It seems as if Judge President John Hlophe and the judges of the Constitutional Court are not off the hook yet. Just when Hlophe thought he had yet again (and against all legal odds) escaped impeachment, former Constitutional Court judge Johann Kriegler announced an intention to legally challenge the decision by the Judicial Services Commission (JSC) not to proceed with a misconduct probe against him.
Kriegler is seeking a legal remedy on behalf of a non-government body, Freedom Under Law (FUL), of which he is chairperson of the board of directors.
I have been wondering on what basis a decision of the JSC not to proceed with a full hearing could be reviewed and set aside. There seems to be ample grounds on which the decision could be reviewed in terms of the Promotion of Administrative Justice Act (PAJA).
The JSC is an organ of state, as it performs its functions in terms of the Constitution. Although its decisions regarding the appointment of judges are excluded from review in terms of PAJA, a decision regarding the impeachment of a judge is not excluded from review. Moreover, the decision not to proceed with the hearing against Hlophe may adversely affect the rights of everyone to have his or her legal dispute resolved in a fair public hearing before an independent and impartial court.
In terms of PAJA, the decision of the JSC could therefore potentially be set aside because the JSC was biased or reasonably suspected of bias when it made the decision. Given the fact that the JSC was recently packed with pro-Hlophe supporters (for example, Andiswa Ndoni, President of the Black Lawyers Association, was recently appointed to the JSC by President Jacob Zuma and took part in the decision despite the fact that she had previously stated that Hlophe was innocent) a court may well take the view that the JSC was biased when it made its decision.
Section 6(2) of PAJA also states that a court can review a decision by the JSC not to proceed with a full hearing if the action was taken for an ulterior purpose or motive; because irrelevant considerations were taken into account or relevant considerations were not considered; because the decision was taken in bad faith; or because it was taken arbitrarily or capriciously. (Oh, how I love that phrase “arbitrarily and capriciously”, which seems to describe rather accurately the way in which the JSC has recently acted.)
The same section also states that the decision of the JSC could be reviewed because it was not rationally connected to the information before the JSC or not rationally connected to the reasons given for it by the JSC. A decision of the JSC may also be set aside because it was so unreasonable that no reasonable person could have made that decision.
After studying the reasons given by the JSC for dropping the complaints against Hlophe and the judges of the Constitutional Court, it is difficult not to wonder whether the JSC decision does not meet several of these criteria. It is interesting that those who have defended the decision of the JSC have not done so with reference to the reasons given or to the applicable legal principles.
In this regard the view expressed today in Business Day by Prof David Unterhalter is of interest. He writes that the JSC had failed:
to reason properly so as to answer the only question it had to ask: whether Hlophe and the Constitutional Court had a case to meet. That should have been a relatively straightforward exercise, since, in the complaint against Hlophe, it was common ground that he had talked to judges Bess Nkabinde and Chris Jafta about the Zuma/ Thint cases while decisions in these cases were still pending. And as the minority found, the complaint against the Constitutional Court is closely bound up with these events. On Hlophe’s own version, he said the cases “had to be dealt with properly” and “sesithembele kinina”, meaning “you are our last hope”. What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.
The JSC was not required at this stage of the inquiry to determine the truth between the contested versions but only whether Hlophe had a case to meet. Rather than engage this inquiry, the majority of the JSC sought to decide whether, on disputed evidence, the case against Hlophe had been established, and decided it had not been because there was no direct evidence that Hlophe had said he desired a particular result. The case of the complainants rested upon the inferences that were to be drawn from other statements of Hlophe. It is rarely the case that an intention is spelt out in so many words. This is almost always something inferred from conduct and circumstance. The real question was whether the version of events given in evidence by Nkabinde and Jafta could have supported the inference that Hlophe did intend to influence the outcome of the cases before the Constitutional Court. If so, Hlophe was required to meet this case. But this question was not answered by the majority of the JSC because they insisted upon an entirely artificial standard of judgment: whether Hlophe had said in so many words how the Zuma cases were to be decided.
It would be interesting to hear a rational, legally cogent, and plausible defense of the JSC decision. So far those who have welcomed the decision have either uttered mealie-mouthed platitudes about moving on and putting this sorry saga behind us, or they have applauded the decision on the basis of emotional expressions of support for Hlophe without providing any answer to the criticism of the decision expressed by an array of lawyers and legal academics.
Maybe there are readers out there who are brave enough to take a stab at defending the decision from a legal perspective?
In any case, I am happy that this decision will now be taken on review. My view is not primarily based on a need to see a full hearing where all parties concerned would be subject to cross examination. It is rather based on the view that the JSC itself had acted in a way that was so preposterous, unreasonable and irrational (“arbitrarily and capriciously, if you will) that its very credibility (and with it the credibility of our judiciary) is at stake.
This is far bigger (and more important) than John Hlophe. It’s about constitutionalism and safeguarding an independent judiciary.
This makes me smile. Kriegler is one tough cookie (The Nats absolutely hated his guts), a great organiser as well.
This will be some fight.
I doubt very much if he will be successful in his bid to get the JSC ruling rescinded. To succeed, in addition to bringing forth additional evidence, he will have to prove that the JSC applied the judicial descretion doctrine inappropriately.
I applaud Kriegler, truly a knight on behalf of justice. There are a number of issues at stake here:
a) The integrity, credibility and true Democratic worth of the JSC, b) the lawfully correct, or lawfully incorrect, stated reasoning of the JSC decision, and whether grounded in Constitution, law and precedent, c) the emotive versus the reasoned beliefs of the social divide (in the west sometimes referred to as the peanut gallery).
At stake of course is the future of South Africa. I also note that some weeks ago Chief Justice Pius Langa stated he would be keeping an eye on the incoming CC.
So now we have Langa, Kriegler, and naturally PdV and entourage. One can almost feel hope arising in one’s chest. Its inspiring to see the towel hasn’t been thrown in. Just maybe we’ll get Lady Justice off her knees.
Zwakala – the “judicial discretion doctrine” is subject to this part in Prof’s post: “Section 6(2) of PAJA also states that a court can review a decision by the JSC not to proceed with a full hearing if the action was taken for an ulterior purpose or motive; because irrelevant considerations were taken into account or relevant considerations were not considered; because the decision was taken in bad faith; or because it was taken arbitrarily or capriciously. (Oh, how I love that phrase “arbitrarily and capriciously”, which seems to describe rather accurately the way in which the JSC has recently acted.)” Furthermore, when it can be shown that the decisionmakers failed to disclose their partisanism and/or prejudices (links to one of the parties involved), that would be ground enogh to set the decision aside and the decisionmakers’ “judicial discretion” becomes irrelevant – see the second Pinochet decision in the House of Lords (Lord Hofmann having failed to disclose his ties with Amnesty International and, therefore, to recuse himself from the decisionmaking process). The BLA guys on the JSC, who participated in the majority judgment, were clearly outspoken pro-Hlophe even before they were incorporated into the JSC. They should therefore have recused themselves. In this light, the “judicial discretion doctrine” can be seen as the last refuge of scoundrells.
Kreigler is a classic Don Quixote–I wish him well.
Pierre, yes, I am also hoping that Professor Malunga, and anyone else who finds the reasoning of the JSC majority persuasive, will articulate a legal defense thereof.
