It would be tempting to dismiss the submission by Paul M Ngobeni (B.A. magna cum laude) to the Judicial Services Commission (JSC) regarding the Constitutional Court complaint against Judge President John Hlophe as hogwash on the basis that he is facing charges of forgery, larceny and unauthorised practice of law in Connecticut, was suspended as a lawyer in Connecticut, Massachusetts and New York and by the US Department of Justice and is being sought by the Bail Bondsman and listed as a fugitive from justice.
But that would not really advance the debate on the issue of the Constitutional Court complaint or deal with the substantive issues raised by the Ngobeni document. So I waded through his document - although it was hard work because much of it is verbosity masquerading as erudition – to see if he might not have a point in attacking the judges of the Constitutional Court.
The high water mark of the submission is an argument that the Constitutional Court judges erred in making public their complaint against Judge President Hlophe. Ngobeni quotes extensively from US, Canadian and other common wealth jurisdictions to bolster his argument. I must say, he produces an impressive list of authorities for the proposition that the Judicial Services Commission (JSC) should be careful about making details of complaints against judges public – at least at the initial stages of their investigation.
There are, however, two problems with this argument as it relates to his attack on the Constitutional Court.
First, he seems to wrongly suggest (without saying so explicitly) that section 39(1) of the Constitution requires South African courts and tribunals to follow international law and foreign case law. As anyone with even a cursory knowledge of the South African constitutional jurisprudence knows (hint: read the section on minimum core obligations in the Grootboom case) section 39(1) requires South African courts to consider international law and allows them to consider foreign law but does emphatically not require them to follow international law or foreign case law.
Second, the sources all seem to relate to the need of the body hearing the complaint – that would be the JSC in South Africa – to deal in a circumspect manner with complaints against judges and not to open up their examination of complaints at the initial stage to the public. None of the sources actually say anything about any need for a complainant in a case against a judge to keep his or her complaint confidential.
Running like a golden thread through the submission is an assumption that the Constitutional Court and the JSC are basically the same body and are bound by the same rules. In other words, he conflates the complainant with the adjudicator of the complaint. This is because he argues that when the judges of the Constitutional Court laid a complaint it acted “as a Court”, making a judicial finding that will, in effect, bind the JSC.
I find this line of reasoning extremely insulting to the JSC. It undermines the JSC as constitutionally mandated body and really charges that the JSC would abdicate its constitutional responsibility to adjudicate the complaint to the Constitutional Court. He cannot point to any actions the JSC might have taken to prejudge the matter or to indicate that it would feel itself bound by the Constitutional Court’s decision to lay a complaint – which he treats as a finding by the Court of the guilt of the JP. This argument is therefore without merit. (But I never practices law in the US, so maybe I am missing something very obvious that is not to be found in his submission or hidden in the torrent of words.)
Another interesting section of the document argues that the complaint does not state a prima facie case against the JP because the JP was merely exercising his freedom of expression when he allegedly tried to improperly influence the judges of the Constitutional Court and was therefore merely taking part in private discussions with other judges which is part of the give and take of the judiciary in any country. He goes as far as saying:
If he [a judge] is guilty of gross misconduct that has no bearing at all on the carrying out of or fitness for judicial office, such misconduct will not be a ground for a determination by the JSC.
Judge Jafta, so the argument goes, was merely using the JP as a sounding board and the requirements for judicial collegiality and the need for judges to take part in robust discussions with each other on cases, mean that it was perfectly acceptable for the JP to approach two judges of another – higher – court and forcefully trying to convince them to decide a case before them in a certain way.
This argument sounds quite plausible, but if one studies the sources cited a bit more closely it becomes apparent that it is flawed. The case law referred to deals with the ability of colleagues of the same court to discuss cases with one another. None of the cases deal with a case like the present one, where a judge of a lower court is alleged to have contacted judges of another – higher – court to allegedly try and discuss and persuade them to decide a case in a certain way.
