Dear Chief Justice
RE: HLOPHE JM/ LANGA CJ AND JUDGES OF THE CONSTITUTIONAL COURT
We act for Judge President John Mandlakaylse Hlophe herein and address this letter to you as well as all the Judges of the Constitutional Court.
Following extensive consultations with our client in respect of the publication of a media statement dated 30 May 2008 by the Judges of the Constitutional Court we now have the following instructions;
• The publication of the media statement made untested allegations of gross judicial misconduct against our client
• The publication of the media statement of untested allegations of gross judicial misconduct against our client was deliberate and aimed at injuring our client’s personality rights thus forcing him to resign from his position as a Judge of the Republic of south Africa.
• Furthermore a consideration of the media statement of 30 May 2008 leaves “a reasonable person of ordinary intelligence” in no doubt that what was being conveyed to the general public by the Constitutional Court and its Judges was that our client had as a matter of fact sought to improperly influence the decision of that Court in the Zuma/Thint v NPA cases. In this regard we will refer to the response of the various commentators and constituent Bars to the published statement. In particular we point out the response of the Cape Bar Council which issued a media statement congratulating the Constitutional Court judges for their principled position and condemning our client for [allegedly] behaving in a reprehensible way” and characterized his behaviour as “tantamount to an attempt to defeat the ends of Justice”. This interpretation of the media statement of the Constitutional Court judges by members of the legal community who include Senior Counsel of various Constituent Bars, Professors of law from different Universities and our client’s colleagues while unfair was unavoidable. The media statement certainly conveyed the impression that our client had as a fact committed wrongful and unlawful acts and accordingly liable to the disciplinary regime that includes impeachment.
• The media statement further conveyed to the public that our client had violated the Constitution and acted in a manner inconsistent with the oath of office of judges.
The media statement issued by the Constitutional Court judges damaged our client’s dignity and reputation. In the eyes of the legal community and the general public our client is considered as not deserving of the respect or dignity accorded to judicial officers who are appointed to serve as such under the Constitution. Conveying and publishing as fact to the general public untested allegations of Judicial misconduct against our client was reckless and an unlawful disregard of our client’s rights. Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their Judicial status to mobilize vicious and vindictive public views against our client with the sole aim of forcing him to resign from his position as. Judge.
The publication of untested allegations of Judicial misconduct against our client was accordingly wrongful, negligent and injurious to our client’s dignity and reputation as judge. The damaging effect of the publication to our client was not only in South Africa legal community but to the general litigating public and lowered the standing of our client in the eyes of the general public. As a result of the publication, our client is associated with corruption, judicial indiscipline, and lack of judgment and discernment. The damage to the reputation of our client both as a judge, a Judge President, a citizen of South Africa and a human being is extensive and deep. Our client, after an agonizing reflection on the damage done to his reputation has reached the unenviable decision to seek damages from the Constitutional Court and its judges for the violations to his personality rights.
In the result we are instructed to demand, as we hereby do, from yourselves an amount of R10 000 000 (ten million rand) as compensation for the damage caused to our client’s reputation by the wrongful and/or negligent publication of allegations of gross Judicial misconduct against our client.
We are instructed to issue summons and pursue our client’s rights in Court proceedings should the Constitutional Court and its judges refuse to or neglect to pay the amount claimed within 30 days from the date of receipt of this letter.
Yours faithfully
Nongogo, Nuku
What happened to proof-reading in the legal fraternity? Or are the grammatical and typographical mistakes yours Prof?
Surely this all depends on whether the JSC upholds the complaint or not? Surely there is no damage caused by the “early” media statement if Hlope is found guilty of interfering – in that case he can surely only blame himself for any reputational damage.
It still boggles my mind to think of how he escaped from the Oasis issue. That was a gross transgression of ethics 101 and he really should have been fired then and there. He is doing huge damage to the cause of transformation in this country – why do blacks have to be misrepresented by such buffoonish characters when there are so many better candidates to lead transformation?
Hlophe is unfit for the bench if one considers his questionable history:
In a 2004 case between Health Minister Manto Tshabalala-Msimang and elements of the pharmaceutical industry, Hlophe was accused of “unreasonably” delaying his judgement on leave to appeal. In an unprecedented step the unsuccessful party in the matter had been forced by Hlophe’s failure to either grant or refuse leave to appeal and had applied directly to the Supreme Court of Appeal for leave to appeal. Having been informed that the application would be made directly to the Supreme Court of Appeal, he refused leave to appeal days before the Supreme Court of Appeal considered the matter. His ruling was summarily overturned by the Supreme Court of Appeal in a judgment that was harshly critical of him. Hlophe was reported to have said with regard to the ruling that he “…couldn’t care less.” A complaint about his conduct was laid with the Judicial Service Commission.