History may yet vindicate the political arguments invoked by Professor Malunga, Mdu, Mikhail, and others. But in the meantime, it would also be nice to have the benefit also of their jurisprudential insights.
Anonymouse, geniet jou lafenis. Ek geniet jou nugtere kommentaar wat met feite gestaaf word.
Koos – Dankie – so tussendeur moet ek ook konsentreer want ek is besig met die finale stuiptrekkings in my Doktorale tesis wat binnekort moet ingaan vir eksaminering. Intussen geniet ek hierdie spoegblok as ‘n welkome afleiding – maar ek kry darem kans vir so ‘n lafenissie ook as ek klaar gewerk het.
Prof De Vos – “Moreover, the decision not to proceed with the hearing against Hlophe may adversely affect the rights of everyone to have his or her legal dispute resolved in a fair public hearing before an independent and impartial court.” Obviously here you are referring to s 34 of the Constitution. Although PAJA (following s 33 of the Constitution) can (and should) be invoked, s 34 can be invoked on its own or in tandem with PAJA. The AZAPO matter, which was decided long before PAJA saw the light of day was decided more or less with the predecessor of s 34 in mind. Taking your argument a little further – while it is still uncertain who between the CC judges or Hlophe lied (although common sense appears to indicate that it was the latter), peoples’ right to approach either court (where one of the affected judges form part of the court or tribunal) with the trust and knowledge that the specific court is independent and impartial (a court with integrity) of course comes into play. How can one trust either court if it has not been established which one of them has integrity and which not. In terms of s 38 of the Constitution, any member of the public or group of persons (therefore also FUL) has standing to bring the application for reveiw of the JSC’s decision.
I do have a feeling though, depending on the selection of judges to hear the application in the South Gauteng High Court would, in the light of earlier decisions in this sorry saga rule in favour of the JSC (tounge in the cheek!) and the matter might have to go to a Full Bench SCA again before we would see the correct result.
Agreed Koos.
As a legal layman, it would seem to me that the issue that Kriegler is taking up (in a nutshell) is that the JSC effectively decided that Hlophe was not guilty, which was not in its mandate to do – i.e it acted as a court in some sense, which exceeds its authority in this instance?
Anonymouse, thanks for the interesting input. Yes section 34, read with the various judments of the CC on the Rule of Law (especially the principle of legality) can be used to challenge the decision – or so I think at least.
It would be interesting to see someone try to undermine Professor Unterhalter’s analysis. I do not see how anyone could. And it is a little disheartening that the people who commend the JSC majority decision have not sought to do so on applicable legal bases. They obviously know – although for whatever reason, they would probably never openly concede – that their silence, given the circumstances, amounts to a tacit admission of defeat. But if I am wrong and applicable law supportive of that majority decision does exist, then I too would very much appreciate being directed to it.
Does the “decision” qualify as a decision of the JSC? See section 178(6) of the Constitution, in terms of which a decision of the JSC must be made by a majority of JSC members. In this case, the 10 Parliamentarians could not sit on the decision (the appointment of a judge not having been considered), which would leave 14 members, including the Premier (s187(1)(k)) of the Western Cape?
Anonymouse: Good luck ,ek wens jou alle sterkte vir wat voorle, ek kan sien jy is nie op jou mond geval nie. PvD keeps me sane within the madness.
Handel – Your input makes perfect sense. I do suppose, however, that you intended to also refer to s 178(5) – not only 178 (6) – read with 178(1)(h) and (i)? However, s 178 (1) (k) [wrongly referred to as s 187 (1) (k)?] refers to the JP of the WC, not the Premier. Taking into account that the CJ [s 178(1)(a)]; the six persons serving in terms of s 178(1)(h); the four persons serving in terms of s 178(1)(i); and the JP WC [s 178(1)(k), are to be excluded, Langa CJ and Hlophe JP because they are party to the dispute, it leaves 12 members according to my count [1 i.t.o. s 178(1)(B) + 1 i.t.o. S178(1)(c) + 1 i.t.o s178(1)(d) + 2 i.t.o. s 178(1)(e) + 2 i.t.o. s 178(1)(f) + 1 i.t.o. s 178(1)(g) + 4 i.t.o. s 178(1)(j) = 12 members). A majority would therefore have been 7 members against 5. There were only 10 who decided the issue; 6 for Hlophe; and, 4 against. This makes the decision unconstitutional per se! Seems like once again the JSC has not constituted its “sub-committee” properly, which will in all probability lead to the ‘decision’ being set aside, AGAIN! (courtesy Forest Gump).
Thanks Sirjay – Good luck to you too!
My apologies, PdV: typo
honestly – If I were Hlophe JP, I’d do the honourable thing and resign. Perhaps, I’d even request JZ to give me a diplomatic post (with retention of my salary and allowances as a judge, of course; and, added to that, the additional perks accruing to a diplomat on foreign mission) somewhere nice – say Zurich. But, I’d be deeply ashamed if I would get a post as CC judge above other candidates (like the one that withdrew from the race for distrusting the JSC). http://www.news24.com/Content/SouthAfrica/News/1059/6d1353a6204140aabc27645ec2b80802/03-09-2009-08-11/Hlophe_in_crosshairs_again
Thanks Anonyouse, more confirmation, the times they ae ‘finally’ a changin.
Anonymouse
Agreed. However, s178(1)(k)”when considering matters relating to a specific High Court, the Judge President of that Court AND the Premier of the province concerned, or an alternate designated by each of them”.
I must say I’m also a massive fan of both PdV’s. Piet Snor and De Vos.
from an ordinary shopsteward point of view Prof, allow me to table this scenario common in a work place. The employer labour relalations dept (say JSC in this case) gets a complaint, sends an Investigating Officer to establish on the available evidence if there is a need for a hearing and the officer reports back that there is not enough evidence warranting a full hearing since there wont be any new evidence coming forth, there might not be any different conclusion from that of his own.
Johan Kriegler s problem is that he already (b4 JSC decision) found Hlophe guilty, and now wants to force the courts to be “brave enough” to back his opinion. We ve seen many shocking judgements before (Search on Zuma/Hulley premises) being upheld and Kriegler et al kept quite and now they cry “threat to the constitution”. I have a serious problem with people wanting to force their retired views down the others throats. Kriegler makes all sorts of comments almost daily in the media (even on matters pending) and he is the only (retired) judge doing that, yet I ve never heard De Vos or Unterhalter condemn his behaviour, yet we must take him serious now. To me he is just another Vytjie Mentor (they just loooove media). Anyway, why do press briefing before filing papers to court? To exert undue influence on the judiciary?
I guess the conspirators won’t be taking this one lying down. Its surprising that an ex-judge of the CC would be taking up the sword in defending the integrity of our legal system, yet not a peep from the CC bench on asking the matter to go on review. Or am I mistaken?
May I ask who forks the bill though with all these applications?
Does anyone know how many people (if any at all) Kriegler sentenced to death when he served in the apartheid regime ? Did he stand up then when all those poor blacks were being sent to the gallows ?
John – look closely and you will see that Kriegler is not on trial here. And I think you will find that Ramphele and Tutu did not sentence poeple to death, serve in the apartheid regime or stay seated when all those poor blacks were being sent to the gallows.
For Gods sake man, for all the heartfelt support for Hlope, why can nobody articulate a rational defence of the JSC decision instead of resorting to irrelevant populist posturing and name calling?
I take my hat of for Nugent JA for not being prepared to appear before the JSC – for a CC post.