It is obvious why it is inappropriate for a judge from a lower court to discuss with judges from a higher court – let alone try and influence such judges – on a pending case. This would mean any judge in South Africa could pick up the phone and speak to the Chief Justice and try and convince him that his court should deal with a certain legal matter in a specific way. It also contradicts a recent report from the International Bar Association on the Judiciary in South Africa which states:
Judicial independence is commonly described as being comprised of two components – the individual independence of judges and the institutional independence of the courts. Individual independence refers to the requirement that judges decide cases independently and impartially ‘on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’. This independence not only refers to external influence but also to influence from other judges themselves.
If the allegations by Jafta and Nkabinde are true and the JP spoke about a “mandate” and said that the judges were “our last hope”, this would constitute a clear interference with the independence of the judiciary. But this issue of what constitutes ethical behaviour on the part of a judge is probably not Dr Ngobeni’s specialty – given his own troubles in the USA – so he might not have grasped this rather basic point.
Pierre,
I fail to understanda the purpose of your first paragraph, what’s the point of highlighting Ngobeni’s troubles with the USA authorities? This paragraph is irrelevant to issues at hand. We all know about his “troubles” which were manufactured to discredit him in the USA. Why is he then appointed Deputy registrar by the UCT? Surely, it is obvious that there’s no case against him.
Pierre, you and your allies can proceed with your plot to discredit Hlope, Zuma, Motata, Ngobeni but I find it disturbing when you try to poison everyone to buy into your plot.
I have priviously indicated that you (and your allies) are very much prejudgemental on this issue. It looks like you have already decided on the matter before the JSC could deliver its verdit, judging from your words: “It is obvious why it is inappropriate for a lower court to discuss with judges from a higher court – LET ALONE TRY AND INFLUENCE SUCH JUDGES – ON A PENDING CASE”
It is amazing to learn that while everyone is waiting the outcome of this case on whether Hlope did try to influence the ConCourt jugdes, you already telling everyone that yes he did. How amaizing!
“If allegations by Jafta and Nkabinde are true and the JP spoke about a mandate and said the judges were “our last hope” – Let’s get this straight, there were no allegations made by Jafta and Nkabinde. These judges were forced (involuntarily) to make the so-called allegations against Hlophe, in actual facts they never intended to lay any complaint (this is common cause). So don’t put your statement as if these judges voluntarily made allegations against Hlophe. I wonder who forced them to make such allegations! and what was the motive behind?
“Why is he then appointed Deputy registrar by the UCT?”
He stated that he did not advise UCT of his predicament and, they should have Googled him if they wanted to know. There is no rule requiring an employee to make full disclosure of their employment or criminal history and so if UCT did not specifically ask him questions which he lied about, or if he did not tell a whopper in his application, but just put a nice spin on his past, then he did not, strictly speaking, do anything to be sacked for.
However, that does not mean that the rest of us are bound by UCT’s employment applications procedure’s deficiencies. So if Pierre, or anyone else, wants to analyse his submissions to check to see if there is any slight of hand, I’m quite happy with that.
I agree with you that Pierre’s piece is biased against Hlophe and I agree that you highlighted a good section of the piece to show this. HOWEVER, as Ngobeni still faces criminal charges in the US, are you not falling prey to the same fate by stating that there is a “plot” to “discredit” Ngobeni and that UCT not having sacked him shows that he is innocent?
Please show some consistency.
Why is he not then suspended pending the finalisation of his so-called criminal cases? Surely we missing something here not that UCT is linient, they might have some accurate and correct information behind Ngobeni’s matter/s which information is not publicly known.
Prof, but for your first and the last paragraphs, I commend you for attempting to deal with the substance of Ngobeni’s submission – albeit at a general level. I also commend you for acknowledging that Ngobeni appears to have made a strong case that JSC should not hold public hearings – I think that is the high watermark of his submission – other arguments are in support thereof. Having said that, there are at least two points exposing your superficial grasp of Ngobeni’s submission. The 1st quote below (for those who may be loathe to read the entire document) indicates that Ngobeni is not conflating the role of a complainant and that of an adjudicator. He is stressing that even public officials like prosecutor; police or executive should not publicly pronounce their views about guilt of an accused before a court of law (JSC in Hlophe’s case) has done so. I do not think that you can honestly argue that judges of the concourt acting as complainant are immune simply because they have not been specifically listed. For all intents and purposes they are public officials. Probably the only reason why the judges are not specifically mentioned is because it was unthinkable that they could fall foul of this hallowed principle!
