As the Judicial Services Commission (JSC) grapples with its duty to enforce judicial ethics, there seems to be much misaprehension about this topic. Of course, one does not know whether the JSC will deal in an appropriate, open, transparent and fair manner with the complaint lodged against controversial Judge President John Hlophe by the judges of the Constitutional Court or whether the JSC will run away from its responsibilities in this regard and will avoid dealing with the issue speedily and fairly.
But while we wait to see if the JSC does the right thing, it might be good to remind ourselves that any determination of whether a judge is guilty of gross misconduct must take place against the background of the rules of judicial ethics. In March 2000 the Chief Justice, the President of the Constitutional Court (as he then was) and the Judges President of the different high courts issued guidelines on judicial ethics, binding all judges in South Africa.
These guidelines are being redrafted and are in the final stages of fine-tuning before it will be approved by all parties concerned,. Because the new guidelines are not yet in place, I will not touch on them here. However, the original guidelines which still apply to all judges should give us a good idea of how judges are supposed to behave. Some of the pertinent guidelines are reprinted below.
Guideline 1 states: “A judge should uphold the independence of the judiciary and the authority of the courts, and should maintain an independence of mind in the performance of judicial duties. A judge should also take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts.” As an explanatory note makes clear, this requirement is fundamental to the independence of the judiciary and is in conformity with “the right of every judge not to have his or her independence of mind disturbed by any person [including a fellow judge!] or organ of state.”
Guideline 2 states: “A judge should always, not only in the discharge of official duties, act honourably and in a manner befitting the judicial office.” This means that the “actions of a judge in a private capacity should not be such as to create any substantial risk of disorder, violation of law, public misunderstanding, or future embarrasment in performing judicial duties.”
Guideline 9 states: “A judge should recuse him/herself from a case if there is a conflict of interest or if there is a reasonable suspicion of bias based upon objective facts.” This means that even where a judge does not recuse himself but believes there might be a perception problem he or she has a duty timeously to make known the facts that might give cause for concern to the parties.
Guideline 18: “A judge should in respect of judicial activity refrain from any conduct that may be interpreted as personal advancement.”
Guideline 22: “A judge may not, without the consent of the Minister of Justice, accept, hold or perform any other office for profit, or receive in respect of any service any fees, emoluments or other remuneration apart from the salary and any allowances payable to the judge in a judicial capacity.”
Guideline 23: “A judge should not directly or indirectly accept any gift, advantage or privilege that can reasonably be perceived as being intended to influence the judge in the performance of judicial duties or to serve a sa reward therefore.”
These guidelines, one presumes, are provided to all new judges. I leave it up to my readers to decide whether every single judge in South Africa has always strictly adhered to them.
Weeelll … These guidelines have definitely not been adhered to by Hlophe JP. Can someone perhaps slip a note underneath the door to the JSC where it is convened behind closed doors to discuss this issue?
Thank you Prof for these guidelines and now that the Honourable Hlophe never “disturbed “, depending of course on your understanding of that word, any Justices mind unless they did not deserve to be judges if they are so pliable, let Hlophe be deservedly given the Chiefjusticeship!
Mdu
come agian?
“Judge Hlophe crossed the line of legitimacy. He was not supposed to do what he was doing,” Constitutional Court Judge Bess Nkabinde told the JSC.
“Nkabinde, who at that time had been warned by Jafta that Hlophe might want to try to discuss the pending Zuma matter, said to the Judge President that she was not in a position to discuss the case with him.”
Now clearly someones mind is disturded…. either yours Mdu or Nkabinde and Jafta? which one is it?
Chris Mcdaniel you don’t explain why the said justices mind could have been disturbed, my point exactly, saying or alluding my mind could be disturbed is trying to silence me through scorn which wont work.
Mdu – what you apparently fail to understand is that “the right of every judge not to have his or her independence of mind disturbed by any person [including a fellow judge!] or organ of state”, actually means that judges have the right that no attempt whatsoever is made to ‘disturb’ their minds.
Vat die dag vroeg af en gaan Mdudu bietjie oor wat ek hier gese het.
Mdu // Jul 22, 2009 at 2:48 pm
Bless your heart, I was waiting for that
“I went home. I couldn’t think of anything else. I was disturbed. That night I actually couldn’t sleep,” said Mokgoro.
“Both Nkabinde and Jafta testified how difficult it was for them to deal with the situation but that both made it clear to Hlophe that it was improper to discuss the Zuma case.”
part of the definition of being disturbed is to be made uneasy.
Now if they were not disturbed by this encounter then why oh why are we even going through this whole mud sling with the JSC. when both witness’s and a 3rd party testified that they were rather perturbed by this encounter and the fact that Hlophe was bragging about his NIA list.
Well said Chris!
SAPA reports:
The Judicial Service Commission appointed a three-man subcommittee on Wednesday to investigate if there is enough evidence to proceed with a full hearing into the dispute between Western Cape Judge President John Hlophe… The subcommittee will be made up of Moerane, Judge Ishmael Semenya and Judge President Bernard Ngoepe, who will chair the group.
Chris and Mouse, do9nt forget that selfsame two Justices did not see it fit to lay a charge but were persuaded to do so, now what do you say to that, were they still “disturbed’.
And to answer your other question the charge was laid by all CC judges to smear Hlophe, after the two Justices refused to do so on their own.
I remember reading that Hlophe offered his views fairly forcefully to Nkabinde. I do stand under correction but that is my remembrance.
