Should Helen Zille have been part of the JSC committee who decided not to proceed to a full hearing in the matter between Judge President John Hlophe and the judges of the Constitutional Court? A clever and alert reader of this Blog thinks so – and I agree. This would mean the JSC was unlawfully constituted when it made its decision and on that ground alone the decision could be set aside by a court.
Section 178(k) of the Constitution states that “when considering matters relating to a specific High Court,” the Judge President of that Court and the Premier of the province concerned, or an alternate designated by each of them, must form part of the JSC. The question is what would constitute “matters relating to a High Court”.
The Premier already forms part of the JSC when it decides on appointments for the High Court in his or her province, so the composition of the High Court is deemed to be “a matter relating to a High Court”. It seems to me that it follows by necessary implication that if the Premier is involved in the appointment of any judge, he or she must also be involved in the possible removal of any judge because it relates – at least potentially – to the composition of that High Court.
This conclusion is bolstered by section 178(5) which states that when the JSC “considers any matter except the appointment of a judge”, it must sit without the members of the National Assembly and the NCOP. This section explicitly excludes party politicians (with the exception of the Minister of Justice) from taking part in a decision on whether a judge should be impeached or not. Because the Constitution uses the very specific words – “appointment of a judge” – in this section, but the far broader phrase – “matters relating to a High Court” – when it deals with the presence of a premier, the irresistible inference must be drawn that Zille should have taken part in the JSC disciplinary committee decision of last week.
Of course there is a very good reasons why the members of Parliament are excluded from sitting on such a body. If the JSC recommends impeachment, the National Assembly will have to consider the JSC recommendation and a judge can only be impeached if two thirds of the members of the National Assembly vote for impeachment. If the politicians had been part of the original JSC decision, they would in effect be called upon to decide on the same issue twice in two different fora and that would not be tenable.
The Premier on the other hand will not form part of any decision by the National Assembly on whether to impeach a judge, so the same concern does not arise.
Moreover, the Minister of Justice does sit on the disciplinary committee of the JSC to represent the interests of the national government. The premier’s position mirrors that of the Minister as he or she must represent the interests of the province in decisions regarding the composition of the High Court in his or her province.
The same section also requires the Judge President or his or her designate to sit in the decision, but as Hlophe is deeply involved in the case he would not be able to sit in the hearing. Neither would anyone appointed by him be able to take up his or her seat, because there would of course be a reasonable apprehension of bias against anyone nominated by Hlophe. Hlophe would surely not nominate anyone he believes would decide the case against him?
(Alternatively, the Deputy Judge President who has acted as Judge President in the absence of Hlophe should have sat on the committee.)
Andiswa Ndoni, one of the JSC members nominated by President Zuma, has previously said that she believed Hlophe was innocent, but unlike Dumisa Ntsebeza who to his credit recused himself, she failed to recuse herself from the JSC decision on Hlophe, despite the clear conflict of interest. Moreover, one of the representatives of the advocates profession, Izak Smuts, who was supposed to replace Milton Seligson, did not take part in the decision as President Zuma has not yet signed his letter of appointment.
It therefore seems to me that the true majority of a properly and lawfully constituted JSC body may very well come to a different conclusion from the irrational and dangerous decision announced last week. Hlophe and the judges of the Constitutional Court may therefore still face the cross examination required to test their evidence. After such cross-examination, the JSC might even be persuaded to do its job and to make a finding on the credibility of the various complainants. Once such a finding is made and one or the other version is accepted, it would require the JSC to recommend impeachment of the individual(s) who have lied through their teeth – under oath nogal.
This matter is not over yet. Who knows, maybe the tarnished credibility of the JSC can still be saved and with it the integrity and the independence of our judiciary.
Prof – As I have said in agreement with you and Handel under the other thread below, this is one of the best arguments that anyone wanting to have the matter reviewed can put forward. One of the reasons that Hlophe advanced for setting aside the proceedings that were already under way (when he also lied about his indisposition), was that the Minister of Justice and Constitutional development was not part of the proceedings. The JSC was argued to have been wrong by not waiting to be properly constituted before commencing with the action. The Full Court however dealt with the issue on another basis, namely that Hlophe JP did not receive a fair trial thus far as proceedings were conducted in his absence. Nevertheless, the fact that the Minister, even after he had recused himself, had not nominated someone else to represent him on the JSC might well have led to setting aside of any decision that the JSC might have made if the proceedings were not set aside on that other ground. Although the JSC may arguably proceed in the absence of a member that has recused him- or herself, s 178(1)(k) makes specific provision for the absence of the two members mentioned there (be it due to recusal, illness or other reasons), namely that an alternate should be designated by either of them if either could not be present. (I know I have earlier argued otherwise when the High Court application brought by Hlophe was debated, but, I concede, I have not properly read the provision requiring an alternative designation in such a case, whilst it is not required when another member of the JSC recuses him- or herself.)
The same argument however now applies to absence of the Premier (or her delegate) not having been present during the decisionmaking process[s 178(1)(k)]; and, of Smuts [s 178(1)(e)]. The mere fact that Zuma has not yet signed the latter’s papers cannot mean that the JSC was allowed to continue without him. His is not a matter of someone having recused himself. The mere fact that the JSC (like I and some others) have overlooked the requirement in s 178(1)(k) that the Premier was to be present can also not legalise the otherwise illegal decision to proceed with a preliminary investigation and to reach a ‘decision’ on the basis of a narrow majority in the absence of the Premier or her delegate.
If a court or tribunal (or decisionmaking body like the JSC) is not properly constituted, the legality principle has the consequence that any decision taken by such a court, body or tribunal is null and void. Simple as that. Good luck to Kriegler et al. I think they have a strong case.
@Pierre et Mouse:
You are clutching at straws and it’s embarassing.
1) Even according to your argument, Zille would have had to recuse herself because Hlophe JP’s claim of a political motive points directly to the fact that the DA (of which Zille is the leader) was the only party to recieve a copy of the “complaint” by the CC “judges”.
2) Even on your argument, the recusal of Andiswa Ndoni would leave the decision at 5 – 4 majority, which does not change the outcome.
Setumo, with respect, you are very misguided and wrong
(1) The complaint was sent to all individuals and parties subscribed to the CC service alerting individuals of new cases etc. The fact that the DA had subscribed to this service and other parties have not, cannot possibly lead to a reasonable apprehension of bias on the part of Zille. In any case, the JSC – even the wrongly constituted one – rejected the argument of a political motive and said Hlophe had provided NO evidence for it. So, your argument is irrational and wrong and was rejected by even the majority of the JSC who decided not to proceed with the complaint.