What can be more infra dig??
They probably gonna ask again questions like why did you not join AFT. Which is basically the same as asking why did you not join the ANC? You must have done that to be a judge in the new SA! {Note, as a point of irony: The person that asked those questions are a board member of FUL????}
And now its Sloppy decision!
And lo and behold – The minister asked everybody to respect the JSC decision!
The JSC is a bunch of clots.
Its position is going to massively undermine the credibility and legitimacy of the new appointments { their recommendations to the president } to the CC.
Handel, good question. Section 178(5) makes clear that the members of Parliament do not sit on the JSC when it hears disciplinary matters. As Hlophe is the JP he coudl also not sit in his own case. That leaves 12. Dumisa Ntzebeza rightly recused himself from the process as he had represented Hlophe in his case before the SCA. One of the representatives of the Advocate’s profession had resigned earlier and his replacedment, Advocate Izak Smuts from the Grahamstown bar was nominated by Advocates but the President had not signed his letter of appointment so he did not take part in the decision. If Ndoni had recused herself (as she should have), it might have resulted in a different decision. One of the grounds of review will probably be that the JSC was unlawfully constituted when it made its decision, ironically an argument used by Hlophe when he challenged the JSC decision to continue the hearing.
Handel, well spotted on the Premier! I did not think of this. If your interpretation is correct, there would most probably have been 6 votes for a hearing and five against!
@Anonymouse
Only if there is evidence to support your assertions, only if you can prove that there is material evidence the JSC did not take into consideration in making the judgment, the judicial discretion doctrine prevails. For Kriegler to question the reasoning employed by the JSC in making the judgment, is the violation of the judicial discretion doctrine – he needs to provide new evidence or show that there is material evidence not taken into account. Where will he get that evidence? Chances of him succeeding in getting the decision rescinded are zero.
I wonder when this “Hlophofobia” will stop and real issues will be tackled. It makes me sick to see people of Kriegler J calibre so hell bent on trying to destroy one man! This reminds me of the fascination so many people had with President Zuma (are you happy Spuy?) before he became the President of the RSA. ‘Justice’ if such a word carries any meaning at all nowadays, is quite very relative and depends on the person who is talking about it. Justice for Hlophe would be to be acquitted and ascend to the Concourt whilst ‘justice’ for Kriegler J aka ‘I hate Hlophe JP’ would be to see this up and coming intellectual interred along with all the hopes that he is carrying of the young black lawyers who feel that the legal profession, just like our economy, is still in the hands of the minority who are prepared to use all means necessary to retain the ‘shackles’ that they have on it.
I am sick and tired of this circus whilst there are more issues that we can focus on as a country. This issue of Hlophe, just like that of President Zuma (Spuy?), is widening the divisions that exist between white and black South Africans by intensifying race hatred or at least mistrust!
Prof. you need to be more positive in your posts as this negativity that is all over your posts is not doing anything to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’. Your regurgitation of negativity in this blog is not helping us as a nation to heal but is strenghtening the Apartheid legacy by giving people a platform where they can replenish their negative energies and hatred for other race groups! It is one thing to spot negativity but another thing to proffer opinions on how that negativity to be addressed!
Have a great day.
@Anonymouse
Perhaps it will be better if we revisit the substance of the case. If you can tell me the basis on which Judge Hlophe should be impeached; perhaps there is something that I am missing. But from my observations the facts are self evident and they provide a clear cut of how the case should be adjudicated. Kriegler’s attempts to get the decision rescinded will therefore be constrained by the res ipsa loquitur rule.
why are you blocking my post!! where is my post?
it is this one you have blocked!
Why ningaphenduli manje? Nisacabanga. Sengiyahambake manje. Nohlala niyizingane nawe Professor ndini!
Handel et Prof De Vos – Right on. S 178(1)(k) does require the Premier of the WC (or alternate) to have been part of the JSC besides the JP who cannot sit in his own matter. Last night I was already a little sleepy, so I read the provision only perfunctorily. That makes it 13 members that should have participated in the decisionmaking process (someone had to take the place of Dumisa Ntzebeza who had to recuse homself), not 10. A clear ground for review!
Zwakala – The substance of the case can only be revisited if the JSC is properly constituted, and where people on that body who must take a decision are people that can demonstrably act independently and impartially. The substance of the matter becomes irrelevant for purposes of a review application when substantive grounds for review can be established – see above. Moreover, the facts are indeed self evident, and if the maxim res ipsa loquitur is to apply, then a full scale hearing must take place; and, again, on Hlophe’s own version, an inference could in all probability be drawn that he acted in bad faith (approaching two CC judges regarding a matter in which he was not to sit, one of them being a matter emanating from his own court where the SCA disagreed with him) and is guilty of gross misconduct. There is at least a prima facie case for him to answer to and to explain his bona fides with the approach so it can be tested.
All I hope from the bloggers on this blog is that they don’t do a Judge Chris Nicholson as in the Zuma case. Should Judge Kriegler’s legal challenge be successful we must not attack the judge/s and vice versa, should he lose we don’t attack the judge/s. But unfortunately either way it goes the judge/s will be massacred. That for me is the threat to the judiciary: the hardened positions we take to support our VIEWS.
Kevin, Can you please hold Pierre by his ears and tell him over and over again the cogent and legally sound reasons why the JSC was spot on in not carrying on with Kriegler’s vendetta( Oh! that old man who had already found Hlophe guilty, talk of audi alteram partem!)
Pierre would dismiss those reasons, and so would his disgruntled friends, but that Johannes Kriegler would lose again, let just wait and give him a chance to whinge after it’s his right.
Sne, thank you, should consider asking the Prof to share posts with him, we need some impartiality.
Zwakala, when a decisionmaker misdirects itself as to the facts or the law the decision can be set aside. This is exactly what happened here. Res ipsa loquitur. Here the JSC had to decide ONE thing only: Was there a prima facie case to answer. We have two judges of the CC stating under oath that Hlophe had approached them, had said the case must be decided “properly”, had said what he meant by “properly” and (if Nkabinde is to be believed) that he had a mandate to talk about the case and that he had connections with Ministers and National Intelligence. We also have evidence from the complainants (especially Nkabinde – a judge of the highest court!) that she felt there was an improper attempt to influence her. Hlophe may of course be correct and all this could have been an evil fabrication in order to conspire against him, but surely you are not saying that there was not a prima facie case which had to be answered. The only way you can come to that conclusion is if you make a finding that Nkabinde (and Jaftha to some degree), lied. But the JSC made no such finding. Its decision is therefore irrational. No reasonable person could have made it on the basis of the factual findings made. It is therefore reviewable under PAJA and in terms of the principle of legality which is part of the Rule of Law.
Zwakala says:
“But from my observations the facts are self evident”
Really please enlighten me on what those facts are?
If the facts of the case are self-evident why are we left with question marks on who actually is lying? why are we left with question marks that the probe was based on the outcome of the influence and not the mere attempt of going to influence?
Zwakala says:
“Only if there is evidence to support your assertions, only if you can prove that there is material evidence the JSC did not take into consideration in making the judgment, the judicial discretion doctrine prevails”
Yes and only if you can give evidence to support hlophe did not go with the intention to influence
The issue at hand is disputes of facts
Mdu says:
September 4, 2009 at 9:44 am
Sne, thank you, should consider asking the Prof to share posts with him, we need some impartiality.
