I am really worried about the health of Judge President John Hlophe. He seems to have contracted the same virus many of the weaker students fall prey to just before a test or an exam. It must be really serious if he cannot even get on a plane and attend a hearing that will decide whether he is guilty of gross misconduct and should be impeached. Maybe he is even at deaths door like Schabir Shaik. The Minister of Health should call an urgent meeting to deal with this health crisis because as I know all too well from my experiences as a lecturer, this virus is highly contagious and if not stopped it might wipe out a whole generation of shirkers and shysters – and who will then run the country?
But seriously, I am at a loss to understand the legal and political strategy employed by Hlophe and his legal team. Now that he has fired the previous bunch of pedestrian lawyers and hired a really good lawyer by the name of Vuyani Ngalwana – probably the sexiest advocate in South Africa – I would have thought that he would have jumped at the chance to expose those lying, conniving, counter-revolutionary judges who fabricated this whole case against him because they are in the pockets of the CIA, Thabo Mbeki, the Illuminati, the NPA, the Dark Lord Sauron, or perhaps, just perhaps, their conscience.
(By the way, I am not sarcastic about the qualities of Advocate Ngalwana – this guy was brilliant as the Pensions Fund Adjudicator and I had dinner with him once or twice where he displayed charm, a dizzying intellect and original mind of the first order. The fact that he is very pretty might have influenced my judgment slightly – but not that much.)
Not being privy to Hlophe’s legal and political strategy, it is difficult to understand why he is trying to avoid the JSC hearing at all cost. Today his lawyers threatened the JSC with an urgent interdict if it proceeded with the hearing and offered a litany of utterly spurious “complaints” about the hearing. For goodness sake, after the Supreme Court of Appeal (SCA) has dispatched with his argument that the Constitutional Court judges should not have made the complaint against him public, they dredged this up again as one of the reasons for a postponement.
Surely, astute and clever lawyers like Hlophe and Ngalwana know that the SCA has now rejected this argument and that no appeal is possible to the Constitutional Court, so no matter how much they whine on about this, the law does not support them and now never will. Enough already! Stop flogging a dead horse!
They also complained that Hlophe had been selected as a witness before the JSC without being consulted. They are thus equating the hearing before the JSC with a criminal trial and are demanding the same kind of treatment as an accused in a criminal trial. But the JSC is not a court and the same rules applying to a criminal trial do not apply (and should not apply) to the JSC hearing. The JSC process is aimed at getting at the truth (something Hlophe has shown a certain lack of respect for in the past) and Hlophe’s evidence is obviously crucial for getting to the bottom of this. In any case, even in a criminal case any lawyer would have advised Hlophe that given the overwhelming evidence against him, he would have no option but to testify. I am sure Hlophe and his lawyers know this very well.
So what’s up? Why make absurd and legally embarrassing claims about the “unfairness” of the process when they know they have no snowballs hope in hell of convincing any decent lawyer of their argument?
Dare I say that all these shenanigans suggest that Hlophe and his lawyers are getting desperate. In the light of the finding of the 9 judges of the SCA that an attempt to influence fellow judges on a case before them constituted a breach of the Constitution and the law, and given the fact that Hlophe had admitted that he discussed a pending case with two of the judges of the Constitutional Court and argued with them about the “correct” way to decide the case, this leaves Hlophe in an extremely vulnerable position. Remember, he had claimed that it was perfectly normal for a judge from a lower court to discuss a pending case with judges of a higher court and that there was nothing wrong with him telling them that “we depend on you” to rule in the “right” way in the pending case.
Legally, Hlophe is therefore teetering on the ropes and the referee is almost ready to declare a win for the CC on a technical knockout. It’s close to impossible to think of a scenario in which the JSC does not find that he was in breach of the judicial code of conduct. It is also more than likely that they will find that he is guilty of gross misconduct.
So, the absurd abuse of the process by Hlophe and his lawyers today was not aimed at a legal audience. They are obviously trying for a “political solution”. Hey, if it seemed to have worked for Jacob Zuma, why not for him?