“International jurisprudence makes it pellucid that the presumption of innocence may be infringed not only by a judge or court but also by other prosecuting authorities’ actions, including press releases, judicial grandstanding, etc. The ECtHR deemed the presumption of innocence so important that it ruled that this presumption should be respected not only by the judges, but by all public officials. In that regard, the ECtHR has noted: “The Court recalls that the presumption of innocence […] will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. In this regard the Court emphasizes the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence.” (emphasis added) Allenet De Ribemont v. France, ECtHR judgment of 23 January 2005, para 35 and Daktaras v. Lithuania, ECtHR judgment of 10 October 2000, para 41. See also, General Comment on Article 14 of the ICCPR, 13/21,& 7; the Committee stressed the duty on all public authorities to refrain from prejudging the outcome of a trial. It suffices, as in the Judge President Hlophe’s case, in the absence of a formal finding, that the “Court” consisting of the 11 judges made comments suggesting that the accused is guilty of criminal interference with and perversion of justice. Such a premature expression by the “Court” itself of such an opinion will inevitably run afoul of the said presumption
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(see, among other authorities, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, p. 30, § 56, Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62, §§ 27, 30 and 37, Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35-36 and Karakaş and Yeşilırmak v. Turkey, no. 43925/985, § 49, 28 June 2005).
The ECtHR has in fact deemed the presumption of innocence so important that it has ruled it inappropriate even for the police to make statements implying that an individual is guilty of a crime before the guilt had been established in a due process. The case of Daktaras v. Lithuania involved a complaint by an applicant who had been “portrayed in the Lithuanian media as a Mafia leader.” He was found guilty on two counts of obtaining property by threats of force and inducing another to pervert the course of justice, sentenced to seven years and six months’ imprisonment and his property was confiscated. The applicant further complained under Section 6 § 2 of the Convention that the prosecutor had commented that his guilt had been proved before the trial had started, thereby breaching the presumption of innocence. The Court reiterated its case-law that impartiality within the meaning of this provision meant an absence of bias and outside influence on the judges deciding the case. It further recalled that, under the objective test of impartiality under Article 6 §1, appearances were of importance. The court concluded the applicant’s doubts as to the impartiality of the Supreme Court could be said to be objectively justified. Consequently, there had been a breach of Article 6 §1. In another case, Allenet De Ribemont v. France, ECtHR judgment of 23 January 2005, para 35, the European Court of Human Right made it clear that the principle of presumption of innocence must be scrupulously observed even by the executive branch of the government. Allenet de Ribemont v France, concerned statements at a press conference. There the French Interior Minister (FIM) mentioned that Ribemont had jointly taken out a bank loan with a person who was being investigated for the murder of a French MP. In the FIM’s presence, the director of criminal investigation then said: “Mr. de Varga-Hirsh and his acolyte Mr. Allenet de Ribemont were the instigators of the murder…” Ribemont was later arrested and charged with aiding and abetting the murder of the MP. Upon acquittal, he sued the French Government for violating his right to be presumed innocent until proven guilty under art.6(2) of the European Convention on Human Rights (ECHR). The European Commission found that, in the circumstances, Ribemont “could legitimately have believed that he had been held up in public, by the highest authorities of the State, as a person guilty of complicity in murder”.”
The 2nd quote below exposes your statement that “None of the sources actually say anything about any need for a complainant in a case against a judge to keep his or her complaint confidential.” If what you are saying is true, the president of the Belize Bar Association (which was the respondent and complainant against the judge) would not have distanced himself from the publication of the complaint against the judge.
“Unlike our 11 constitutional court judges, Justice Conteh properly understood that adverse publicity given to untested allegations of judicial misconduct against a sitting judge can have far-reaching and devastating consequences and result in violation of the constitutional rights of the accused. His eloquent observations are worth quoting at length:
“News that a judge of the Supreme Court is to appear before any body for the purposes of investigation is certainly of general public interest. This must be so because of the position of a judge in nearly every society. It has been said and rightly so; in my view, that society attributes honour, if not veneration, learning if not wisdom, together with detachment,
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probity, prestige and power to the office of a judge. Therefore, news of any probe concerning a judge would elicit public attention, whether of the concerned or the plainly curious. This may be for the public good.