Now I think a fair bit here hinges on whether Hlophe did so or continued to do so after Nkabinde told him that she was not in a position to discuss the case.
Does it strike anyone else that if Hlophe tendered his views despite such a communication from Nkabinde that a reasonable person in Nkabinde’s position may well have inferred a subtext of impropriety? I tend to think so. But I would appreciate other views.
And on a separate but related note: I certainly welcome the Professor’s election to include in his latest piece some of the guidelines to which Hlophe was obliged to adhere. Now I do not mean to be rude. And I shall concede – especially after a very rewarding recent exchange with Mzo – that perhaps I have not brought the measure of objectivity and care to my scrutiny of Hlophe that I might have done. But truly, in the light of these guidelines (and hopefully without giving too free a reign to my more crude nature): how often must Hlophe screw the pooch before he gets held accountable for his indiscretions?
Pierre, you wrote: “But while we wait to see if the JSC does the right thing, . . .”
It is so sad that you have to adopt this attitude on your blog but, quite frankly, I feel the same way.
I think it is immaterial to state that Nkabinde and Jafta have been unwilling to lay a charge on their own, because in the light of the guidelines, where a disturbance has occured ( mokgoro`s remarks), it is sufficient to be a contravention, and the same applies to Bess and jafta. they were disturbed and the disturber is guilty of offending the guidelines.
Ahh desire, the nemesis of fact and truth. “I Want! Therefore truth is not acceptable,” even though in these circumstances it arises in a judicial venue.
Reminds me of the proverbial bully boy.
As for Hlophe’s too numerous and short sighted supporters, apologists regularly scramble at loose strings, blind to all but their own intent, acting much like a drowning man. I need not mention names.
Apart from that Prof, and even though new guidelines are still being contemplated and not in place, can you please state those that you are aware of, putting them forth for discussion in a near future post? Isn’t that what transparency and civic participation entails?
Mdu // Jul 22, 2009 at 3:20 pm
“Chris and Mouse, do9nt forget that selfsame two Justices did not see it fit to lay a charge but were persuaded to do so”
but disturbed enough to report the incident now didnt they? as they both needed counciling on the matter. did that not happen?
but then again im sure Nkabinde doesnt regret testifying
“John Hlophe is not my friend — he is not telling the truth,” she added.
she still seems perturbed.
“And to answer your other question the charge was laid by all CC judges to smear Hlophe”
you seem to forget the court ruled that the CC judges werent in a smear compaign they followed procedures and the court ruled in there CC judges favor.
So what do you have to say about that?
Leigh // Jul 22, 2009 at 3:21 pm
“Does it strike anyone else that if Hlophe tendered his views despite such a communication from Nkabinde that a reasonable person in Nkabinde’s position may well have inferred a subtext of impropriety? I tend to think so. But I would appreciate other views.”
Im glad you brought this up….I remember you having a debate with someone (I think its was Mzo) and that person said Hlophe acted in his personnal capacity and therefore basicly wasnt acting as a judge and did not act ethicly wrong
Now take note here leigh
Nkabinde “said to the Judge President that she was not in a position to discuss the case with him.”
Now clearly she must be under the impression that a Judge may not discuss a criminal case to another judge, so why would she say shes not in a position to discuss the case with him. Now were does she get this ethical line of thinking from? Clearly she has been taught somewhere that shes not allowed to talk about criminal cases in the wrong platform and to uninvited guests
The fact is whether Hlophe was acting in his personnal capacity or not he acted with a political motive and a agenda with a presiding judge unannounced and how he has evidence that Zuma will win his case. That in itself is unethical, a breach of judicial security and it seems with hold of evidence that should of been reported to the police. Hlophe acted with intent and judicial malice
Chris, in your first post in the present discussion, you drew some attention to disturbance of mind. And I am glad that you did as under guideline one – as reflected in the Professor’s piece – whether Nkabinde’s independence of mind was disturbed is a relevant inquiry as regards Hlophe’s interaction with her.
I would like to pose some open questions here which I hope are sufficiently relevant to the present discussion.
First, if one were to adopt a common-sense approach, how might one determine whether conduct caused an independent mind to be disturbed? ie, What is the test?
And secondly, given that test, can one properly accept that Hlophe’s communications – despite Nkabinde’s indication that she was not in a position to entertain discussion about the case – caused Nkabinde’s independence of mind to be disturbed?
SEBJENI // Jul 22, 2009 at 3:42 pm
You are of course right – it is a falacy to presuppose that there must be a ‘complainant’ before a law (criminal or not) is contravened. If a law has been contravened, anyone with locus standi (in this case the CC judges as a whole – but anyone to my mind could have done so) can complain and take the matter to a competent court, tribunal or body to resolve the issue.
I was thinking that some of the guidelines call for subjective thinking, some for objective thinking, and some for a bit of both.
If that makes sense, and I’m not sure it does given how I have phrased it (sorry), it does seem to me that with Guideline 1 Judges are being afforded peace of mind space, which they are to vigourously defend. I think it should be interpreted that the guideline seeks to protect the deliberating judge. So it matters not that Hlophe is a judge, the point is that the people he approached were deliberating Judges.
I think that the transgressor must be liable if the Judge believes themself to have been “disturbed” and that his claims, if I understand them correctly, that he was just making small talk should be mitigation, not a defence. Of course, the mitigation will not be so compelling, given that he is also a Judge and so should know well and good that he should not be invading the “safe space” provided for in the guidelines. His notion that Judges always discuss cases doesn’t really wash as it should be for the deliberating Judge, surely, to approach colleagues to sound them out on something.