(2) If Ndoni recused herself and Zille and Smuts was seated as they should have been and if they had voted for a full hearing the count would have been 6 for full hearing and five against. If the Acting Judge President had also been seated as she should have and if she had agreed with the idea of a full hearing, the tally would be 5 to 7 in favour of a full hearing.
Setumo – And what about the absence of Smuts? And, why was it not necessary that Jeff Radebe who was to be part of the proceedings ito s 178(1)(d) was not required to recuse himself – having been appointed as Minister by Zuma who this whole hullabaloo is about? You see, if you want to argue this whole thing against Hlophe JP (at least on his impression) is about a political motive to have him removed, you cannot only exclude your political opponents. If this thing has to be decided on politics (which I’m sure will happen if ever the matter goes to Parliament, because there will not be a two-third majority in Parliament supporting a vote of impeachment), for reasons of democracy, you cannot and should not exclude your political opponents. The reason why the members of parliament sitting on the JSC are excluded from this decisionmaking process is not because they might be politically inclined towards one side or the other, but so that they are not allowed to have more than one bite at the cherry. The lawyers on the JSC, on the other hand, are supposed to be objective and independent of political motives. Now, if the erstwhile Minister, as a politician appointed by the ANC led government, had the decency to to recuse himself, then surely the lawyers who have had been outspoken to the one side or the other were to have recused themselves as well. Really now, I fail to see what you find so embarrasing in the reasoning.
Anonymouse
“One of the reasons that Hlophe advanced for setting aside the proceedings that were already under way (when he also lied about his indisposition)”
And then you expect us to believe that you care about the rule of law? In case you forgot, the High Court’s decision was that he was indeed indisposed. Now, I am very worried when an officer of the court like you will deliberately ignore a High Court decision all in an effort to discredit someone you do not like. In my respectful view, Kriegler should really be worried about people like you more than anything else.
“(I know I have earlier argued otherwise when the High Court application brought by Hlophe was debated, but, I concede, I have not properly read the provision requiring an alternative designation in such a case, whilst it is not required when another member of the JSC recuses him- or herself.)”
Anonymouse, are you sure you and President Zuma should not be friends. You seem to have taken a page out of his book – saying something ridiculous and then coming back to “concede” you were wrong. The way I see, yours is nothing more than an attempt to conceal your hypocricy, just like Prof.
Not so long ago, Hlophe’s arguments along the very same lines now advanced by Prof was ridiculed in this very same blog by the very same people who now see merit in it, all because it now serves their purpose. This hypocricy is really sickening.
Personally I still feel very aggrieved by the decision to refer the matter to a full hearing but I really do not see what is the whole purpose of the imminent application by Kriegler J and his group. Assume he launches the application and he is ultimately successful; the matter gets referred back to the JSC; they listen to evidence and the parties stick to their stories (notwithstanding cross-examination); the JSC then decides (by majority or otherwise) that they are not able to find that there has been “gross misconduct” even though there may have been “misconduct” on the part of one or more judges – remember, (as far as I know) they have no powers to recommend impeachment on the basis of mere misconduct finding as opposed to gross misconduct; ultimately no one is impeached – are we really to believe that the whole process would have served to strengthen our faith in the judiciary as opposed to reducing whatever faith we currently have?
I have to agree with those that say we are better off without yet another public spat involving members of the judiciary. I am also curious to know if the likes of Kriegler, Prof, Anonymouse, Leigh etc would be prepared to accept a Court decision that dismisses Kriegler’s proposed application? Will these people take back everything they’ve said about the majority decision? I have my doubts – my guess is that some other sophisticated explanation will be found to discredit the Court’s decision….maybe the Court’s composition etc will be blamed!!
Mzo – That will depend on the (legal) reasons advanced for a court’s decision. And, criticising court decisions (on legal and academic grounds) does not amount to disrespect for the Rule of Law. On Hlophe’s indisposition, need I remind you that that decision was again a narrowly split decision in the High Court, and that the only reason that was not taken on appeal was to expedite matters in the interests of everyone, including Hlophe JP and the Rule of Law. As far as my concession that I was wrong is concerned (which you see as a sign of hipocrisy – Oh Jacob Zuma you hipocrite! How can you ‘appoint’ a new CJ and then only later admit that you were wrong! You hipocrite you!). I think I’m being no less than honest in admitting my mistaken (superficial) reading of s 178(1)(d) that, if Enver Surty recused himself, which he did, he had to designate another member to assist in the decisionmaking process in his stead. I do however not think that you, or any of the real Hlophe-supporters have ever taken me up on that, and it was merely an opinion I expressed in answer to Prof De Vos’ opinion in a post that Hlophe’s application might have a point in that regard after all. Nevertheless, that specific aspect has not been decided by the High Court, since no argument was presented because the timing for the application on that score was wrong since no adverse finding has yet been made against Hlophe and a court would be loath in such circumstances to review a matter in progress without full argument having been presented to it in that regard. Now the matter is different – an adverse finding has been made against the integrity of the judicial system. Now such arguments become very relevant. And, if presented to a court of law, I think they might just be successful. If a court of law finds otherwise, and it can convince me of the soundness of its legal reasoning, then I would say cadit quaestio. But, if I am not convinced on legal grounds, I will keep on criticising the judgment until a higher court deals with the issue. Furthermore, I do not hesitate to criticise even CC judgments on legal grounds, because I know, somewhere in future the legal quetion might be due for reconsideration and then, the voice of a mouse may just have reached the right ears.
Anonymouse
I am well and truly disappointed in you. The majority in that case accepted that the JP was indiposed. You are saying he lied. If that is not disrespecting a Court’s decision, I don’t know what is. That you even dare to suggest that what you are doing is “criticizing” the decision is really pathetic, with all due respect.
As for the reasons for not appealing the decision, I would be interested to know the source of your information. As far as I am concerned, whatever the reasons were for not appealing the decision and whether the decision was split or not, the fact of the matter is that that was the Courts’ decision, which you and I must respect if we truly mean it when we say we believe in the Rule of Law and we respect the Constitution.
Whilst I admire your ability to admit when you’ve been wrong, I still find it hypocritical that you jumped into the bandwagon and rubished the JP’s arguments in this regard without properly applying your mind to the arguments he was making. Again, it just re-inforces the point: you look at the arguments being made by Hlophe and you hear people saying those arguments are rubbish and you jump to the bandwagon; you hear the same argument from someone else (a person you do not think as lowly as the other guy) you immediately apply your mind to the very argument. It’s wrong Mouse, no matter how you can justify it.
Leigh, to follow up an a point I made to you recently, this is exactly why I try as much as possible (not always successful, I will admit) NOT to look at WHO is making the argument but WHAT argument is being made.
