Judge President John Hlophe has filed papers in the Constitutional Court requesting that the ten judges involved in the complaint of gross misconduct against him recuse themselves and that they be replaced to hear his appeal in which he alleges that the Constitutional Court judges infringed on his rights. He argues that his right of access to court will otherwise be infringed.
Hlophe says section 175(1) of the constitution allows the president to appoint acting judges when a judge is “absent,” on the recommendation of the justice minister in concurrence with the Chief Justice.
It seems to me Hlophe is asking for his case to be heard by a tribunal that would not be a legally constituted “Constitutional Court”. He wants his case heard by a tribunal he wished existed and not by the legally constituted Constitutional Court. But no one has the right to choose the judges in front of which his case will be heard. Legally his application is, quite frankly, a waste of time and money. But this is not about the law. It is about Hlophe’s attempt to conjure up a “constitutional crisis” that will prevent any decision on the merits of the case against him and will let him off the hook – regardless of what he might have done.
There are both technical and policy reasons why this application is an abomination.
It is true that section 175(1) states that the President may appoint someone as an acting judge to the Constitutional Court “if there is a vacancy or if a judge is absent” on the recommendation of the Minister of Justice “acting with the concurrence of the Chief Justice”. One could point out that the Constitutional Court judges will be sitting in their offices when all this is supposed to occur so they will not be absent (”not present”, “missing”) as required by the Constitution.
But let us assume that the word “absent” can be given an extraordinary wide meaning to include a situation where the judges are not really “absent”, but recused themselves from a particular case. Let us assume that it is not the judges sitting in their offices, reading cases, discussing judgments, drinking tea, but merely their ghosts floating around the corridors of the Constitutional Court building. Even then, this application stinks to high heaven.
Section 167(2) states that a matter before the Constitutional Court must be heard by “at least eight judges”. These judges must be appointed in terms of section 174(4) and (5) which requires the Judicial Services Commission (JSC) to make recommendations to the President who then has to appoint these judges. However up to three judges can be appointed as acting judges if some of the legally apointed judges are absent or if there is a vacancy in the court. In the latter case the JSC plays no role in the appointment.
Hlophe’s application asks us to suspend these provisions of the Constitution to allow the Minister of Justice, in effect, to appoint a new panel to hear his case, circumventing the carefully crafted provisions that ensured a decisive role for the JSC in the appointment of judges. This is both daft and dangerous. These sections of the Constitution help to safeguard the independence and impartiality of our highest court and is also fundamental to the notion of the separation of powers doctrine which requires the three branches of government to operate independently.
If Hlophe gets his way, a tribunal will be appointed by the President who will purport to be a Constitutional Court but will really not be an independent and impartial court appointed in terms of the Constitution. Because the JSC would not have had any say in the appointment of this tribunal, it will not be a court that complies with the requirements of judicial independence. Because the Minister will in effect appoint the judges, it will also constitute a fundamental attack on the separation of powers doctrine. This body will be a weird kind of legal tribunal – a bit like a disciplinary body for a tennis club – without any constitutional mandate or power.
In any case, it would not remedy Hlophe’s concerns about a “biased” court at all. As the Chief Justice is involved in this case and will be involved in the appointment of the tribunal, this new members of the tribunal will also have to recuse themselves. Surely Hlophe would not be happy with a tribunal appointed by someone who is a party to the matter? Either that or the Minister will have to recommend the appointment of the tribunal on his own, opening the way for a manipulation of the process to give Hlophe the bench that he might have hoped for but that does not exist in law.
Hlophe’s application seems to be predicated on the notion that the right of access to court includes the right to have your case decided by the Constitutional Court. There is no such right. The fact that Hlophe thinks there is, says much about his grasp of constitutional law. There is a right to approach the Constitutional Court and if it is in the interest of justice to do so, this court will hear the case. It is clearly not in the interest of justice for the Constitutional Court to hear the present case, but hey, who cares about justice, our Constitution and an independent judiciary, when an egomaniac’s self-interest is at stake?
I find this application astonishing and, quite frankly, scary. It suggests that the Judge President has no firm grasp of judicial independence and the separation of powers or, if he has, that he could not care less about these principles. The application (inadvertently?) further tarnishes Judge President Hlophe’s image and suggests that he is about as principled and honest as Hansie Cronje and those bookmakers he used to hang out with.
