I was rather harshly criticised for saying (only somewhat) tongue in cheek that if I was a judge on the Constitutional Court I would say a little prayer every day that Judge President John Hlophe does not fire his legal team. But if a report on the Legalbrief website is anything to go by, I might have had a point after all.
Lawyers for Hlophe seemed to have had a torrid time trying to explain to the nine judges of the Supreme Court of Appeal (SCA) what the legal basis for their case was. They also seemed to have made arguments not canvassed in their papers, and to have contradicted themselves several times. According to the report by Carmel Ricard:
Ntsebeza contradicted himself on a number of occasions about whether his case was that the Constitutional Court judges acted wrongly in publicising the fact that they had made a complaint to the Judicial Service Commission against Hlophe; or that they acted unlawfully when they referred the complaint against him to the commission without first giving Hlophe a hearing. At one point he was driven to concede that, on the arguments he was then advancing, the High Court should not have made one of its four orders, and that it could not now stand.
Eventually Harms told Ntsebeza that his submissions were inconsistent. And Nugent asked Ntsebeza whether there was ‘any authority, anything, anywhere in the world in which it is said that the making of a complaint requires a prior hearing?’
During the debate between the appeal judges and Ntsebeza, his two juniors tried several times to get his attention to prompt him about other directions to take. At one stage Ntsebeza, obviously stressed, asked for an adjournment. Afterwards, as debate about the exact nature of the argument being advanced by Hlophe’s team became more intense, Ntsebeza eventually asked whether one of his juniors in the case, Thobani Masuku, could take over and argue the matter.
To be fair, Hlophe’s lawyers did not really have a case to start with – they were really trying to convince the nine judges that perdedrolle eintlik vye is (an Afrikaans saying loosely translated as: trying to convince someone that horse manure are in fact figs). And it cannot be fun to be grilled by nine SCA judges ready to point out the absurdities and contradictions in one’s arguments. I am glad I was not required to argue Hlophe’s case and I am sure that the team did the best they could with the legal cards they had been dealt.
For me two aspects of the report are particularly striking. The first is the comment made by Judge Nugent when trying to understand why it could have been unlawful for the Constitutional Court to make public the fact that it had lodged a complaint against Hlophe: “I have difficulty in understanding how reporting something can be unlawful if it is true,” he said.
My point exactly! The judges of the Constitutional Court made public a incontrovertible fact, namely that it had lodged a complaint against Hlophe. How could it have been illegal to make public what was, after all, factually correct and true?
The second aspect that amused me was the argument raised by Hlophe’s lawyers that there is a special duty on judges to act impartially and that it would be unlawful for a judge not to take into account the impact [on the dignity of another judge] of making a public statement before they do so. If I was one of the nine judges and not such a nice guy, I might have asked Hlophe’s lawyers whether they were acting for the applicant or the respondent.
This is because if one follows this argument to its logical conclusion it would amount to an admission of unlawful behaviour on the part of their client. After all, the Judge President has often made scurrilous accusations against fellow judges without affording them a hearing and without considering the impact of his statements on the standing and dignity of the judges concerned.
Only last week permission was granted to Prof Winston Nagan to sue Judge President Hlophe because he attacked the acting judge from the bench – one presumes without affording Nagan a hearing or considering the impact of his statement on Nagan’s dignity. And – unlike the judges of the Constitutional Court – he had not even lodged a complaint with the Judicial Services Commission (JSC) against Nagan and did not limit his statement to a factual description of that complaint.
Hlophe has, of course, also attacked the judges of the Constitutional Court in the most vehement fashion without affording them a hearing or considering the impact of his statements on their human dignity and standing. At least he did so while also lodging a complaint with the JSC against the judges of the Constitutional Court. But once again, his attacks on the Constitutional Court judges were not limited to an obviously true statement of fact, namely that he had lodged a complaint against the judges of the Constitutional Court. Instead he accused the judges of the Constitutional Court of ulterior motives and in his statement deliberately tried to undermine their credibility and dignity.
The double standard is thus so breathtaking that I almost have to admire the man for his chutzpa. Here he is fighting a case and complaining about the behaviour of the Constitutional Court judges while he has done much, much, much worse on more than one occassion. It is like complaining about a neighbour for playing Celine Dion records until 9 pm every evening while running a brothel from one’s own house.