Mzo – Remember the majority based its decision on a sick-note that said on the day that he had to appear before the JSC he would have recovered from his indisposition and furthermore relied on Counsel’s intimation that client is still indisposed and they needed to coinsult further. No subsequent medical sick-note to show that on that specific day Hlophe was still sick (oh, I’m sure he was sick, of worry) was presented to either the JSC (as it then was constituted) or the court during argument. The majority therefore did not base its decision on evidence (fact), but accepted Hlophe’s word that he was not feeling well enough to travel on that day – which I think can be regarded as a lie, especially if one has regard to the fact that he had medical evidence to explain his first absence, but not to explain his second (continued) absence. Why would he not see a doctor to provide an excuse for his second (continued) absence. Probably because he was not indisposed tomthe extent that he could not get to his hearing. The minority saw through his feeble explanation of his absence.
Nevertheless, that is all water under the bridge now since that decision has not been appealed, simply because it was decided to proceed with the matter expeditiously. The argument of a wrongly constituted JSC could have been advanced, probably with success as I now concede on a proper reading of the whole of s 178(1), had the previous JSC continued and decided to recommend impeachment. However, if it decided in favour of Hlophe JP (iow, not to recommend impeachment), after a full hearing, that argument would have to had been advanced by the CC judges (or even FUL) if they sought to review (appeal) the decision. That did not happen since the JSC decided to hear the matter afresh. Now, however, there is a ‘decision’ that has been taken, and now it becomes quite relevant for those agrieved to advance the argument of a wrongly constituted JSC. Again, that argument will probably be successful in a court of law.
A sign of a good lawyer/scholar is to admit that he was wrong if convincing legal argument happens to convince him that he was wrong – but, averring that I’ve merely been jumping on the bandwagon because it concerns Hlophe is taking it too far. fact of the matter is, none of those who have thus far argued in favour of Hlophe’s every move have yet to advance sound legal argumentation and reasoning. Instead, they have thus far merely cried “Racism!” and “Political agenda!” without having legal grounds to base their arguments on. (In this regard – I must however again point out that the argument of a wrongly constituted JSC was not properly argued previously in a court of law; and it has not properly been raised and prosecuted to its logical end by any of the bloggers that argue in favour of Hlophe. That argument would in any event only have become relevant had the JSC decided to the one side or the other, and if someone felt agrieved. If a court’s jurisdiction is challenged, and the court decides, perjhaps wrongly, that it has jurisdiction, the trial must first continue to its conclusion and, only if an order has been made that made one party feel agrieved, then one appeals or takes the matter on review as happened in that North-West murder trial that actually fell under the jurisdiction of the TPD at the time. So, in this regard, I feel assured that your accusation that I trash legal arguments advanced by or on behalf of Hlophe JP, but accept the same legal arguments presented by others who argue against him is baseless.)
Mzo, I mean to pick up on one of the points which you made in one of your points directed towards Anonymouse. You say therein that you do not see the purpose behind the application which FUL means to launch.
I think that the suit is to serve more than one purpose. But I shall confine my efforts in the present post to trying to elicit either a concession or counter-contention from you as regards what I see as one motivation for the pursuit of the proceeding in question.
Do you think that we can countenance public bodies taking unlawful decisions? If your answer is no, then you see one motivation behind the imminent application. If your answer is yes, then with all respect, I would be most interested to hear why we should simply abide what appears to be a thoroughly unlawful decision by the JSC majority.
Do both os us a favour Mouse, go and read the HC judgment. Once you do you will realised that:
1. Your statement that the JP lied about his indisposition is without any basis and cannot be supported by any evidence.
2. Even if it is assumed (in your favour) that Hlophe was not sick on the date of the hearing, the simply fact is that, according to the sick note (whether you believe it or not is immaterial – I find it strange myself) he could not leave his house until the day on which he was supposed to be in JHB. The majority in that case took into account that it was simply IMPOSSIBLE for him to be in JHB at 08h00 the day after the expiry of the period set out in the sick note. This was a FACT which the decision was based.
3. Your assertion that the decision was not appealed “because it was decided to proceed with the matter expeditiously” remains nothing more than speculation. I choose not to enter that terrain and leave it to the media – perhaps you can do well to follow suit. The FACT of the matter is that you and I do not know why the decision was not appealed – it could be because they didn’t think their chances of success were good enough. How can you expect someone to be in JHB on the 4th (today’s date) at 08h00 when that person was not allowed to leave his house until the 3rd(yesterday’s date). It’s absurd!!
Mzo – Your last two sentences need to be qualified – if you drive a Porsche, or if you fly (both of which Hlophe regularly and frequently does if one takes into account his unarranged visits to the CC), it is possible.
As far as your points 1 and 2 are concerned – I did read the majority judgment and, I cannot remember having read that any of the two judgments having made a point that it was factually impossible for Hlophe JP to be in Jhb on that specific day simply because that was the first day that he could leave his house. The majority accepted, without evidence, that he was still indisposed on that day. And, if he was not well enough to leave his house until then, I suppose he was also not well enough to call and arrange a plane ticket; or to call his counsel.
I just love it. Good work Handel and prof.
The JSC should be rechristened to the CoSB : The committee of serial bunglers.
Everything it touches turns out to be a buggerup.
And they must soon advise the pres on appointments to the CC!!
Good Lord!.
Just want to say appropo the argument between Mouse and Mzo, at the time I stated that Hlophe might well have a winnable case regarding the unlawful composition of the JSC, so – yeah! – I am being consistent in my argument.
Having raised six children, three sons and three daughters, I always battled, and was only occasionally successful, to teach my children to reason based on facts, comprehensive considerations and possible ramifications, rathern than on personal desire, prejudice and preference. In a sense the new Democratic South Africa is still in childhood. Years pass however, and yes all six are doing well.
Sirjay, very happy to hear that.
On another point—this issue about the correct composition of the JSC—clearly the staff of the JSC is not acting in a competent fashion!! this is the type of thing that should be caught by the Chief Clerk or someone similar! I think that it is pretty embarrassing when things like this are overlooked. Not very professional at all.
“The same section also requires the Judge President or his or her designate to sit in the decision, but as Hlophe is deeply involved in the case he would not be able to sit in the hearing. Neither would anyone appointed by him be able to take up his or her seat, because there would of course be a reasonable apprehension of bias against anyone nominated by Hlophe.”
What exactly is the constitutional basis for this assumption and who decides that?
“Andiswa Ndoni, one of the JSC members nominated by President Zuma, has previously said that she believed Hlophe was innocent, but unlike Dumisa Ntsebeza who to his credit recused himself, she failed to recuse herself from the JSC decision on Hlophe, despite the clear conflict of interest.”