This coming from a guy who claims the BLA is supportive of Hlophe but quickly forgets the JSC is full of them
you wouldnt know what impartiality is even if it slapped you with a dildo on your forehead.
Sne, while I very much admire your wish to see the deep divisions in our society mended, I cannot credit your determination as to one of the basic issue here. Justice Kriegler’s principal object is not to destroy the judicial career of one black jurist – although if Kriegler’s course turns out to be successful, then the destruction of that career could conceivably end up being a regrettable consequence thereof.
Kriegler’s chief goal is to safeguard the judiciary’s legitimacy. And it seems to me that the realisation of that goal is of thoroughly crucial import to the establishment of a society based on democratic values, social justice and fundamental human rights – which of course is the very society which you would wish to see established.
Justice Richard Goldstone would have us believe that one cannot trust the two other branches of government to cleave closely to constitutional dictates when adherng thereto would give rise to tension or even inconvenience. And that wise jurist Goldstone was, in my deeply respectful opinion, absolutely correct on that score: the other arms of government could well allow other considerations to prevail over concerns which would meet constitutional conceptions of justice. So it is to the courts that we must turn for principled and courageous decisions. A judiciary that enjoys the public’s confidence is the definitive means by way of which basic rights are protected against unjustifiable impairments in constitutional democracies.
You could be correct to say that if we could loosely define two factions here, then they may well view the demands of justice differently. But with all respect, I must disagree with the view that the investigation ends with the position that justice is relative. That is, I think one of the foregoing loosely defined factions has the right of it. And that of course means that I think the other has it wrong.
I would like to ask a question of you. I am aware that the question is fairly broad and calls for much in the way of conjecture – but I hope you will still honour me with one of your typically thoughtful responses. Th question is: what might happen to civil society if the citizenry came to gravely doubt the judiciary’s capacity to dispense justice?
@Chris
The fact is that Judge Hlophe said the case had to be decided properly. The two versions presented do not contract this, so it is a fact.
Secondly, the burden of proof is not on me. He who alleges must prove!
Thridly which question marks do you have, if you can share them with us, I will probably try to give you some answers?
For there to be a prima facie case, among the evidence presented, there should be factual evidence. The testimony by Judge Nkabinde, as you have put it, is not factual evidence – she tells us about her opinions. Secondly from the facts that have been established by the JSC, Judge Hlophe never indicated the manner in which the case had to be adjudicated but simply said the case had to be decided properly.
Perhaps you need to gain an understanding of what term “properly” means so that you can see there was no prima facie case in the Judge Hlophe matter. In the context of our conversation “properly” means that a judge must maintain the principle of independence when making a decision without taking undue influence into account. Now if Judge Hlophe wanted to corrupt the judges why did he say the case should be decided properly? In other words, if Judge Hlophe wanted to corrupt the judges he would absolutely have not said that the judges should rule according to the law. To say the case should be decided properly is the factual evidence which the JSC was confronted with which was material enough that they could not ignore it.
What you needed in order to have justification for a prima facie case was for Judge Hlophe to have explicitly indicated that the judges should rule in favour of Jacob Zuma or otherwise without providing legal reasoning to that effect but unfortunately for you, Judge Hlophe did not do that. Until you provide at least a little bit of factual evidence, there is no prima facie case against Judge Hlophe.
@ Professor
For there to be a prima facie case, among the evidence presented, there should be factual evidence. The testimony by Judge Nkabinde, as you have put it, is not factual evidence – she tells us about her opinions. Secondly from the facts that have been established by the JSC, Judge Hlophe never indicated the manner in which the case had to be adjudicated but simply said the case had to be decided properly.
Perhaps you need to gain an understanding of what term “properly” means so that you can see there was no prima facie case in the Judge Hlophe matter. In the context of our conversation “properly” means that a judge must maintain the principle of independence when making a decision without taking undue influence into account. Now if Judge Hlophe wanted to corrupt the judges why did he say the case should be decided properly? In other words, if Judge Hlophe wanted to corrupt the judges he would absolutely have not said that the judges should rule according to the law. To say the case should be decided properly is the factual evidence which the JSC was confronted with which was material enough that they could not ignore it.
What you needed in order to have justification for a prima facie case was for Judge Hlophe to have explicitly indicated that the judges should rule in favour of Jacob Zuma or otherwise without providing legal reasoning to that effect but unfortunately for you, Judge Hlophe did not do that. Until you provide at least a little bit of factual evidence, there is no prima facie case against Judge Hlophe.
How can you be certain of Kriegler’s goal to “safeguard the Judiciary’s legitmacy”?
And to iterate he has been empowered by Desmond Tutu? That “Desperate Housewife” loving man of the cloth must first attempt to get his own house in order and maybe attend a couple of UWC’s graduation ceremonies before “knighting” a crusader for justice who comes with his own baggage.
Back to Kriegler … He seems to want to come across as a patriot but unfortunately he went about tainting this clear vendetta with his utterings against Judge Hlophe.
It seems that the questions that are arising is one of jurisprudence and is as old as law with the battle between natural law and legal positivism.
Civil society will be liberated from believing in a system that is a form of tyranny by other means. Societies, particularly our own, has shown resilience in its ability to come back from what many would have predicted to be as the road to anarchy. To overthrow the foundations of Apartheid was not an easy matter but it had to be done. The same here is of vital importance in that we must prevent “false prophets” such as Kriegler who wish to profess to be guardians of righteousness when he is just a white castle in a bigger chess game being played out in South Africa.
Zwakala
In early July 2008, the JSC resolved that, because there was a clear factual dispute between the parties, it would conduct an oral hearing, are we to ignore that now?
“The fact is that Judge Hlophe said the case had to be decided properly. The two versions presented do not contract this, so it is a fact. ”
Firstly why is Hlophe talking to a panel deciding a case?
Secondly was he mandated for the case to be decided properly?
“The testimony by Judge Nkabinde, as you have put it, is not factual evidence – she tells us about her opinions”
Oh yes it is it became factual evidence from the beginning of the first hearing as all is recorded.
With regards to the disputes, can you tell me who is lying hlophe or Nkabinde?
why is Nkabinde under the impression that hlophe was trying to influence her?
“What you needed in order to have justification for a prima facie case was for Judge Hlophe to have explicitly indicated that the judges should rule in favour of Jacob Zuma”
Oh no the justification for a prima facie is the actuall “action” of hlophe approaching two judges who are deciding on a case which Hlophe is not part of the panel…..did you happen to forget that?
John Robert asks:
“Does anyone know how many people (if any at all) Kriegler sentenced to death when he served in the apartheid regime ? Did he stand up then when all those poor blacks were being sent to the gallows ?”
You can see Krieglers JSC interview on the concourt website (for a start). He is a founder of Lawyers for Human Rights that campaigned against the death penalty, and the founding chairman of the Legal resources center – that aimed to get money for those that can’t afford litigation.
His impartiallity is noted in that he defended “Afrikaners traitor” Breyten Breytenbach, poet, and leader of Okhela – the short lived white terrorist ant–apartheid movement. As well as Tuttu. This earned him the gramskap of the volk and nationalist press.
But he also defended Buthelezi, Mangope and Terreblance, earning his reputation for fierce independence. I am at a loss for exactly his name, (perhaps Gideon Niewoudt?) but he was the judge presiding in one of the earlyist security police murder trials, where the sentence he gave was particularly harsh. The Nat government did not take kindly to his criticism at the trial.
