Hlophe: Here we go again

The Cape High Court yesterday declared “unconstitutional and invalid” the bizarre decision of the Judicial Services Commission (JSC) not to investigate the complaint and the counter complaint by the judges of the Constitutional Court and Judge President John Hlophe.

The Court agreed with the view – first raised on this Blog – that the JSC was not properly constituted when it made its highly controversial decision not to decide whether it was Hlophe or the judges of the Constitutional Court who were lying through their teeth about an alleged attempt improperly to influence the judges of the latter court in the Zuma case.

The Court found that section 179(1)(k) of the Constitution, which states that “when considering matters relating to a specific High Court” the Premier of the Province concerned and the Judge President of that Court had to form part of the JSC is not unclear or ambiguous. There is nothing vague, inconsequential or irrational about the requirement – clearly stipulated in this section of the Constitution – that the Premier must form part of the JSC when it decides on the disciplining of judges of that court.

The High Court thus found that:

Of prime importance is the need to hold an investigation into the allegation against the judge in question, an investigation properly conducted before a constitutional body created to carry it out. Such a question is, in my view, unquestionably a matter which relates to a specific High Court of which the judge is a member because the consequences of its outcome to that Court.

The Court also found that the JSC was improperly constituted because one of the representatives of the advocates profession did not take part in the original decision. Finally it found that the JSC did not take a proper decision because the original decision was not supported by a majority of the members of the properly constituted JSC.

The Court did not order the JSC to have a full hearing. It did not order the JSC to actually make a decision about the complaint and counter complaint – something a majority of the JSC members present at the original decision bizarrely decided not to do. Yet the inevitable consequence of the decision is that the JSC – now properly constituted – will have to decide afresh whether to hold a full hearing or not.

The judgment poses some difficult questions.

First, one may well ask why all those lawyers and judges on the JSC have for all these years failed to consider the fact that the plain meaning of the constitutional text required the Premier and the Judge President to be present when any matter relating to the relevant High Court is decided. For all these years the Premier and the Judge President have been treated like the ten members of Parliament and have only sat on the JSC when that body considered appointments to the bench.

This is surprising, to say the least. While section 178(5) of the Constitution clearly states that members of Parliament should only be involved in the appointment of judges and not in any other work of the JSC, the Constitution does not contain a similar provision regarding the Premier and the Judge President. As the High Court found (correctly in my view), the text of the Constitution is pretty clear and requires the Premier and the Judge President to be involved in all matters relating to the specific High Court. Yet the JSC seemed to have disregarded this provision for all these years – almost as if the text of the Constitution did not matter one bit.

The JSC may of course decide to ask for leave to appeal the High Court decision. If I was their legal advisor I would counsel against such a move as the JSC has a limited chance of success on appeal. This is because one would really have to do some serious legal gymnastics to interpret the provision differently from the manner in which it was interpreted by the High Court and the chances are rather slim that the SCA would be prepared to do that.

Second, the High Court decision was not based on the correctness of the original JSC decision. Theoretically the JSC could therefore reconvene – now properly constituted – and make exactly the same decision to close its eyes to the lies and deceptions of one or more of the members of the South African judiciary. We know somebody lied. We know the JSC was too scared to find out who lied – Hlophe or the two main complainants. (I, for one, suspect why the JSC wanted to avoid making a decision at all cost.) Will the JSC now save face and actually do the right thing and investigate the complaint and counter complaint properly as it is legally required to do?

Third, it is unclear who will have to form part of the reconstituted JSC. Section 178(1)(k) states that both the Premier and the Judge President “or an alternate designated by each of them” must be present when the decision is revisited. We know Hlophe cannot be present as he is the subject of the complaint. Can he designate an alternate or not? Surely Hlophe would not be able to designate one of his friends to take his place as it will be presumed that this person is there to represent his interests. Maybe the Deputy Judge President – as the second most senior judge in the province – should take Hlophe’s place?

But Hlophe has argued that Helen Zille could not possibly take up a seat on the JSC either as she has made certain statements about Hlophe which demonstrate a bias against Hlophe. If this is correct, can she designate anyone to sit on the JSC on her behalf? Surely she could not ask her husband or son to sit on the JSC on her behalf but perhaps the second most senior member of her cabinet could be asked to sit on the JSC, provided that he has not made any statements which illustrate a bias against Hlophe.

And what about Andiswa Ndoni, current former chairperson of the Black Lawyers Association and one of the six members who voted to stop any inquiry? Ndoni has said that Hlophe was a victim of of a racist conspiracy. Should she not have recused herself from the JSC at the meeting where the original decision was taken – like Adv Dumisa Ntsebeza so correctly did – because of her perceived bias in the matter?

Lastly, one may wonder whether this decision may influence the case of Freedom Under Law who is also challenging the decision of the JSC, but on more substantive grounds. If the JSC decides not to appeal the matter, would it still be necessary for FUL to go ahead with its court action? I suspect it would, as the FUL action is focused on the irrationality and illegality of the decision itself. A court order to the effect that the JSC has no legal power to abdicate its responsibility, that it is obliged to have a full hearing and to make a decision on who of Hlophe or the judges of the Constitutional Court are the pathological liars, would help the JSC to make the correct decision. All one wants is for a decision to be made, based on the facts.

The judge or judges who have been speaking the truth would surely welcome the opportunity to clear their names before a full inquiry. The judge or judges who have been lying will, of course, resist any attempt to come to the bottom of this matter. It would thus be interesting to see in the coming days how the various parties respond to the High Court judgment.

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