With so many lawyers in the room, one would have though the Judicial Services Commission (JSC) would have acted in a legally unimpeachable manner when it started hearing the complaint by the Constitutional Court against Judge President John Hlophe. But I suspect there is some legal merit to the most recent application by the lawyers of Hlophe, aimed at stopping the JSC hearing against him.
I am not talking about the silly and self-serving statement in his papers filed in the high court in Johannesburg, in which it is claimed that the JSC’s impeachment proceedings against him had more to do with politics than public interest and justice.
Oh how South Africans love a victim – even one with the ethics of an arms trader or a second rate schoolyard bully. If there is one thing we have learnt over the past few years, it is that if one can convince enough people that one is the victim of some sort of conspiracy concocted by the CIA, unnamed “dark forces”, the Easter Bunny, or the Idols judges, one might just escape having to account for one’s shockingly nefarious behaviour.
I am also not convinced that Hlophe’s lawyers will be successful in persuading a judge that the members of the JSC were biased and had prejudged the factual and legal issues to be decided in this case – merely because some of its members have displayed some impatience with Hlophe and his legal team for dragging out the process in the hope of some miracle down the line that would prevent the JSC from considering the merits of the case.
Let’s face it, if I was Hlophe’s lawyers I would not want the merits of the case ever to become an issue because even on his own version of events he acted in a shockingly inappropriate manner. How on earth will he be able to explain away his chats with two judges of the Constitutional Court?
No, I am talking about the argument – advanced by Hlophe’s legal team – that the JSC committee who proceeded to hear evidence about his attempts to improperly influence two judges of the Constitutional Court was not properly constituted and that the hearings were therefore unlawful.
I have not had sight of Hlophe’s papers, but I did peruse the opinion prepared by Advocate Owen Rogers (SC) on request of the JSC in which he argues – quite cogently – that all the members of the disciplinary committee of the JSC had to be present for that committee to have been legally constituted.
Relying on a precedent first established by the Appellate Division judgment in Schierhout v Union Government (handed down in 1919), the opinion argues that prima facie when a decision is entrusted to a tribunal consisting of more than one person, every member of that tribunal should take part in consideration of the decision.
Obviously, where this was impossible – as was the case when both the Chief Justice and the Deputy Chief Justice had to recuse themselves from the Hlophe matter – this requirement did not have to be met. Neither would it be required where the empowering legislation provided for a lesser amount of members to consider the issue.
But in this case, the JSC Act does not provide for a lessor amount of members to hear a complaint – although it does allow for a substitution of members in appropriate circumstances, So it was probably a mistake for the Minister of Justice at the time to recused himself without nominating anyone else in his place – as legislation empowers him to do.
This means that when the JSC finally started hearing the complaint against Hlophe, it was probably not lawfully constituted.
It is unclear how a court will deal with this matter and if they find that the JSC was not lawfully constituted what remedy they would provide for Hlophe. It seems to me a victory for Hlophe would only provide a temporary reprieve as we now have a new Minister of Justice and as the JSC could always begin hearing the case afresh with the new Minister taking his seat.
So unless there was some kind of deal between Hlophe and President Zuma and the four members on the JSC disciplinary committee appointed by the President are replaced with Hlophe lackeys in order to pave the way for a newly constituted JSC to sweep Hlophe’s misconduct under the table, he will still have to face the music some time or another.
If Mr Zuma does nothing to replace the JSC members, it would signal that he might actually be serious about respecting the Constitution – now that he is President – and I for one would be very relieved and impressed.
However, if those four JSC members are replaced, it would be time to dust off our toyi-toyi shoes because then we would know that Zuma is prepared to rape the Constitution to get back at his perceived enemies. How long then before a liar and shyster is elevated to the highest court in our land?
I for one believe now that Zuma is President, he will do the right thing and that he will not interfere in the Hlophe matter. If I am proven wrong, the honeymoon with President Zuma will, of course, be truly over.
I think the JSC might rely on s180(6) of the Constitution – in other words, although the Minister recused himself, the decision { the s 180(5) – advise to national government on the conduct of Hlope } of the JSC was still “supported by a majority of its members”, as s180(6) requires.
Surely the JSC act cannot be interpreted so that EVERY member must be at the hearing – even those predisposed against him and all others that should for a proper audi alteram partem fairly excuse themselves….
Hows this for a conspiract theory…I reckon the Justice Minister recused himself intentionally to give Hlophe a way out if need be – kinda like an ace up the sleeve.
Also, I believe that the government is being run by communists. Oh wait, that’s not a conspiracy theory…
The above remarks are tongue in cheek, before some ANC types jump up and start tearing me apart…
Well, the first one is.
This issue is a biggie and may well set the tone for the next five years. Big test for our Pres JZ. Proof is in the pudding afterall.
(I like to cook).
I wonder, does our lord and master, politically, really understand.
Prepared a Hlope/Malema salad tonight… lots of spice, a bit of uncertain taste, not quite satisfying, think there must have been a few slugs in the spinach I missed when rinsing.
Think I’ll try something else.
