Can the judges of the Constitutional Court be impeached?

A little noted decision made by the (newly constituted) complaints committee of the Judicial Services Commission (JSC) on 22 July 2009 casts a new light (is this possible?) on the question of whether either Judge President John Hlophe or the judges of the Constitutional Court who made the complaint against him, should be impeached. It reads:

The Commission decided, in terms of Rule 3.1 of the Rules Governing Complaints and Enquiries, that the allegations made in the Complaint and Counter Complaint, if established, would amount to gross misconduct.

Previously it was unclear whether the complaints committee of the JSC believed that the allegations by either side, if established, would constitute gross misconduct warranting impeachment. Now we know if the JSC agrees with either side, it will reccommend impeachment of one (or more) judges.

The heart of the allegation by the Constitutional Court judges is that Judge President Hlophe: (i) visited the chambers of justice Jaftha (“without invitation”) and Nkabinde at the Constitutional Court; (ii) without invitation raised the matter of the Zuma/Thint cases that had been heard by the court; and (iii) in the course of that invitation sought improperly to persuade (no split infinitives for the CC!) the two judges to decide the Zuma/Thint cases in a manner favourable to Mr Zuma.

In support of these allegations the Constitutional Court judges claimed that Hlophe had told Nkabinde that “he had a mandate”; told her the issue of privilege in the Zuma/Thint cases had to be decided “properly”; told her that he was politically well-connected and had connections with the national intelligence, that some people would lose their positions after the election and that he had outgrown the High Court and was going to make himself available for a position on the Constitutional Court. Nkabinde also alleges that Hlophe told her that if the points raised by Zuma’s counsel were to be sustained there would be no case against the President of the ANC.

Jafhta claimed that Hlophe had told him the case against Zuma had to be looked at properly and that you are our last hope (“Sesithembele kinina”) and that Jaftha had gained the impression that Hlophe wished for a particular result. Jaftha, so it is alleged considered the approach serious and was part of an attempt aimed at interfering with the independent exercise of a judicial function. Both judges claimed that they had considered the approach improper.

In his response Hlophe admitted that he had raised the Zuma/Thint matter with Jaftha, that he had said the matter of priviledge had to be dealt with “properly”, and that “sesithembele kinina”, but denied that it was ever intended to convey to Jaftha that he meant a positive finding on the Zumal Thint matter. He also claimed that Jaftha did not show signs of veing uncomfortable during the discussion.

He also admitted that he raised the Zuma/Thint matter with Nkabinde when he met her a few weeks later and that he had expressed my very strong views on it, but at no point did he think that she was uncomfortable about the discussion. He denied saying that he had connections with national intelligence or that some people would lose their jobs after the election.

From this summary two things emerge. First, either Judge President Hlophe or Justice Nkabinde lied in their statements to the JSC. Second, the judges have a fundamentally different interpretation of the meetings, with Jaftha and Nkabinde claiming that they interpreted the meetings as an improper attempt to influence them, while Hlophe claims he did not seek in any way to influence them. The most damning claims by Nkabinde is denied by Hlophe.

If one takes these disputed facts off the table, either interpretation is plausible (although, to my mind, the interpretation of Jaftha and Nkabinde is more probable). However, if one believes Nkabinde’s version, it is difficult not to come to the conclusion that Hlophe tried to improperly influence her. One question to be asked is whether Hlophe’s history of telling untruths should be held against him when deciding who to believe. Another is whether it should be significant that Hlophe denied only the most damning aspects of the allegations made against him.

The JSC can, of course, decide that even on Nkabinde’s version it is impossible to say whether the Judge President imporperly tried to influence the judges of the Constitutional Court and could decide not to proceed with the matter. But such a course of action would mean that the JSC would be allowing either Nkabinde or Hlophe (depending of whom one believes) to continue serving as a judge despite telling blatant lies to the JSC. Surely this would be an untenable situation?

And what about Hlophe’s counter complaint? The JSC decision means that if it finds that Hlophe’s allegations against the Constitutional Court judges are true, the judges of the Constitutional Court will have to be impeached. Hlophe alleged that:

• The judges of the Constitutional Court have undermined the Constitution by making a public statement in which they seek to activate a procedure for his removal for alleged improper conduct before properly filing a complaint with the Judicial Services Commission in terms of section 177 of the Constitution;
• The judges of the Constitutional Court have violated his right to dignity (section 10 of the Constitution) right to privacy (section 14 of the Constitution) right to equality (section 9 of the Constitution), right to procedural fairness (section 33 of the Constitution); right to access courts (section 34 of the Constitution);
• The conduct of the judges of the Constitutional Court failed to adopt a procedure that has upholds [sic] the democratic values of human dignity, equality and freedom; section 7(1) of the Constitution;
• The conduct of the judges of the Constitutional Court failed to respect, protect, promote and fulfil the rights in the Bill of Rights;
• The judges of the Constitutional Court failed to adopt a procedure that is fair in that even as Hlophe filed this complaint he did not have a complaint from the judges of the Constitutional Court.

Nine judges of the Supreme Court of Appeal have in effect dismissed this complaint. Is the JSC bound by the SCA decision? If not, can it impeach the judges of the Constitutional Court? If it is bound by the SCA judgment, does this complaint contain anything not canvassed in the SCA ruling?

It would be a relief when this whole saga is over and we can all go back to consentrating on important issues around good governance and the protection and promotion of human rights. Meanwhile the JSC has its work cut out for it.

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