I am tempted to point out that this attitude, which seems to suggest there should be one rule (or no rules at all, really) for him and an entirely different set of rules for the rest of humanity, is not unlike the attitude of Jacob Zuma towards the rights of accused persons (or as Zuma calls them: “criminals”). But one does not know whether the Judge President associates himself with the warped values of the ethically challenged President of the ANC, so it would be unfair to suggest that he has.
Better to stick to the law and the facts, which at this point seems pretty clear to all – including, it seems, the hapless lawyers representing Judge President Hlophe.
The good news for Hlophe is that if he is ever removed from his illustrious position, the Boswell-Wilkie Circus is looking to hire some new clowns. Between him and some of our government bright lights, it could be a rather good routine.
This man is a walking disaster. How he ever rose to his position is beyond me…oh wait, it could have something to do with our phenomenal BEE implementation, but that’s another argument for another day.
I think the mistake Hlophe made here is that he tried to use the typical ANC-ish tactics of issuing blustery statements of outrage, and tried to paint a picture of the CC Justices that would make them look bad in the public eye. Unfortunately, he forgot that, unlike the usual subjects of the ANC’s outbursts and insults, he was taking on some very respected and wise legal minds. Now he’s a bit buggered…he’s got them into a court room, in front of some more very wise and respected judges, and things are starting to fall apart.
This man is an idiot. How he hasn’t been impeached yet I don’t know (oh wait…). I hope that he gets torn to pieces by those SCA judges. He occupies a position too important to reduce to a Shakespearean tragicomedy.
Interesting aside, I see his son has now been arrested for fraud…seems like the apple doesn’t fall far from the tree after all.
The Big Slipper // Mar 24, 2009 at 6:31 pm
“How he ever rose to his position is beyond me…”
……………………………………………………………………………….
You have slipped a big time here man I must admit. I am in constant contact with the Western Capw High Court, Cape Town and I have also been in contact with lawyers here in Cape Town and virtually all those I have talked to confirmed that, putting JP Hlophe’s behaviour aside, the man knows his job. Secondly, they confirmed that the state of the Western High Court, Cape Town, is now in shambles under AJP Traverso compared to its state under JP Hlophe. I believe you ought to get your facts straight.
My failure to deal with your other allegations in your post should not be construed as an admission of same. I reserve my right to deal with those allegations at an appropriate time.
JP Hlophe seems to overreact from time to time. I don’t doubt for a moment he knows the law, be as the weeks go by his performance makes him rather ordinary. I once held the man in high regard, but he’s due for a demotion from me. Also, he has spent so many years getting to where he is, why risk it all, and for what? But then this kind of attitude is typical of those who think they’ll be ‘there’ forever. Not so my man, not so.
Sne as a practitioner in Cape town I find it quite strange that I haven’t heard the same things you have. How about some examples rather than bald statements without anything to back them up. The fact that the buffoon ever got appointed as a judge is a travesty – he had no experience as an attorney or advocate as far as I am aware, just some academic qualifications, struggle credentials (did he?) and the right colours skin. Do you call the scandalous delay in dealing with the pharmaceutical case and the bad desicion he made in that case”knowing his job”. I don’t, unless finding in favour of the government line is a judges job… All the big H is doing is hanging in there for the money.
He has been hoist by his own petard?….
He gives the legal profession a terrible stink. I hope the impeachment proceeds forthwith.
Prof, with all due respect, it is down right provocative and irritating, for you to always find space to attack Jacob Zuma even if the topic is far from him. It is truely embarrasing that such a high ranking academic such as yourself in the country would so vividly show his hatred for one person. You can atleast PRETEND to make a topic somewhat relevant to Jacob Zuma before you bash him-which you can do of course! But one this one I really dont see what was the need for Zuma s name to even be mentioned
Anyway, Prof, isnt the crux of the case about the audi alterem partem (sic) rule or somethin like that? I mean, if the employer intends to charge the employee in the Public Service for example, he usually asks for the employee s version before charging him, and can still charge him aftawadz. Point being, Hlophe JP s case relates, the way I know, to the fact that the CC judges went public EVEN BEFORE asking for his version. And indeed the full bench had already agreed with him before, so it is not THAT utterly absurd to believe the CC judges acted unfairly.
