is a Senior Judge) and attacks on the officers of court( Advocates and Attorneys alike. In addition, seems to indirectly try to influence what finding our courts should arrive at.
Michael – noted, and agreed. I’m not a fan of metaphysics, German or otherwise. Dignity, in the South African context, seems to me something akin to self-esteem, or ego, the size of which appears to increase the higher one’s rank in society. I’ll give you a for instance: Hhlophe’s ego is so big, it should have its own postal code. Hence all the fuss.
BTW, you and Pierre are both wrong: it’s RESPECK! (with a C, but no T)
Dignity is a very subjective matter and I don’t feel that it has any place in law. However, if your reputation is tarnished and you start losing your income as a result, like poor Joost van der Westhuizen lately, it becomes a grey area.
To me, the law should protect your rights and not your privileges. The law should protect your property rights and your fundamental rights like freedom of speech, freedom of association, etc but it has no place in making you a nice guy.
Resepek is earned and not a right!
Skhokho Radebe, I advise you read the SCA judgment in Midi Television case where the sub judice rule (always abused by politicians during the apartheid years) was in effect dismantled. We live in a democracy now with free speech. If your view was to be adhered to, then all the people outside the courts during Zuma’s various appearances would have had to be prosecuted, as would have Gwede Mantashe and Julius Malema as well as several other ANC leaders. What one cannot and should not do is to impugn the integrity of judges by saying they will or have decided a case based on their race, sex or previous political affiliations. Robust discussions about public officers of the court like advocates seems to me the duty of any responsible and well informed citizen. Robust criticism of the actions and statements of judges must be treated in the same way. As long as one always respect the institution and do not ascribe motives to someone based on one’s own race or sex prejudices, one is being a good democrat for engaging the law and the decision of judges. But I guess those who cannot answer criticism they do not like, has no other way of defending themselves than trying to shut up the critic. In my case, it is not going to work. Sorry.