But the public weal itself will be damaged if the news is not handled with care and circumspection; for it may inevitably result in the corrosion of public confidence in the judiciary itself, with deleterious effects on the administration of justice as a whole.
The public right to know and be informed is one which the courts ought always to protect, but this must be balanced with the way that knowledge or information is purveyed. Anything tending to convey unsubstantiated rumours, idle gossip or the salacious must be restrained, particularly in a society such as we have in Belize, which is a veritable fish bowl for almost every public office holder. Otherwise, the right to know becomes corrupted with the zeal to feed frenzy on unsubstantiated rumours and stories. This will be a positive disservice to all Belizeans, for when facts and fiction collide, faction is the result.
This is why I regret the way in which some sections of the media covered the developments concerning the applicant that have culminated in this application before me. And the Applicant has, not without reason, complained. But I am satisfied that none of the parties to this application is in any way responsible for the less than satisfactory manner in which some sections of the press tried to portray the applicant. It is therefore reassuring to note the fact that the President of the second Respondent, the Belize Bar Association, has filed an Affidavit in these proceedings distancing the Association from the publication of their allegations contained in their complaint to the Governor-General, and has affirmed that the Association bears or harbours no malice towards the Applicant.
It is possible that but for the unfortunate disclosure in the press, the applicant might not have felt the need to apprehend that he has been denied, as he contends in this application, the protection of the law, and he therefore harbours perhaps an understandable feeling of being railroaded. Hence his present application. And to this I must now turn.” Id. (emphasis added).
Sadly, the learned judge’s observations that “none of the parties to this application is in any way responsible for the less than satisfactory manner in which some sections of the press tried to portray the [accused judge]” cannot apply to our constitutional court judges. These eleven judges were solely responsible for issuing the press statements impugned here and without factual details. This fueled speculation and unprecedented amount of condemnation for Judge President Hlophe in the press. The continued leaks and “widespread disrespect for confidentiality” which continue unabated despite the “misgivings” of the JSC speak volumes about the 11 judges’ complete failure to ensure that the news about Judge President Hlophe was “handled with care and circumspection” and their insensitivity to the fact that media churning of these unsubstantiated allegations “may inevitably result in the corrosion of public confidence in the judiciary itself, with deleterious effects on the administration of justice as a whole.” They failed to appreciate that the “public right to know and be informed is one which the courts ought always to protect, but this must be balanced with the way that knowledge or information is purveyed.” They were wilfully blind to the reality that irresponsible action on their part would result in the present morass where “the right to know becomes corrupted with the zeal to feed frenzy on
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unsubstantiated rumours and stories.” Unlike the Meerabux case where “the President of the … Belize Bar Association, … filed an Affidavit in … distancing the Association from the publication of their allegations contained in their complaint to the Governor-General” our 11 constitutional court judges have unclean hands- they were responsible for the initial decision to publicize these charges and appear to be even guilty of the leaks of sensitive documents addressed only to the Deputy Chief Justice and the Chief Justice. The JSC must act firmly and affirmatively in this matter to restore public confidence in our judicial system – it needs commonsense measures and respect for the constitution recognized even in small countries such as Belize! The call for public comments on whether the investigation ought to be conducted in public is nothing but a red herring having no connection with truth-0finding.”
I guess your general response to these two specific issues will be that in any event SA is not bound by foreign jurisprudence!
Bongs, tell me, why do you (and Ngobeni) conflate the laying of a Complaint with a pronouncement of guilt? If I initiate a criminal case against you, the Magistrate will not give a damn what I think beyond listening to my complaint. The guilt is subsequent to the Complaint.
I agree with you that the Con Court has given itself a problem but, as they were not given the power in section 167 to hold Impeachment Hearings then they cannot, surely, have pronounced on his guilt.
Is it inconceivable from the Complaint submitted that they are simply doing that? Making a complaint, that is, and sitting back to see if the JSC agrees (possible crisis as per Hlophe’s Application) or disagrees (no need to worry then as Hlophe is off the hook)?