Prof, we might have an issue with Hlope here after the dust of this charade settles.
In the event that the JSC finds him guilty of gross misconduct, they are still powerless to remove him from office.
According to section 177 of the constitution the JSC’s finding also need a backing of 2/3 majority of the National Assembly, surely our “independent” ANC MP’s will not remove a judge from office for trying to advance the case for their dear leader?!
It does say a lot for the legal profession that no decent senior counsel offered to take on John Hlophe’s case and present it to the SCA in the best possible light.
So the poor man gets saddled with a bubble gum lawyer like Dumisa Ntsebeza, S.C., who is (i) not too good, and (ii) is just a token silk. (One of many useless token silks at the bar these days.)
(For what it is worth, I don’t agree with the appointing of silk. In the case of Ntsebeza, S.C., the Bar Council in endorsing his SC status has helped him perpetrated a fraud on the litigating public.)
Ntsebeza is also now Chairman of Barlow Rand.
For those not in the know, Dumisa Ntsebeza completed a pupilage in 2000 at the Cape Bar with Adv John Butler. Ntsebeza proceeded to take silk in 2005 – instead of the customary ten years. John Butler took silk on 20 December 2008. Rather cringe worthy for all concerned.
Playing Celine Dione albums is far worse than running a brothel.
Prof et al
When the matter was argued in the High Court, we heard the same statements from the likes of Ricard which were obviously aimed at giving a picture that Hlope’s case was doomed. Some of us warned against reaching those conclusions simply on the basis of questions asked from the Bench. Not that I would expect Prof to know, but those bloggers who’ve argued matters in Court will know how dangerous it is to raise your hopes on the basis of questions asked from the Bench. I say, hold your horses until judgment is granted and then you can start to celebrate.
Big Slipper & Snowman
It is when I hear comments like yours that I get convinced more and more that, whatever faults he may have, Hlope’s comments on issues of racism were spot on. If you are still going to have people making these commnents, I tell you, we still have a long road ahead of us.
Reading Snowman’s post, it would appear that even the beloved Adv Butler SC took silk before “the customary ten years”. Oh let me guess, Butler took silk in 8 years (admittedly in less than 10 yesrs) because he is smarter, clever blah blah blah and Ntsebeza took silk because he had the right colour, because of BEE, connections to ANC …. everything but because he is smart and clever. A dangerous proposition indeed!
I will say it again, SA still has a very long way to go.
George Gildenhuys
lol its a catch 20/2 but I think his reputation is ruined now and I would suspect the JSC would make a retirement package for him if found guilty of misconduct.
This maybe a legal first in south africa and the fact Hlophe is the making of his own crisis this did happen in the State of Florida where a Judge Barnes had a go at the other judges. It makes vry interesting read and basicaly what happend Judge barnes was publicly criticizing his colleagues and suing them along with other officials in a bid to stop jail overcrowding and misconduct by the other judges……sounds familiar?
bottom line is since this is a legal first here in south africa where a complaint was lodged with the JSC and the media about a misconduct of a judge and esp the publication of the complaint in the media is unlawful one can easliy look at the ” Judicial Ethics” in common law and international standards and Canon code of Judicial conduct for useful sources and see what other countries had to deal with in a situation just like south africa is experiencing with Hlophe.
And the Answer is making public a complaint by the judges is not unlawful, infact its a legitimate attempt to invoke public trust in the judiciary. Hlophe tried to take advantage of this put a spin on it and claim its unlawful to his constitutional rights as he did not have a hearing first before complaint was made public….(infact judges are intended to inform the public about judical ethos- showing moral character) however he would of been right if there was an attack on him published in the media however there was no attack…..surely there is a fundamental difference between attack and complaint?
Pierre
“How could it have been illegal to make public what was, after all, factually correct and true?”
