Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 October 2008

A risky legal strategy?

News that Judge President John Hlophe is planning to claim R10 million from the judges of the Constitutional Court for defaming him, comes as somewhat of a surprise to me.  Hlophe’s lawyer Lister Nuku is quoted saying that the constitutional court judges is being sued for making “untested allegations of gross judicial misconduct against [Hlophe].”

The letter says their media statement was “deliberate, and aimed at injuring [Hlophe’s] personality rights, thus forcing him to resign from his position as a judge”. “Without conveying the factual basis for such damaging allegations, it is the only reasonable conclusion that the Constitutional Court judges were deliberately negligent and leveraged on their judicial status to mobilise vicious and vindictive public views against [Hlophe] with the sole aim of forcing him to resign from his position as a judge.”

Apart from the fact that the amount claimed is extremely high, there are some other problems with this potential claim. The Judge President will have to convince a Court that the judges of the Constitutional Court were deliberately negligent in publicizing the complaint. In effect, a court will have to find that the Constitutional Court lodge and published the complaint with the purpose of getting rid of the Judge President.

In the absence of any proof of the intention of the Constitutional Court judges, I am not sure many judges will find it easy to come to such a conclusion because it would require them to believe that there was really a conspiracy by the Constitutional Court judges to get rid of Hlophe. If one assumes – as one must – that judges should normally be given the benefit of the doubt and that not many judges are ever part of evil conspiracies, this will be a hard sell.

This is even more so given the fact that Hlophe confirmed in his submission to the JSC that he had approached judges of the Constitutional Court and had tried to convince them to decide a legal issue then before the court in a certain manner. On Hlophe’s own version of events there are therefore grounds to lodge a complaint against him and he will have to convince a court that despite this, the publication of the complaint was done with some malice and forms part of a larger plot to get rid of him.

But there are also tactical threats for Hlophe lurking in the defamation action. If this action ever gets to court, Hlophe might have to take the stand because the Constitutional Court will argue that the statements it made were true and in the public interest. Hlophe will have to argue that the statements were vague and untrue. But if Hlophe takes the stand he will expose himself to cross examination and possible humiliation and exposure as a liar.

Just ask Ronald Suresh Roberts how badly a defamation case can go wrong once one has taken the stand and has been savaged by a lawyer under cross examination.

I will be very surprised if this claim ever reaches the courts. The dangers for Hlophe of being exposed to cross examination are just too great. A cross examiner will obviously explore the difference between the statement made by Hlophe in the media when the complaint became public and the version presented by him in his papers to the JSC.

The Judge President stated to John Matham on Cape Talk Radio that it was rubbish that he ever approached any of the jduges on the Constitutional Court on the Zuma matter but in his papers he admitted that he discussed this matter with the two judges concerned.

I can imagine Wim Trengove asking Hlophe: “So Mr Hlophe, please tell the court which of these contradictory statements are true. Tell the court whether you lied when you spoke to the media or  whether you rather lied in your submission to the JSC? Judge President, why are you a liar?”

Hlophe might also be asked about previous contradictory statements he had made and why he claimed that Oasis was only paying him “out of pocket” expenses before it was revealed this amounted to more than R500 000. I suspect the defamation letter is a political tactic to place pressure on the JSC. Maybe Hlophe and his lawyers is angling for a deal?

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