Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
2 April 2009

For the record….

Cape Judge President John Hlophe’s lawyers wrote a letter to the Judicial Services Commission on March 27, accusing it of bias and raising several issues on the intended procedure to be used by the JSC. For the record I post here a list of the concerns. Judge for yourself whether these are valid or not:

* The absence of any protection for judicial independence,

* That the judges of the Constitutional Court did not formally lay a complaint against Hlophe after he allegedly approached two Constitutional Court Judges to influence them on a case regarding Jacob Zuma’s alleged involvement in the arms scandal,

* That the JSC remained silent when the complainants (the Constitutional Court judges), continued to deal with the content of their complaint against Hlophe in judicial proceedings,

* The Judges of the Constitutional Court issued court directions and invited the litigants in the matter,

* That the JSC took an adversarial position in litigation when Hlophe went to the courts to defend his constitutional rights (instead of remaining neutral),

* That the JSC took a posture denying Hlophe from processing his complaints quickly while they allegedly helped to fast track the resolution of the complaint when the judges of the Constitutional Court applied for leave to appeal,

* That the JSC proceeded to set dates for the hearing on the merits of the complaints, as if the outcome of the appeal by the Judges of the Constitutional Court to the SCA was already known to the JSC,

* That the JSC’s outlines of the areas of its inquiry are clearly one-sided and biased in favour of the Constitutional Court judges. (That the majority of the issues which were pertinent for Hlophe were not scheduled for consideration),

* That judges are under a duty to protect judicial independence when making complaints about other judges,

* That Justice Jafta revealed a part of the issues covered in a conversation with Hlophe, while at the same time making only partial disclosure of the information,

* That the JSC does not deal with the apparent contradiction in which the two judges are disavowing any intentions to be complainants or to make any further statements in the matter,

* That the JSC never sought clarification for the separate legal representation regarding this matter and the fact that lawyers who purport to represent all the judges are now speaking on their behalf, contrary to their stated position,

* That it is apparent that Judge Kate O’Regan played a significant part in developing, formalising and finalising the complaint, yet the JSC excluded her from the list of witnesses,

* That the JSC imposed on the parties its own ad hoc procedures and its own choice of the witnesses, without consulting Hlophe,

* Not all 13 Constitutional Court judges, who were identified as complainants, were chosen as witnesses, and Hlophe asks why certain judges were exempted from testifying,

* That the JSC has chosen Hlophe as a witness without consulting him,

* That the areas that the JSC had outlined for the investigation demonstrated clear bias.

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