This link http://www.victimsoflaw.net/FL_JudgeBarnes.htm will through more weight on that rhetorical question
and you will also find a link to the judgement by the Florida Supreme Court and the Florida Judicial Qualifications Commission to shed some light on what is happening here in south africa
Reading from that source Pierre is absolutly correct in stating Hlophe has no case. a complaint is legitimate even published, however an attack in media or criticism in media is unlawful.
Mzo,
I think Snowman meant that Adv Ntsebeza did his pupilage under Adv Butler in 2000? Or that’s what I thought when I first read his post.
But I do think it is a bit unfair to knock the poor guy just because he is defending Hlophe’s case. He is just presenting the best arguments he could possibly present with the hand that he has been given. So maybe its his client that has a poor case, and not his own competence that should be questioned.
Spuy // Mar 25, 2009 at 12:00 am
I got a question for you did the CC judges demean Hlophe in the public statement?
This discussion is distracting from the world cup let scarp it.
Mzo, I read it that Ntsebesa had done his pupilage with Butler as his pupil master but maybe thats not what Snowman meant. As far as I know, Butler graduated in 1990. He had therefore probably been practising as an advocate for well over 10 years when he took silk in 2008, and it is farce that his pupil took silk before he did.
JudgeHlope has made his fair share of mistakes. One never reads anything good about him in the media. So unless there is a very strong media conspiracy aganist him, it suggests that the reports are correct.
I have also never heard him defend himself properly (or logically) or threaten to sue the media or report them to the ombudtsman. I must therefore accept that what is report about him is true.
But his incomptence is his own, lets not blame BEE because BEE is premised on the injustices of the past. One would therfore have to blame the 300 years or so of colonialism and it’s migration to apartheid. We must be constructive here so that we can learn from these lessons.
Snowman, I think it needs to be said that your statements have a racist connotation. I hopr that they do not represent you accurately.
Spuy
You are spot on, the Prof.’s hatred of the Honourable Msholozi never ceases to nausiate me, he always finds something to drag Zuma along in the mud, but I will tell you: see him(the Prof.) when he talks on TV he never criticises him or talk ill of him. A coward with double misleading standards who can never be trusted as an objective voice.
Hlophe is persecuted precisely because he dared called racists racists, you do not do that in the new South Africa, my foot!
Big Slipper, I have to agree with Mzo. I can be quite harsh on people but I always try and link it to a specific act or omissions of the person involved. Generalisations – especially in a country like South Africa with our history of racism and prejudice. Better to link criticism to specific acts and not make sweeping generalisations as this detracts from your argument and at the very least leaves a perception that one might be racist.
Big Slipper, I am basing my opinion not on the news reports but on my reading of the Concourt heads of argument, logic and, well, the Constitution and the law. I think the majority in the High Court got it spectacularly wrong and have said so. If the SCA agrees with them I will be the first to ask what Harms and Co have been smoking up there in Bloemfontein.
Mdu // Mar 25, 2009 at 11:24 am
Spuy
see this is exactly what i find sick about your society, racism, counter racism that is what i find nausiates me but having said that, still out weighs the good impression i have on this country….
but mdu & spuy you seem to forget all this crap come directly because of zuma…remember hlophe trying to influence judges about search and seizure warrants regarding zuma, and promoting the fact that they should help zuma in the case if they want to further there careers…….but yet this seems to slip your minds and would rather attack someone than actually discuse the relevent merits or de merits on publishing complaints and if indeed hlophe tried to influence two judges because of Zuma, either way you can not escape the clear and present danger of zuma in just about everything he seems to touch but yet if anyone mentions zuma all hell breaks loss, I take it the ANC has copywrite protection on the name Zuma? I feel sorry for your black jesus esp with the dalai lama. I suppose south africa is only big enough for one jesus hey?
get a grip and stop side tracking
The tragedy of it all is that Dumisa Ntsebeza was – as head of Investigations – my boss at the TRC.
It has to be said that the TRC investigation unit had very little success uncovering apartheid crime, compared to Jan D’Oliviera’s (Transvaal PG) team who went after Vlakplaas and Eugene De Kock, but was then emasculated when the TRC team was created.
One of Ntsebenza family members also worked in the Unit – who did very little work – but it has o be said, she was not alone.
