The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
In a stunning (but to some of us not surprising) judgment handed down today, a unanimous bench of 5 judges of the Supreme Court of Appeal (SCA) (Streicher JA, concurred in by Brand, Cachalia, Theron and Seriti JJA) found that the decision of the Judicial Service Commission (JSC) that the evidence in respect of the complaint by the Constitutional Court against Judge President John Hlophe does not justify a finding that Judge President is guilty of gross misconduct and that the matter accordingly be “treated as finalised”, constituted an abdication of the JSC’s constitutional duty to investigate the complaint properly and was therefore unlawful and invalid.
In essence the SCA found that the JSC had not done its duty as required by the Constitution because it attempted to sweep this matter under the carpet. By assuming that because there were two versions of what happened — one presented by Hlophe and another presented by Justice Jafta and Nkabinde – that cross-examination of the witnesses who presented these conflicting versions would serve no purpose and hence that no further and proper investigation was required, the JSC did not act lawfully. As the judgement states:
It cannot be in the interests of the judiciary, the legal system, the country or the public to sweep the allegation under the carpet because it is being denied by the accused judge, or because an investigation will be expensive, or because the matter has continued for a long time.
It is important to note that this judgment should not be seen as pre-judging the issue of whether Hlophe did indeed attempt to influence the judges of the Constitutional Court. Judge Hlophe is therefore not necessarily the big loser of today’s judgment (although he was slapped with a cost order). We do not know for certain what happened when Hlophe went to speak to Jafta and Nkabinde as there are two diametrically opposed versions of these discussions. If Hlophe’s version is the true one, he may even emerge as the winner in this sad and sorry saga. But what we do know now is that it is the job of the JSC to find out what happened. It is their failure to do so that came under attack today.
The winner today was not so much the judges of the Constitutional Court or Freedom Under Law (FUL). Instead, the judicial system and the citizens of South Africa were the ultimate winners today. After all, as the SCA noted, it is in the interest of every South African citizen that the JSC should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should the JSC shirk its duty in this regard, it can have grave repercussions for the administration of justice.
The judgement does leave the JSC with some egg on its face though. It shows up the JSC decision not to pursue the complaint against Hlophe as a deeply flawed one and finds that the reasons provided by the JSC for its decision were clearly unjustifiable.
Recall that the JSC decided to dismiss the complaint (by the Constitutional Court judges) and the counter-complaint (by Judge President Hlophe) because the majority of its members were of the view that the evidence of Nkabinde J and Jafta AJ, together with that of Hlophe JP did not establish and, at a formal enquiry, could not establish that Hlophe JP had attempted to improperly persuade them to decide the cases in Mr Zuma’s favour. It found that Jafta AJ’s evidence alone could not establish grounds for a finding of gross misconduct and that the evidence of Nkabinde J which contradicted that of Hlophe JP was immaterial to the matter at hand.
The SCA found this latter finding of the JSC irrational as Hlophe JP contradicted almost everything that Nkabinde J said. It follows that the JSC considered virtually everything that Nkabinde J said, thus virtually everything on the strength of which she drew the inference that Hlophe JP tried to influence her, to be immaterial in respect of the question whether he tried to influence her.
It cannot conceivably, rationally be considered to be immaterial to the question whether Hlophe JP tried to influence Nkabinde J that Hlophe JP said, when making an appointment to see her, that he had a mandate, that, when he visited her, he said that the reason why he was there was that a concern had been raised that people in the Constitutional Court did not understand our history, that he said, when asked who those people were, that ‘he has connection with some ministers’, that he said that the question of privilege should be decided properly because the prosecution’s case rested on it, that Nkabinde J reprimanded him for speaking about a case he was not involved in, that he said that there was no case against Mr Zuma and that Mr Zuma was being persecuted, that he said that some of the people implicated in the arms deal whose names appeared on a list he had obtained from National Intelligence were going to lose their jobs when Mr Zuma became President. These were the facts which the JSC had to consider together with Jafta AJ’s evidence, to determine whether Hlophe JP attempted to influence them. Once it had been determined that he did attempt to influence them the JSC had to decide whether his attempt to do so constituted gross misconduct of such a nature that it may justify his removal from office.
The problem for the JSC was that in the absence of cross-examination of the witnesses, its finding and reasons for the finding just do not add up. As the SCA points out, the JSC applied the criminal standard applicable at the end of a criminal trial, namely proof beyond reasonable doubt, to dismiss the complaint, at a stage when neither of the conflicting versions of the two judges on the one hand and Hlophe JP on the other hand had been tested by cross-examination.
Although the finding that it could not reject Hlophe JP’s version was quite correct, this did not mean that no-cross-examination was required:
By disallowing cross-examination that result was made inevitable. It would have been highly irregular to reject his evidence without having given him an opportunity to cross-examine his accusers. Utilising this procedure for the final resolution of a complaint of misconduct by a judge will always lead to a dismissal of the dispute where the conduct alleged by the accuser is disputed by the judge because the judge’s version can never be rejected without having given him an opportunity to cross-examine his accusers. The procedure adopted was therefore not appropriate for the final determination of the complaint.
The requirement of proof beyond reasonable doubt (the only reasonable inference) was similarly not appropriate. Not even in a criminal trial is proof beyond reasonable doubt required before the trial has run its course and an investigation of a complaint of gross misconduct is not a criminal enquiry but more in the nature of a disciplinary enquiry where proof on a balance of probabilities is required at the conclusion of the enquiry
As many of us pointed out at the time, this reasoning of the JSC did not seem plausible. Courts frequently have to decide where the truth lies between two conflicting versions and they often do so where there is only the word of one witness against another and neither of the witnesses concedes the version of the other. Although a court may, after cross-examination, still be unable to decide where the truth lies, “that possibility does not entitle a court to decide the matter without allowing cross-examination and it does not entitle the JSC to do so”.
The only credible option open to the JSC is to re-open the hearing, to call all the appropriate witnesses and to allow cross-examination of those witnesses — including the judges of the Constitutional Court and the Judge President. This procedure was not followed and this led to the finding that the procedure used was unlawful. If cross-examination had been allowed, it would have put the JSC in a position to decide whether the version by Hlophe JP or the version judges of the Constitutional Court who made the allegations about his alleged attempt to interfere with their work was the correct one. Such a finding would, in effect, require it to decide who had lied in this case.
If the JSC now revisits the matter as required by the SCA and if it makes the appropriate finding about whose version is truthful after cross-examining the witnesses, one would assume that the party or parties who are found to have lied would then be found to have been guilty of gross misconduct, which would trigger a recommendation of impeachment. This process may well be painful for all concerned. But as the SCA pointed out, sweeping the question under the carpet is not in the interest of the judiciary, the administration of justice and ultimately the citizens of South Africa.BACK TO TOP