Surely then Zille must recuse herself – she has made some hectic statements regarding Judge Hlophe.
“Neither would anyone appointed by him be able to take up his or her seat, because there would of course be a reasonable apprehension of bias against anyone nominated by Hlophe. Hlophe would surely not nominate anyone he believes would decide the case against him?” has to be true for Zille as well.
1. OK, so most of you have now thoroughly reread the Constitution about the composition of the JSC. And it appears that somehow the JSC keep bungling it up on who should and who should not be there to ensure that the decision, whatever it is, is legal. I would have guessed that after 15 years the JSC should by now be thoroughly versed about its own composition, especially to ensure that any decision it takes is at least legal.
But this beggars the question: how many times has it happened over the last 15 yrs (or at least the last 13 yrs since the Constitution was accepted) that the JSC has taken decisions that could technically be construed as illegal given some technical insufficiency in the composition of the JSC? For example, have there been any instances where the appointed JSC members were too busy/sick to attend meetings and forgot to nominate an alternative as they are mandated to do? What would happen now if it was found that previous decisions were technically illegal?
2. As a lay person when it comes to all matters legal, I just need to understand the impeachment process (and anyone feel free to correct me if I’m wrong). If the FUL application is successful and the previous JSC decision is declared null & void, the JSC has to reconvene on this matter, with both complaints to be heard (under cross examination). The JSC will then have to make a finding one way or the other (or find that they cannot make a finding
).
Now, if one or both complaints are found to be simply misconduct (i.e. not gross misconduct), the JSC must decide on the appropriate sanctions against the transgressing judge(s). What possible sanctions could the JSC give to the transgressing judge(s)?
However, if the JSC finds that one or both complaints constitute gross misconduct, then it could (but not must?) recommend impeachment of the transgressing judge(s) and submit their findings to Parliament. For impeachment to be successful, a two-third’s majority in Parliament is required; in other words, more than 2 in every 3 MPs must vote for impeachment. For this to happen, at least half the ANC MPs and ALL the opposition MPs must vote for impeachment. But let us be honest, this outcome is highly unlikely. (I would say with almost 99% confidence that the impeachment vote in Parliament will be unsuccessful in this particular case – not so sure about the Motata case if it ever comes to that.)
So what happens then? Will the transgressing judge(s) be technically guilty or innocent or remain somewhere in between? Will we not simply then find ourselves in the same position we are currently in? So what is all the ballyahoo about? We must go through all that, waste valuable manpower and resources and countless court hours just to go through the motions, proof to everyone that we follow the rule of law and we follow procedure, even though it is logical/obvious (and with a fair amount of practical certainty we can say) what the outcome will be?
Thank you, Maggs Naidu.
But I should warn you that you are dealing here with classic cases of double-standards and hypocrisy! These arguments have nothing to do with upholding the rule of law, but the thirst for Hlophe JP’s blood.
@Pierre,
1) You misrepresent my argument. The fact remains that Hlophe JP drew inference of political motive strongly on the premise that the DA was the ONLY POLITICAL PARTY to recieve the statement. To have the leader of the DA being party to the decision whether this “inference” is sustainable or not would be untenable.
2) You discredit the majority yet you attach weight to some of it conclusions.
3) You refute my allegation on the basis the CC’s defense which reveals your bias. One could argue that the CC – considering their claim that the matter was “sensetive” – would have been “sensetive” to any political ramifications arising from the DA’s “privilege”. To paraphrase the majority, it was “unwise and imprudent” (is it a coincidence that you missed this part of the majority judgment? Should we also draw an inference that the CC judges are “stupid” and therefore not worthy to serve on the bench?) that the CC limited the issue of “sensetivity” to a mere “database”.
I repeat that you are clutching at straws and it’s embarassing!
Good Luck to Hlophe JP on the interview!
Congratulations again Handel, prof and “Rat” for the good work. {Me having had a glass of red over it }.
But shame on the GCB who gladly acquiesced in the JSC decision. The leadership of the GCB, infiltrated and paralysed by AFT, is obviously in disarray and provided no moral leadership – being simply insensitive to what Kriegler aptly described as one of the darkest moments in history for the judiciary.
The forces of darkness bent on undermining the judiciary – not sparing even the CC { brewed in AFT/BLA circles } must not underestimate the resources and ingenuity of the South African civil society.
This might give another perspective on the adage “let sleeping dogs lie”. http://www.news24.com/Content/SouthAfrica/News/1059/14e47925153c4c26957e5202575d5d07/04-09-2009-10-13/Zille_seeks_advice_over_Hlophe
This blogsite and the debates it contains isn’t worthless after all.
Setumo Stone says:
September 5, 2009 at 7:32 am
This thing is seriously messed up with all the role players seemingly for or against Hlophe.
One way or another they all seem interested in, even possibly trying to influence, the outcomes. Nobody will come out unscathed.
Calm minds and impartiality it appears is not possible.
Either a “political solution” is reached or this matter needs to resolved by experts from outside South Africa.
Pierre, on a totally different note. How is the illustrious Shabir Shaik doing? Are we still counting the months since his release? He’s still going like a Boeing I presume. Moving and Shaiking. Hmmm…proof that miracles do occur.
Mags and Setumo. The test for recusal of a judge (and one assumes more or less the same test would apply here) as set out by the CC is whether there would be a reasonable apprehension of bias on the part of the decision maker. In other words, whether an informed person appraised of all the facts would have a reasonable apprehension that the decision maker has already made up his or her mind on an issue will do. This is quite a high threshold to meet as we know from the Basson trial where the CC found that the judge did not have to recuse himself despite the fact that the judge in that case said and did things that was highly problematic.
Such a reasonable person would know that the CC has a email list to which it sends all announcements, a list to which any person on organisation could subscribe. The DA was NOT given any privileged treatment so factually the statement is incorrect. In any case, the fact that the DA had subscribed to the list was tendered by Hlophe as “proof” that the CC had conspired against him and would not be relevant for an inquiry into whether Zille was biased. If Zille had said that Hlophe is guilty in the matter to be decided, she might well have to recuse herself. Mere criticism would not suffice. Its a bit akin to Zuma “nominating” Ngcobo for Chief Justice before consulting. As long as there was an indication that the person still had an open mind about the issues to be decided it would probably not require recusal. Lawyers can request recusal and if the individual refuses this can be taken on review.