One problem though: the SCA has already noted that Hlophe’s legal manoeuvrings had nothing to do with a concern with the judiciary and the administration of justice and everything to do with his own self-interest. Today’s sad turn of events will only reinforce the perception that Hlophe is a dangerous unguided missile who is only interested in one thing – saving himself at any cost, even if it meant destroying the judiciary. This line of defense will alienate many of the good people in the ANC, who will ultimately have to decide if they will vote for his impeachment in Parliament if the JSC recommends that he be impeached.
Tonight I will say a little prayer for Hlophe’s health in the hope that he recovers from his terrible ailment before Saturday. The sooner this case is dispensed with and the sooner we can rid our judiciary of this destructive behaviour, the better for all of us. If this happens, I might drive out to the Joe Slovo informal settlement with a crate or two of beer to celebrate with the men and women living in that informal settlement whose eviction was ordered by Hlophe in one of the most heartless and pro-rich judgments I have ever read in the new South Africa.
Like me, I am sure the honest and decent people living in Joe Slovo and now threatened with eviction to far off Delft because of Judge President Hlophe’s weirdly cold and dishonest judgment, will cheer the demise of a seemingly brilliant mind brought low by an inexplicable lust for money and power, a lack of empathy for others less fortunate than himself and an ethical blind spot as large as the Grand Canyon.
Cheers.
Pierre, I m tempted to agree with you on this one. I mean, really now, the litany of complaints by Hlophe s legal team reminded me of when I was still leading the LRC back in High School. Back then we would argue against the most petty and nonsensical issues, e.g why isnt smoking allowed in the school premises and things like that! P.S: I m just TEMPTED to agree, not sure yet, for all we know Hlophe might be aware that he might not get a fair trial. I mean, we all know the closeness of Marumo Moerane SC s closeness with Comrade TM for instance. It is further common cause that he was TM s counsel when TM befriended the SCA with NPA recently on the Zuma case. Surely, Advocate Moerane should recuse himself in this hearing, shouldnt he, Prof?
A fair hearing – I meant, as Prof has already eloquently explained that the JSC is not a court. Though Pierre, rules of the court, more or less mutandis mutandis ( now, dats a nice legal word/s hey!) apply in a hearing, dont they? I mean, as a shopsteward I know they do.
An excerpt from M&G:
“…If, at the end of the hearing, the JSC finds against Hlophe, Section 177 of the Constitution comes further into play. This section states that a judge may be removed from office only if the JSC finds that he or she suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct. The matter then goes to Parliament, where the National Assembly has to agree with the JSC’s decision to remove the judge by at least two-thirds of its members. The president must then remove the judge from office.”
http://www.mg.co.za/article/2009-04-01-hlophes-fate-might-end-up-in-hands-of-mps
With the ANC in the majority and Hlophe suffering because he was trying to save the ANC president, this whole exercise is just a waste of time. There is no way a two-third ANC majority will decide against Hlophe.
Am I reading this right, Prof?
Poetry Pierre, poetry!
An extract from a piece written on the fall of Rome by Adrian Dorrington.
“All was not perfect, however. Emperors held absolute authority. This worked well with good emperors, but incompetent ones could do great harm. The rules for succession to the throne were never clear, and debilitating civil wars often resulted. The bureaucracy that managed the empire on a daily basis grew more corrupt, increasing the dissatisfaction of the common citizen. The wealth of the empire gradually concentrated in the hands of a minority while a large slave population did most of the work. ”
Sound familiar
There’s no doubt that Hlope is trying to drag this matter out for as long as possible. Why he’s doing this is beyond me though: if he knows Parliament and Showerhead will finally decide the matter, he must know that all the corrupt, gravy-train riding ANC MPs will never turn on a comrade?
Something I’d like to know is whether previous judgments of Hlope can be challenged due to a finding of gross misconduct / gross incompetence? (obviously, in the very unlikely event that Parliament look up long enough from the troughs to find him incompetent).
