Newspaper reports suggest that neither the Chief Justice, nor Judge President John Hlophe, has decided yet whether they would support a decision by the Judicial Services Commission (JSC) for the hearings on the complaints by the Constitutional Court and Cape Judge President to be held in public. I can very much understand why both parties might find it difficult to decide what would be best.
For the Constitutional Court – and for Justice Nkabinde and Jafta in particular – there are serious risks in a public hearing. The two judges – who were allegedly improperly approached by Hlophe – first declined to lodge individual complaints with the JSC, but then signed on to the Constitutional Court complaint against Hlophe. They will have to give evidence before the JSC and would also be subjected to cross examination from Hlophe’s counsel. (Incidentally, I see Hlophe has retained the same counsel that is representing Minister Stofile and three other politicians fingered in a corruption report by Judge Ronnie Pillay in the Eastern Cape.)
Judge Nkabinde and Jafta will have to explain why they were not prepared to lodge a complaint against Hlophe but were prepared to sign on to the Constitutional Court complaint. Why did they suddenly have this change of heart? Why did they not see that the improper approach by Hlophe was a matter of grave concern? Their judicial ethics will come under scrutiny and they will also be asked if their colleagues had leaned on them to “do the right thing”. This will potentially embarrass them and will also provide ammunition for Hlophe’s defenders who will do everything to detract attention from the substance of the complaint and focus attention on these side issues.
For Hlophe the stakes seem to be even higher. He will be subjected to cross examination and will have to justify all the broadsides he made in his 71 page submission to the JSC. If there is anything in the submission that is not true, he runs the risk of being publicly exposed as a liar and thus of being even further humiliated. He might be grilled on some of his less plausible explanations in his submission – including his claim that when he said he had a mandate he was referring to the fact that the Chief Justice had asked him to chair a meeting.
He will also be grilled on his hints and assertions of bad faith on the part of Deputy Chief Justice Moseneke and will be asked if he has any proof for these assertions and if not, why he made them in the first place. People who are subjected to such sustained cross examination – especially on statements they made that cannot be sup[ported by fact – often come across as shifty and dishonest.
But a public process will also provide an opportunity for both sides to get their side of the story out and will focus the public imagination on the issues they wish them to focus on. Judge Langa and Moseneke will aim to give dignified and ponderous responses to show off their gravitas and explain why the alleged approaches of Hlophe was viewed as an attack on the integrity of the Constitutional Court as a whole and was therefore not something only for the two “complaining judges” to worry about.
They will also be able to respond to the scurrilous and opportunistic attacks on the Constitutional Court by the likes of Paul Ngobeni. And because they both have fine legal minds, I for one relishes the thought of seeing them in action while they demolish the attacks on the Court by the bonsai Rotweiler from UCT and the Judge President.
If Hlophe has spoken only the truth, he would do well under cross examination. And surely he would relish the opportunity to clear his name and to use the public platform to further his political campaign for a job on the Constitutional Court. He could mutter darkly about the forces of evil and the racism in the legal profession (which we all know, still do exist) and could win some friends not only amongst the conspiracy theorists, many of whom seem to adore Jacob Zuma, but also amongst those who support serious transformation of the legal profession.
The thing is, in the end under the glare of cross examination most lies are exposed and those in the wrong often wilt under the pressure of having to keep their stories straight. I would therefore strongly be in favour of a public, televised hearing. It will give the public the opportunity to judge for themselves who are the good guys and who are the crooks in this story. Those who have nothing to fear from the process would also have nothing to fear from an open hearing.
Everyone who recalls the merciless cross examination of Mo Shaik and Mac Maharaj before the Hefer Commission of Inquiry and the way it exposed these two gentlemen as rather flawed and possibly dishonest men, will realise that a public hearing might be the one thing that could begin to restore the badly dented credibility of the Constitutional Court. Either that, or it could restore trust in Judge President Judge President Hlophe if he turns out to be the one who is not lying.
I only have one problem with this whole scenario. If there are public hearings televised on TV, I will have to find an excuse not to go to work to watch every minute of the drama. Oh well, I somehow just know that my appendix will be acting up just about that time.
I think it is owed to the general public at large in SA and abroad that the hearing should be held in public and transparent at all times. Otherwise the public will lose faith and trust in the JSC and, therefore, the judiciary. I, for one, will not trust a finding reached behind closed doors, regardless of whose version is in the end accepted.
I also support a public hearing to be televised live – I will also find an excuse not to go to work! However, the sad part is that no one is likely to escape cross-examination unscathe – I was once told that lawyers make bad witnesses. I am anxious to see if that theory will be proved. In addition to what Pierre pointed out, CJ and DCJ have a lot to explain for what appears to be a concerted effort to ‘influence’ the 2 reluctant complainant jdges.
Suffice to say, had the previous JSC hearings about Hlophe been public, then this exchnage between Ngoepe and Howie would not have happened and Hlophe would not have survived:
‘Transcripts of the hearings show that Judge President Howie asked whether Hlophe had declared his income from Oasis (the company he was earing money from for which he could not produce written consent) for for tax purposes.
When Hlophe sought to evade the question, saying “I have not had any queries raised from the tax authorities”, Howie refused to let him off the hook, demanding that he provide the relevant information to the commission.