I think what I am saying is that I feel Hlophe’s Application is premature.
Lindelani, I just explained to you why Ngobeni isn’t suspended pending the US case. He can only be disciplined for things he did whilst in post and relevant to his employment. So UCT are stuck with him!
Mpho, probably my saying that concourt has pronounced on Hlophe’s guilt should have been in ” “. However, there is no gainsaying that in the eyes and minds of the concourt judges Hlophe is “guilty of improper conduct”. It is this view that they should have kept to themselves because, as you correctly alluded, it is the JSC’s view that counts. A neutral lodging of a complaint in the public arena would have been couched along the lines “it is alleged that you did XYZ” .
Mpho,
“So UCT are stuck with him” – you suggest that UCT does not want to keep Ngobeni under its employment, just that it has no choice but to keep him.
Interesting!
Iindelani, I pray for you. Honestly, I do. Lots of prayers, every night. They don’t appear to be working though.
Thanks for your prayers. If I may ask why do you pray for me?
And I will pray with you Mpho that your prayers eventually work. That will be good for all f us.
Ag shame, poor slippery – porsche driving Oasis retaining – Hlopes feels his human dignity has been insulted – perhaps the CC could just say sorry, withdraw their complaint as “a court”, and resubmit as a group of judges (or whatever will satisfy the procedural legal eagle eyes looking over the poor shrinking violets of Hlope and Zuma). Then perhaps we can eventually get to looking at the merits of the case.
Lindelani – can you fill us in on this conspiracy against Ngobeni – was it the yanks, or did Mbeki spot in advance that he would return to defend Umshini-wam and slippery and so he sent in a counter-rev hit squad?
Bongs
(1) We do not have a habit in SA of following precedent from the Supreme Court of Belize so maybe we should not start now.
(2) The case law from the European Court deals with statements made by important people not party to a dispute. This case is different because the Constitutional Court is a party to the dispute, felt itself under attack and defended itself.
(3) The heart of the quote from the Belize Supreme Court: “Anything tending to convey unsubstantiated rumours, idle gossip or the salacious must be restrained, particularly in a society such as we have in Belize, which is a veritable fish bowl for almost every public office holder.” I would argue the CC were not trading in gossip or rumours (what an insult that would be to Jafta and Nkabinde!) but in a serious complaint. The two cases can therefore also be distinguished.
Pierre, in point 3 you argue that the CC was trading in a serious complaint, the question is, WHOSE COMPLAINT. Surely it can’t be Jafta or Nkabinde’s because those two are on record as saying they are not the complainants!!!
If one tries to influence a member of a court, is that wrong committed against that particular member or the entire court that is charged to make the decision?
Secondly, lawyers are required by law to report any colleague whom they believe has committed an act of misconduct. Failure to do so may result in the lawyer who did not report being disciplined. The lawyer is not required to be the victim of the unprofessional conduct. He may simply be a passer-by.
Any answers? No prayers please!
Samaita, you are actually supporting our position in that you are stating lawyers have a personal responsibility. The Court is not a person.
Mpho, what is a court?
It is a building or a forum for adjudication.
I agree with you that Jafta was under an obligation to report. Bongs was mentioning labour law earlier, there is case law there which says that a supervisor who failed to disclose the misconduct of a subordinate was also guilty of ‘derivative” misconduct.
But I’m still not getting how “the Court”, the highest court in the land who is the final arbitrator of Constitutional issues, can become a complainant.
Mpho, we are getting there. The Court could and should have filed a complaint. That Court is not defined as the ConCourt as an institution in perpetuity, but as the judges who sat in the matters as the ConCourt panel. I believe that judges who did not hear the matters were not supposed to be part of the complaint unless they had learnt of the possible unprofessional conduct and the conduct had gone unreported.
It is in the same way one could be charged with contempt of court by the SCA even though the charge may relate to a particular hearing before 5 of the 23 or so judges of the SCA.
The Concourt is therefore at another level the panel of judges who sit to hear a particular matter. Should they all perish in a freak accident, the Concourt survives!
