Quote of the week

The judgments are replete with the findings of dishonesty and mala fides against Major General Ntlemeza. These were judicial pronouncements. They therefore constitute direct evidence that Major General Ntlemeza lacks the requisite honesty, integrity and conscientiousness to occupy the position of any public office, not to mention an office as more important as that of the National Head of the DPCI, where independence, honesty and integrity are paramount to qualities. Currently no appeal lies against the findings of dishonesty and impropriety made by the Court in the judgments. Accordingly, such serious findings of fact in relation to Major General Ntlemeza, which go directly to Major General Ntlemeza’s trustworthiness, his honesty and integrity, are definitive. Until such findings are appealed against successfully they shall remain as a lapidary against Lieutenant General Ntlemeza.

Mabuse J
Helen Suzman Foundation and Another v Minister of Police and Others
20 August 2008

John Hlophe, judicial ethics and judicial independence

Gilbert Marcus, lawyer for the Constitutional Court in its case against Judge President John Hlophe, argued today in the High Court in Johannesburg that even on his own version of events, the actions of Judge President John Hlophe amounted to gross misconduct on his part. According to the Mail & Guardian:

Marcus said that Hlophe, in his papers before the court, gave details of the conversations he had with the two judges in an attempt to defend himself against the charges that he tried to influence their decisions in the Zuma case.

Marcus quoted Hlophe as saying to the judges, “I felt strongly about privilege and fair rights” and “the Zuma matter had to be correctly decided on”. Marcus said these statements — made by Hlophe’s own admission — already amounted to misconduct. “That, with respect, amounts to gross misconduct,” Marcus told the court. “On his own version, that is what occurred.”

Some would argue that this is the typical blustering of a lawyer trying to put the best spin on events. Surely Hlophe – and his lawyers – will not be stupid enough to admit to gross misconduct in his own papers? Regular readers of this Blog would not be surprised that I would not agree with this view. But regular readers might be surprised to read that I found support for Marcus’s argument (and implicitly my own view) in a report issued in July by the International Bar Association about the safeguarding of judicial independence in South Africa.

I was startled to read the following very clear statement on page 20 of this report:

Judicial independence is commonly described as being comprised of two components – the individual independence of judges and the institutional independence of the courts. Individual independence refers to the requirement that judges decide cases independently and impartially ‘on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’. This independence not only refers to external influence but also to influence from other judges themselves. Institutional independence is the independence of the judicial branch itself from the other branches of government, which enables it to carry out its role safeguarding judicial process and protecting the individual independence of judges.

Arguments put forward by some of the Judge President’s supporters that it was perfectly normal for a judge of a lower court to discuss a pending case with judges of a higher court and to try and convince them to rule in that case in a particular manner on one or more of the legal issues. This is after all what the Judge President himself had admitted to in his papers. The International Bar Association clearly disagrees and says this would threaten the independence of the judiciary.

No wonder I argued a few weeks back that the Judge President’s legal team was not up to the task. As Marcus pointed out today, it seems likely that they allowed him basically to admit that he is guilty of misconduct. Not very wise on their part.  What were they thinking?

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