The TRC act gave it abnormal investigative powers. That so little was uncovered has to be laid partially at his Ntsebeza’s door.
Mdu and Spuy, ag no man, not the silly “hatred” thing again. I thought we have dispensed with that red herring. You guys seem to have a rather perverted notion of ethics. Like Zapiro who draws Zuma with a shower head on his head because of the PROVEN FACT that Zuma had said during his rape trial he took a shower after sleeping with an HIV positive women to help prevent catching HIV, I am mentioning Zuma’s ethical problems because these are PROVEN FACTS and I think they are relevant when we discuss who we want as our President. This is because I am deep down an optimist and a moralist and believe politics should be about more than naked power.
I note that none of you have ever denied that Zuma took over R4 million from a convicted crook and an arms company, then did favours for them, then lied to parliament about it – and rightly so, because these are proven facts. But the fact that the President of the ANC took so much money from a crook and then did favours for him is, of course, embarrassing to those who support him. In a classic case of what psychologists would call “transferrence”, you now say I am embarrassing for continuing to mention these rather embarrassing facts. So to cover your embarrassment you want to shoot the messenger and want to say I should be embarrassed for pointing out the truth. Well, the truth is often embarrassing but seldom for the person pointing it out. Saying I hate Zuma will not detract from the fact that he is ethically challenged. You remind me of the people in the story about the emperor without any clothes. Because I am pointing out the blindingly obvious PROVEN fact that the emperor is not wearing any clothes while you are trying to avoid dealing with this fact, you attack the messenger.
Here is a proposal: lets drop this “hatred” crap. It does not work. It’s a cheap and lazy ploy to try and avoid the elephant in the room. Why don’t we ratehr have areal discussion about that elephant, which is Jacob Zuma’s ethical problems. A far more productive discussion could be had along the following lines: (a) You can argue Zuma never took any money, never did favours for Shaik, never lied to Parliament about it or (b) you can argue that despite the fact that he did this ethically deeply troubling things we should forgive him because we are all sinners and we should embrace the value of ubuntu; (c) or you could argue that it does not matter that he did these troubling things because everyone else is a crook too so lets just accept that our politicians are crooked and support the one who has the best dance moves and are the most likable (if we chose President’s based on likability and not on competence and ethical probity Zuma would be very high on my list). Then we would at least be talking about the real things. So please retire this silly mantra about hating Zuma and take part in a real discussion like the democrats you claim to be.
Spoiler got is right: John Butler was admitted as an advocate in the mid 1990’s. Dumisa Ntsebeza did his pupilage under John Butler in 2000.
Mzo, your argument has serious errors of logic. You assume, wrongly, that I am pro John Butler. He is as pathetic and hopeless an advocate as Dumisa Ntsebeza. Just watch these folk in court, as I have done. Ntsebeza was embarrassing when he represented the Traditional Healers’ Organisation in the Matthias Rath case.
Then, since you want a ‘race’ input, let me tell you that there are fake white Silks in Cape Town, two of whom, fr example, are Michael Fitzgerald and Peter St C. Hazell. There are also excellent black silks such a Norman Arendse S.C.
Glouty, please spell out where my statements have a “racist connotation.”
I stand by my earlier point: It does say a lot for the legal profession that no decent senior counsel offered to take on John Hlophe’s case and present it to the SCA in the best possible light.
Please don’t for one moment lump all silks in the same level of ability, astuteness, clarity or wisdom. That all are remotely equal is simply not so.
Snowman // Mar 25, 2009 at 1:02 am
“So the poor man gets saddled with a bubble gum lawyer like Dumisa Ntsebeza, S.C., who is (i) not too good, and (ii) is just a token silk. (One of many useless token silks at the bar these days.)”
as per your request, define a token silk.
A token silk = a fake silk = a bubble gum lawyer = someone who is simply not up to the mark = someone who does not have a modicum of profesional expertise?
It has nothing to do with race.
Have you ever been a paying client of such a silk? I have.