The application also sites the Minister of Justice and the President. They need to take a firm stand against these shenanigans by someone who is supposed to be a judicial leader. If they do not, we will know that the nice assurances about their respect for the independence of the judiciary and the separation of powers were no more than empty words. It is crunch time for the executive who must now face up to the fact that there is nowhere to hide from this mess.
Either you take a stand against the undermining of our judiciary by a wayward judge whose own self-interest will always trump the interest of society, or you get tarred with the same brush. In Afrikaans we have a nice saying for this: “Meng jou met die semels dan vreet die varke jou op.”
lovely stuff great read.
Well later today i guess we all find out if the JSC will be allowed to make a finding about whether he tried to interfere in the constitutional court cases
Does he expect 10/11 of the JJ to agree to his request? I don’t see how he sees this as a likelihood. They need not entertain a claim before the CC on appeal. This is not an appeal though, he wants to appeal but wants the JJ to recuse themselves before he does so. Were the reasons advanced before the HC and SCA so great that he truly should take his matter on appeal?
The composition of a the CC de novo just for him really does show he loves himself too much. It also seems like it won’t happen – but then again after the Mpshe saga anything is possible.
UPDATE: Journalist just informed me that Hlophe won his case against JSC.
Pierre De Vos // Jun 1, 2009 at 10:53 am
your kidding me? so now the whole process has to start all over again
Mbeki – The Serial Liar
Sunday Times
Editorial
19 January 2008
http://www.thetimes.co.za/News/Article.aspx?id=686327
President Thabo Mbeki has held the ultimate trust a nation can bestow since he was sworn in as our first citizen on June 16 1999. As head of state and the government, he has been responsible for those aspects of our health, security and economic wellbeing that are beyond our personal control.
He has invoked that mandate regularly in the execution of his responsibilities ¬ insisting that Manto Tshabalala-Msimang was up to the job in the face of massive anecdotal and empirical evidence to the contrary; telling us that there were moves afoot, too secret for us to know, that would resolve the Zimbabwe crisis; reassuring us that our police force was in good hands.
“Trust me,” Mbeki told religious leaders who raised concerns with him over a year ago about the relationship between National Police Commissioner Jackie Selebi and Mafia boss Glenn Agliotti, who had just been arrested in connection with Brett Kebble’s murder.
He said he had no evidence suggesting Selebi had done anything wrong, and promised to act if anything came up.
Now it has emerged that National Prosecuting Authority and Scorpions head Vusi Pikoli wrote a “last resort” appeal to Mbeki in May last year, spelling out serious allegations against Selebi and asking for executive support to investigate the country’s police chief, who was also president of Interpol. He specifically recorded his concern that Selebi was protecting Agliotti.
We do not know whether Mbeki responded to that letter, but in September, when Pikoli obtained search and arrest warrants against Selebi, Mbeki intervened decisively to suspend Pikoli on grounds massively more tenuous than the evidence already stacked against the policeman . Days later ¬ after a meeting with officials from Mbeki’s office ¬ Pikoli’s temporary replacement pulled the arrest warrant and unsuccessfully tried to do the same with the search warrants. But, to his credit, Mokotedi Mpshe continued to do a policeman’s work.
Selebi will soon be charged with defeating the ends of justice by protecting crime suspects, corruption and racketeering. The details of the indictment, most of which would have been available to Mbeki in September, range from soliciting petty bribes to a charge that Selebi abused his Interpol access to protect Agliotti.
Mbeki protested publicly that no one had given him cause to doubt Selebi, but we now know that, in addition to the many detailed reports by investigative journalists ¬ which should have been enough for him to act ¬ the evidence gathered by official investigators has been there for Mbeki to pick up and read, at least since May. We now know that he deliberately ignored this information.
It is impossible to conclude otherwise than that our President lied to the nation *1 when, in announcing Selebi’s suspension last week, he said: “I have said this before many times: if there was anybody who brought information to me that showed that the national commissioner of police had done wrong things, I would act on it. And nobody did.”
You betrayed our trust, Mr President. Now we ask: dare we trust you any longer?
________________________________________
*1 Mbeki lied point blank to the nation in this instance.