Also, is there a precedent for removing a judge in South Africa?
nausea, no judge has ever been impeached in South Africa since 1910. Helen Suzman brought an impeachment application against “hanging judge” Braam Lategan (now a business partner of Hlophe’s!) but the Nats rejected this. Last year another judge resigned before he could be impeached after it emerged that he misused a client’s money when he was still a lawyer. I am not sure the ANC will reject a recommendation of impeachment by the JSC. So far the ANC has shown a keen understanding that South Africa’s credibility and standing depends on at least some respect for the judiciary and pressure by donors and investors will be great to honour the decision of the JSC to prevent a perception taking hold that the judiciary in South Africa cannot be trusted and that doing business in South Africa has become risky. I will be genuinely surprised in the ANC in Parliament stood by Hlophe if the JSC recommends impeachment because this would not be in the interest of the ANC (and of course, the country).
“Vuyani Ngalwana – probably the sexiest advocate in South Africa ”
WTF!!! Well, I guess its constitutional. Forward with the Bill of Rights…. Forward!
@ Pierre De Vos at 8:35 am
Thanks for the reply, Pierre. I do, however, respectfully disagree with your assertion that the ANC cares about the international perception of South Africa.
Some pertinent examples of typical ANC behaviour spring to mind:
1. Convicted criminal Winnie at no. 5 on the ANC’s nomination list.
2. Convicted criminal Tony Yengeni being carried to prison on the shoulders of ANC members (and his subsequent parole violation and the fiasco surrounding that).
3. Convicted criminal Shabir Shaik’s release from prison.
4. The denial of a visa to the Dalai Lama.
5. South Africa’s voting record at the UN.
6. AIDS denialism.
7. Travelgate.
8. Support of Mugabe.
9. Disbanding of the Scorpions.
10. Vusi Pikoli.
I could go on, but let’s leave it there for now.
As long as the corruption can continue unchecked (which it now can due to the Scorpions’ demise) and the ANC cannot be held accountable, they will continue to do what they want without any regard for “international perception”.
The ANC has shown that when one of their own (i.e. Hlope) is accused of wrongdoing, they will do everything in their power to thwart any type of justice, without any regard for the rule of law or international consequences.
I can only see this behaviour being replicated in Hlope’s case.
Prof, hypothetically, if the JSC finds against Hlope but parliament subsequently decides not to uphold the decision, what happens then? Everything just goes back to normal and the whole exercise was futile?
I doubt that Parliament will vote against firing him. The JSC is not exactly counter-rev, look at how he was protected previously with the ridiculously corrupt Oasis matter. He has also pissed off Surty, altho we don’t know how much influence Surty has? No, I think even this ANC has its limits as to how low it will go.
Khosi, I thought you would like that! (I was going to say Ngalwana has “Bambi-like eyes” but thought that would perhaps be too naughty. . .
DJL, it would be the worst possible outcome if the JSC recommends impeachment and Parliament refuses to impeach as Hlophe will go back to his job fatally tainted by a finding by a constitutional body that he was guilty of gross misconduct and his authority would be completely eroded and it would really make his position very difficult. The JSC might find that there was misconduct but it was not “gross”, but because legislation dealing comprehensively with disciplining of judges have not yet been adopted they would not be able to demote him, say, by stripping him of the JP position. Such a decision will have to be judged and analysed with reference to all the evidence presented at the hearing. Although I have taken a very firm view on the Hlophe matter (not being on the JSC and not being a judge), if new evidence comes to light which shows that the JP’s actions were less problematic than suggested by the CC complaint, we would have to accept the decision of the JSC.
Lol @ Pierre’s first paragraph. I suspect that Hlope has not ingratiated himself to the old or new guard in the ANC so a vote to toss him may well find favour with enough ANC’s to be rid of him for good. The more delaying tactics he employs the greater his chance of a suitable golden handshake, perhaps?
Prof, so basically you’re saying that apart from a finding of “gross” misconduct and impeachment by the National Assembly, there is nothing more the JSC can do?
So it is either fired or not? Surely this can’t be?!
LOL.
And now see how our constitutional expert is doing back flips to stop South Africans from knowing the truth.
“How dare you share this information with a defence team? This is confidential information and I don’t see on what basis you could pass this on to private individuals.”
Constitutional expert Professor Pierre de Vos agreed with Nathan’s position on his blog, Constitutionally Speaking, saying that Zuma and his lawyer might have exposed themselves to criminal prosecution by accepting the tapes.