Snowman // Mar 25, 2009 at 12:28 pm
I have to assume that you are not familiar with how Counsel gets briefed in a matter because if you were you would not be making ignorant statements like “no decent senior counsel offered to take on John Hlophe’s case and present it to the SCA in the best possible light.”. Counsel generally does not OFFER to take up a matter, the instructing attorney (on his/her own or with his/her client’s input) chooses the Advocate that will assist in the matter.
You may know that Ntsebeza’s instructing attorney, Ntsebeza & Masuku are all members of the BLA in the Western Cape and it would not be stretching the imagination, I believe, to say that’s how they all ended up in that team.
Your comments on fake/excellent or whatever silks remains your opinions and I do not make a tendency of arguing about people’s opinions. Personally, I think Arendse SC is a lousy Adv that I will never brief. But that’s just my view!
Pierre De Vos // Mar 25, 2009
Now that we have managed to find ourselves (one again) discussing Hlope and JZ together, will you please let me understand something: I always hear people (yourself included) talking about the favours that JZ did for Shaik and I wonder what those might be. I know he has denied writing the famous letter that supposedly was aimed at blocking the investigation, is there something else?
On Hlope, I’ve heard people say he took money from Oasis and did favours for them (supposedly by granting them permission to sue Desai J) but I’ve always wondered whether the people making these statements are actually arguing that, but for the payments he received, Hlope would not have granted Oasis permission to sue Desai. Is this what you people are arguing?
Mzo, have you ever been the CLIENT of an attorney/advocate?
Snowman
Yes. What does that have anything to do with the issue under discussion? Hopefully you aren’t going to bring your emotions because your attorney/advocate “effed” up your matter!!
Mzo, the Squires judgment lists 13 instances where it found Zuma did favours for Shaik – including flying to France to meet with the arms company to convince them that they should use Shaik as a partner. Before the meeting between Zuma and the arms dealers, the latter had decided not to use Shaik because they were warned about him and his “connections”. After the meeting they changed their mind. The judgment also mention the fact that Zuma threatened to stop assisting at times when Shaik had cash flow problems and told Zuma he could not give more money. Shaik somehow found the money to keep on assisting Zuma and Zuma continued his help to Shaik. The NPA indictment against Zuma lists many more but these have not been tested in court. In the Squires judgment there was also a finding that the letter signed by Zuma attacking Scopa and its chairperson was evidence of assistance given by Zuma after the bribe was paid. We now know the letter was written by Mbeki. But in Feinstein’s book it is made clear that Zuma first protected Feinstein and Scopa from Mbeki’s office but after the bribe was paid cut off all contact with Feinstein and stopped protecting them.
On Hlophe, it is a fact that Oasis paid large sums of money to Hlophe but Hlophe only gave permission to sue Judge Desai after a sudden increase in the money paid to Hlophe. No court has yet found that there was a link between these two so it is unclear whether there would be a winnable corruption case against Hlophe. But this clearly presented Hlophe with a conflict of interest as he took money from the same people who were asking him a favour and this is obviously spectacularly unethical.
Snowman // Mar 25, 2009 at 12:28 pm
Why are you suggesting Peter St C. Hazell is a fake? I read a few of his papers and was quite impressed (but for his tendency to be verbose and/or righteous). Please provide more details because I have in the past referred a few clients to him?
…see? My point exactly! What happened to this topic now? Your unproven “facts” about Zuma are well documented Prof. The point I m making is that this article iznt about him, so spare us your “facts” till after the NPA has dropped the charges. Anyway, Prof, educate us here, how did it happen that the full bench agreed with Hlophe JP previously in the high court? I mean, assuming that you ve studied their judgement, what were the legal dynamics which informed their findings and how, in your expert opinion, did they err?
Spuy, I note my facts are not disputed. And regarding the fact that 3 of 5 judges in the High Court found in favour of Hlophe, I challenge any lawyer to discern any legal reasoning in the majority judgment. For goodness sake, it found there was an infirngement of Hlophe’s dignity without referring to a single Constitutional Court case on human dignity and found there was an infringement on Hlophe’s right to equality without even mentioning the section of the constitution protecting that right. It rejected the basis of the Hlophe argument – that the judges acted “as a court” – yet found they acted unlawful by making public something that was TRUE, namely that they had a lodged a complaint against Hlophe. It was one of the worse judgments I have ever read dealing with constitutional issues. If a student of mine had written it, she would probably not have passed the assignment.