In 2004 Hlophe wrote a report to Chief Justice Pius Langa alleging racism at the Cape Bar. He also accused his deputy, Deputy Judge President Jeanette Traverso, of racism. In the aftermath of controversy as to the authorship of a majority judgment in the name of Judge NJ Yekiso in the same matter that had attracted the Supreme Court of Appeal’s censure [2], Hlophe accused certain white judges and leading members of the Cape Bar of racism in a 43 page report submitted to the Minister of Justice in November 2004. [3]
In 2005 Hlophe was reported to have said that he allocated an Afrikaans language rights case to senior Cape High Court Judge Wilfred Thring “because I knew he would fuck up the trial and then it could be set right on appeal”. He was reported to have repeated this in front of numerous witnesses, including senior advocate Norman Arendse SC, who wrote to Chief Justice Pius Langa about the incident. Denying he had made the remark, Hlophe claimed there was a smear campaign against him. [4]
Also in 2005, Hlophe was reported to have called a Cape Town attorney, Joshua Greeff, a “piece of white shit who is not fit to walk in the corridors of the High Court”. He also suggested that Greeff should go back to Holland. Greeff is not Dutch. Hlophe denied making the remarks.[5]
In June 2006, the JSC was asked to investigate complaints that Hlophe’s son received a bursary from a large Cape Town firm of attorneys, Smith Tabata Buchanan Boyes (STBB). [6] [7] Derek Wille, former STBB partner and a university friend of Hlophe, said the payments had come from a bursary scheme “to help disadvantaged students”. Hlophe had appointed Wille to the bench as an acting judge on a number of occasions. Reported to the JSC for a possible conflict of interests, he claimed he did not know who was paying for his son’s education. The JSC accepted his word.
In early 2006 it was reported that Hlophe had, without the necessary Ministerial consent, taken a remunerated position on the board of Oasis, an asset management company.
It was subsequently reported that Hlophe had, whilst on the Oasis payroll, considered a matter involving one of his colleagues, JudgeSiraj Desai and given Oasis permission to sue him.
In July 2006 Justice Minister Brigitte Mabandla permitted Hlophe four months’ leave of absence. [8]
In November 2007 Hlophe was reported to have written to the Department of Justice demanding that his official motor vehicle, a three year old Mercedes Benz, be upgraded to a Porsche Cayenne. He argued that his position as Judge President warranted this upgrade. When contacted by members of the press, Hlophe is reported to have asked “What has this got to do with you? My purchase of a vehicle has got absolutely nothing to do with you,” It is reported that when reminded that the car would be purchased using taxpayers’ money, he stated that it would “never, ever be approved”. It none-the-less was.
1^ Top legal minds join Law Faculty’s teaching programme (MSWord doc)
2^ Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others
3^ Judges, advocate named in racism report
4^ Judge puts Cape race row papers away for good IOL
5^ New twist in Hlophe saga News24
6^ More on Judge Hlophe’s son Cape Business News
7^ Law firm defends Hlophe bursary HWB Communications
8^ Racism in the Judiciary – Special report Business Day
Prof, Thanks for publishing the letter of demand.
I also wonder if it’s reproduced as it is?
(@Sne, :you raise a pertinent question, and I think no one condones or excuses such poor draftmanship).
Having now read this letter, and broadly agreeing with its substance, I take comfort from the fact that it is not a pleading. I console myself that counsel will soon be briefed to prepare necessary documents, including summons/particulars of claim. I refrain from speculating on whether or not Counsel’s opinion was sought before drafting the letter of demand. My only concern is that the quality of the letter ( its form) gives ample ammunition to those who are calling for the JP’s head. It could have been drafted more elegantly.
Notwithstanding the somewhat inelegantly drafted letter of demand, I nonetheless broadly welcome the JP’s suit against those (the justices) who publicly defamed him without following the JSC procedures.
Dang,
Please stop littering. I think it’s you who is unfit.
YES WE ALL KNOW MOST WHITE PEOPLE ARE RACISTS AND INDEED 99,99% OF THE BAR IS RACIST. THAT’S THE FACT.
“Hlope is unfit due to his questionable history”? How amazing!? is that the criteria used by the JSC to appoint judges?
please stop littering
dang // Oct 14, 2008 at 12:17 pm
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Thank you very much for putting references to your post; it makes it easier for others to formulate informed opinions thereon and also for information purposes. Keep up the good work.
Dang,
Thank you for a thoroughly researched and interesting post!! It certainly makes for engrossing reading.
I find it interesting in the letter from Hlophe’s counsel that they accuse the Constitutional Court of behaving “with the sole aim of forcing him to resign from his position as. Judge” (sic). Surely, given the debates on this blog and throughout the country recently, Hlophe, as a member of the judiciary, would have believed in the “innocent until proven guilty” premise upon which our law rests? He has stuck to his guns in the past, despite the previous attacks on his credibility, impartiality and character. Why would this one be any different?
