Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
In late medieval times, so it is claimed, theologians argued about how many angels can dance on the head of a pin. The majority of the disciplinary committee of the Judicial Services Commission (JSC) would have felt right at home amongst those theologians.
In their decision, handed down today, on why it would not proceed with a full hearing of the complaint of the Constitutional Court judges against Judge President John Hlophe, the JSC provides a stunning example of splitting hairs and drawing distinctions without any meaning in order to justify their decision not to proceed with a full inquiry.
The JSC found that because Judge Nkabinde (and Jaftha) had not “with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way” (in other words, in favour of Zuma) there would be no use in pursuing the matter. The judges have of course said – very consistently – that Hlophe had said that the case had to be decided “properly”. The JSC found as follows:
We also accept, for the purposes of our decisions, that in their conversations Hlophe JP in all probability said, among other things, that the Zuma/Thint matters must be decided properly; that privilege was an important element of the matters that were before the Court; that he used the word “mandate”; that he, like President Zuma (then President of the African National Congress) was persecuted; that there is no case against Zuma; that “sesithembele kinina” – “we pin our hopes on you”; he believed that the issue of privilege was a very concerning one and had to be dealt with properly; he felt strongly about privilege and fair trial rights; that the majority in the Supreme Court of Appeal did not attach much weight to the issue of privilege; that the Zuma/Thint cases was probably one of the most demanding of cases that the Court had dealt with given its important to the President of the ANC, Jacob Zuma and the ANC itself and the country. We also accept that his discussion with Jafta JA was robust…. [Nkabinde] has not with sufficient consistency said that Hlophe JP had said that the cases must be decided in a particular way, in particular in favour of Mr Zuma. As pointed out above, when pertinently and expressly asked if Hlophe JP had said so, she was firm that he had not.
Because Nkabinde had not claimed that Hlophe had ever said the case must be decided in favour of Zuma, a hearing would not be necessary as there was no evidence that Hlophe had improperly tried to influence the judges to decide the case one way or another.
This distinction drawn by the JSC seems to me to be so absurd as to border on the irrational. It means that if a judge wants to improperly influence other judges he or she could get away with it as long as he or she never says the magic words: “Decide the case in favour of X.” He or she could say the case must be decided “properly”, and can argue what a “proper” decision would be, but this would not, according to the wise people at the JSC, constitute an attempt to influence the judge approached.
The JSC also accepted that there were “sharp disputes of fact between the different versions” given by Hlophe and the complainants. Nevertheless it found that these disputes were “not central or material to the validity of the respective complaints” and therefore a full hearing with cross examination would be of no use.
In this context the JSC found that:
[I]t is difficult to conclude that Hlophe JP acted with “wilful blindness,” “with the addition of a vituperative epithet”, “involving extreme departure from the standard of reasonable person which must demonstrate complete obtuseness of mind or total failure to take care” when he spoke to Nkabinde J and Jafta JA, which would be “gross misconduct” within the meaning of section 177 of the Constitution.
Although the JSC found that Hlophe had discussed the pending matters with two judges of that Court in matters in which he had not sat, it did not amount to gross misconduct. Rather it may merely have been “unwise, ill-considered, imprudent, not thought through”.
Judge Hlophe just simply did not know that the practice in the Supreme Court of Appeal and the Constitutional Court is that the judges, even amongst themselves, do not discuss matters before argument, and even after argument do not discuss the matters with other judges who are not involved. Maybe it was an honest mistake?
This decision, with respect, is utterly implausible. It will inevitably tarnish the image of all parties concerned. All the complainants (Hlophe and the judges of the Constitutional Court) will now have to continue sitting as judges despite the fact that we now know for a fact that one or more of them are pathological liars. The judge or judges who truthfully gave evidence to the JSC have been treated in a shocking manner as the JSC has decided not to make a finding about who is lying and who is speaking the truth, tarnishing the reputation of all involved.
That is why I cannot imagine that either Hlophe or the judges of the Constitutional Court would gloat about this decision as it leaves a dark cloud hanging over all of their heads. If anyone gloats about the decision it would strongly suggest that the gloating party or parties were liars and were just too happy to be let off the hook despite telling huge lies.
The JSC itself also comes out of this saga with its credibility in tatters. It drew a distinction where none existed to avoid a full hearing that could have exposed the lies of a sitting judge (or judges) and could have gotten rid of one or more bad apples on the bench. The fact that the JSC does not seem concerned about the fact that its decision condones scurrilous lies, suggests it does not have the ethical compass required to deal responsibly with matters like this.
All in all, it is a sad day for our judiciary and for the JSC. There are no winners here.
PS: The full decision of the JSC can be accessed on the “Seminar Room” page of this BlogBACK TO TOP