On acting “arbitrarily and capriciously”

It seems as if Judge President John Hlophe and the judges of the Constitutional Court are not off the hook yet. Just when Hlophe thought he had yet again (and against all legal odds) escaped impeachment, former Constitutional Court judge Johann Kriegler announced an intention to legally challenge the decision by the Judicial Services Commission (JSC) not to proceed with a misconduct probe against him.

Kriegler is seeking a legal remedy on behalf of a non-government body, Freedom Under Law (FUL), of which he is chairperson of the board of directors.

I have been wondering on what basis a decision of the JSC not to proceed with a full hearing could be reviewed and set aside. There seems to be ample grounds on which the decision could be reviewed in terms of the Promotion of Administrative Justice Act (PAJA).

The JSC is an organ of state, as it performs its functions in terms of the Constitution. Although its decisions regarding the appointment of judges are excluded from review in terms of PAJA, a decision regarding the impeachment of a judge is not excluded from review. Moreover, the decision not to proceed with the hearing against Hlophe may adversely affect the rights of everyone to have his or her legal dispute resolved in a fair public hearing before an independent and impartial  court.

In terms of PAJA, the decision of the JSC could therefore potentially be set aside because the JSC was biased or reasonably suspected of bias when it made the decision. Given the fact that the JSC was recently packed with pro-Hlophe supporters (for example, Andiswa Ndoni, President of the Black Lawyers Association, was recently appointed to the JSC by President Jacob Zuma and took part in the decision despite the fact that she had previously stated that Hlophe was innocent) a court may well take the view that the JSC was biased when it made its decision.

Section 6(2) of PAJA also states that a court can review a decision by the JSC not to proceed with a full hearing if the action was taken for an ulterior purpose or motive; because irrelevant considerations were taken into account or relevant considerations were not considered; because the decision was taken in bad faith; or because it was  taken arbitrarily or capriciously. (Oh, how I love that phrase “arbitrarily and capriciously”, which seems to describe rather accurately the way in which the JSC has recently acted.)

The same section also states that the decision of the JSC could be reviewed because it was not rationally connected to the information before the JSC or not rationally connected to the reasons given for it by the JSC. A decision of the JSC may also be set aside because it was so unreasonable that no reasonable person could have made that decision.

After studying the reasons given by the JSC for dropping the complaints against Hlophe and the judges of the Constitutional Court, it is difficult not to wonder whether the JSC decision does not meet several of these criteria. It is interesting that those who have defended the decision of the JSC have not done so with reference to the reasons given or to the applicable legal principles.

In this regard the view expressed today in Business Day by Prof David Unterhalter is of interest. He writes that the JSC had failed:

to reason properly so as to answer the only question it had to ask: whether Hlophe and the Constitutional Court had a case to meet. That should have been a relatively straightforward exercise, since, in the complaint against Hlophe, it was common ground that he had talked to judges Bess Nkabinde and Chris Jafta about the Zuma/ Thint cases while decisions in these cases were still pending. And as the minority found, the complaint against the Constitutional Court is closely bound up with these events. On Hlophe’s own version, he said the cases “had to be dealt with properly” and “sesithembele kinina”, meaning “you are our last hope”. What was in dispute was whether there was an intention thereby improperly to influence the judges to decide the cases in Zuma’s favour. The complainant thought so; Hlophe denied it.

The JSC was not required at this stage of the inquiry to determine the truth between the contested versions but only whether Hlophe had a case to meet. Rather than engage this inquiry, the majority of the JSC sought to decide whether, on disputed evidence, the case against Hlophe had been established, and decided it had not been because there was no direct evidence that Hlophe had said he desired a particular result. The case of the complainants rested upon the inferences that were to be drawn from other statements of Hlophe. It is rarely the case that an intention is spelt out in so many words. This is almost always something inferred from conduct and circumstance. The real question was whether the version of events given in evidence by Nkabinde and Jafta could have supported the inference that Hlophe did intend to influence the outcome of the cases before the Constitutional Court. If so, Hlophe was required to meet this case. But this question was not answered by the majority of the JSC because they insisted upon an entirely artificial standard of judgment: whether Hlophe had said in so many words how the Zuma cases were to be decided.

It would be interesting to hear a rational, legally cogent, and plausible defense of the JSC decision. So far those who have welcomed the decision have either uttered mealie-mouthed platitudes about moving on and putting this sorry saga behind us, or they have applauded the decision on the basis of emotional expressions of support for Hlophe without providing any answer to the criticism of the decision expressed by an array of lawyers and legal academics.

Maybe there are readers out there who are brave enough to take a stab at defending the decision from a legal perspective?

In any case, I am happy that this decision will now be taken on review. My view is not primarily based on a need to see a full hearing where all parties concerned would be subject to cross examination. It is rather based on the view that the JSC itself had acted in a way that was so preposterous, unreasonable and irrational (“arbitrarily and capriciously, if you will) that its very credibility (and with it the credibility of our judiciary) is at stake.

This is far bigger (and more important) than John Hlophe. It’s about constitutionalism and safeguarding an independent judiciary.

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