But he has a seven year track record of lying point blank to the nation in Arms Deal.
On 19 January 2001, yesterday exactly seven years ago, Mbeki told the nation via a special broadcast on SABC TV :
“Fellow South Africans
…………….
In this regard, I would like to extend my sincere thanks to Advocates Jan Lubbe S.C. and Frank Kahn, S.C., Director of Prosecutions in the Cape of Good Hope, for the assistance they gave the Minister to correct the weakness we have indicated.
In a letter to the Minister of Justice dated 18 January, 2001, they say:
‘Further to your enquiry we advise as follows that at this stage there is no prima facie evidence in law that any person or persons committed a criminal offence.’
Let me repeat their statement:
‘Further to your enquiry we advise as follows that at this stage there is no prima facie evidence in law that any person or persons committed a criminal offence.’”
The truth was exactly the opposite; the precise words of the two senior counsel in their letter of 18 January 2001 were as follows :
“there are sufficient grounds in terms of the Special Investigating Units and Special Tribunals Act No 74 of 1996, for a special investigating unit to conduct an investigation, and, in our opinion, such an investigation is warranted”.
So this is point blank lie direct to the nation.
Mbeki’s Fishers of Corrupt Men, contains multiple examples of Mbeki’s out and out lying to the country ”
“The fishers have focused especially on the Thomson (Thales) element *2 of the prime contract entered into by the government with the suppliers of the corvettes, the German Frigate Consortium (GFC) *3. The government has explained this very clearly before, that it entered into a contract with the GFC to supply the required number of corvettes, meeting all the stipulated specifications *4.
The government has no contracts with the companies retained by the GFC to supply the various component parts of the corvettes *5. Similarly, it never had occasion or need to determine who the partners of the GFC should or should not be, including Thomson (Thales) *6.
Our Country Needs Facts, Not Groundless Allegations
http://www.armsdeal-vpo.co.za/special_items/correspondence/mbeki/mbeki_facts.htm
*2 Another lie.
The government did not enter into a prime contract with the German Frigate Consortium (GFC).
The government entered into a prime contract the European South African Corvette Consortium (ESACC).
ESACC consisted of Blohm+Voss, Thyssen Reinstahl Techniek, HDW, Thomson-CSF Naval Combat Systems and African Defence Systems (Pty Ltd.
It’s clear, it’s in black and white, it’s got all the signatures on it including those of January Masilela and Chippy Shaik.
*3 Another lie.
The contract diverged in many respects from the stipulated SA Navy specifications.
*4 Another lie.
The Umbrella Agreement for the Corvette is directly between the SA Government and Thomson-CSF Naval Combat Systems and African Defence Systems (Pty Ltd in respect of the supply of Part B (the Thomson-CSF and ADS supplied part of the corvette combat suite) and Part C.(the South African Defence Industry supplied part of the corvette combat suite plus the anti-ship missile).
*5 Another lie.
Armscor’s Request for Information dated September 1997 and Request for Offer dated March 1998 specifically recorded ADS as being responsible for the combat suite and supplying inter alia the combat management system.
The Project Control Board (PCB) sat on 6 June 1999 and formalised its equipment selections (including these ones) and a letter just a few days later (I think 21 June 1999) to ESACC from the Chief Executive Officer of Armscor, Llew Swan, the SA Government statutorily-stipulated defence materiel acquisition agency formally recorded these selections.
So Mbeki manages to propagate at least four serous lies in just two paragraphs.
Mbeki goes on to say :
The proposition that the government influenced the choice of Thomson by the GFC as one of its sub-contractors is both a blatant falsity concocted by the fishers, and a logical absurdity *6. In its statement of 15 September 2000, the government announced those with whom it had entered into contracts. These are British Aerospace/SAAB, the German Frigate Consortium and Augusta. It had no primary contract with Thomson (Thales), as the supplier of the electronic combat suite of the corvettes, which matter, of the supplier of this suite, remained in the exclusive domain of the GFC *9.
*6 Another lie.
Mbeki is on the documented record as having met Thomson-CSF privately, secretly and on multiple occasions in the two year period prior to Thomson-CSF being awarded the contract for the Thomson-CSF Tavitac NT combat management system (CMS) and the combat suite sensors.