If the JSC – after doing its work and actually having a full hearing – make a finding of where the truth lies and finds misconduct on the part of one or more parties but say it is not gross misconduct, it will not be able to act as the Constitution only empowers it to decide on impeachment. Until the new legislation dealing with this comes into effect, such a finding would be the end of the matter. Of course at its meeting in August the JSC decided that if the accusations of the CC judges or Hlophe are true it WOULD constitute gross misconduct (something it might well not find in the Motata case).
Setumo, you are wrong (again) to state that the majority said it was unwise and imprudent for the CC to have sent info on the complaint via its database. What it did say was:
“It could be argued that it was perhaps unwise or imprudent for the Judges of the CC to have published the media statement of 30 May 2008. In this respect we particularly take into account that what these Judges normally say in the course of their official functions and duties is accepted by the public as a true statement of the law. Although the statement that they issued was not a judgment, it carried the weight and authority of that Court, particularly when all the Judges of that Court joined in the statement.
In our view, the allegations by Hlophe JP – that the Judges of the CC, in particular the CJ and the DCJ, relating to ulterior motive to get him at all costs; bringing undue and inappropriate pressure to bear on Nkabinde J and Jafta JA to act contrary to their conscience in order to achieve judicial solidarity by false pretences; the concealment of the complete and true facts in a hell-bent attempt to maintain a veneer of judicial solidarity; acting with a political motive; masterminding leaks to the media in a well orchestrated media campaign – are as unfortunate as they are incapable of establishment on the basis of all the evidence before us. They should not have been made without proper proof. It is clear from the evidence of Hlophe JP to the sub-committee that he based his allegations almost entirely on conclusions and inferences that he drew from what they had said and done on various occasions. The CJ and the DCJ emphatically deny the conclusions and inferences. We accept the denials.
Pierre De Vos says:
September 5, 2009 at 14:27 pm
‘The test for recusal of a judge (and one assumes more or less the same test would apply here)”
Why should that same test apply here?
My understanding is that the JSC has its own rules which are probably different from Court rules.
The stake here are high – none of the parties involved, in my opinion, are going to concede the slightest.
Pierre De Vos says:
September 5, 2009 at 14:27 pm
“As long as there was an indication that the person still had an open mind about the issues to be decided it would probably not require recusal”
HZ’s weekly newsletter leaves me with no doubt that she cannot possibly be regarded as being of open mind in this matter – it would be interesting to hear if there is anyone out there who believes otherwise.
http://www.da.org.za/newsroom.htm?action=view-news-item&id=7184&PHPSESSID=c72c7551093da185a3f8f306cce1fd50.
Maggs is right. Also, may I point out that Zille is a sexist who appointed an all-male Cabinet, even though the W Cape is swarming with competent women? It is indeed mischievous of you, Pierre, to want this wanton liberal to participate in the JSC process.
Maggs, please share your ideas about the foreign experts who may potentially be imported to bridge this chasm in our body politic. I would nominate female jurists from the People’s Republic of China, Malaysia and Benin. But I am sure you also have good suggestions to offer.
The Enemy of my Enemy is my FRIEND????
With respect to all concerned, and upon deep reflection, I believe that the debate about the JSC hearing and Zille’s absence therefrom has been eclipsed by the Motata J matter.
In that light, do any of you “legal eagles” know whether or not the JSC hearing set for next week can be cancelled at this late date?
I ask, because I have formulated the following proposal:
1. The JSC hearings having been cancelled, each candidate have her or her travel and accommodation expenses reimbursed.
2. When the current CC term ends, the Court be replaced by a one-man panel, the first incumbent of which will be Judge Motata. (He is one of few judges who rivals Judge Hlophe in terms of breadth of scholarship, legal acumen and modesty.)
3. Judge Motata’s first term will run 24 years; whereafter (a) he may be reappointed for a further 12 year term, or (b) he be replaced with the next most distinguished African male jurist.
4. The panel vested with appellate jurisdiction over all cases arising, save for trivial traffic offences. As to the latter, the SCA will be the court of final appeal.
Mikhail Dworkin Fassbinder says:
September 5, 2009 at 18:37 pm
How about a commission possibly headed by a demonstrably non-partisan South African and three prominent first world figures?
Premier Zille then could lead the commission with USA’s Rush Limbaugh, Australia’s Pauline Hanson and Canada’s William Davis.
Mikhail Dworkin Fassbinder says:
September 5, 2009 at 22:40 pm
Inspirational man.
You’re an intellectual giant.
Maggs, thank you; this is precisely the kind of “out of the box” thinking we need if we are to overcome this dreadful impasse!
Pierre, could you ask other bloggers to add to the list of candidates? At the end of the week, the committee would be selected by lottery.
If I may add my own nominations, in a spirit of diversity:
U.S. – Al Sharpton
Uganda – Mahmud Mamdani
Iraq – Grand Ayatollah Sistani.
Kazakhstan – Borat Sagdayev.
Keep the nominations coming!
Mikhail Dworkin Fassbinder says:
September 6, 2009 at 12:19 pm
LOL!
Borat and Ali-G sound great, if we add Homer Simpson that will be a great round up.
Enough of the comedy.
Now – do you seriously think that this thing is capable of resolution or that anyone locally is sufficiently unbiased and clear minded to be able to resolve this mess?
Maggs, your proposal of international arbitration is interesting, probably more as a thought experiment than anything else.
I say that because I doubt the parties on the two side of the dispute could agree on a panel of international arbitrators – and that in itself is a mark of how polarised this dispute has become.
The anti-Hlophe factions would nominate English Barristers and American attorneys, or perhaps Australians, Canadians or even Indians — confident that they would be inclined against Hlophe.
The pro-Hlophe faction would nominate Nigerian or Kenyan lawyers, perhaps someone from Lebanon or China – with equal confidence that they would be inclined to support the JP.
I suppose there are a handful of people, like Kofi Annan, and Jimmy Carter, who are almost universally trusted. But I would not nominate either of these gentlemen if I were a Hlophe partisan. I say that because there is one thing that almost every reputable lawyer could agree on: That the JSC majority’s finding that — because the JP would not be likely to budge — he need not be cross examined, is utterly indefensible. As to that, reasonable minds cannot differ.
Re local arbitrators, sadly, the racial polarisation is very deep. I cannot think of a single prominent white lawyer I would want on the panel if I were a Hlophe partisan.
(I can, however, think of quite a few black South African lawyers, mostly older-generation people steeped in the non-racialism of the struggle, who would probably vote against the JP)
Isn’t you assumption a wild one: that one or both parties want arbitration – or even to have the dispute resolved?
Snowman, yes, I agree. That is why I described the listing of potential arbitrators as a thought experiment.
I assume the pro-Hlophe faction understand that they would have little to gain and eveything to lose in having the forum shifted to a venue that is less hospitable to exclusivist nationalism.