Henri – I take it you were referring to s 178 of the Constitution, not s 180. Nevertheless, I agree. It is a bit curious that, concerning discussions of anything else than “the appointment of a judge”, all political members appointed in terms of s 178(1) (h) and (i) are excused from participating in terms of s 178 (5), but not the political members ex officio, namely the Minister (s 178 (1) (d)) and the persons designated by the President (s 178 (1) (j)). This view is held especially because, if the JSC decides to recommend impeachment, Parliament will have to deliberate the issue and take a vote on it. People sitting on the JSC in terms of s 178 (1), (d) and (j), who are members of parliament, may therefore have a ’second bite at the cherry’, so to speak. Nevertheless, I agree that s 178 (6) might save the issue for the JSC here – if members recuse themselves, especially the political members on the JSC (like the Minister), the JSC may determine its own procedure, provided that its decisions are supported by the majority of its members.
On another, equally juicy, legal matter:-
http://promoimages.iol.co.za/templates/pdf/mbeki_aff.pdf
Thanks Khosi for the link. I predict a good argument coming on!
Khosi – thanks for the link. Aaaah, the joy of the National Security defence. Not even a judge carries the dark and weighty load (whoooo..oooo) of National Security knowledge that the President does, so how could a judge, not being the President, possibly determine that National Security was not adequate reason to fire Pikoli.
In short, what the President does is, by definition, legal.
Dear Prof
I agree with your reasoning on this one. It may well be that Judge Hlophe has a point. I also found it a bit curious when the former minister of Justice recused himself and failed to apppoint his replacement. At that stage, told some collegaue that such was a monumental blunder. To make matters worse, the JSC also compounded the problem by insisting on proceeding in their current composition. The haste with which they were determined to proceed (perharps rightly so) seemed to have obfuscated the the technical and procedural point. We are in for jurisprudentially interesting times.
On a different note, is it possible for you (Prof) to write as well as you do, but without having to resort to unncessary cynism, which mostly borders on trivia and at times a blatanty disrespect of those you might be writing about? This has the tendency of detracting form good schoalrly points that you might be making or might have made Case in point, the use of the words “rape the constitution” in the article under reply. I honestly feel that it was a cheap shot, especially form such a gifted academic such as yourself. Shouldn’t you show President Zuma some respect? Afterall, he is the President for all of us, including you, whether you find the idea intellectually palatable or not. Having said that, Barring the improper and impolitic choice of diction,I align myslef with your line of reasoning in this piece.
On another note, Prof, judge Hlophe is also an acclaimed scholar in his own right, thus we may all be well advised not to write him off as speedily as some of his detractors are wont to do. The gentleman knows what he is doing-watch the space.
Prof have you ever thought of the legal implications of libelous insults whcih politicians seems to be hurling wantonly against each other. My sense is that we have a new breed of jurisprudence brewing. The defence of truth and/or public interest is being gradually eroded. this is just a thought for another day.
Some other day I did mention that if those entrusted with the duty to dispense with Justice (Judges, JSC etc) were to do what is required of them, half of our problems would be sorted out.
I am not the least suprised at the procedural blunder of the JSC – if the CC judges can eff up, who are they not to do likewise….this whole thing would have been finalised by now if the CC judges had, in the first place, simply lodged a proper and detailed complaint to the JSC and resisted the temptation to be celebrity stars; leave the JSC to deal with the complaint the best way they deemed fit (including publishing the complaint, if they saw it appropriate); get the JSC to properly constitute itself and dispose of the matter asap..
that was not so difficult now, was it?
Dear Zola Majavu, thanks for your thoughtful comments. I have said in the past that on this Blog I am always grappling to find the right balance between measured and informed reasoning on the one hand and provocative and entertaining exposition on the other. On reflection, using the rape metaphor was thoughtless of me. But I strongly believe that in a free country like ours no one – not even a President – is or should be above criticism or even ridicule. As long as one criticises and ridicules WORDS and ACTIONS and not who a person is because of his or her race, sex, sexual orientation or political affiliation. Given our history one should, however, be prepared to forgive others (and hope they are prepared to forgive you) if the person has admitted (and faced up to) his or her mistakes. But a blanket forgiveness for everything done or still to be done seems to me not to be in the spirit of democracy. Once again, there is a delicate balance to be struck.
On Judge President Hlophe: I have been very critical of him, I suspect, exactly because he is an acclaimed scholar and because he has disappointed us by his actions. It seems like such a waste of talent. Unfortunately the Judge President has now on more than one occasion been caught out in a blatant lie and even on his own version of events, he acted in a shockingly inappropriate manner when he approached the judges of the Constitutional Court. Surely we sell ourselves short as a nation if we accept such behaviour without comment? Is silence not the same as condonation?
The Big Slipper // May 13, 2009 at 6:54 pm
“Also, I believe that the government is being run by communists. Oh wait, that’s not a conspiracy theory…”
If the government is been run by communists – What has tht got to do with anything. If they are, I for am excited.
I’m just wondering out loud: Does this Hlophe case have anything to do Zuma (or whomever is calling the shots) not reappointing Enver Surty as the Justice Minister?