If is clear, it is on paper it cannot reasonably be refuted.
Indeed when questioned in Parliament about his secret meetings with Thomson-CSF in Paris, he claimed he cannot recall.
Yet apart from Thomson-CSF’s encrypted faxes referring to these meetings, there are letters directly to Mbeki himself and to his ambassador thanking them for the meeting.
It is extraordinary.
What a wonderful witness Mbeki will make for adversarial cross-examination.
*7 Another lie.
The contract for the combat suite and the Thomson-CSF Tavitac NT combat management system (CMS) is directly between the South African Government and Thomson-CSF and ADS.
But next ceases to amaze :
The gentleman concerned makes the false allegation that during the life of the Government of National Unity, formed in 1994, a contract for four corvettes to be built by Bazan of Spain “was cancelled after being awarded” *8. This is not true. The preceding apartheid Cabinet had not approved this contract. The GNU Cabinet decided not to enter into this contract.
Bazan entered the later competition to supply the four corvettes, and lost to the GFC. This issue is of relevance and interest only because of the controversy that some have brought into the current defence procurement. It is an interesting coincidence
that this controversy has focused so intensely on the corvettes.
*8 Another lie.
What I said was :
“This was not long after a R2,4bn tender (1995 : the rand to the US dollar was R3,50) for four patrol corvettes (read light frigates) was cancelled after being awarded, to all intents and purposes to Bazan of Spain.”
http://www.armsdeal-vpo.co.za/articles03/query_spending.html
Mbeki simply leaves out the rider to suit his deceitful purposes.
Meanwhile Rear Admiral (JG) Kek Vester had testified under oath during the Public Phase of Arms Deal Investigation during June 2001 as follows :
“I just want to point out in 1994 and 1995 there were very particular approvals given for the Corvette, the navy Corvette, and there is certain documentation which I do not want to now name, but we were on our way to ask for political authority in 1995 particularly. At that time the Corvette had money approved on the budget.”
I can state categorically that after a three year process Bazan had won the tender over the Yarrows Shipyard of Glasgow. The approvals had been given – only final cabinet authority was required.
SA Navy and Armscor personnel were by then already working at the Bazan shipyard on the western seaboard of Spain. I personally know some of them.
I can also state categorically that Bazan actually won the military evaluation process of the 1997 to 1998 Arms Deal. I know – I was told face to face by the SA Navy’s project director.
This too was overturned by Mbeki and his cronies in Cabinet to give it to his buddies in Germany.
In short Mbeki is an out and out liar whenever it suits him.
A first world country or even a developing country cannot have liar for a president.
He must go.
But the problem is, with whom can he be replaced right now?
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
Report from the Director Public Prosecutions Western Cape, Advocate FW Kahn SC,
and Advocate J Lubbe SC,
to the Minister of Justice and Constitutional Development, PM Maduna
18 January 2001
Memorandum
Your fax dated 16 January 2001 refers. In accordance with your request, we report as follows:
In the brief time available to us, we looked at the available information and we also consulted certain interested parties to obtain further information, including MS de Lille.
The Auditor-General has pointed out irregularities which merit further investigation and it is too early to conclude whether criminal offences will be revealed.
We are of the view that the preparatory criminal investigation being conducted by IDSEO in terms of section 28(13) of the National Prosecuting Authority Act, No 32 of 1998, is warranted and justified.
In addition there are sufficient grounds in terms of the Special Investigating Units and Special Tribunals Act, No 74 of 1996, for a Special Investigating Unit to conduct an investigation, and, in our opinion, such an investigation is warranted.
We agree with the conclusions of the Special Committee on Public Accounts, namely that the investigation would be best conducted by a multi-disciplinary team, consisting of the Investigating Directorate: Serious Economic Offences (under the authority of the National Director of Public Prosecutions), the Auditor-General, the Public Protector and the Special Investigating Unit. Due to the scope of the investigation, it is, in our opinion imperative that all the agencies referred to above should be involved at the earliest possible stage.
We have, however, also taken cognisance of the judgement of the Constitutional Court in the case of SA Association of Personal Injury Lawyers versus Heath and others( CCT27/2000) in which the court declared section 3(1) of Act 14 of 1996 and Proclamation R24 of 1997 invalid. In the light of this judgement, we recommend that the Act be amended as a matter of urgency, to meet the constitutional defects.