Surely, if he was not guilty of wrongdoing, and given previous findings by the JSC in his favour, he would have given the JSC the opportunity to look into the matter and thereby prove his innocence, prior to making the decision to resign as a Judge.
Just a quick question: If he has, as the letter claims, resigned as a Judge, will the JSC hearing proceed? Although it relates to his behaviour as a member of the judiciary, my understanding is that the only censure arising from this hearing, were he to be found guilty of gross misconduct, would be for him to be impeached. If he is no longer a member of the judiciary, what would the punitive effect of a “guilty” finding of the JSC be?
Could his resignation not have been a means of avoiding facing the JSC hearing altogether and thereby not being in a position to be found guilty, if that were the case?
Damn – I’ve obviously misread the section of the statement to which I refer in my previous comment!!!
Hlophe hasn’t resigned, but is on long leave – the statement in question was really an indication by Hlophe’s counsel of the “intention” of the CC judges and not fact.
Apologies for the time wasting!!!
I recognised Dang’s post from wikipedia.
Here is the link, where the references are clickable:
en.wikipedia.org/wiki/John_Hlophe
Samantha // Oct 14, 2008 at 1:24 pm
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I disagree with you. JP Hlophe’s Letter of Demand does not say he has resigned but simply that he was being forced into a corner with an intention to force him to resign. It does not say he has since resigned as a result thereof.
Secondly, you are procuring too artificial an argument when you say he could have relied on the ‘innocent until proven guilty premise’. Denzel Washington in Training Day (2002) once said that, “It’s not what you know, it’s what you can prove.”
From this quote two things become apparent; the first one is that you can go scott free regardless of how guilty you are or appear to be. The second one is the reverse of the above, i.e. you can be convicted for something you do not know anything about.
What should be a person in JP Hlople’s do when alleged to have committed an illicit act then? (Read section 165(3) of the Constitution.) The answer is obvious that he should use all the legal armoury available in his legal arsenal, ranging from running away from having his day in court to plea bargaining. These are his constitutional rights to which he is entitled just like everyone else.
Moreover, the allegations are very serious especially when you consider that they come from the members of the highest court in the land. Therefore, JP Hlophe should use all means legally permissible and possible to vindicate his name, not of course implying that he is innocent…
Sne – After having read through the letter of demand, we can perhaps continue our discussion from the previous post – the thing on whether ‘deliberately negligent’ only amplifies the second word.
First, the lawyer that (so poorly) drafted the letter, had it right since, in a libel suit, intention must be proved. He states: “The publication of the media statement of untested allegations of gross judicial misconduct against our client was deliberate and aimed at injuring our client’s personality rights thus forcing him to resign from his position as a Judge of the Republic of south Africa.”
Then, he starts confusing deliberate actions (intent) with negligent actions (negligence) in a watered down paraphase: “Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their Judicial status to mobilize vicious and vindictive public views against our client with the sole aim of forcing him to resign from his position as. Judge.”
Last, he becomes totally confused and lost as far as legal principles are concerned by actually stating that proof of negligence is sufficient in a defamation case: “The publication of untested allegations of Judicial misconduct against our client was accordingly wrongful, negligent and injurious to our client’s dignity and reputation as judge.”
There are other aspects in the letter of demand where it can be argued that they have been poorly drafted, but I do not want to go into it all. Suffice it to say, if I was the Honourable Judge President issueing the instructions for a letter of demand in this case, I would have been asamed at my lawyer’s poor drafting capabilities and knowledge of the law on defamation.
lindelani – I think it is you that needs to stop littering, because what you are saying, like always, make no sense and just irks one out. And while on that subject, remember that “only pigs litter”.
Samantha // Oct 14, 2008 at 1:34 pm
Sne // Oct 14, 2008 at 1:50 pm
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Ok sorry ma’am I just saw your post after posting mine. So I take back the first part of my post relating to the resignation of JP Hlophe…
Sne – After having read through the letter of demand, we can perhaps continue our discussion from the previous post – the thing on whether ‘deliberately negligent’ only amplifies the second word.
First, the lawyer that (so poorly) drafted the letter, had it right since, in a libel suit, intention must be proved. He states: “The publication of the media statement of untested allegations of gross judicial misconduct against our client was deliberate and aimed at injuring our client’s personality rights thus forcing him to resign from his position as a Judge of the Republic of south Africa.”
Then, he starts confusing deliberate actions (intent) with negligent actions (negligence) in a watered down paraphase: “Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their Judicial status to mobilize vicious and vindictive public views against our client with the sole aim of forcing him to resign from his position as. Judge.”