I just wanted to make that distinction. Does anyone agree with me?
Mpho,
I have no difficulty in agreeing with you that the Guideline in question, as it is framed, calls for a subjective thinking. However, I am not sure that I agree with your understanding of the guideline.
As I read the guideline, I don’t agree with your apparent assumption that the issue is “disturbance” per se, as one of the judges is reported to have testified that s/he was “disturbed”. There is no right not to be disturbed, eg being disturbed by Hlope’s bad manners whilst having coffee with him or even the fact that he told you that he has access to NIA (assuming for a moment that the allegation is correct – something denied by Hlope so far)
What must not be disturbed is the judge’s INDEPENDENCE OF MIND. Now, let’s assume for the purposes of this debate that Hlope is right that his conduct is common amongst judges. How can a judge’s INDEPENDENCE OF MIND (I mean a judge worthy of being called as such) be disturbed by a judge simply expressing his view (based on media reports – not having sat in the matter, and therefore with no real factual background) on a particular legal point that is so fundamental in our law – attorney/client priviledge? If a judge’s independence of mind can be disturbed by such, it means there wasn’t a lot of it to begin with!
Sure, s/he might not be comfortable to discuss the issue in view of the fact that the matter is still pending, but that, in my view, is different from having his/her INDEPENDENCE OF MIND disturbed.
With respect to Prof, I really do not see the relevance of the rest of the Guidelines in the matter currently before the JSC. No doubt these are relevant in the wider discussion of whether Hlope is suitable for the CJ position, but insofar as the current matter is concerned, these guidelines relate to matters which have served before, and been decided on, by the JSC.
It is important that people (judicial officers and Professors alike) respect the decisions of the constitutionally created bodies. We cannot pretend as if these matters have not been decided simply because we do not like the conclusions reached. To keep referring us to matters that have been disposed of in an effort to sway our views and cloud our judgment in the current matters is not only disingeneous, but dishonest.
“It is important that people (judicial officers and Professors alike) respect the decisions of the constitutionally created bodies. We cannot pretend as if these matters have not been decided simply because we do not like the conclusions reached.”
This can’t be sustained by objective reality. Take for instance some decisions by the bench during the apartheid era. The issue here is about not only the individuals and subjective factors. It extends to the individuals as officers of a stratum of our constitutional construct. Viewed from this perspective, their conduct and the motivations therefor is of little probative value. What ought to be tested is their conduct vis-à-vis out expectations of the office they hold (and factors such a conventions, both locally and internationally, ought to be considered). In this regard, the likes of Hlophe and Matata fail dismally.
Pierre,
I really don’t see the relevance of your article since there has been no irregularities thus far, maybe you should quit this obsession of Judge John Hlophe and black people.
You and Helen Zille must recieve councilling on persisting craving for hogwash and racism. I know you embrace the attitude and idealogy of the conservatives, remember the Conservative Party my friend.
Judge Hlophe is the right man for the ConCourt Chief Justice, his only crime is to speak out against racism and of course according to Helen Zille and De Vos that is a violation of their constitution. Paul Ngobeni has been added in their hit list for the same reason of speaking out against racism.
You might be educated but you have no respect from me, Helen Zille might be your cheerleader but in my community you are just a big eye racist attention seeker with no positive contribution to us (South African).
We must remember that both Nkabinde and Jafta JJ informed Langa CJ that they satisfied that they dealt with the matter, thus they refused to lay charges. The pattern of “disturbance” only started with Mokgoro J (even her testimony alludes to that), since she lost some emails on her PC (context). She then tole O’regan J, who told then Moseneke DCJ, who then told Langa CJ. As it is now publicly known, they all ended up “disturbed” except for Nkabinde and Jafta JJ. Both judges were clearly so “undisturbed”, they hired legal experts to tell the JSC that much.
@Chris:
1) Fancy adjectives by the journalist do not qualify as the judge’s state of mind.
2) Mokgoro J is a third party in this matter. Her “disturbed” mind is immaterial because all she testified was hearsay.
@Mzo: thanks for properly contextualizing “disturbance”.
Sadly, racism of the worst kind remains an ever-present reality — even in the hearts of those who loudly claim to eschew it.
When one considers the accomplishments of the JP, as usefully listed by the JFHA, it is astonishing that he is nominated for the comparatively lowly position of CJ. But for omnipresent racism, he would surely have vaulted to the Presidency, or even the United Nations.
*were satisfied*
*told O’Regan*
*who then told Moseneke DCJ*
Dumelang! …You guys will moes remember how much I believe in INNOCENT TILL PROVEN GUILTY through a fair process. As cleché and “unlearned” as this may sound to most of you learned people, to me, it is one of the fundamentals which will prevent the normalisation of Kangaru courts of ‘Courts of Public Opinion’ and as such, we will never end up the so-called Bafana Bafana Republic or is it banana republic?…Anyway, my point Prof is that so far I dont know of any judge in S.A who has ever been FOUND GUILTY (by the JSC, and the JSC ONLY!) of having violated any of those guidelines….Amandla!
Pierre, as this sorry saga now seems destined for a conclusion, one way or the other, I thought I should give a lecture on the practice of law and the rudimentary principles by which that practice is underpinned in matters of the sort with which the JSC (and the courts before it) is now seized. Alas, I fear my breath will have gone to waste judging by what I read on this blog.
