Was Constitutional Court wrong to lodge joint complaint against Hlophe?

When former South African cricket captain Hansie Cronje died, some of his (mostly white) fans maintained that he was innocent and that he had been framed. This was despite the fact that he had confessed – on national television nogal – that he had been involved in match fixing but that “the devil made me do it”.

This blind support for one’s heroes – no matter how flawed and corrupt they might be – seems to spring from a misplaced racial solidarity which pits “them” against “us” at any cost and makes people think that if one person from a specific race group is found to have done something wrong, it would reflect badly on every single person of that race.

Better then to support even a deeply flawed crook like Cronje or a proven liar like Judge President Hlophe, than to admit that “one of one’s own” had done anything wrong. This race-based thinking, fueled by deep insecurities and perhaps a fear or even hatred of “the other” (an “other” who could be black or white), also bedevils any discussion around the various shenanigans of Judge President John Hlophe. Although calling it “thinking” is really pushing the boundaries of reality because it has very little to do with thinking and everything to do with acting out a visceral “them” and “us” siege mentality.

In all honesty, I might not be completely immune from this tendency. More about that later.

The article by Paul Ngobeni, a controversial University of Cape Town legal adviser who has had his own entanglements with the law (see here, here and here) published this week in Business Day is a prime example of this kind of phenomenon. Ngobeni lambasted the Constitutional Court for making a joint complaint against Judge President John Hlophe, arguing that it violated the rules of natural justice. The judges of the Constitutional Court had condemned the Judge President without hearing his side of the story and this made the members of the Court partisan and infringed on Judge Hlophe’s rights, he argued.

The first obvious answer to this argument is of course to point out that Ngobeni does not seem to realise that the judges of the Constitutional Court will not form part of the panel of the Judicial Services Commission (JSC) who will actually hear the complaint. It is important that the panel from the JSC should keep an open mind on the matter, and should wait for Judge Hlophe to present his side of the case before deciding whether to take any action against him.

However, the judges of the Constitutional Court will not take part in this process and they can therefore not prejudged anyone – unless of course Ngobeni is saying that merely by laying a complaint one is infringing on the rights of Judge Hlophe. That would mean judges would never be able to lay a complaint against another judge and this would clearly be absurd.

It is of course true that anyone making a complaint against a judge (or anyone else) cannot but have prejudged a case. This is the very essence of a complaint: one or more persons decide that a judge had done something wrong and lodge a complaint against that judge. It is also true that the more prestigious and authoritative the person or group of persons making the complaint, the more serious it will probably be taken. But in a constitutional democracy no one can be a judge in his or her own cause and that is why no one who has prejudged the case – not even the judges of the Constitutional Court – will have anything to do with the hearing of the complaint. The rules of natural justice therefore do not apply in this case.

It is perhaps not surprising that Ngobeni cannot see this very obvious legal fact or cannot understand this basic legal principle. After all, he is alleged to face 12 years in a US jail for fraud, larceny and practising law illegally.

But Ngobeni’s article is also deeply flawed on a more principled level. He treats the complaint of inappropriate interference, lodged by judges of the Constitutional Court against a Judge President of the High Court, as if it is a trifling matter. As if the other judges of the Constitutional Court would have no interest in such a complaint and as if this was merely a fight between constitutionally completely inconsequential individuals.

But this allegation goes to the heart of the integrity of our legal system and of the integrity of the Constitutional Court and its judges. It is decidedly not (and should not be) a fight between two judges of the CC and one Judge President. The judges of the Constitutional Court made a joint complaint because they rightly view allegations of this kind as going to the very heart of the credibility of their Court. If they did not lodge this complaint jointly, they would have behaved in a deeply irresponsible manner and would have potentially undermined the credibility of their Court.

After all, the Constitutional Court is the highest court in the country and has a duty to uphold and safeguard the Constitution and the law and the institutions created by the Constitution to do so. If they had failed to act as a unified Court in this case, they would have been in dereliction of this constitutional duty. Ngobeni cannot see this, perhaps because he is obviously blinded by the Hansie Cronje effect. He will support his man and attack those who allege wrongdoing against judge Hlophe on any basis – no matter how flimsy  his argument might be on legal grounds – because this is not about reason or law but about racial loyalty of the worst kind.

Having said this, I must admit that on reflection I might have felt prey to this same Hansie Cronje effect by declaring in a previous post that Judge Hlophe must now surely be toast. I am not a great fan of the Judge President and think that he should have been impeached last year. But we do not yet know what the facts of this case are and it was wrong of me to prejudge the matter so decisively without having heard Judge Hlophe’s version of events.

Just because judges of the Constitutional Court make an allegation of impropriety against a High Court judge does not necessarily mean that these allegations must be true or that the allegations cannot be interpreted in any other way. Even Judge Hlophe must be given the benefit of the doubt until he presents his side of the case. I, for one, would be deeply shocked and surprised if his version is more believable (and is actually believed by the JSC) than the version from the judges of the Constitutional Court, but even if there is a one percent chance that this would be the case, justice require us to keep an open mind.

I would therefore apologise to Judge Hlophe for prejudging him in this case. I will keenly await more information on this case before I condemn judge Hlophe again. I do think that given the seriousness of the charge against him, the wise and correct thing for him to do would be to step aside until such time as the complaint has been dealt with. This is imperative to safeguard respect for the judiciary. Sadly, Judge Hlophe has not shown any scruples in the past and has not shown a propensity to act in the bigger interest.

But even then, there is still that 1% chance that he is innocent – just as there is that 1% chance that they will one day still find weapons of mass destruction in Iraq….

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