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.
The Mail & Guardian reports this morning that prominent black lawyers were attempting to broker a deal that would find an exit strategy for Judge President John Hlophe. The deal would help to avoid a damaging hearing before the Judicial Services Commission (JSC) while also providing the Judge President with compensation to keep him living in the style he has become accustomed to.
Normally a judge would only be able to retire from service at the earliest at the age of 65. Hlophe is still young and many years away from this retirement age. But section 3(2)(d) of the Judges Remuneration and Conditions of Service Act states that a judge “may at any time on his or her request and with the approval of the President be discharged from active service as a judge if there is any reason which the President deems sufficient”.
Section 4 and 5 of the Act provide for the payment of both a lifetime pension as well as a retirement bonus when a judge is discharged in this manner. This section gives wide powers to the President to discharge a judge form his or her duties in an honorable way while allowing for the appropriate compensation to be paid to such a judge.
As far as I know, very few judges have ever been discharged in this manner before they reach the age of retirement. It has happened only when the judge is very close to retirement age and wishes to take a slightly early retirement. It would therefore be unprecedented for the President to discharge Judge President Hlophe under a cloud so many years before he reaches the official age of retirement.
I am not sure taking this route would be wise either. In fact, allowing the Judge President to retire early on full pension would seem like the worst kind of solution. He would leave under a dark cloud and his name would not have been cleared. Paying him his pension under these conditions would thus be seen as sending a signal that judges – if they are well connected – are really above the law and the Constitution and many would argue that it would give the appearance of rewarding Hlophe for his alleged misconduct.
In any case, making use of these provisions would not solve the Judge President’s problems because he would – I would argue – remain a judge receiving a pension form the state and the JSC would probably still have jurisdiction over him and will be able to pursue the Constitutional Court complaint against him.
There are only two other options open to Judge President Hlophe.
He can soldier on to the bitter end, which will probably cause as much damage to himself as to the credibility of the judiciary. The JSC will have to cross-examine him and he will have to explain why – even on his own version of events – he should not be impeached for gross misconduct. At the same time he would be able to vigorously pursue his Jacob Zuma strategy of claiming to be a victim of the Constitutional Court conspiracy, thus damaging the credibility of the highest court. Regardless of the outcome of such a JSC process, the reputation of the Judge President, the Constitutional Court and the judiciary as a whole would be damaged.
A second option would be for Judge President Hlophe’s lawyers to explain to him that even on his own version of events, he is in deep legal trouble, that the tide is turning against him – even among black members of the JSC – and that it might therefore be better to resign before the case gets to the JSC and he is utterly destroyed. This would not be a very attractive option to the Judge President because a resignation would be seen by many as tantamount to an admission of guilt. He would also not be able to sustain his present life style if he resigns. But it would prevent further damage to his reputation and that of the judiciary as a whole.
I for one would hope this is what will eventually happen. Although I have been a critic of Judge President Hlophe I do not want to see him destroyed. I am told he is a very funny and warm hearted man when one spends time with him over a glass or five of wine. This kind of event also gives ammunition to racists opposed to transformation because if the JSC eventually decides to impeach the Judge President, opponents of judicial transformation will gleefully point out that the first judge ever to be impeached in South Africa was a black former academic.
Maybe the best option is for someone – Oasis perhaps, or a second rate law school somewhere? – to offer him a job on his resignation. But somehow I think this is not going to happen as long as the Judge President thinks he can win this fight. I suspect he is misjudging the mood amongst black colleagues and that if he persists he is in for a very rude shock.BACK TO TOP