We have furthermore noted that, in terms of the judgement, Judge Heath’s tenure as head of the present Special Investigating Unit will terminate as a matter of law within a year of the judgement, for as long as Judge Heath remains a judge. Given the magnitude and complexity of the investigation, a change of the head of the unit during the investigation might practically hamper the investigation.
Consideration could be given to appointing another Special Investigating Unit under an acting judge, who could then be placed in a position to continue with this investigation by reverting to his personal status after the Act is amended. Some existing members of the present Unit could be appointed to the new Unit, thereby retaining experience and expertise gathered by the present Unit. Such a step would ensure continuity and be in accordance with good governance expected of the President in view of the above-mentioned Constitutional Court judgement.
(signed)
FW KAHN SC
(signed)
ADV J LUBBE SC
18 January 2001
________________________________________
And there you have it.
One massive lie by the president of the country broadcast to the entire nation by a special SABV TC mid-afternoon transmission.
Out with him.
His legacy to the nation :
• a litany of lies;
• a very corrupt country;
• a chacma baboon for chief of police;
• an idiotic and corrupt successor;
• transformation of a first world country back into the dark ages; and
• a 10% shortfall in supply over demand in electrical power rather than a 15% safety margin.
Out with him.
(Annotated by Dr Richard Young, PhD, telephone: 082 891 5868)
Hlophe won his case:
http://www [dot] iol [dot] co [dot] za/index.php?set_id=1&click_id=13&art_id=nw20090601110640742C355124
Prof
I guess congratulations (for this round) are in order to our colleague, Justice Hlophe. He is not such a “nut case” as some of his detractors would like us to believe. you will remeber that just a few weeks ago, I cautioned against the “burning desire” to write him off. I was convinced then, as i am now, that the JSC bungled the procedure pertaining to this important matter. i am not sure what the motivation or the underlying reasons are for such a blatant miscalculation. I must concede from the very outset that I am not privy to the entire arguments that may have informed various strategies (Not stratagem), thus my view are only limited to what is readily in the public domain and soem understanding of the law. One thing that is clear though is that, Justice Hlophe seems destined for greater heights, whether some scribes like it or not. Let us all watch the space and keep the intellectual discourse on course.
On a different note, I wish Adv Bizos Sc a speedy recovery. I admire his scholastic talent greatly. it’s a pity that he found himslef entangled in this situation pertaining to justice Hlophe. Be that as it may, I sincerely hope that he recovers soon and continue to do what he does best- “the art of law”
Regards
Zola Majavu (”M”
Prof,
There is a part of your argument that I would have liked to include. The Right to Protection of the law! How does that sit against the failure of the Concourt to be rearranged to hear cases where the complaints are against the Concourt judges themselves!
Samaita, I am not familiar with that right? You mean perhaps s 9(1) which guarantees the right to equal protection and benefit of the law? A rationality test applies regarding s 9(1) and what I propose is imminently rational and logical. You seem to be clutching at straws
Samaita
Prof is saying the opposite of what Adv Ramathlodi is reported to have said, that no one is above the law, judges included.
According to Prof’s logic, your right to equal protection of the law exist to the extent that you are not accusing the beloved CC judges of interfering with your rights. The moment you do that, you are, quite frankly, screwed!!
Mzo what are you on about? You are confused. Nobody said judges are above the law. This issue is about whether anyone – including a judge – have the right to have their case decided by the Constitutional Court. The simple and obvious answer is NO. End of story. The right to equal protection does not apply. Anyone in the position of Hlophe would not have access to the CC. By the way Hlophe had access to 12 judges of which ten thought his case was rubbish……
Thanks Prof. That’s exactly what I said. He had an abnormally large bench at the HC, then the SCA and now he demands an appeal where he knows that no such right exists. Secondly, who does he suggest should hear the matter? The next best option is to get a differenttly constituted bench of the SCA JJA to hear the matter. I do sincerely hope that he fails in his attempts to, like Zuma, “rape the legal system”. He is taking chances because at some point in his life he was too smart for his own good and had quite the academic inclination. Its getting very tired VERY fast.