Yet, although he made many enemies, both the ANC and the NATS trusted him to be impartial. There were an unanimous welcome of his appointment as the first head of the IEC. And the election he ran was universally seen as a huge success.
Since then he was been asked by numerous African countries to head up Commissions of inquiry.
Thank you for kameraad. Kriegler: Mr Justice indeed.
@Chris
Yes, the action of Judge Hlophe of having a legal debate with the judges would, on its own, have created grounds of a prima facie case if there were rules prohibiting judges of different courts from debating pending cases in their respective courts. But because in reality there are no such rules, your argument falls away.
What I am begging you and Professor not to do, is to impugn the integrity of the JSC; this is a constitutional institution which is tasked with the administration of justice in as far as the judges are concerned. In other words you are effectively labeling us who are defending the constitution and the JSC as counter-revolutionary.
With the recent petition of pledging allegiance to the constitution I thought the professor was serious about it but I guess he was just paying lip service, as he is busy in these days firing a broadside at the JSC following a ruling that was in favour of his anathema.
Zwakala, in a constitutional democracy based on the values of openess and transparancy, criticism of constitutional institutions – including courts and the JSC – is not only allowed but accepted and even required. It keeps such bodies accountable. As long as the criticism is based on the substance of their decisions and not on personal attacks on individuals.
On your point about rules for judges not to speak to other judges: one again, this is not rational and is not supported by the decision of the JSC itself. It found that it was not acceptable for one judge from another disvision to speak to a judge of the CC. It found that Nkabinde felt there was an attempt to influence her, which is a FACT that goes to the HEART of this question. The fact is the actual perception of Nkabinde, and what was said and how it was said that made her come to that conclusion. If you come to my office with a gun and I start sweating and believe that you are threatening me my belief is a fact (of which the outward manifestationw ould be my sweating). That fact will have a bearing on how to judge the situation. It might be that you only came to show me the gun to brag about a new purchse buit it may also be that you wanted to shoot me. But that does not make my fear less of a fact.
Zwakala says:
September 4, 2009 at 12:38 pm
“Yes, the action of Judge Hlophe of having a legal debate with the judges would, on its own, have created grounds of a prima facie case if there were rules prohibiting judges of different courts from debating pending cases in their respective courts. But because in reality there are no such rules, your argument falls away.”
go read the judgement
clearly u and hlophe are unaware of such rules
Professor has stated:
“The fact is the actual perception of Nkabinde, and what was said and how it was said that made her come to that conclusion……That fact will have a bearing on how to judge the situation.” It seems as if this is your core evidence on which you want Judge Hlophe to be impeached. To impeach a judge is a task of huge magnitude; it requires thorough evidence to be obtained with delicacy. Accordingly a judge can be impeached based on PERCEPTIONS! What you are asking the JSC is simply out of order.
Professor you need to do the honourable thing to accept that Judge Hlophe is an innocent man from this whole theater.
Perhaps I need to relocate to Cape Town and buy a house next to you so that we can debate over the fence the whole day.
Professor has stated:
“The fact is the actual perception of Nkabinde, and what was said and how it was said that made her come to that conclusion……That fact will have a bearing on how to judge the situation.” It seems as if this is your core evidence on which you want Judge Hlophe to be impeached. To impeach a judge is a task of huge magnitude; it requires thorough evidence to be obtained with delicacy. Accordingly a judge CANNOT be impeached based on PERCEPTIONS! What you are asking the JSC is simply out of order.
Professor you need to do the honourable thing to accept that Judge Hlophe is an innocent man from this whole theater.
Perhaps I need to relocate to Cape Town and buy a house next to you, so that we can debate over the fence the whole day.
Zwakala says:
September 4, 2009 at 13:15 pm
Do you not find it odd, strange, malicious, against the rule of law, unethical for a high court judge to approach two acting CC judges about a pending high poltical case involving the then future President of RSA?
hey buddy hey guy, shap shap you know hey check im a zulu your a zulu, hey how about that zuma’s a zulu, so hows the case going? whats happening… you gonna make the right choice i can feel it, I can feeeeeeeeeeellllll it. “you can do it” becuase we tight, thats how we roll..zulu to the end
cos I mean really if a judge can go to another judge about criminal case that the one judge is not a party to…..theres a breach of security there. How you fail not to grasp this is actaully mind blowing and see nothing wrong with this is on the verge of insanity. I actually wonder if the judicial standards in this country is actually pretty shit??
For hlophe declaring and his supporters that Hlophe is “THE ONE” fails to see the guy cant even get the basics right is actually well….. rather funny. I mean the majority judgement actually proves hlophe is actually stupid.
Maybe we going about this is all wrong, instead of focusing on misconduct maybe we should rather focus on his stupidity?
Leigh
Thank you for your response to which I will turn to attempt to answer.
While I do not doubt the commitment of Kriegler J to justice in this country, the independence of the judiciary and its legitimacy (hereinafter “values”), it is worth noting that the course that he is willing to descend upon in safegurading these values is likely, as the President Zuma saga has proved, to result in the destruction to same. To me Kriegler J seems to be more of a person who is concerned with the destruction of Hlophe and sees the vindication of the values alluded to above as an advantage to be gained in the process or just a pretext to be used.
If the security of these values was his primary objective and not the destruction of Hlophe, as others may view it especially following the effective use of the media by the latter, then Kriegler J would have realised that these values are more important and that by his persistance in gunning for Hlophe, he is actually, maybe alongside Hlophe, causing damage to the judiciary as an institution. You may think of the commnents Kriegler J has made in the media sometimes about matters before a court of law, etc. I will let your knowledge guide you on the crime which comes to mind when one is engaging upon such a conduct. This, of course, is apart from the duty that Kriegler J owes to the judiciary and the society at large to show respect to the former and setting a good example as a former Judge.
It is interesting to note that you disagree that justice is relative and yet to do not proffer your own definition of justice. Worth noting as well is your failure or at least refusal to realise that by saying ‘the other has it wrong’, you immediately fall within one of the two sides who are calling for different kinds of “justice”.
To address your last para, of course, South Africa would descend into the state of chaos reminiscent of the Apartheid era. However, picking out the likes of Hlophe and leaving Harms JA and other staunch Apartheid supporters who were on the bench and still are, to serve as judges would fall into the risk of being seen merely as a compaign aimed aat something other than the vindication of the values above.
It will take time for the judiciary to attain the recognition it deserves as the final arbiter of all disputes owing to the Apartheid judiciary being used by the executive to keep in tact laws which were egrecious and discriminatory to other race groups. To understand what I am saying you just need to check how the Apartheid govt. used the executions as means of ridding itself of political opponents. However, witch-hunting will get us nowhere except to cause conflict within the judiciary itself and to bring the entire administration of justice in our beautiful country into a “post-nuclear” state.
Harold, you are always such a good sport
You question whether one can rest assured that Kriegler J’s object is to safeguard the judiciary’s legitimacy. I think that one certainly can.
My answer to your query has two facets. The first is that I mean to proffer my views about one aspect of judicial legitimacy. The second is that I shall present my opinion as to how Kriegler J’s conduct of late – especially his lecture at Wits and the FUL design to challenge the JSC’s decision – go directly to safeguarding the aspect of judicial legitimacy which I of course mean to outline.