One great judge once said;
” Justice is rooted in confidence and confidence is destryed when right minded people go away thinking the judgement was biased”
Hlophe JP: Speaker of Parliament v De Lille
It is this great men’s advocates (if i may call them that) that are now seeking to have a closed hearing when HE himself was-throught his court rulings- for them.
Now that the JSC has ruled against Hlophe JP in the recusal application, we can expect a really tough battle ahead in this saga. It is becoming very interesting and I expect law professors and students alike will follow it with great interest.
Samaita, are you saying that in your opinion if the Constitutional Court were to hold someone in Contempt of Court, and that no further appeal would be available, then that is acceptable as a limitation of the right to have a matter heard by a Court?
Not at all, Mpho. What I am saying is that if you seek to influence one judge out of a panel that heard the matter, your attempt affects the rest of the judges on the panel in the matter. In the same way that the Americans have shown that bribing one juror can in fact affect the entire decision-making process. That is the import of my SCA contempt of court example. Should a person be charged with contempt of court by the Concourt two situations may apply. Is the contempt in curia or ex curia? If the contempt is during the hearing, the court can charge and try the person. Should the person be unsatisfied by the trial and raise constitutional issues, then the matter can be heard by judges who did not sit in the contempt of court matter. In ex curia contempt, the ConCourt would file a complaint with the police or the NPA. This will start the entire usual criminal process. The trial will have to be conducted by persons separate from the Concourt. If it reaches the Concourt, the usual rule that a man cannot be judge in his own cause would arise.
Samaita – Where does the ‘buck’ stop?
Samaita, then the Court should have held Hlophe in Contempt by either means, and the 2 Justices he approached should have reported him to the JSC.
LB Johnson (the successor to JFK) had a plaque on his desk which read, “the buck stops here”. I guess in SA, the buck stops being passed when one has blamed apartheid!
I digress.
I think the Prof made the point that the CCT may not have the quorum to hear the matter if taken there. If that happens, we may get a situation we saw happening with the apartheid victims’ lawsuit in the US. The US Supreme Court could not hear the appeal because 6 of the 9 judges recused themselves because they have shares/interests in some of the companies being sued. Since the court did not have a quorum, the appeal could not be heard and it effectively meant that the decision of the last court to hear the points raised on appeal stood.
I am not sure that this position would withstand constitutional scrutiny. It may amount to a breach of one’s right to protection of the law. It may unfairly prevent a party from having access to the Concourt.
No Mpho. What is alleged to have happened did not amount to contempt of court. Maybe my example is clouding the matter here. The judges who heard the matters have a right to complain. The judges approached also have the right to complain. I doubt whether those who neither heard the matter nor were approached have the right.
I would advise you to visit http://www.saflii.org and read the judgment in State v Paradza under the Zimbabwe Harare High Court.
A judge was successfully prosecuted for approaching another judge trying to influence him to decide on bail conditions attaching to his business associate’s bail. The matter was heard by a senior Zimbabwean-born judge who sits in Namibia.
I recommend it to many of you and Prof!
Samaita, you always amaze me sister! But why were you keeping in point judgements to yourself?
The last time I drew parallels between Zimbabwe and SA on this blog I was stoned!
Maybe while discussing this Hlophe matter, we should consider whether the Legislature enhances or reduces judicial independence by being involved in the impeachment of judges. Say, the JSC says Hlophe is unfit to remain a judge, and the ANC majority in Parliament says “No”, is the judiciary more independent or less so? Should consideration of matters like the fitness of judges be a matter for the herd mentality that afflicts Parliament? I will share with you what happens in Zimbabwe and a few other countries!
Parliament should legislate on this matter.
lindelani – Another sensible remark from you! Bravo!!
Samaita
It’s always best when discussing politics – especially South African and Zimbabwean – to be stoned.
Martin – ha ha – yes, ‘stoned’ enough not to care about the mess politicians create!!
My favourite stone is 1, 200, 000, 000, 000 Zimdollars today. Tomorrow it will be $120.00 a bottle! Magic?
Is Zuma a flight risk?
Samaita.
Zuma is not flight risk. Do your research properly.