I’m told you once challenged me to a debate on the issues arising in the matter now sullying the entire judiciary. Quite frankly, I believe my view – founded as it will be on principles of the procedural and substantive practice of law – will be entirely lost on one who engages with neither. I say this with the greatest respect.
Perhaps you will at some stage in your professional life practise law so that you can come to appreciate the difference between teaching it and practising it. It is considerable. And I think your views – rooted as they appear to be on theoretical understanding of law without the practical nuances of its application – tends towards the limping hue. This does an immense disservice to your readers – and your fan base – and in the process breeds (ironically) the very intellectual sycophancy a professor of law ought to discourage.
Let’s have tea when I’m next in Cape Town and talk about anything but law. VN
Prof
I think the guidelines are very relevant, even if Hlophe JP were not embarrasing the rest of us. It shows what is expected of judges, what we should expect the JSC to use in determining their matter and we could even weigh up those rules with those proposed by the legislature.
We can see the answers we want to see, i.e. Hlophe Jp is guilty or innocent and that Motata J is not worthy of being a judge – where’s the complaint against him?
It would seem quite possible that the relevant judges did have the independence of their minds disturbed. I tend to agree with Mpho. Had it been Hlophe JP discussing his own case for some assistance then it would be fine.
Imagine, for a second, if Satchwell J had gone to discuss the case in which she was the applicant, with some of the justices (e.g. Mokgoro, O’Regan, Sachs JJ and Chaskalson CJ). She chose them because of race and gender. Would the “discussion” of that matter have amounted to a disturbance, without suggesting any solution? Methinks it would have been. Any unwelcome discussion or approach regarding a matter one judge (or more) is deliberating on amounts to a disturbance of mind.
Why? The action may seem innocent but its motive is not. One cannot tell what great pressures the other party (Hlophe JP in our case) has on them. Esp. since a JP was approaching the justices, maybe there was some great reward in for them or a threat for the justice. The act of dismissing Hlophe’s attempt does not mean that it would not amount to a disturbance.
Mzo, i do not really understand you. Jabu, his REAL crimes have less to do with race than they do with rocket science. He seems quite pliable, esp when money is involved. The man’s Oasis story, the retainer, demanding a Porsche Cayenne because his previous car wasn’t fitting a JP, and trying to influence two CC justices. The last bit resulted in the majority of the court being mildly upset. Maybe it is he who is racist…
paul Ngobeni left the USA with his tail between his legs. He is not fit to practise in a number of their ststes and seems to offer slender reasoning for his sporadic support of Hlophe JP. Its also amazing that you feel you have to make this discussion about racism and Helen Zille, and the ANC says that the DA can’t stop mentioning them. How it is to be in opposition…
Disturbed, I wonder what kind of an enquiry determines disturbed in this context. Is it a subjective or objective one? I submit that it should be an objective standard. What about the so-called egg-skull cases? I submit that the so-called egg-skull cases rule would be applicable here especially when you consider that the two justices’ “disturbia” was not enough to drive them to formally lodge a complaint against JP.
On a slightly different note, I have a question…
The JSC has set up a sub-committee to decide whether a full hearing into the current Hlophe saga is warranted. My question(s) is(are):
This case has been heard by two separate courts already, so surely this fact alone should determine that this case is important enough to warrant a full hearing.
The JSC have already proceeded with a full hearing which was then postponed through Hlophe’s illness. Accordingly, why would it have been deemed important enough then, but now not?
If a complaint has been lodged by a full CC against a JP, surely the “players” in this case, as well as the critical importance to our judiciary of a formal resolution, would warrant a full, thorough and detailed hearing?
Prof,
According to the JFHA in an article on Politicsweb, you have “a waupt sense of humour and at worst is an airhead.”
How does one ever recover from such a vicious attack?
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=136856&sn=Detail
If only the JHA would appoint a proofreader.
Mzo and Mpho, I agree with you two inasmuch as I also think that the determination of whether there has been a breach of a judge’s right not to have her independence of mind disturbed probably calls for a subjective inquiry. In other words, the investigation becomes: did the judge in question actually sustain disturbance?
But I would, if I may, offer a few words of my own on the present score. I think a relevant question is: what is meant by independence of mind? I think that one answer is that mental independence, given the present context, can be defined as the capacity to form opinions or reach conclusions independently.
And moving from that platform, another material question seems to me to be: how might the ability to reach independent conclusions be disturbed? Now some people may say that force or coercion are the ways in which mental independence can be fettered. I would respectfully associate myself with such views. But I do think that such a narrow construction makes for too stringent and onerous a test by far.
To say why I think it over-stringent: on such a narrow construction, it could be argued that someone who seeks to unduly influence a judge, but who fails to compromise the judge’s mental independence, would have committed no breach and thus could not incur liability. This construction allows for too much conduct which, intuitively speaking, should be objectionable. That is, how dare someone – especially a judge – fail to respect a judge’s wish to guard her mental independence? This should, in my view, attract at least some adverse consequences.
So my view – for which I would welcome criticism – is that guideline one should be construed thus: sufficiently convincing evidence of an attempt to limit a judge’s mental independence can amount to a breach of the judge’s right not to have her mental independence disturbed.
Michael, your views here are close to my own. It strikes me that many who cry racism – at least on this blog – might do very well to check their own untested views for racist content.