The aspect of judicial legitomacy which I aim to stress here presents as follows: the greater the public’s confidence in the judiciary’s image as a trustworthy dispenser of justice, the more inclined the public would be to abide by judicial rulings. Thus we may think of public confidence in the courts as being something of an anchor which fixes the capacity of the courts to make decisions by which people would abide.
This may all sound fairly melodramatic. But melodrama aside, we surely have a reason as to why the legitimacy of the courts is really important.
I turn now to the question of how Kriegler J’s conduct goes to protecting the legitimacy of the courts. The JSC is the body charged with ensuring that judges (a) honour their duties and (b) observe the ethical guidelines which presently govern their behaviour.
Let me break down to you how I have, like so many other people, come to view the decision taken by the JSC majority. What we have is an instance in which the JSC has, on the face of it, taken a decision which (a) seems to meet PAJA’s threshhold inquiry; (b) appears to be reviewable on a number of grounds for which PAJA provides and (c), seems to fall foul of the principle of legality as well.
Now as a consequence of that prima facie crap decision, the public is, at least for the time being, left with the following situation: at least one senior judge has lied.
So the question, which of course is a greatly important question, is: can the taking of this prima facie deeply objectionable decision by the JSC cause people to entertain misgivings about (a) the integrity of the judges in question and (b), the JSC’s commitment to ensuring that judges act in ways which befit judicial office? I think so. And I have tendered some reasons as to why I think I have a decent enough point here. So one question has to become: on what grounds, if any, would you disagree with the view that the highly dubious decision taken by the JSC could prejudice both the JSC and the judiciary?
You also seem to reproach Kriegler J – of whom I am clearly something of a fan – by making out that civil society can be saved by other means. You seem to take this point further by denoting that we can promote the saving of civil society by silencing people like Kriegler J. Perhaps somewhat predictably, I disagree.
I understand a civil society to be one in which the rule of law thrives. And essentially, Kriegler J aims at seeing an unlawful decision set aside – which of course is plainly in keeping with the promotion of (a) the good health of the rule of law and thus necessarily (b), the preservation of civil society.
@Chris
You are employing an old trick in the book to divide the people along tribal lines. This is the same trick that was used by apartheid but failed dismally to sustain it because people were not stupid, for the same reason you will fail to divide the people at this day and age.
In your castigation of Judge Hlophe’s conduct you have already made an assumption that he went to the Concourt specifically to raise the Jacob Zuma matter. This is evidenced by your using of the word “approached”.
Let me debunk your assumption by making it clear to you and everybody else reading this blog that there is no evidence whatsoever that Judge John Hlophe went to the constitutional court to specially to talk about the Jacob Zuma case. His main purpose of going there was to pay a visit his acquaintances or the people he used to know.
Once this is understood, it should dwell in your head that Judge Hlophe has not done what you claim he has done i.e. he approached the Concourt with the sole intention of raising the Jacob Zuma matter. If that was the case I would have also raised eyebrows just as you have done.
Earlier on, the professor touched on the principle of legality which is the rule of law as well. This is very much applicable in relation to the ethics you have raised. The principle of legality will be totally violated if a person is punished for something that is not clearly understood by everybody. In other words, there can be no offence if there is no law. What was at play the Judge Hlophe case was the concept of fundamental justice. That you need to understand.
Remember also that our constitution is organic!
@Professor
The other thing that you need to know/remember is that a prima facie case should be able to stand on its own without inferences. Your assertions about a Hlophe prima facie case are actually hollow, as they lack facual substance. What you have tried to do is to get Judge Hlophe impeached through inferences based on fallacies – this is totally diametrical to fundamental justice.
Zwakala – What do you think Hlophe JP would have done had Jeanette Traverso DJP approached him before he decided the search and seizure case with a request to decide the matter “properly”, in the process implying that he was not going to decide the matter “properly” without acceding to the request. I think he would have popped an atery in the cranium, to say the least. And he (and others who so eagerly play the race card) woud have made sure that she is impeached. If he wouldn’t have had, then he is not worth the stature of judge, who must be an independent and impartial person.
Now, Hlophe having approached to CC judges (without a brief to debate the matter – except if his claim of having a mandate could be regarded as such a brief – and without affording the parties to the matter the opportunity to respond to his inputs) with a request to decide the matter “properly”, in the process implying that they would not decide the matter “properly” had it not been for their acceding to his request, you say = nothing wrong with that. I think you, like the majority decisionmakers in the JSC are being deliberately obtuse here.
Meanwhile – go and look at the newer thread on the composition of the JSC (absence of Zille and others in the decisionmaking process), which you have deliberately been avoiding in the debate above even though I and others have been at great pains at pointing it out to you. See whether you, Prof Malunga, Mdu and others can come up with a feasible legal (not political) argument that Kriegler’s application is not bound to succeed on that ground alone.
Zwakala, I really appreciate it that you have taken up the challenge to try and defend the JSC decision. Others have been rather silent and it is through debate and discussion that we might get to better understanding.
As you rightly point out the impeachment of a judge is a very serious matter. I am definitely NOT contending that on the basis of Nkabinde’s perception alone Hlophe should be impeached. I am contending that Nkabinde made certain assertions – the most damning assertions being disputed by Hlophe – which the JSC last year decided constituted a prima facie case against Hlophe. This was a correct decision because WITHOUT MAKING A FINDING ON THE TRUTH of these assertions and/or the truth of Hlophe’s denials it is impossible to say whether Hlophe had the intention to influence the judges of the CC. The only way to make such a finding is through a full hearing where witnesses are subjected to cross examination. What the JSC did last week was to find that there was no prima facie case WITHOUT making any finding on where the truth lies. But if one believes Nkabinde, there MUST be a prima facie case to answer (which is NOT the same as saying that Hlophe MUST be guilty). Yet without making a finding that Nkabinde was lying the JSC decided there was no prima facie case. This is a legal absurdity because it confuses the question of prima facie case with that of guilt or innocence. The JSC decided in effect on the innocence of Hlophe without deciding on the crediility of the evidence and without having a full hearing, despite the fact that a judge of the highest court has alleged that Hlophe tried to influence her.
In most cases where the intention of the person accused of wrongdoing is in play, there will not be any direct evidence of such an intention. It will almost always be about the big picture, taking into account what was said and done, how lied and about what, and what the credibility of the witnesses are. This is because very, very few culprits ever express their intentions clearly when they do wrong. They act in a certain way and when caught and charged the body looking into the matter looks at all the evidence (including the credibility of the witnesses) and decides whether the accused had the intention to do what he or she is accused of. For example, in a rape case it is often the word of the accused against the word of the complainant. If the JSC logic was followed, rapists would almost never be convicted because very few rapist would say when they force themselves on a women: “I have the intention of raping you” and that in the presence of witnesses. It will almost always be his word against her word. She felt she was being raped. He claims not to have had the intention of raping her. A court must decide on the issue after a full hearing and cross examination. In this case the JSC said in effect: “Well, the accused never expressly said he intended raping you and your version and his version differ fundamentally. As neither party is likely to change their story under cross-examination there is no prima facie case of rape and therefore no need to charge the person with rape.” Surely you must agree that this is absurd reasoning?
Sne, thank you for your response.
You say that you do not doubt kriegler J’s commitment to judicial independence and legitimacy – which you refer to collectively as ‘values’. I shall do so also.
