As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
This is what we have come to. In the end it all depended on the interpretation of a sick note issued by a doctor and whether one believed John Hlophe when he claimed that he was so desperately ill that he could not attend the JSC hearing – despite his doctor having stated that his symptoms would probably have completely abated on the day the hearings of the JSC finally commenced.
Judge President John Hlophe thus scored another Pyrrhic victory today in his attempt to avoid facing up to the charges of gross misconduct leveled against him by the judges of the Constitutional Court. In a split decision, two judges found that there was nothing unlawful about the conduct of the JSC up to the date when it started the formal hearing against him.
However, the majority found that Hlophe had shown good cause as to why the hearing should not proceed in his absence on 7 April because Hlophe had tendered a sick note from a doctor indicating that he would be able to attend the hearing – at the earliest – on 7 April when his symptoms would have completely abated. Although the sick note indicated that Hlophe’s symptoms would have abated by 7 April, the majority chose to believe Hlophe who had indicated (without providing further proof) that he was still so desperately sick that he could not travel to attend the JSC hearing on 7 April.
(One question: if Hlophe had wanted to attend the hearing, why would he need to wait until his symptoms had completely abated. Ordinary hard working people often go to work when they are not hundred percent recovered, although shirkers will always run out the clock with the help from a sick note.)
In any case, the majority thus found that:
The JSC acted improperly and unreasonably in refusing the applicant a further postponement. The decision of the JSC unjustifiably violated [Hlophe’s] right to a fair hearing and to participate freely in the proceedings which affect him. The proceedings of the JSC of both 7 and 8 April are unreasonable and unlawful. They ought to be set aside.
The majority set aside the hearings on 7 and 8 April and ordered that it proceed at a date suitable to both parties (oh, oh). The majority did not deal with the litany of allegations made by Hlophe against the JSC, so there was no finding here that the JSC acted in a biased manner or that it was unlawfully constituted when it started hearing the case.
The minority felt that the application was premature as a review of this kind should not be reviewed by a court before the body had completed its work. A court, said the minority, must be careful not to open sluice-gates that could render the functioning of the courts and the innumerable administrative tribunals throughout the land untenable. If individuals could challenge the lawfulness of a hearing even before it had been concluded, it would create chaos and would potentially flood the courts with such premature applications.
The JSC will now have to start the hearings afresh. At these hearings what happened on 7 and 8 April will be irrelevant. As the minority points out:
The order [issued by the majority] may create even greater difficulties for the applicant: he will be deprived of his opportunity to argue that, on 7th and 8th April, 2009, an irreversible wrong was perpetrated against him.
This means that the JSC will now be able to continue with the case and that Hlophe will not be able to argue that what hapened on 7 and 8 April would make the new hearing unalwful. As the majority also found that it could not find that what preceded these two days were unlawful, absent any new cause of action Hlophe will not be able to further stall the proceedings.
This means that the JSC will now be able to hear the case against Hlophe and that further delays (bar some mysterious new attack of ill health on the part of Hlophe or the emergence of some illegally obtained transcripts of telephone conversations showing bias on the part of the JSC) will not be allowed. Although Hlophe therefore scored an important moral victory today, this judgment might come back to haunt him as it seems to rule out any further delays, something that Hlophe seems desperately to get to try and string out the case and postpone his inevitable day under cross examination.
This is a good thing. The sooner we hear from Hlophe himself (and the sooner he is taken under cross examination to probe some of his less plausible assertions) the better for all. We all need this issue to be dealt with as soon as possible. Sadly recent events suggest that Hlophe will do anything he can not to have the JSC conduct a hearing and not having to face cross examination.
The big question now is: will Hlophe and his lawyers continue to play for time and if they do, what new reasons will they conjure up to try and delay the case? As they cannot bring a bias application until the proceedings have been concluded, they seem to be boxed in and will now have to face the music.BACK TO TOP