Snowman says:
September 6, 2009 at 15:33 pm
The assumption was that it’s unlikely to find anyone in South Africa who is not biased.
It’s come down to a simple numbers game as Pierre pointed out in his post September 4, 2009 at 15:32 pm.
If this has to be redone, both sides will want their numbers boosted.
Racism is a human fault, like an Achilles heel, it is based on attachment and a desire for power over others.
Oupoot, you are right to point out that, even if the JSC ultimately recommends impeachment, it is very, very unlikely that 66% could be mustered in Parliament to actually remove him. Tragically, the impulse of racial solidarity is almost irresistible. (Hence the fact that there is also almost no prospect that Motata J will ever be impeached.)
But then, I would assume the CC would have understood that from the start. So why did they bother? Perhaps Pierre knows.
YAY! I’m so very happy that this was brought to light. I believe that it may help highlight the matter that Helen, Dr Ramphele and Kriegler J are somewhat involved.
It is sadly true that this may all result in no impeachment BUT one may argue that it is the principle that matters. We can prevent more people just like Hlophe from doing all sorts of dodgy things. The NA may realise that they’ll have to explain why they didn’t impeach where the JSc gives compelling reasons to do so. This all presumes that the current challenge is successful and that hlophe JP loses the REAL case and does not exhaust his “rights” (LOL) of appeal.
And just a quick note. Whoever said that Min. Radebe would have to recuse himself because he was appointed by Zuma. Interesting… then what of the re-constituted JSC as a whole? Then we would have to revert to the old one and get Motlanthe to appoint? Under who’s guidance???
I have been a lawyer for many years. Sadly, this bun fight between their lordships and ladyships belittles the work I do, work I have always taken seriously. After all of this, how can I tell a client with any conviction that she or he may rest assured that her or his case is in the hands of a judge of probity and honesty who will impartially and fairly judge the matter when judges are convicted of driving with improper levels of tea in their bloodstream and other improperly jockey for personal position, stopping at nothing less than lies and impropriety, at the cost of the image of the judiciary? I have lost faith in the very system I have sworn to uphold – where a constitution ought to reign supreme, and everyone be subject to it – especially judges.
I’m not a law buff but this is evident of the serious problem we have with such an application, or at least the blogger stating this;
Pierre De Vos said: “(2) If Ndoni recused herself and Zille and Smuts was seated as they should have been and if they had voted for a full hearing the count would have been 6 for full hearing and five against. If the Acting Judge President had also been seated as she should have and if she had agreed with the idea of a full hearing, the tally would be 5 to 7 in favour of a full hearing.”
What is fair about this hearing when you guarantee that if those two were there they would vote for the full hearing, what happened to listen to evidence then decide? This statement convinces me that this entire debacle is biased either politically or otherwise!!
Pierre here’s a question which I hope that you or some other legal boff can answer.
Kriegler/FUL will approach a court to review the JSC ruling on this matter on the basis that it was irrational, unreasonable or thereabouts.
Would a court consider that review (taking into account that the JSC was improperly constituted at the time”?
Samaita, what part of “if” don’t you understand. My post made it very clear that I was NOT assuming that some members of the JSC would vote a particular way. I was merely suggesting that the differen t composition of the JSC could possibly lead to a different result. That is why the word IF is used throughout.
Maggs, I think it depends on what basis the review is conducted. But on either basis the decision of the JSC could be declared unlawful which would mean it would have to redo it.
Pierre De Vos says:
September 8, 2009 at 10:11 am
If the JSC was not properly constituted, surely then it does matter if the outcome was perfect in all respects or totally flawed – it’s irrelevant.
My layperson’s understanding is that the JSC as it was constituted could not have had jurisdiction over that matter and therefore it will have to be redone by a properly constituted JSC, per 178.1(k) and 178.5.
If this is so, then I would expect the first challenge to be over the establishment of the disciplinary committee, rather than their findings.
Maggs Naidu says:
September 8, 2009 at 10:19 am
You are correct, however that is one of the challenges but yes it appears to be the first game plan to tackle will be the JSC was not properly constituted esp the participation of BLA president Andiswa Ndoni.
Izak Smuts should have also been part of the committee.
Lack of investigation
And last but not least the reasons given by the Majority were… well obsured
its very interesting to see people dishing out the same medician that hlophe dished out to prove the JSC was not properly constituted as well as being biased.
Im enjoying this judcial civil war that seems to be unfolding
And the wagon wheels come off again?????
These attempts to “protect” and “defend” the integrity of Judiciary always seems to never take off. The Freedom Under Law (FUL), headed by the charismatic Kriegler has hit a snag as though he has the backing of “HEAVY WEIGHTS” such as TUTU and that other famous lady whose name i can’t seem to get to, he unfortunately doesn’t have the support from some of the other board members because …. wait for it ….. they ….. still waiting??? ….. RESIGNED!!!!!!
But why??? Why would someone resign immediately after a decision has been made to challenge a Judicial Council’s decision? Someone say “playing on my conscience”?
The other one was of course is that brilliant piece of literature that could of been taken from the Constitution itself …. but signed by less people than those who
- died of swine flu
- eat the loose skin between their toes
- actually read the LOTR Trilogy Cover to Cover
Chris McDaniel says:
September 8, 2009 at 11:50 am
If the Kriegler/FUL application of review goes ahead on the basis that it was “irrational, unreasonable” or so forth, then the JSC would not be able to challenge that, because the body that pretended to be the JSC was just a bunch of JSC commissioners who gathered together in a loose kind of way and pronounced on what they were not entitled to pronounce on.
I would imagine that the JSC would have some serious explaining to do on that count if this matter went before a court.
Harold are we really surprised?
Lets look at the 2 gents & lady who have resigned??
1. Kgomotso Moroka – deputy chair of the Black Lawyers’ Association ( I dont think BLA president Andiswa Ndoni would be to happy if Moroka challenged her boss so to speak?)
2. advocate Ntsebeza – ex President of the BLA, Chairman of the AFT (progressive racial attacks in the JSC appointments – not surprised he is calling Kriegler a racist). Oh and represented Hlophe
Famous last words “Your paternalism caused you not to find it in yourself to acquaint yourself with the constitution of the AFT,”
3. Cyril Ramaphosa – highly poltical past, wouldnt want to upset the apple cart of the powers that be for challenging a highly poltical JSC
But 6 of the 10 board members of FUL are all keen to challeng the JSC, so I guess in 2 weeks we will know whats going to happen
so I dont think the wagon wheel is falling off, more like the windscreen wiper is on getting rid of a few bugs that splattered on the window along the drive.