De Vos said he would be “surprised” if a judge had granted permission for the alleged eavesdropping, because such a judge would have had to believe that the subjects of the phone-taps were threatening the security of the State, or that Mbeki, for example, was planning a coup.
There was, therefore, “the very real possibility that the eavesdropping was in contravention of the (Interception of Communications) Act”, De Vos said.”
Sies Pierre. What are you afraid of boet ? What are the constitutional implications if the “independent” NPA and your beloved Scorpions have been abused for political purposes during all these years.
Given the other (rather tenuous) tactics to delay the JSC hearing, it would seem that there is a logical possibility that the “influenza” is not valid. There are, however, a couple of rather simple measures that could be taken by the JSC to bring some objectivity to the matter.
(1) Ask Judge Hlophe to submit documentary proof of the purchase of air tickets from Cape Town to Jhb, and of accommodation arrangements in Jhb for the duration. If onechecked the date of the doctor’s certificate, and if the judge did not have valid tickets, then one could reasonably draw the conclusion that the illness was not valid.
(2) Ask the judge to undergo a medical examination by an independent doctor, which would include blood tests to determine the strain of influenza. If he was willing to do this, then he could remove doubt as to whether his illness was valid.
If he was faking it, the question would be “why?”. Is there some way that, after the election, the executive (President, or Justice Minister) could assist him in avoiding the JSC hearings?
I think that it s difficult to predict how Parliament would deal with an impeachment recommendation, and I would say tha it was unwise to pre-judge this. Just to note that the ANC would not have to have even a simple majority to block the impeachment.
I maintain that the law on this is faulty, and that a two-thirds majority should be required to OVERTURN a recommendation to impeach by the JSC.
Your last paragraph was potent Pierre. Fucking awesome. Full of feeling, and very flowing. Good shit brother.
Pierre De Vos // Apr 2, 2009 at 11:05 am
Khosi, I thought you would like that! (I was going to say Ngalwana has “Bambi-like eyes” but thought that would perhaps be too naughty. . .
Does Ngalwana have a sister?
ozoneblue // Apr 2, 2009 at 11:35 am
The time has come for all good people (those who have more than one brain cell) to ignore OsoShit!!!!!
Anyway. I agree with Pierre on this one.
If Hlope is trying to avoid a JSC hearing, as seems to be the case, then he looses any credibility he may have had.
I think the Hlophe matter needs this:
1.All JSC members confirm availability for the next 30 days and check into Hilton Hotel till 1 May
2.All interdicts are heard on an urgent basis and decided.
As Harms said of Hlophe JP in the New Clicks matter at paragraph 38:
“The judicial cloak is not an impregnable shield providing immunity against criticism or reproach. Delays are frustrating and disillusioning and create the impression that judges are imperious. Secondly, it is judicial delay rather than complaints about it that is a threat to judicial independence because delays destroy the public confidence in the judiciary. There rests an ethical duty on judges to give judgment or any ruling in a case promptly and without undue delay and litigants are entitled to judgment as soon as reasonably possible.[39] Otherwise the most quoted legal aphorism, namely that ‘justice delayed is justice denied’, will become a mere platitude.”
Irie de javu, My Lord!
It’s so apt for the JSC to be wriggling in the mudbath they created themselves. The JSC, after all, selected and recommended this guy as JP material.
Can you begin to imagine the “quality” of some of the others recommended for lesser positions over the years!!!
Small wonder nobody of repute are even willing to make themselves available for the CC..
History will judge the JSC – at this stage its record is rotten – a public disgace. Pipped only by the HRC.
Just an up date on the Hlophe matter
It would still appear that Hlophe is not going to bother to pitch up for the JSC hearing even his new lawyers…
This is just such lack of disrespect towards the process and a spit in the face of the Judiciary.
It would appear Hlophe seems to have contacts within the NIA to produce a List of Names who is implicated in the arms deal and who isnt.
It seems to be suspect now that some of the Judges were under surveillance
http://www.thetimes.co.za/News/Article.aspx?id=977358
Hlophe tries to dodge a JSC hearing and loses the little credibility he had.
Zuma dodges a criminal trial and is suddenly the victim of a political conspiracy.
Welcome to South Africa, where Justice is just the name of Jacob Zuma’s next wife.