Very good questions Samantha. This just shows what one should expect from this new JSC – more decisions that don’t make sense.
Be not surprised therefore if this sub-committee finds no sufficient evidence to go ahead with a full inquiry. This seems so predictable, given the Mpshe decision and all that.
I guess this is the transparency we were promised by the ruling party many years ago.
Mzo, I have two questions for you which I hope you will entertain.
As I believe you have either said plainly or at least intimated before: the Oasis scandal is over. The JSC made an adverse finding which was not enough to trigger the impeachment process. And the sole reason as to why you think Hlophe should not be considered for chief justice right now is his pending spat with the justices of the Constitutional Court.
My first question is: should a chief justice serve as an ethical standard for the rest of the judiciary?
Secondly: if so, why should the fact that Hlophe has an adverse finding against his name not – whereas other worthy candidates for the top spot do not have such blemishes – of itself preclude him from being appointed chief justice?
Samantha // Jul 23, 2009 at 9:03 am
My sentiments exactly. How can they only think about appointing a Sub-Comm now to determine an issue that should really be clear to anyone with at least one brain cell?
Clearly Hlope JP has a case to answer and therefore the hearing is indeed warranted. The papers by the respective parties do not assist in determining this saga one way or the other (notwithstanding some bloggers here who seem to have reached conclusions on where the truth lies purely – it would seem – on the basis of previous events).
I said it before, our judiciary would greatly assisted if the people serving in the JSC can do their job properly and stop these “shenanigans”. Call in all the parties; allow them to bring whatever evidence they deem necessary; open the whole process up and for goodness sake, make a fair determination based on the evidence provided. How difficult can it be really?
Leigh // Jul 23, 2009 at 10:38 am
I think I my answer will cover both questions:
I believe that ALL judges should serve as an ethical standard for the rest of the judiciary, not just the CJ. Accordingly if the body entrusted with the duty to look into the conduct of all the judges and ensure that such standard is maintained deem it appropriate that someone should serve as a judge, then it follows,in my view, that such a judge is also fit to be a CJ.
In other words, it will be ridiculous to tell me that Hlope JP can remain a JP, even an ordinary judge nogal, but he does not qualify to be a CJ. This is exactly why I would like the hearing to go ahead and if the finding is that he is guilty of gross misconduct, then he should stop being a judge and if the finding is in his favour, let the man do whatever he wants to do with his career, including being a CJ if he so desires and the President is amenable thereto. I hope that answers your questions.
Tony in Virginia // Jul 23, 2009 at 10:25 am
I share your frustrations with the JSC but I disagree with your attempt to blame this on the “new” JSC (not even sure if it’s technically correct to cal them that).
The JSC, not just the “new” JSC, has always effed things up in my view. Or are you one of those that believe that it was a right thing to do press ahead with the hearing whereas the “accused” could not attend on doctors orders or that it was OK to prescribe to the “accused” what witnesses he could bring to defend himself. That was the “JSC”, not the “new” one.
Mzo, thank you for the response. But your responses, with respect, trigger more questions.
First, do you accept that the JSC’s finding against Hlophe about Oasis was such that he could not be removed from office? If so, then it would follow that his current office was invulnerable.
Second, can one distinuguish between (a) that which cannot lead to removal from office on the one hand and (b), that which can preclude career advancement on the other? If so, can one not say that the same conduct could at once not lead to removal but prevent advancement?
And third, I read you as saying that in respect of ethical responsibilities, all judges are equally obliged to be ethical standards. But if you accept that the CJ has more powers and responsibilities than either all or at least most judges in terms of (a) the doctrine of precedent and (b) the Constitution, can your view truly wash?
Leigh // Jul 22, 2009 at 5:13 pm
Your 1st question
I suppose one would have to look at the actions that lead to such a disturbance of the mind. I would feel this would be one of the tests.
Hlophe approached Jafta first to discuss about the Zuma trial. Jafta was clearly unsettled by this meeting as it warrented him enough to warn Nkabinde that Hlophe would approach her. Already there she is forced now to keep her guard up and safe guard her “Independent Mind”
Both Jafta and Nkabinde put there foot down and basicly told Hlophe to piss off.
Now with regards to the independence of a judge, Hlophe tried to disturb this independence of “Mind” by affecting there own implementating view of Justice.
How is this achieved:
1) Uninvited quest
2) Threatening, Hlophe said he is going to be the new chief justice and that they should think of there careers.
3) papers he has in his positions Zuma has no case.
Question 2
If one is threatened in so much with the comfort of ones job and that they must think of there careers first than rather applying justice, equates to a disturbance of the mind. Becuase here you have a man who is actually warning you to think carefully of the zuma case because this person will happen to be the next chief justice and if you dont support my “Mandate” then Ill fire you or block your advancment in the judiciary. This equates to an unsettling thought and renders that person not to implementate their own view of justice.
We now this unsettled her nerve because she approached Mokgoro about the experience. What more needs to be said about disturbance of mind. Clearly Nkabinde was flusted by this meeting as this left Mokgoro disturbed by this encounter. This is a very heavy meeting that took place.
No one can deny the very action of Jafta and Nkabinde sort councilling, remember they approached the other ranking judges not the other way round.