Last, he becomes totally confused and lost as far as legal principles are concerned by actually stating that proof of negligence is sufficient in a defamation case: “The publication of untested allegations of Judicial misconduct against our client was accordingly wrongful, negligent and injurious to our client’s dignity and reputation as judge.”
There are other aspects in the letter of demand where it can be argued that they have been poorly drafted, but I do not want to go into it all. Suffice it to say, if I was the Honourable Judge President issueing the instructions for a letter of demand in this case, I would have been ashamed at my lawyer’s poor drafting capabilities and knowledge of the law on defamation.
lindelani – I think it is you that needs to stop littering, because what you are saying, like always, make no sense and just irks one out. And while on that subject, remember that “only pigs litter”.
Sorry for the duplication, it appears that the first one went through while I was still correcting the spelling of ‘ashamed’ in the second last paragraph
Anonymouse // Oct 14, 2008 at 1:52 pm
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Mouse, Niel & Shakira,
Well I am convinced indeed; thanks for your posts.
Pertaining to the badly drafted Letter of Demand, it is interesting that Mouse uses ‘He’ to refer to the person who drafted it. I believe it was a ‘she’ because of the name at the bottom. That was obiter though…
Save for the aforesaid, we are ad idem in respect of the remainder of your post…
Sne, Anonymouse, Niel
“Deliberate negligence” appears to be an acceptable legal term in Canada.
In case you missed it I posted this under “A risky legal strategy”:
“I have just read something on a canadian website about “concious or advertent negligence”. The definition for it is exaclty the same as our definition of dolus eventualis. This “concious negligence” or “deliberate negligence” is a foreign term in our law, but I now understand where JP Hlophe’s lawyers got the concept from. They are in actual fact refering to dolus eventualis. This term is quite confusing as it can distort the clear distinction in our law between dolus and culpa.”
Apologies everyone. I used the Adobe Acrobat facility to translate the letter into Word format and some typographical errors slipped in. I have now fixed these and the letter is now presented verbatim.
shakira // Oct 14, 2008 at 2:46 pm
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Thank you ma’am…
Sne,
Did I happen to mention that I am blonde and prone to the somewhat cliched but very real “blonde moments”?
As far as your comments go:
Firstly, I really enjoyed that movie and I think that quote is brilliant!
Secondly, I fully appreciate your comments regarding Hlophe using every legal means possible to prove his innocence. I certainly don’t dispute that he has the same right in that respect as any other individual.
Unfortunately, in the midst of my (embarrassing) “blonde moment”, my assertions with regard to the “innocent until proven guilty” concept were premised on my (ill-informed) belief that Hlophe had resigned as Judge President. This led to my questioning his “innocence” in the matter.
Thank you, however, for taking the time to answer with such detail.
shakira – I also thank you for referring us to the Canadian jurisprudence in this regard. But, from lawyers versed in South African law it is unacceptable, especially at that level, to confuse the concepts of intent and negligence – and I still say I would be ashamed at them had they been my lawyers and I the Judge President.
Prof – thanks for correcting the rest of teh document so that we can read it as it is. Nevertheless, I still think it was poorly drafted.
Samantha // Oct 14, 2008 at 3:06 pm
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It’s ok ma’am. The blonde thing is just a matter of jokes just like the lawyer jokes which I thoroughly enjoy…
Well thanks, I loved the movie too and that quote has stayed with me ever since.
Well, it happens to the best of us. We sometimes get so eager to respond that we do not read precisely what is written or meant. But what matters, which you have done, is that we retract when shown our mistakes. Someone once said that ‘we all get into trouble but what matters is not the troubles we get into but whether we come out better persons from those troubles.’
@ Lindelani
1. Apologies to all but I had to ask this to Lindelani. You post ( Oct 14, 2008 at 1:06 pm):
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YES WE ALL KNOW MOST WHITE PEOPLE ARE RACISTS AND INDEED 99,99% OF THE BAR IS RACIST. THAT’S THE FACT.
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I ask, what does this have to do with an alleged improper conduct of a judge?
Mqo – and a black judge at that, and with black complainants too!
Ladie and Gentlmen,
Once again Lindelani has shown how his blinkers are extremely effective. It is true that there are racist people (of all races) but to make such silly statements is strange – EVEN for him.
I also find it strange that Hlope wants to sue before the JSC has made their finding. The CC justices may have made a premature announcement but Hlope is getting too excited too soon. And that amount is crazy.
I would imagine its easier to sue the press because they can have liability due to negligence. I was informed that there is a case: Mare v Groenewald 2001 (1) SA 634 (T) that accepted that negligence can be enough to show fault in non-media cases. If that is the case then he may just have a claim. But to think that the Justices were intentionally sabotaging his career is a novel idea. Maybe they were protecting their own backs…
And I must say that dang had a brilliant post that furthered theintellectual debate on the topic.