However, you make out that in your view, Kriegler J’s principal object is to destroy Hlophe. I just wonder whether your post discloses a contradiction here. Perhaps you will confirm that in your opinion, Kriegler J can at once (a) be deeply commited to protecting the relevant values and (b), make his primary goal the destruction of a judge’s career.
You say also that Kriegler J’s course will probably undermine the relevant values. You also seek to use the Zuma saga (presumably the prima facie unlawful decision taken to drop the criminal case against him) to substantiate the view that Kriegler J’s course will do a measure of violence to the values in questions. I do not understand this point. Truly I do not. If you or anyone else would clarify for me (a) how seeking to see a decision which reflects clearly the possibility of bias (amoung many other grounds for review) set aside and (b), seeking to root out judges who lie publically can do violence to the relevant values and how the Zuma Saga (whatever it is that you mean thereby) sustains that view, I would be greatful.
To me, you are effectively saying that the preservation of the relevant values would be better served by (a) tolerating a prima facie unlawful decision and (b) protecting at least one judge who may be unfit for judicial office than by trying to have that decision set aside and removing an offending judge from a position from which he or she could besmirch the judiciary’s image. With respect, I just do not see how that view could possibly wash.
Kriegler J, to my mind at least, has never demonstrated personal animosity towards Hlophe. That is, I do not think that sincerely regarding Hlophe – who is yet again dubiously let off the hook by the JSC – as being a figure that could cause the public to reasonably disrust the courts could (a) necessarily amount to personal animosity or (b) serve as a threat to the values which are at issue here.
You are right insofar as I did not tender my own conception of the dictates of justice in my earlier post which was directed towards you. But with respect, I obviously fall within one of the factions which I mentioned earlier – as Mdu keeps reminding me
And my silence on that score in my earlier post cannot reasonably be construed as a ‘failure’ or ‘refusal’ to ‘realise’ that. Of course I do. I know my own thoughts and the necessary implications of my posts – posts in which I have often ventured my admiration for Kriegler J and what I regard as being his fundamental objects.
I think that the dictates of justice in the context of a constitutional democracy demand that the rule of law ought to prevail. This strikes me as being a necessary implication of the separation of powers given that it is precisely for the courts to ensure, where they are able, that government and public bodies do not act unlawfully.
You introduce Harms ADJP. The issue here is whether kriegler J’s actions go to safeguarding the judiciary’s legitimacy. that is the contention which I advanced and that is the view which you seek to undermine. This is a fairly narrow issue and I would urge you respectfully to cleave more closely to it. We are not debating Harms. We are debating whether there exists some sort of rational relation between kriegler J’s actions on the one hand, and the protection of judicial legitimacy on the other.
That being said, if you want to talk about other topics which pertain to the courts, if you wish to debate with me specifically, you may feel free to remind me that I here undetake to try to answer whatever question you ask of me should the question be germane to the topic introduced by the Professor.
Leigh, I always look forward to your correspondence, as they are always well-reasoned (as sure as a legal mind can be), with the utmost respect but unfortunately idealistic.
“The road to destruction is paved with good intentions …. ”
I wish I could use this quote to sum up the Learned ex-judge Kriegler and his cronies but the good Samaritan label will not stick.
Has he not taken up a cause that he does not have a direct and substantial interest in the matter? I don’t think throwing your weight around in a matter involving ex-peers of yours gives you the the necessary “ethical” locus standi.
The CC who were directly involved had full right to appeal this decision of the JSC and seemed very delayed to pursue the matter further … or was Judge Krigler just “voor op die wa”?
If what has since transpired with all the calls for the decision to be scrutinize again, why were they so slow to react as fast as you and your ilk Leigh?
http://www.mg.co.za/zapiro/all
When is this morbid fixation on John Hlophe going to come to an end? The most obvious feature of this entire discourse are striking contradictions between an articulated understanding of racism as ‘a thing of the past’ and the reality of a persistent and pervasive racism.
It is becoming apparent that there is an element of “swaar gavaar” demonising of agents of genuine transformation in the judiciary. The prejudice being directed at a “person of color” who is a person of substance, intellect and independence first. John Hlophe has become the object of all kinds of paranoid fantasies, when everyday black people experience real injustices (instead of imagined) at the hand of the very same white-dominated judiciary.
It is very clearly become a campaign characterised by opportunistic attacks, petty manipulations and sketchy inferences.
Oh to be black, young and talented… (due apologies to Nina Simone)
When is this morbid fixation on John Hlophe going to come to an end? The most obvious feature of this entire discourse are striking contradictions between an articulated understanding of racism as ‘a thing of the past’ and the reality of a persistent and pervasive racism.
It is becoming apparent that there is an element of “swaar gavaar” demonising of agents of genuine transformation in the judiciary. The prejudice being directed at a “person of color” who is a person of substance, intellect and independence first. John Hlophe has become the object of all kinds of paranoid fantasies, when everyday black people experience real injustices (instead of imagined) at the hand of the very same white-dominated judiciary.
It is very clearly become a campaign characterised by opportunistic attacks, petty manipulations and sketchy inferences.
Oh to be young, gifted and black… (due apologies to Nina Simone)
Could it be that by deciding not to proceed within the enquiry and by failing to include the Premier, the JSC have blundered and have harmed the cause of Hlophe and his supporters. Had the enquiry gone ahead it is possible that the Hlophe team would have prevailed and his name would have been cleared by due process. Instead we now have a situation where procedural shortcomings exist and this provides Judge Krieglers teams with all the legal leverage they need to launch an essential defence of the judiciary.
Kevin, if I may appropriate some of your time, I would respectfully ask a few questions of you.
1. Do you consider yourself to be someone who regards the rule of law as being of crucial import?
2. If so, do you accept that this vision of yourself is plainly inconsistent with advocating that we as a country simply overlook the decision taken by the JSC majority – which certainly appears to have been unlawful for the reasons proffered by Unterhalter SC?
3. And if you would contend that you can at once (a) regard the rule of law as being of critical import and (b) advocate that a prima facie unlawful decision be ignored, on what grounds do you base that contention?
Looking forward to hearing your views.
Regards
Leigh
Anton, I really like your perspective here.
You make out, in a nutshell, that the JSC majority may well have done Hlophe’s cause a disservice inasmuch as they have sought to deny him the chance to (a) see his counsel resort to cross-examination to undermine the allegations levelled against the JP and (b), refute any suggestion that he told a number of porky pies.
I think we can take your point even further: Hlophe’ supporters – I mean the ones who really think that Langa CJ, Moseneke DCJ and so forth have sought to stitch him up – may want to reserve a few strong words for the JSC majority.
Leigh, please do not say that the JP lied. Only a racist would say that.
Harold, sorry to respond so belatedly – believe me, few people out do me in tardiness
You say that the ‘road to destruction is paved with good intentions’. Let us distinuguish between two perspectives here. On the hand, we have those who advocate that Kriegler J ought to swiftly press this application to challenge the JSC’s decision. And on the other, we have those who promote the so-called kiss and make up approach.
It might be fair to say that the success of either course could lead us to the not unspectacular consequence of destruction. And it may even be fair to proffer that at least some of the people who voice opinions here have decent enough purposes. So on the assumption that at least some of the people in both factions have good or noble intentions, one question becomes: which course will take us down the bleakest road to destruction?