Spuy, ther are enough proven facts to support all the contentions raised in this article whether it be re Msholozi or ijaji John H. PdeV has already disected the full bench decision and found it lacking legal foundation and coherence. Do some reserach instead of asking him to rehash it again.
I suppose we could all, lke you, forget the facts. the law, the rule of law, ethics and morality and then these two heroes come out smelling like roses.
My 11-year-old son (who was about 8 when the Shaik trial was concluded) understood perfectly well that somone who occupies a government office (elected or otherwise) and who gets paid by any third party to do what he or she ought to do as an office-bearer is guilty of corruption.
Even if the person does something that they may ordinarily have done without the said payment (Hlophe JL granting permission to sue Desai, or Mr Zuma acting as KZN MEC for Economic Affairs promoting the interests of KZN business), the mere fact of the payment implies that the official “act” quite possibly would not be available to those who do not pay. So even if the act itself is not criminal, the acceptance of payment is.
Sne,
You say ’secondly, they confirmed that the state of the Western High Court, Cape Town, is now in shambles under AJP Traverso compared to its state under JP Hlophe’.
Courts aren’t run by the judges, dude/tte. Remember the separation of powers? They are run by a ‘court manager’ appointed by the Ministry of Justice. If they are run hopelessly it has nothing to do with John or Jeanette being good or bad.
Your friends may ‘confirm’ [an abused word - what are they 'confirming' when they go blah blah blah - aren't they just 'saying'?] that Hlophe ‘knows his stuff’ and they might mean that he knows a thing or two about the law. Well that is the chattering classes. You judge a man by his words and acts, and his have been quite unfortunate.
Ismail – What parts of the courts (judicial system) are being run by ‘court managers’ (who are mostly administrators that know nothing about the law and judicial processes and sometimes also know nothing about budgeting and case-flow management – well, at least in the lower courts); and what parts of the system are being run by the judiciary (Judges President; Regional Court Presidents; Chief Magistrates)? Seems like you do not really know what you are talking about.
Sne, I should clarify – I cannot comment on the man’s legal abilities, so I should not have used such a sweeping statement. I think I should revise that to “how the man remains in such a high position eludes me”. It is precisely because of his behaviour I say this – the man is a Judge President, and I for one expect people in such venerable profile positions to behave with a measure of venerability.
Mzo and Prof – I tend to get disillusioned at times, and probably say things I shouldn’t, so forgive me for that. I’ve been a bit grumpy lately, and I was probably a bit venomous in that post. I would hope that my overall posting on this blog would allow a more balanced perception of who I am and what I believe in general – the odd bad-hair day slip up aside(I am the Big Slipper – have to make a big slip occasionally to live up to my name
)
I still stand by my general opinion – regardless of the man’s skin or academic qualifications, he’s embarrassing, and it annoys me that he’s got away with this much for so long.
spoiler, point taken-though I wasnt asking you Mr/Mrs Knowitall. Prof, I still believe that e.g It would be wrong for the UWC board/Management to go to the media to report that it has lodged/laid a charge against Prof Pierre De Vos, known as you are by the public, for ALLEDGEDLY being racist/abusive or whatever the case, WITHOUT even having asked for your version before. It totally goes against common law I would imagine. I mean, it is worse if this basic common sense principle is misunderstood by judges of the highest court of the country. Prof, you cant dispute my contention when I say it is irresponsible to run to the media about rumours, when basic prelimenary investigations (e.g audi alterem partem) have not even done internally. Immediately a rumour is out in the media, there s all sorts of speculations, perceptions, over”disecting” and so on-that on its own, is enough to pollute the very disciplinary processes. Surely, that somehow violates a person’s right to dignity. Remember, Laurens Mushwana once found in Zuma s favour, precisely on this new cancerous norm of always PREMATURELY running to the media without prior basic processess being done. It cant be correct.
Vuyo – relax, there’s nothing wrong with Peter Hazell. He’s a ‘mensch’.