Mzo, Mpho et Leigh – I really do not see how you can argue that a subjective test is required to determine whether a judge’s mind HAS BEEN DISTURBED (Emphasis intentional). If one looks at the guideline and explanatory note again (re-quoted below), it becomes apparent that in order to determine whether a judge has contravened the guideline, it is not required that the mind of the judge approached must have been disturbed. What is protected is the judges right not to have his or her mind disturbed, and any attempt to do so would obviously already impinge a judge’s right in this regard. It is not about Jafta and Nkabinde not having been able to prevent the disturbance, but rather whether Hlophe JP should have embarked on the way that he did. “A judge (including Hlophe JP) should also take all reasonable steps to ensure that no person or oran of state (including Hlophe himself) interferes with the functioning of the courts.” His mere approach in this regard, on his own version, clearly contravenes the guideline since it was manifestly intended to disturb the two CC judges’ minds into making a certain finding.
‘Guideline 1 states: “A judge should uphold the independence of the judiciary and the authority of the courts, and should maintain an independence of mind in the performance of judicial duties. A judge should also take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts.” As an explanatory note makes clear, this requirement is fundamental to the independence of the judiciary and is in conformity with “the right of every judge not to have his or her independence of mind disturbed by any person [including a fellow judge!] or organ of state.” ‘
Setumo Stone // Jul 22, 2009 at 9:49 pm
@Chris:
1) Fancy adjectives by the journalist do not qualify as the judge’s state of mind.
2) Mokgoro J is a third party in this matter. Her “disturbed” mind is immaterial because all she testified was hearsay.
I think you might be a little stoned…..these so called fancy adjectives are actual quotes from the 2 judges. why does Nkabinde accuse Hlophe of lying?
Mokgoro out ranks Jafta and Nkabinda she is a credible witness as she consulted Nkabinde on what to do.
Now by you saying “HEAR SAY”makes you sound like Nkabinde and jafta made this all up? Do you think Jafta and Nkabinde made this story up?….I guess they also racist, oh shit i forgot they black …damn they must be counter revolutionists. Since they must also be on a smear compaign against hlophe?
Leigh
My view is that the Oasis saga was dealt with by the body mandated to do so and they decided, in their wisdom, that he could not be removed from office. For me that was the end of the matter. I would most definitely expect the President to take this issue into account (amongst other things) when he decides to appoint the CJ. If Hlope JP intends to go to the CC, I would definitely expect the JSC to raise questions about his suitability for that post in light of the Oasis finding, but I do not think the finding in the Oasis saga should necessarily preclude him from trying to get a higher position – it may of course still not be given to him.
I would be very wary of the distinction you are talking about. Where do you draw the line and who draws that line? As far as I am concerned, if the person is still fit enough to be a judge (in the view of the JSC) that person must necessarily be fit enough for any other juducial position. Again, being fit for a position does not mean you will automatically get it because I would imagine that if there are other equally capable candidates without a history of “lapses in judgment” (like failing to recuse yourself when you clearly should have), then they should get the position ahead of you.
As for your third question, in my view, the CJ’s powers and responsibilities have no bearing on the ethical standard to be expected from a judge. I will admit that my knowledge of his/her responsibilities is limited (having not had a reason to actually look into this) but it seems to me that there can be no reason to suggest that his/her ethical standards ought to be more onerous than the rest of the other judges. I am of course subject to correction, but insofar as the ethical standards are concerned, I do not believe that there is some kind of ranking.
@Mouse
Exactly!!!!
Mzo, Mpho et Setumo Stone
Heres another “Fancy adjectives”
“I was taken by surprise,” Judge Jafta told the Judicial Service Commission (JSC)
Now why would jafta be taken by surprise? oh here we go….
“Judges don’t discuss matters before judgment is handed down with members of the court who were not on the panel,” he said.
Really Jafta?? is this a code of ethics? is this true? or is this just “hear say”?
Chris
I am amazed at how you seem to have taken the “testimony” of Jafta and Nkabinde as Gospel. I can only be glad that you are not a judge because I would be very worried.
@Anonymouse
“What is protected is the judges right not to have his or her mind disturbed, and any attempt to do so would obviously already impinge a judge’s right in this regard”.
I disagree. Read the Guideline again. There is no protection to have his/her mind disturbed. It is INDEPENDENCE of that mind that is the issue. Now, if we are to take what Jafta and/or Nkabinde are reported to have said about Hlope warning them that they should think about their careers because he is going to be the CJ (let’s all act as if we are Chris), I would concede that such a “threat” can conceivably disturb the judge’s independence of mind insofar as s/he may feel constrained in making his/her decision.
But really (and on a lighter and realistic point), even if we act like Chris here for a moment and assume that a threat was indeed made, how could the 2 justices really take such a “threat” seriously -surely the CJ does not have any powers to determine a judge’s career. If Hlope really said that, he was clearly bluffing!!
My learned friends,
Justice must both be done and also be seen to be done,[R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER 233)], per Lord Chief Justice Hewart.
Let us read the above with,
Guideline 9 states: “A judge should recuse him/herself from a case if there is a conflict of interest or if there is a reasonable suspicion of bias based upon objective facts.” This means that even where a judge does not recuse himself but believes there might be a perception problem he or she has a duty timeously to make known the facts that might give cause for concern to the parties.
And
Guideline 1 states: “A judge should uphold the independence of the judiciary and the authority of the courts, and should maintain an independence of mind in the performance of judicial duties. A judge should also take all reasonable steps to ensure that no person or organ of state interferes with the functioning of the courts.” As an explanatory note makes clear, this requirement is fundamental to the independence of the judiciary and is in conformity with “the right of every judge not to have his or her independence of mind disturbed by any person [including a fellow judge!] or organ of state.”