As to team Kriegler J: we have an effort to hold a public body to the rule of law. We have a bona fides effort to safeguard the judiciary’s legitimacy and also whatever meagre measure of credibility the JSC may still have – and I mean a very big ‘may’. We also have a thoroughly rational relation between the suit which Kriegler J means to pursue on the one hand, and the object thereof on the other.
As regards team Hlophe/JSC majority: we have a prima facie terrible decision. And I mean the sort of decision which stimulates your up-chuck reflex – if you have not vomitted because of it already. Then you have Hlophe’s supporters advocating that we simply ignore this highly dubious decision and thus, we can only conclude that this faction is prepared to tolerate the rule of law being undermined. And if I may add: we also have a judge who would be a part of a course which is such a model of expediency at the expense of legality – and that is one of the very things that a judge of an apex court in a constitutional democracy is supposed to stand against (which I think demonstrates, of itself, that Hlophe is unsuited to that bench).
I turn now to further queries which you raised in your last post. Let me just say that I think the substantive allegations which FUL mean to found on the papers, given the JSC decision, certainly seem to give themselves to establishment – on the assumption that the cause will share much with Unterhalter’s analysis.
As regards the question of standing, you would have to ask Kriegler J how they mean to demonstrate that. And I would say that I am in no position to say why the Constitutional Court justices have not commented on the decision publically as far as I am aware. I could only offer conjecture on that score.
Mikhail, perhaps you would honour me with some argument – and some sympathy too given that I typically miss the insights which you proffer.
Let us leave aside for the moment what I may think of the JP and the JSC. And let us assume that the view which you impute to the Professor is true: black people cannot be racists.
Could a black person who suggested that the JP could be lying be a racist?
Leigh, this is a stimulating question, and I thank you for posing it!
The answer is “NO.”
A black person who suggested the JP was lying would, ipso facto, not actually be black.
Hence, he would not have his hand shaken.
Mikhail, your view seems to embrace the following: supporting the JP, regardless of the circumstances which obtain, is a necessary condition for being black – at least, I assume, within the context of South Africa. In other words, you cannot be black unless you accept that the JP cannot lie.
It’s like I mentioned to Mdu a short while ago: your submissions are intriguing. If we were to follow my construction of your view a little further down logic’s path, we might conclude that in order to meet the abovementioned necessary condition, one must suspend whatever capacity for critical inspection that one enjoys when it comes to the JP – at least the capacity to critically consider criticisms levelled against him. Allow me to say respectfully that I think that can be chalked up as a fairly demanding criterion.
In order to take this rewarding discourse further, let us assume for the moment that the JP’s commitment to transformation on behalf of black lawyers richly merits this advantage which you contend he enjoys: in order to retain one’s blackness, one must never speak ill of the JP – no matter what.
Let us assume also that Kriegler J’s commitment to transformation is readily demonstrable and at least comparable to the JP’s. Now in the light of the JP’s commitment to racial transformation, it seems there is a something of a basis for the view that in order to be black, even if you are black, you must never call the JP a liar. And it appears that this same basis is apparent in Kriegler J’s case as well. So can we not say that Kriegler J ought to enjoy a similar advantage? That is, can we not say that black people really cannot be black if they condemn the words that Kriegler J speaks?
Leigh, just a few points to bear in mind:
1. Race is but a social construct.
2. Black people cannot be racist, because racism is about unequal power relations.
3. The Constitution demands transformation, which entails that jurists with depressed melanin levels do not belong on the bench.
4. There is no point in subjecting a witness to cross examination if you know in advance they will not budge.
5. Parody is the grossest form of irony.
Mikhail, thank you for an enjoyable exchange. I will certainly remember the points which you have suggested I bear in mind
And someone really ought to mention point 4 to the American Trial Lawyers Association – seems they have wrong.
Leigh, you are letting your Eurocentric biases show through again.
I am well aware that Americans and British judges set great store in cross-examination, as if the process had some mystical power to generate the “truth.”
But slavish adherence to colonialist jurisprudence is precisely what the JP has struggled against all of his life.
Indigenous jurisprudence is characterized by a non-confrontational, more discursive form of forensic discourse. Anyway, hostile questioning in an adversarial atmosphere is quite antithetical to the value of “Ubuntu” that underpins our Constitution.
Mikhail, thank you for directing my attention to my Eurocentric biases. It can be a useful exercise to periodically check the content of one’s views for untested assumptions and partiality.
The JP must have an extraordinarily idealistic nature. Yes I know, the obvious question is: why would I say something like that when the JP has so eloquently argued that we should steadily remove the Eurocentirc content of our law? Before I am called a host of nasty things, allow me, if you would, the most meagre of chances to explain.
I shall assume that the JP’s struggle against colonial jurisprudence shares much in the way of content with the exposition which you furnish at the tail end of your last post. And on that exposition, it seems we must reach this necessary conclusion: it is trite that parties to disputes are typically capable of trusting their opposing numbers to make material concessions – even where the parties called upon to make those concessions will probably sustain grave personal prejudice by doing so.
Let me respectfully tender the following example in the hope that doing so will make the current picture all the more lucid: person A is a financial advisor by profession. Person B is her client. B turns to A for some counsel regarding an investmet opportunity. A advises B. The trouble is that A knew full well before advising B that certain bundles of documentation were undoubtedly material to the subject matter in respect of which B sought the former’s guidance. A did not even bother to read that which was plainly germane. Now had A read the documentation, her advice to B would have been different and most importantly, B would have probably advoided loosing the millions of Euros which she lost because of the poor counsel which she received from A.
Plainly B has a meritorious case. And A is in a serious pickle. But as you say, in such an instance in which A stands to have to fork over millions in compensation, cross examination should be avoided because a civil chat would, in the aggregate, be the better approach to unearthing the truth. Yes the Ubuntu-inspired Shangri-la of dispute resolution wherein parties thereto chat amiably is the best course if both you and presumably the JP are to be believed.
Parody may indeed be the grossest form of irony. But that is not to say that it does not have its uses
“Black people cannot be racist, because racism is about unequal power relations.”
So tell us Mikhail…..if a black person were to call a colleague a “piece of white shit” how would you define such a statement if it is not racist.
Anton, ask Pierre his question.
He has a fascinating thesis that, while black people can be bigots, they are incapable of being racist.
I must say, I find it difficult to resist.
Irony people, irony…and sublime irony at that. Good form Mikhail
Leigh and those who are mocking the majority decision of the JSC – I have now had an opportunity to study the majority decision – my first observation is that it is long in detailing the summary of the evidence led and short on the analysis thereof. However, this does not necessarily mean that the short analysis is flawed. I have not heard anyone taking issue with the summary of the evidence led before JSC-so one can assume that such is common cause.
Other than the technical composition of the JSC, I can not see on what legal ground can the majority decision be reviewable. Prof seems to concur with Prof Unterhalter’s criticism of the majority decision. The pillar of Prof Unterhalter’s argument seems to be the following:
” What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.”
Well, in my reading of the summary of the evidence of Nkabinde and Jafta JJ nowhere did I read that the two judges testified that Hlophe JP had intention to improperly influence them.
Before we move to other possible grounds for review, let us resolve Prof Unterhalter’s statement of fact first. By stating “…the complainant thought so” is Prof Unterhalter referring to the Concourt judges as a complainant without having regard to the testimony of the two judges before JSC or is he referring to their evidence???