Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Maybe I should stop making jokes about Bloemfontein and the poor judges of the Supreme Court of Appeal (SCA) stuck in that town once memorably called “the k@kest place on earth” in a David Kramer song. Today 9 judges of the SCA – writing as “The Court” – upheld the appeal by the judges of the Constitutional Court against the Gauteng High Court judgment in favour of Judge President John Hlophe.
The judgment of the SCA is a object of great beauty. Concise, erudite and forensically sharp, it demolishes the arguments of the High Court with quiet dignity and towering authority. But reading between the lines it represents a stern rebuke of Hlophe and his legal/political strategy aimed at averting attention from the substantive issues involved in the JSC complaint against him. (He has obviously been taught a thing or two by Zuma and his lawyers.)
First, the SCA reminds us that the original object of the Hlophe application was to “obtain a finding that the entire process before the JSC was tainted and that his only remedy was a dismissal of the complaint”. When commentators pointed this out after the High Court judgment and said that his victory was a Pyrrhic one because it had failed to stop the JSC inquiry, they were called racists by Hlophe’s lawyers. The SCA judgment reminds us that the “racists” were therefore correct to point out that the aim of Hlophe’s application was to stop the JSC hearing and that he had failed to achieve this. It also reminds us that Hlophe’s lawyers were more than cavalier with the truth and that they used the race card to try and paper over inconvenient truths.
Second, like the High Court, the SCA also rejected the basis of the Hlophe application, namely that the judges of the CC had acted “as a court” when it laid a complaint against him and made this public. Then the SCA comments rather dryly:
That should have been the end of the matter… The finding that the appellants had not acted institutionally meant ineluctably that the respondent’s cause of action fell away. The duty to hear a person was at common law always limited to judicial or some administrative organs; and a person acting in a private capacity has never had such a duty. The Constitution is not different. . . Since the appellants did not ‘act as a court’ the fair trial provision did not arise and since they did not act as an administrative body the administrative justice provision did not apply either.
The SCA is not kind to the majority judgment in the High Court, pointing out – as I have argued on this Blog – that “[t]he reasoning of the high court is difficult to encapsulate neatly especially in the light of what would appear to be some inconsistencies and conflicting findings”. The Court then proceeds to note in a rather understated but biting way that “it is not readily apparent to us on what legal grounds [the orders of the High Court] were founded”.
The SCA points out that there was no authority anywhere in the world that obliges complainant judges not acting as a court but acting as individuals to invite a judge to be heard before laying a charge. “Indeed, the authorities all say the opposite… and a rule to that effect would be absurd, because it would altogether undermine the process of investigating complaints.” Although there is an overarching duty on judges to preserve the dignity of the judicial institution, and judges must act with circumspection when laying a complaint against a fellow judge, there is clearly no legal rule or principle that places an absolute prohibition on judges from laying a complaint against a fellow judge and making this public and the High Court was wrong for in effect making such a finding.
This might appear to constitute a subtle rebuke of the CC for making the complaint public, but the SCA then proceeds to find that “there is much to be said for the contrary proposition (bearing in mind the circumstances in which it occurred) that the constitutional imperatives of transparency obliged [the CC] to make the fact [that a complaint was laid] known”. Quoting from the CC heads of arguments the SCA concluded:
In the circumstances where the independence of the Constitutional Court had been threatened and the integrity of the administration of justice in South Africa generally, it was considered imperative and appropriate that this be publicly disclosed. Should the facts have emerged at a later stage there would have been a serious risk that the litigants involved in the relevant cases and the general public would have entertained misgivings about the outcome and the manner in which the decisions were reached. It was especially important that the litigants and the general public were informed of the attempt and that the Constitutional Court had not succumbed to it.
The most damaging aspect of the judgment from Hlophe’s perspective can be found in the passages where the SCA points out that the duty on judges to act with circumspection when laying charges against a fellow judge are “not imposed upon a judge for the protection of the personal interests of other judges but for the protection of the institution in the interests of the public at large”.
And in this case the respondent does not purport to be asserting the interest of the public in the protection of the judicial institution, which he would have had no proper grounds for doing, but is asserting instead the protection of his personal interests. The court below seems to us to have blurred that distinction, and in that respect we think it erred, when it said in its judgment that the right that he sought to assert was a right that ‘is asserted in favour of the applicant as a member of the judiciary’.
This seems to me like a subtle but devastating rebuke to Hlophe as it suggests that his application had nothing to do with the interest of the judiciary and everything with his own selfish interests. As the SCA points out it “will always be distressing for a judge to learn in the media that he or she has been accused of misconduct but that seems to us to be an inevitable hazard of holding public office”.
The remedy that is available to a judge who finds that he or she is in that position is to insist that the body charged with investigating such a complaint does so with expedition so as to clear his or her name. Nor should it be thought that such accusations may be made with impunity: a judge, like any member of the public, is entitled to the consolation of damages for defamation if the publication of the statement cannot be justified.
So, in effect the SCA has found that if Hlophe was aggrieved by the statements made by the CC judges he could always sue them for defamation. The CC judges would then be required to show that their statements were true and that it was in the public interest to make them. In my opinion this is a masterstroke as it invites Hlophe to sue the CC judges for defamation if he thinks that what they said about him was untrue.
Now Hlophe has of course threatened to sue the CC judges (but he has NOT actually sued them – a fact often wrongly reported in the media) and, I will bet one months salary that he never will. Oscar Wilde was ruined when he launched a defamation case against the father of his lover and since then many a man (hallo Ronald Suresh Roberts) and the odd woman (hallo Jani Allen!) have been ruined after suing for defamation – only to have their reputation completely and utterly ruined.
I am glad this sorry saga is now over and that the JSC can now deal with the matter as speedily as possible. It would have been even better if the JSC had not decided to hold the hearing in secret, given the fact that the various versions of events are all in the public domain, and the great need for openness and transparency to restore confidence in the judiciary. It was an unwise decision and I sincerely hope the media houses challenge this decision in court.BACK TO TOP