In my view, this is where we may find an answer as to whether to make use of objective or subjective test, of which the former seems to be the one.
As for the facts, whether the JP indeed disturbed or otherwise is not of assistance, it is sufficient to be perceived as having done as such, (in the light of the circumstances).
The problem we seem to have in this country is that politics seems to be supreme than anything else and that is the reason why this JP matter is not worth to be taken any further. Yes, I say this because the very individual that is suppost to expel the JP (if he is to be found guilty) is the one he (JP) was allegedly fighting for. There are also talks that this is a political case and well we know what happens to a ‘Political case’ in this country.
Mzo, in respect of your answer to the third of my questions: I do not think there is anything wrong with you and I holding to different views. I do happen to think that whereas all judges owe ethical duties which in certain respects are the same, that a chief justice – or a judge preseident for that matter – would owe additional responsibilities given their greater powers and/or responsibilities than other officers.
@ Tony and Mzo,
My understanding of the JSC was that its powers and scope went beyond the mere recommendation of judicial officers to be appointed, into some form of oversight body.
What is the JSC constitutionally mandated to do outside of the appointment aspect of their function?
In other words, are they in any way responsible for ensuring that the judiciary upholds certain standards? And, am I operating under some form of misapprehension that the JSC actually have some teeth and are working towards maintaining the requisite standards in our judiciary?
The fact of the matter is that months ago a “political solution” was sought for the Hlophe saga and that is exactly what will be happening behind closed doors …
In my opinion all this saga has exposed is that judges discuss sensitive matters amongst themselves all the time and unfortunately Hlophe didn’t realise that he isn’t part of the “clique” but belongs to the emerging group of presiding officers who have no significant struggle and human rights advancing backgrounds …
The above criteria is becoming short in supply (the current status quo reaching retirement age) and we must make peace that “Hlophe just represents the future …
Harold Ferwood – “In my opinion all this saga has exposed is that judges discuss sensitive matters amongst themselves all the time and unfortunately Hlophe didn’t realise that he isn’t part of the “clique” but belongs to the emerging group of presiding officers who have no significant struggle and human rights advancing backgrounds …”
Your point of departure is wrong – discussing matters “amongst themselves” surely implies that matters are only being discssed among colleagues of the same court, and then only to test the others’ opinions against ones own where one is seized with a matter. Hlophe JP was not part of the CC, in fact, some things he said during a judgment in this whole saga was part of the subject matter before the CC (after it first went to the SCA against Hlophe JP’s wishes). He was also not seized with the matter. Surely his actions must be seen as improper! I mean, what if a magistrate would go and discuss a matter emenating from his court with one or two CC judges in order to sway the court to decide the matter in his favour? Would that be proper? If not, why should Hlophe JP’s actions be regarded as proper or even as de minimis that does not curat lex?
If a political solution (as sought) is struck, then surely the Rule of Law has been thrown down the drain?
However, having read your post again, I detect some sarcasm and irony, and I must agree, makes one cynical this whole thing.
Mzo // Jul 23, 2009 at 12:24 pm
Ok so you also under the impression that this is all made up?
The only evidence to this whole matter is the witness’s and you have to look at facts.
What do we know from the testimonals from Hlophe and Jafta and Nkabinde’s
We know already that Hlophe was caught out in a lie…as he first stated he didnt see them but then changed his mind and said he did talk to the two about the Zuma case.
Ok so, so far we have an actual event that happend. Yes Mzo, Hlophe approached Jafta and Nkabinde to talk about the Zuma case.
Ok so you bring up how for some reason that jafta and Nkabinde were not disturbed by this encounter. Without any evidence or reference to what people have said. Becuase you have some warped theory it must be true?
Fact: we know Nkabinde sort councilling. do you deny this or not? YES/NO??
If yes then why did she needed councilling?
ok moving along now. Yes we cant take there testimonal for gospal it does need to be cross examined. So cross examinate then!! Hello??
I have given quotes to how they are feeling.
1) was surprised
2) one was disturbed by the so called “hearsay”
3) one stated Hlophe is a liar
4) one phoned the other about an exepected approach
5) an ethical answer.
1) do you deny Jafta was surprised? are you calling him a liar now? was he as smooth as a babies bottom?
2) do you deny that the meeting between Mokgoro and Nkabinde made Mokgoro disturbed? is Mokgoro lying about his feelings now? if so how so?
3) Is Nkabinde lying now that she isnt friends with hlophe and that they actually lovers fucking each others brains out with the permission of the NIA? So I guess shes lying about her feelings too?
4) So now Jafta and NKabinda are also lying because jafta never communicated to Nkabina about Hlophe? I guess thats your smear compaign you seem to be going on about?
5) so jafta is lying that there is no standard of ethics and that a judge is allowed to approach another judge who isnt on the same panel on a criminal case? so Jafta has no clue about judicial ethics then?
But I suppose you would make a better judge than me hey? im can see the JSC and the chief justice is gagging for your services
Mzo // Jul 23, 2009 at 12:37 pm
I know this bit is addressed to mouse but hey you used my name in vain
Mzo Im afriad you got me there…..no im lying
“The president may appoint a woman or a man to serve as an Acting (a) Deputy Chief Justice; (b) Judge of the Constitutional Court; (c) Deputy President of the Supreme Court of Appeal; or (d) Deputy Judge President of a division of the High of South Africa, if there is a vacancy in any of those respective positions, or if the person holding; any such position is absent. Any such appointment must be made on the recommendation of the cabinet member responsible or the administration of justice acting after consultation with the Chief Justice.”