Maggs Naidu says:
September 8, 2009 at 12:41 pm
Yes indeed alot of explaining to do, what will be even more damaging is the JSC has been found twice to be biased and unconstitutionaly formed. One will have to look at the policy now in remaking of the JSC. It seems to be all to easy to be manipulated esp with regards to the then and now justice ministers
Chris McDaniel says:
September 8, 2009 at 13:03 pm
Thanks.
Bear in mind that I am a layperson with an ordinary understanding of these matters legal, trying to understand the complexities of this matter.
It sure sound’s to me like the JSC is between a rock and a hard place.
So who, if anyone, would be best positioned to challenge the impending action by Kriegler/FUL?
Mzo and Mouse: I enjoyed your tiff!
I am also aggrieved that the majority decision of the JSC has deprived us of a mouth-watering session of cross-examination of JP and Concourt judges-which would have inevitably resulted in the damage to the judiciary’s image and reputation-one way or the other! However, that is a better price to pay for the sake of healing the judiciary. It is for that reason that I do not support FUL’s imminent challenge against JSC’s decision. I must also hasten to say that I have not even read the majority decision-so, my submission is not based on legal reasoning. I have no doubt that FUL’s challenge will prolong the dark cloud hanging over our judiciary. Just a practical example-what will happen if any of the litigants appeal this matter up to Concourt? What was referred to as ‘constitutional curiosity’ will definitely become ‘constitutional crisis’.
Bongs, I would like to ask two questions of you if I may.
1. You seem to make out that the review application which FUL means to launch is a bad idea given that it might preclude the judiciary from healing. What do you mean by ‘healing’ and how might avoiding the envisaged litigation be conducive thereto?
2. What makes you say that the public’s trust in the honesty and integrity of judges is a less important concern than whether judges get along with one another?
Leigh
Ad 1: I thought it was obvious to most of the bloggers, especially you, that currently our judiciary is ‘bleeding’ for a number of reasons which I do not have time to detail – the mere fact that the judges are at each other’s throath is a glaring example! If it was not for this imminent challenge, sooner rather than later, we will all forget about Hlophe v/s Concourt judges and the judiciary will focus on healing itself, put differently, restore its dignified reputation.
Ad 2: I do not understand your question. In case you misunderstood me, the point I wa trying to make is this: if I were to choose between exposing judge/s as liar/s (through cross examination) and focus on healing the judiciary – I would choose the latter.
Bongs, it seems to me you make a good point when you say it is undesirable that judges are at each other’s throats – especially if such conflicts acquire a racial component (or are deliberately made into a racial issue). There seems to be a rather big problem with your view, though. At what cost do we sweep everything under the carpet and if we do, how will that instill trust in the judiciary? If we choose your route and ignore the fact that one or more judges have scandalously lied under oath, that the JSC has probably acted unlawfully, that either the JP is corrupt or the judges of the CC part of a political conspiracy, then we place a band aid on a festering sore in the hope that gangrene will not set in. We condone behaviour unbefiting a judge and condone a possible egregious breach of the Rule of Law by the very body constitutionally mandated to oversee the judiciary. Why will this not come back to haunt us later? Why will the JSC behave according to the law and the Constitution next time around if they got away with an irrational and unlawful decision this time? Does the sweeping under the carpet not invite future shenanigans? And who says that the judge or judges who acted so scandalously will now quietly do their work and make no more trouble? Maybe this was just a very weird once-off aberration, but how would we know it is not the beginning of the end for the Rule of Law and the integrity and independence of the judiciary?
PdV, exactly my thoughts…the integrity of our judiciary is severely battered. In addition to the Hlophe saga, and Hlophe himself, we also have Motata-gate to deal with. Things are not looking very noble.
The way to restore confidence in our judiciary is not to forget about it – it is to confront it head-on in the proper manner (in the Hlophe case, in a court of law) so that we once and for all have closure, based in legal fact, on the matter.
That aside, we as South Africans quite simply deserve the respect that we are accorded by the Constitution. This thing of people getting off on technicalities and pure partisanship (Hlophe the first time, Hlophe the second time – based on the majority/minority split – Pikoli, the dropping of charges against JZ) simply slaps us non-elite ruling party types in the face. It says “We are the government, you are the people, we will do what we want and you must not complain”. Not very democratic.
The JSC is not a court. It was simply there to decide if there was a case to answer. Hlophe himself admitted approaching the CC judges and saying those things to him. That alone should have been the end of it – off to trial. Instead, the CC found that (a) he was a bit dodgy and (b) either him or our CC judges are liars, and then went on to decide that there was no further case to answer. Eh? And then the best thing to do is to leave it as it is, for future abuses of the system to get decided outside of law courts by whatever partisan structure the ANC may have set up?
Can’t see how that restores any confidence in the judiciary.
Bongs, I shall come straight to the point: far from being likely to damage the judiciary’s image, I think that the application which FUL means to press to set aside the prima facie repugnant decision is necessary to the ‘healing’ of the judiciary’s image. Further – and perhaps more directly to that which I suspect could emerge as being at issue between us – I think that seeing the judges subjected to cross examination would be conducive to this ‘healing’.
I shall proffer two reasons in support of my view and I apologise at the outset for the first of the two given that it may tend to provoke some our our dear fellow bloggers.
In the first place, given that the Constitutional Court judges’ counsel tendered written submissions and thereby pressed fairly vehemently for cross, I think that one might potentially infer that Hlophe is probably the liar here. And if that is true (and I am merely venturing what strikes me as being a reasonable possibility which is borne out by the surrounding circumstances), seeing him undergo cross could conclusively expose him as a rogue.
My second reason presents as follows: the rule of law (as I have said elsewhere) is of fundamental import in the context of a constitutional democracy. The mere fact that at least one judge would be let off the hook due to an unlawful decision can quite conceivably engender some troubling repercussions: distrust in the judiciary could be exacerbated in that seeing untruths told by judges being effectively suppressed could lead the public to conclude that judicial indiscretions – especially those involving black judges – will be concealed. Tell me, would that be conducive to restoring the judiciary’s dignified image? With all respect, I cannot see how. But perhaps you will make this clear.
I would also respectfully associate myself with a point which the Professor made in his last post in this discussion – although I shall place my own spin thereon. The JSC should suffer the indignity of having a competent court rule that its decision was crap.
