Hlophe application should be laughed out of court

If I was a judge on the Constitutional Court I would say a little prayer this morning that Judge President John Hlophe does not fire his legal team. This is the only conclusion I can draw after reading the absurd, repetitive, badly written and confused affidavit of the Judge President to the Johannesburg High Court in support of his latest application to stop the Judicial Services Commission (JSC) from entertaining the complaint by the Constitutional Court against him.

If Judge President Hlophe wrote the affidavit himself, I sure as hell hope I never have to appear in front of him because then he has only a tenuous grip on the law. If the affidavit was prepared by his legal team I will make very sure I never engage the services of these honourable gentlemen – even to get me off the hook for a parking ticket. I would be rather aggrieved to pay them for this shoddy work.

Stripped of the boilerplate submissions aimed at soliciting some sympathy from all and sundry, the application seems to ask the High Court to order two things:

First, it wants the High Court to issue an urgent interdict against the JSC to stop them from hearing the complaint against him until such time as the High Court had considered the merits of his case he is bringing.

Second he wants the High Court to make a declaratory order to the effect that the Constitutional Court when laying a complaint against him and making it public, had infringed on his rights to equality; to be presumed innocent until proven guilty, to human dignity; to “fair procedure” and “infringement of judicial office”. The heart of the matter seems to be the following argument:

I believe that it is important to resolve the question whether judges of the Constitutional Court sitting as a Court could decide unanimously or support a decision to unanimously file a complaint of judicial misconduct without affording me my right to a hearing. This I submit is the jurisdictional requirement for the Judicial Service Commission to assume its authority to deal with the complaint. If the Court acted unlawfully in lodging a complaint as a Court, then the Judicial Service Commission has no jurisdiction to inquire into a complaint that is unlawfully filed with it. If conversely the Court acted lawfully in lodging a complaint as a Court of law, then the Judicial Service Commission has jurisdiction to entertain the complaint.

In other words, he is arguing that if the High Court finds that his rights were violated by the Constitutional Court when they laid the complaint, the JSC could not hear the matter at all and would be permanently prevented from considering the complaint.

In the alternative the Judge President argues that:

If this Honourable Court should consider that it would be undesirable of it to enquire into the constitutional conduct of judges of the Constitutional Court acting as a Court in respect of the relief that I seek, I would ask that a referral be made to the Constitutional Court, differently constituted to consider its conduct in light of the submissions that I make. A position in which the judges of the Constitutional Court reconsider their decision to lodge a complaint against me as a Court would be unprecedented but would be justifiable in the public interest.

The argument seems to be that when the Constitutional Court laid the complaint, it acted as a court and should have afforded him an opportunity to be heard before making the complaint to the JSC. It therefore attempts to conflate the role of the Constitutional Court as complainants with its role as arbiters of a case. It thus ascribes to the Constitutional Court the role to be played by the JSC in the process. To my mind this seems so patently absurd that I would have been embarrassed on behalf of a second year law student for making such a basic mistake in confusing the complainant with the adjudicating body.

Just because judges lay a joint complaint it cannot miraculously transform them from complainants in a case to the judges sitting as a court. If that were to be the case no judge could ever lay a complaint against anyone without first giving them a fair hearing. It would mean where a judge is raped or sexually harassed, he or she would first have to give a fair hearing to the person he or she is accusing of rape or sexual harassment before laying a complaint with the police because, after all, he or she is a judge and is acting as a judge.

The complaints about the infringement of his other rights also seem unaware of Constitutional Court precedent on the matter of the rights of accused persons. In the 1997 Constitutional Court judgment of Sanderson v Attorney General, Eastern Cape Justice Johan Kriegler showed that he understood that it was inevitable that a presumption of innocence played a bigger role inside the court room than in the court of public opinion.

He pointed out that as soon as anyone was accused and/or charged it was unavoidable that the person would be prejudiced.

While the presumption will continue to operate in the context of the [court] process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused’s integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.

The Constitution, Justice Kriegler said, understood this and dealt with this problem in a pragmatic manner. What one had to ask was not whether a person suffered harm by being accused and charged – although the harm must be minimised it is inevitable. Hlophe and his lawyers obviously never read this case.

The alternative request to have a differently constituted Constitutional Court hear the case was also made without seemingly being aware of the judgment of the Constitutional Court in the SARFU case where Louis Luyt made an application for the recusal of five justices of the Court. There the Court stated:

This Court sits en banc and all of its available members are expected to sit in every case. Its quorum is eight of its members. If the five judges were to have recused themselves the quorum would have been broken and the appeal would not have been able to proceed.

What he is asking is therefore not possible. He should have known this or his lawyers should have known this before displaying such an embarrassing ignorance of the law.

This application has all the appearances of a desperate attempt by a man who knows he is in big trouble on the facts and on the law.  I would not be surprised if his application is dismissed with cost.

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