Clause 10 (1) is concerned with the appointment of certain acting senior judges, including the Deputy Chief Justice, judges of the Constitutional Court, Deputy President of the Supreme Court of Appeal, and Deputy Judge President of the Division of the High Court of South Africa. Under the current position, section 175 (1) of the Constitution expressly provides that the President may appoint a woman or a man to be an acting judge of the Constitutional Court if there is a vacancy or if a judge is absent. The appointments must be made on the recommendation of the Cabinet member responsible for the administration of justice acting with the concurrence of the Chief Justice.
Consultatation with the chief justice about respective positions???? my my my i feel sorry for Jafta and Nkabina
ok lets have a look at something else ummm since you cant seem to think further than your own insults or cant seem to think for yourself and therefore must think like me….lets have a look at something your clearly not getting.
The surperior courts bill….yes….guess what if this gets passed….what am i talking about…im sorry…when this bill gets passed at the end of the year and Hlope is Chief justice….this bill will give more power to the cheif justice. The bill provides that the chief justice is the top judge in the country and exercises final responsibility over the judicial function and management of all the courts. This would include court sittings and the assignment of judicial duties but thats only if its not given to the Minister who once again will consult with the cheif justice.
Oh my now what?? Jafta and Nkabinde since you caused me a little headache i think ill send you on shitty assignments
Make no mistake Mzo this Bill as been pushed right from 2000 and its going to be finialized this year.
“I would concede that such a “threat” can conceivably disturb the judge’s independence of mind insofar as s/he may feel constrained in making his/her decision.”
Since when are judges not suppose to discuss matters pending before their courts with other judges? In Hlope’s affidavit in response to the allegations set-out by the con-court judges he puts the question to them to answer and in their replying affidavits they do answer the question.
I do not think that Judge Hlope was trying to influence the judges of the concourt. None of the allegedly influenced justices depose to the fact that they unequivocally prohibited Hlope from speaking about the matter pending before the con-court concerning the president of the country.
Save the above mentioned I personally think that Hlope undermines proper and true transformation efforts by placing himself as a victim of a white judicial establishment and further from the aforesaid I am not suggesting that the judiciary is not a white establishment which needs to be transformed.
SEBJENI // Jul 23, 2009 at 12:41 pm
sorry i missed your post here, very well thought through.
the only thing I want to add to that is this bit
“Guideline 1 states: “A judge should uphold the independence of the judiciary and the authority of the courts, and should maintain an independence of mind in the performance of judicial duties”
There was an independent panel assigned to the Zuma Case specific to the search and seizure.
This panel is the authority of the court and should maintain an independence of mind esp in a judicial duty of a criminal case.
The mere fact, Hlophe an outside entity to this independent panel approached two acting judges on this panel goes with the right of every judge not to have his or her independence of mind disturbed by any person.
And I would also add that word “disturbed” should actually be changed to polluted, either way it has the same cause of effect.
It seems to me this interesting discussion unequivocally demonstrates at least one thing: Unlike with the Oasis matter, there is no credible way for the JSC to avoid a full (and fair) hearing in this case. There are fundamental disputes of fact between the two versions. Either Nkabinde and Jaftha are lying or Hlophe is lying. If this is not dealt with decisively by the JSC, it would mean that the JSC has no problem with proven liars serving on our courts, unreprimanded and undisturbed. Surely, such an outcome would completely destroy any credibility the JSC has left?
Pierre De Vos // Jul 23, 2009 at 3:03 pm
Prof, I agree with you fully (and it’s not always that I find myself doing that
).
Like I said yesterday, we need a full hearing wherein both parties can testify and be cross-examined and if anyone did what they were not supposed to do, let them receive the appropriate sanction.
Mzo – Thanks, I agree
Either Hlope lied or the judges of the con-court lied said the prof. On balance of probabilities, I strongly believe Hlope did try influence the judges for reason unknown. All of us we are not sure what transpired in those judges chambers when Hlope was visiting.
I do not think that the con-court judges misled the public when they advised their colleagues that justice Hlope tried to or it appeared from the conversation that he was trying to influence them during his suspicious visit.
Another thing to note about Hlope is the events that linger on his background which leaves sour taste in any person’s mouth if they have interests in constitutional ideals and progress. A dead judge granted him consent to moon light…what nonsense is that?
I’m glad that we’re, seemingly, tending towards a common understanding.
Someone suggeted that getting the parties to the hearing should be simple. Remember when there were people who defended Hlophe JP and that “sick note” affair… Well, now the JSC must be super careful. I’d like it if it were to be to Hlophe JP’s disadvantage – I hate stalling tactics.
“Deputy Chief Justice Dikgang Moseneke has a substantial stake in a group of companies whose style of business has put him uncomfortably close
to the cut and thrust of corporate controversy.
“The investment choices of the group — from the state-supported pursuit of oil rights abroad to a property portfolio housing the justice department and police headquarters — also appear to jar against the demand for judges to be independent.
“Moseneke said this week: ‘There is nothing in my conduct … which undermines my judicial independence. From 2001, when I was elevated to the Bench, I have served as a judge diligently, with integrity and with the full observance of the law and judicial ethics.’”
http://www.mg.co.za/article/2009-11-13-dikgang-moseneke-the-businessman-judge