Peter // May 14, 2009 at 12:22 pm
Then, I guess we can assume that its checkmate!!!
Glouty, my remarks were tongue in cheek, as I am so sick and tired of this Hlophe thing. The man has made some serious errors, and feels that it is perfectly acceptable to quibble over the smallest technicalities if that will get him off the hook. While it may be acceptable legally, ethically it is not, and it frustrates me.
The Prof raises a good point – Hlophe, for all his promise and potential and legal astuteness has let himself, the judiciary and the country down. Regardless of whether the CC judges did things the right or wrong way, regardless of whether the JSC was properly constituted or not, the fact remains the Hlophe has admitted his guilt per se. Such a disappointment.
Khosi – Ha ha – I would think so. But surely you can admit to us in this little comments backroom that you know it is a big steaming load of bull?
PS – what about the second leg – do you think Motlanthe confirmed his firing to protect oom Jacob?
here we go, Hlophes SUPPLEMENTARY FOUNDING AFFIDAVIT to the High court
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=129092&sn=Detail
ENVER SURTY
ANSWERING AFFIDAVIT to the High court
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=129090&sn=Detail
and further more this is starting to back up my theory of Ngubane who initially started this mess of the JSC being “Biased” is in bed with Hlophe once again.
As I pointed out in a previous post of the background of Ngubane who was opposed to impeaching Hlophe in the Oasis affair and was at the time the president of the BLA who were outspoken in the backing of Hlophe about the “racism” against hlophe
JSC acting chairperson Lex Mpati and JSC commissioner George Bizos who sent affidavits to the High Court from the mintues recorded in the deliberations, ‘no member of the JSC present made use of the word shenanigans or referred to the new administration’. Bizos also ‘emphatically’ denied using the words. Bizos said: ‘No one made any reference to the ‘administration’ … I did not use the word ’shenanigans’, nor did anyone else.’
Professor
Before I embark on my argument of the Hlophe saga, I want you and I to depart from the same point and I therefore pose the following question. Do you agree that the ultimate purpose of the law is to bring us to the truth or what is right, as the case may be? Once you have answered this question, i will carry on with my argument. Hopefully i will manage to convince you that Judge Hlophe does not deserve impeachment.
It is reported in Legalbrief Today that Judge Nigel Willis the day before yesterday lauded Counsel for the JSC for making an excellent point, namely that the JSC is not a decisionmaking body, and the JSC does not impeach (it may only recommend). In the end it would be Parliament that has to decide whether to impeach, and for that a two-third majority is required. Moreover, he also hinted that the parties should reach a settlement “because we do not want to get our hands dirty”, and reminded the parties that courts are loath to interfere in proceedings that have not been concluded on “mere suggestions of bias”.
Zwakala, on its good days the law brings us closer to the truth yes. My view is that Hlophe should have been impeached for the Oasis scandal already because: (i) he took money from a company whom he later gave permission to sue a fellow judge, just making a decision where there was a shocking conflict of interest; (ii) he first lied about this stating the money was for “out of pocket expenses”; (iii) and justified it by saying he got permission from Justice Minister Dullah Omar who had conveniently died and had stopped being Minister of Justice 18 months before Hlophe started receiving money from Oasis.
dear Prof
On a different note, have ever thought of a perfectly and unassailable defence to corruption in general terms? It seems to em that this statutory offence is one of “strict liability” from which one can really escape on technicalities or of hard cold facts.
any thoughts in this regard?
ZM
when i find time i will definitely angage you professor. what you should however know is that when you do not receive response to your articles from independent minds you should know that it is simply because of their time constraints. so never fall on the misconceptions that your arguments are impregnable. i just wonder what you do to those students that have political views different from yours – whether you pass or fail them; just a thought. perhaps i should invite to my place for a calabash of umqombothi. only had 60 seconds to type this.
Zola Majavu – The term “strict liability” is usually employed to indicate (civil) liability without fault (intent or negligence) – in other words – liability without ‘blame’ in the usual sense of the word – therefore ’strict liability’. For example – in a claim based on the actio de pastu, the claimant does not have to prove intent or negligence on the side of the defendant, because the defendant is liable if his animals caused the damage in the circumstances described under that action, regardless of whether the defendant could have avoided same or not.
This is the position with civil claims, but in criminal law, one does not really get incidence of ’strict liability’, except perhaps criminal defamation/libel by the media (which legal position is almost sure to to be changed if challenged in the CC). For all other offences, fault in the form of either intent (dolus) or negligence (culpa) has to be proven.
Corruption, being a statutory (criminal) offence, requires mens rea in the form of intent (because negligence is clearly excluded from the definition of the crime) before it can be said to have been committed. However, intent can easily be proven through inference on the facts where an important office bearer receives large amounts of money and does favours for the person who gave him/her the money (or someone else at the behest of that person), unless he/she can show that there is absolutely no causal connection between receiving the benefit and the doing of favours, which any court will find very hard to believe (regardless of the presumption of innocence and the fact that te accused does not bear an onus to establish his/her innocence).
Zwakala – It seems that you are too busy to even engage anybody with meaningful arguments – wat are you so busy with? Eeating shit?