Prof, there is something called ‘the better of the two evils’. For one moment let us assume that FUL is successful in its application and the JSC is compelled to have a full hearing. Firstly, it is highly likely that none of the judges will escape cross-examination unscathed. Secondly, there is a real possibility that, if there is a ‘conviction’, it may be for misconduct and not necessarily gross misconduct. In that event none of the judges will be impeached and they will carry on with their judicial functions with a conviction of ‘misconduct’ attached to them. Thirdly, JSC is made up of human beings – not computers that can be re-programmed. Do you really think that after they have been compelled to re-open JP’s case they will find any different to what they have already done? Let us not be naive. There is no any other JSC to which this matter can be remitted-it will be the same majority that has already found that there is no case of gross misconduct against the judges. FUL can not pray for a relief to have the matter heard by a Court of Law or any other body other than JSC. It is not even possible to say those commissioners who have already pronounced on this matter must be recused. That would require the ‘appointment’ of new commissioners. I doubt if that is constitutionally possible or even desired. Over and above this there is a constitutional crisis looming in the horizon if this matter were to be appealed up to the Concourt! do we really need to expose ourselves to all of the above just to ‘sort out’JP??
Leigh, regarding your 1st reason: so far I am not aware of any inconsistency between what was stated in JP’s papers on this matter and his ‘testimony’ before the sub-committee of the JSC. (I know that Prof would remind me that in one of the news papers JP was quoted as having said that he did not approach the judges but later in his papers stated that he did approach them. I will also remind the Prof that the allegation against JP was that he approached the judges inappropriately-that is what I believe he denied.) I have also read that Justice Nkabinde also stuck to her earlier testimony. not so with Justice Japhta. I read that in his earlier testimony he was emphatic that JP was trying to influence him. But in his ‘testimony’ before the sub-committee he was no longer certain whether JP was trying to influence him. I am mindfull that none of the judges has been subjected to cross-examination – but already there appears to be some inconsistency in Justice Japhta’s story. As things stand now there is some justification that Justice japhta is a ‘liar’. I do not know on what basis are you suggesting that JP is a ‘liar’.
Bongs, you make some compelling pragmatic arguments. I leave those aside for now.
On the legal question, I would just point out the PAJA allows for a court to make a substitutionary order. In this instance, to order that, rather than the question being remitted to the JSC, a full enquiry be held. This would be especially appropriate where, as you say, remitting for a new decision would be futile/time wasting etc.
Will furnish authorities if you desire.
I pray day and night that Kevin Malunga will find the time to help us understand the JSC majority.
But I do understand that he is very busy.
“it may be for misconduct and not necessarily gross misconduct”
isnt that really the crux of it? gross misconduct is not defined. if something is not defined how are you meant to make a finding against it? infact what is defined as misconduct?
Hlophe was unaware of the practice in the Constitutional Court that judges do not discuss cases in the fashion he did with Jafta and Nkabinde. It does boggle the mind how one would lobby a person to become chief justice if Hlophe is unaware of practices that go on in the Constitutional Court. Still I refuse to believe Hlophe is unaware that he is not allowed to approach the Constitutional Court to discuss cases. I think thats a cheap lie
Chris McDaniel says:
September 9, 2009 at 8:24 am
“Still I refuse to believe Hlophe is unaware that he is not allowed to approach the Constitutional Court to discuss cases”. Ditto that.
But then Jafta and Nkabinde knew that – why did they entertain him? They could have simply said that these are not matters for discussion, had some tea (like another good judge had done) and ended the conversation.
More Nkabinde than Jafta – she was warned by Jafta on what Hlophe may talk about. Nothing stopped her from calling Hlophe in advance of their meeting and letting him know that she would not entertain that sort of discussion.
Maggs Naidu says:
September 8, 2009 at 13:17 pm
That would be the JSC chairperson
@bongs
I got a question
“Do you really think that after they have been compelled to re-open JP’s case they will find any different to what they have already done? Let us not be naive.”
Leigh is being prsecuted in a high level political case, you approached Pierre and Michael about Leigh. The case firstly has nothing to do with you and secondly its out your jurisdiction. What gives you the right to approach Pierre & Michael about leigh what motivation do you have to get of your chair to go see Pierre and Michael? lets also assume you are friends with Leigh, still what business is it of yours to mention to Pierre about leigh?
Lets also assume you have the impression you can do this, what legal reference do you have for this? and why see Pierre and Michael in the first place?
see to re open this case against hlophe would have these types of questions answered.
we are substituting justice and legal clarifications on misconduct to the dherence to self-serving means
Maggs Naidu says:
September 9, 2009 at 8:39 am
“But then Jafta and Nkabinde knew that – why did they entertain him? They could have simply said that these are not matters for discussion, had some tea (like another good judge had done) and ended the conversation.”
Aaahh buts that the thing they actually did tell Hlophe that they should not be discussing this and they did change the subject very quickly. Jafta felt uncomfortable about it and told Hlophe they should not be talking about this. Given that, if hlophe was unaware, just merely talking to jafta about zuma and Jafta telling him they should not be talking about zuma, would make hlophe unaware to aware, then he went to Nkabinde and talked about zuma again, so does hlophe suffer from Memory loss due to smoking the devils lettice in his younger days? Can we say he was unaware when he also approached Nkabinde?
We all know the CONVERSATIONS only became a PROBLEM when they mentioned it to the other Con Court Judges, who then saw the opening they needed to stage their attack.
Hey Pierre it looks like your good old friend Paul Ngobeni has found a job in the defence force. I would be carefull, he might wanna make plans for an attack on the UCT with those subs and fighter jets you guys bought from Germany ha ha
In any debate the credibility and reputation of the debaters is of critical importance. If the debaters are in good standing I will try and listen to both and base my opinion purely on the strength of their arguments.
A Mr. Paul Ngobeni has been receiving media attention in respect of alleged unresolved issues in the USA. I am not sure that these issues have any basis in fact but, if this is the same man then I understand that this matter is to be raised in parliament by the DA.
http://politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=142623&sn=Detail
Until we have clarity I would be inclined to the opinion that this defense of the JSC as an attempt at creating personal standing within ruling structures rather than a well considered interpretation of the underlying legal issues.
Ooops…..posted to incorrect blog
As Pierre asked, where was Zille?
“As premier of the Western Cape, Helen Zille should have been party to the Judicial Service Commission’s (JSC) deliberations on Judge John Hlophe, the Cape High Court has been told. ”
http://www.timeslive.co.za/local/article348249.ece
Maggs, you and I know exactly where “Madam” Zille was …
(Did you note that Cmd Malema has now noted that, in addition to being lacivious, the Madam is also “Satanic.”)
Mikhail Dworkin Fassbinder says:
March 10, 2010 at 18:01 pm
Ok – you know where she was. That’s a start.
Talking of satanic, as the one oke said “the devil made me do it”, is it possible that old Lucifer has caused some meandering from the straight and narrow road?