Spuy, to coin a phrase, you are comparing figs to horse manure. Difference is: I am not a judge. My independence is not guaranteed by the constitution. I am not dependent on my power and the ability to do my job on my credibility and the trust of the general population. Judges of the Constitutional Court, on the other hand, has to jealously guard their integrity and independence. In any case, the judges of the CC did NOT make public any rumours. You are wrong on that score. They made public the fact (AND ONLY THE FACT) that they were lodging a complaint against Hlophe. This was not a rumour. It was a very obvious and true fact.
If the university decided to suspend me and institute disciplinary proceedings against me (and because I am supposedly so famous and important) they feel they need to inform the media (maybe because I am being suspended and under investigation for inflating grades or passing students who never passed the exam but gave me a few thousand Rand, the integirty of the University will be at stake and hiding the fact will compromise their integrity. The University would surely therefore have EVERY right in the world to inform the media about this proven fact, namely that it has suspended me and has lodged a disciplinary process. As our Courts have often stated: NO ONE HAS THE RIGHT NOT TO BE INVESTIGATED AND ACCUSED AND WHEN ONE IS ACCUSED OR INVESTIGATED THIS WILL INEVITABLY AFFECT ONE”S standing in the community and cause one pain and suffering. It is the price we pay for not living in North Korea (or China for that matter). You might pine for North Korea or China, but I will take the rough and tumble of democracy any day. But maybe I am weird for wanting to live in a country where I can more or less say what I think and for not wanting to starve to death or be tortured to death because I did not like the Dear Leader’s haircut and said so publicly?
Well…point taken Prof.
Clara // Mar 25, 2009 at 8:03 pm
Thank you Clara, my thoughts exactly.
The difference of opinion among the judges indicate the political stances of the judges is influencing how the apply the law to facts and the interity of the judiciary is being eaten away.
The judiciary is about to undergo major transformation. Hlope will certainly loose in the SCA but the matter of the complaint will be very difficult to resolve.
The key witnesses are recalcitrant. Why is it taking so long for the JSC to dispose of this complaint. What will parliament say ? WIll they impeach the man?
well its about bloody time
“The Judicial Service Commission (JSC) will hear the matter relating to Cape Judge President John Hlophe between April 1 and 8, spokesperson Marumo Moerane said on Wednesday”
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=nw20090325203610982C594685
Prof
I have read heads of argument in Hlophe’s matter. In my view the appelants failed dismally to deal with what I regard as the cornerstone of Hlophe’s argument, which is that he had a right to be heard before going public. That right seems to be also founded on the Code of Conduct: Judicial Ethics in South Africa. The following extracts from respondent’s heads of arguments are telling:
From majority judgment:
“[25] There is a salutary rule of practice in our courts that if the head of court or a senior judge receives a complaint from a litigant or member of the public alleging some form of judicial misconduct on the part of a judge, the head of court or senior judge refers the complaint to the judge concerned for the comments of the latter before considering or referring the complaint to the JSC. This happens whether the member of the public requests the head of court or senior judge to refer the complaint to the JSC or not. This rule of practice is applied even where the complainant is another judge. In fact, in the case of complainant judges, the Code of Conduct: Judicial Ethics in South Africa (Guidelines for Judges), which was adopted at a meeting of the Chief Justice and senior judges held in Pretoria on 03 April 2000 provides that:
“A judge who reasonably believes that a colleague has been acting in a manner which is unbecoming of the judicial officer, should raise the matter with that colleague or with the head of the court concerned” (Rule 21)”
From Rule 20:
“When a judge decides to take action in response to perceived misconduct, the reference to the appropriate authority should be made in a neutral fashion.”
“Before commenting in a judgement or in public on the conduct of a particular practitioner or prosecutor, the judge should give that person the opportunity to deal with the allegation.”
Any rebuttal Prof???
Jeanette, as far as she is able to, is “running” the WCHC well. She is an extremely efficient AJP, and moreover is actually in chambers attending to her duties, which is more than I can say of my experience of the JP, whose attendance even before all of this malarky was unpredictable.
[...] de Vos sums the whole lot up quite well: The new appointments include Advocate Ntsebeza who was fired by Hlophe after Ntsebeza’s rather lackluster performance before the Supreme Court of Appeal (SCA) in [...]