Ngoepe later tried to get Howie to back away from this line of questioning, saying he was “quite uncomfortable about such direction because what if someone hears that he has not disclosed that in his tax returns, which means a criminal offence …’
From the M & G
Public hearings would do too much damage to the mystique of judges. The chance that either side will allow themselves to be captured in the unforgiving glare of TV cameras whilst being questioned by showboating lawyers – is exactly NIL.
Pity, because it would top the Mo Shaik and Hansie shows by miles – Oasis would pay big bucks to advertise either side of each recess.
Mantashe quoted by News24
“It cannot be acceptable for the honourable judges, who are presiding over the cases of (ANC President) Jacob Zuma, even if it was not Jacob Zuma (but someone else), it will never be acceptable to actually create a hullabaloo in dealing with a supposedly delinquent judge.
“And drag the issue of cases that you are expected to pronounce on into a public debate. I’m insisting on that.
“I’m saying, a judge found to maybe (have) behaved in a delinquent way, the judges must drag that man to the right carpet in the internal processes and deal with that issue without creating a hullabaloo about President Jacob Zuma, and so forth, and so forth.
“Because, when the time arrives in the future, and they make a pronouncement on the cases that they are presiding over, that flaw will look larger than the actual pronouncement on the cases,” Mantashe said.
I read Pierre article with dismay at the bias and pre emptive implications. You legal people have a tendency to suggest that Justice means the truth. Talking about we will know who the dishonest and lying person is. Judiciary system is as flawed as looking for an elephant foot print in the butter in the fridge. There are plenty examples that justice does not lie in the courts nor does the truth. You are more likely to hear the truth when the judge talks to his wife post coitally.
I share Bongs observation that no one will come out of cross examination unscathed. I also share Stalin’s observation that Pierre (once again) seems to have some knowledge of who is likely to lie and likely to tell the truth.
Having said that, I think from the JSC’s credibility point of view, the hearings will have to be public. However, if one looks at the likely damage that might be caused with some or all the witness judges being shown to have been dishonest in one way or the other, I’m not sure if public hearings will be such a great thing. I’m very undecided on this one!!
Mzo – I agree with your sentiments regarding the likely damage that may be caused by cross examination. I will not be suprised if the two judges (Jafta J in particular) were to resign to avoid public humiliation – whichever way, they will be shown to be judges without spinal cord who were bullied by their bosses to ‘betray’ their colleague and (in Jafta J’s case) friend.
Bongs – Yes, resignation is an option, but they will still be compellable witnesses – and if any of them recant their affidavits filed with the JSC, they will be publicly humiliated as they would then have been found to have been lying in their affidavits. Then, it will be ‘good riddance’. However, should they testify and then be discovered at lying, I think the shame would be much bigger. But still, then it will be ‘good riddance’. So, unless their evidence stands, and is accepted by the JSC, I think Jafta and Nkabinde will say ‘Bye, Bye CC!’ Naturally, the same of course goes (mutatis mutandis) for Hlophe.
I think Anonymouse forgot to mention that the same will go for the rest of the judges who might be shown to have been dishonest, including the CJ and his Deputy and Acting Deputy…unless of course we were all to belive that they will “give dignified and ponderous responses”….”because they both have fine legal minds”
I just think it’s a messy affair all around….
A thought:
A true ambassador of a country’s judiciary, such as a judge, would in all probability be the kind of individual passionate and dedicated to it’s institutions ability to maintain law and order in its society.
Such an individual would embrace the opportunity to protect the integrity of her institution and shy away from an opportunity to destroy it to the largest extent possible.
This would not require blind faith to the institution. (Such allegiance would be arbitrary and potentially dangerous.) Instead it would require from her, before pursuing a course of action that may bring her institution into disrepute, a fundamental, serious reason to do so. A reason such as the maintenance of an institutions integrity, and not personal ones.
The true ambassador would in all probability not allow the personal interests to influence her without extreme good cause; she would appreciate the high costs to her institution if pursued selfishly.
When one considers the course of actions taken by the Constitutional Court and that of Hlophe JP, and the reasons behind their actions in the affair between them, it may not be difficult to conclude which of the two may be the true ambassador to their institution, the judiciary.
The only way to clear up the mess in our judicial system is to hold public hearings. It will be painful, but lots of the best cures are.
A further beneficial side effect might be to encourage greater public and media attention on the JSC judicial appointment interviews, which are conducted in public but are very poorly attended and receive extremely limited media attention. If the public had a better insight into which applicants for judicial appointment were being recommended by the JSC for the Bench and which were not, it might assist in bring a much needed public focus on the most important of the JSC’s responsibilities: i.e. getting the right people appointed to our superior courts.
It might also get the citizenry asking why hardly any leading practitioners make themselves available for consideration for the Bench anymore.
Surely this particular body, with this particular Judge has no option but to hold public Hearings. for goodness sake, we had Law Professors writing to the newspapers condemning the paucity of the decision last time around. I see no other viable option. But the glare of the spotlight actually does not rest easy with me.
As an aside, I fail to see how, if the Con Court Justices tell the truth and do not stress a particular line, they can come off badly. They did not ask for Hlophe to pitch up and start chatting about the case. And if they are simply asking for the JSC to adjudicate on the issue, then there is no problem with their stance, I feel. Personally, I’d rather a Con Court who slightly over-reacted, than a complacent one.